Cameron Miranda
Customary international law and treaty law are both sources of international law. Customary international law consists of rules that come from a general practice accepted as law and exist independently of treaty law. Treaties, on the other hand, are written conventions in which states formally establish certain rules and are binding only on those states that consent to be bound by them. While customary international law and treaty law can coexist, a conflict between the two can arise. Treaties can deviate from customary international law, and the length of time required for a treaty provision to become a norm of customary international law depends on whether there is conflicting state practice and whether the norm overturns existing rules.
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What You'll Learn
Customary international law and treaty law are independent of each other
Treaties, such as the four Geneva Conventions of 1949, are written conventions in which states formally establish certain rules. Treaties are binding only on those states that have expressed their consent to be bound by them, usually through ratification. States can deviate from customary international law by enacting treaties and conflicting laws, but jus cogens, or peremptory norms, are non-derogable.
The laws of war, also known as jus in bello, were a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, the Geneva Conventions, and other treaties. However, these conventions do not cover all legal matters that may arise during war. Instead, customary international law governs legal matters concerning armed conflict not covered by other agreements.
Custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law, along with general principles of law and treaties. While many governments accept the existence of customary international law in principle, there are differing opinions on the specific rules it contains.
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Customary international law is based on general practices accepted as law
Customary international law (CIL) is a crucial aspect of international law, regulating the relationships between states, armed opposition groups, and non-state actors in armed conflicts. CIL is based on "general practices accepted as law", which means that it arises from established and widely recognised international practices and behaviours that are often unwritten and exist independently of formal written treaties. These practices are accepted as legally binding by states, even if they have not been formally codified in domestic law or through treaties. This recognition is essential, as it provides a foundation for international legal obligations that all states must adhere to.
The sources of CIL are diverse and include general principles of law, custom, and state practice. Custom, in particular, is recognised by the International Court of Justice, jurists, the United Nations, and its member states as one of the primary sources of international law. While there may be differing opinions on the specific rules contained in CIL, the concept of customary law itself is widely accepted. For instance, the laws of war, or jus in bello, were originally a matter of customary law before they were formalised in treaties such as the Hague Conventions of 1899 and 1907 and the Geneva Conventions.
The evolution of CIL is a dynamic process influenced by various factors. One key determinant is the length of time a practice or norm has been followed by states. For a treaty provision to become a norm of CIL, there should ideally be no conflicting state practices, and the new norm should not overturn existing rules. Additionally, widely ratified multilateral treaties that establish human rights prohibitions against genocide, torture, and slavery are seen by some scholars as confirmations of CIL, binding upon all states, not just the signatories.
While CIL is independent of treaty law, the two can interact in complex ways. Treaties can sometimes deviate from or conflict with CIL, and in such cases, the treaty provisions would take precedence. However, CIL also plays a crucial role in filling gaps left by treaty law, ensuring a comprehensive framework of legal obligations during armed conflicts. This complementary nature of CIL and treaty law highlights the importance of CIL in strengthening the protection offered to victims of armed conflicts.
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Treaties are binding only on states that consent to be bound
Treaties are a crucial source of international law, and they are binding agreements between nations. However, it is essential to note that treaties are only binding on states that have consented to be bound by them. This consent is typically expressed through ratification, as stated in the Vienna Convention on the Law of Treaties. According to Article 15 of the Convention, ratification is defined as:
> "...the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty."
This means that a state's consent to be bound by a treaty is often formalised and confirmed through the process of ratification. The specific procedures for expressing consent are outlined in Articles 11, 12, and 13 of the Vienna Convention. Consent can be expressed through various means, including signature, exchange of instruments, ratification, acceptance, approval, or accession, as outlined in Article 16.
In the context of the United States, for example, the process involves the President and the Senate. The President, with the advice and consent of the Senate, makes treaties, given that two-thirds of the Senators present concur. The Senate's role is to either approve or reject a resolution of ratification. If the resolution passes, ratification occurs through the formal exchange of instruments of ratification between the US and the foreign power(s).
It is worth noting that customary international law, on the other hand, is derived from "a general practice accepted as law." This means that it is based on established or usual international practices and exists independently of treaty law. Customary international law is of crucial importance, especially in filling gaps left by treaty law, thereby strengthening the protection offered to victims of armed conflicts.
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Jus cogens are non-derogable peremptory norms
Jus cogens, or peremptory norms, are fundamental principles of international law that are accepted by the international community of states as non-derogable norms. They are rooted in natural law principles, and any laws conflicting with them are considered null and void. The number of jus cogens is considered limited but not exclusively catalogued. They are not listed or defined by any authoritative body but arise out of case law and changing social and political attitudes. Generally, they include prohibitions on waging aggressive war, crimes against humanity, war crimes, maritime piracy, genocide, apartheid, slavery, and torture.
The concept of jus cogens has been traced back to discussions of the necessity of such norms in the 18th century, in works such as Vattel's "The Law of Nations" and Christian Wolff's "Jus Gentium". However, it was the judgments of the Permanent Court of International Justice in the S.S. Wimbledon case in 1923 that indicated the existence of a peremptory norm, stating that state sovereignty is not inalienable. Under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.
The case of Michael Domingues v. United States provides an example of an international body's opinion on a jus cogens norm. Michael Domingues, a juvenile offender sentenced to death in Nevada, brought his case before the Inter-American Commission on Human Rights, which delivered a non-legally binding report. The Commission concluded that there was a jus cogens norm prohibiting the imposition of capital punishment on individuals who committed crimes before reaching the age of 18.
Jus cogens norms are of crucial importance in today's armed conflicts, as they fill gaps left by treaty law and strengthen the protection offered to victims. They are considered hierarchically superior and protect the fundamental values of the international community. For example, the prohibition of torture is a rule of customary international law regarded as jus cogens.
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Custom is a primary source of international law
Customary international law (CIL) is a primary source of international law, alongside treaties and general principles of law. CIL is defined by the International Court of Justice Statute in Article 38(1)(b) as "a general practice accepted as law". This means that CIL consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behaviour that are often unwritten, as opposed to formal written treaties or conventions.
Customary international law is recognised by states, the International Court of Justice, jurists, the United Nations, and its member states. CIL is of particular importance in today's armed conflicts, as it fills gaps left by treaty law and strengthens the protection offered to victims. For example, the laws of war, also known as jus in bello, were a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these conventions do not govern all legal matters that may arise during war, and Article 1(2) of Additional Protocol I dictates that CIL governs legal matters concerning armed conflict not covered by other agreements.
A rule becomes customary international law if two requirements are met. Firstly, there must be a state practice that is sufficiently widespread, representative, and consistent, showing that a significant number of states have used and relied on the rule, and the concept has not been rejected by a significant number of states. Secondly, states must be motivated by a belief that they are legally compelled to accept the legitimacy of the rule in question because CIL obligated them to do so (opinio juris).
States are typically bound by CIL, regardless of whether they have codified these laws domestically or through treaties. This is because CIL is a pervasive international norm, and all that is needed for a state to be bound by it is that the state has not objected to the law. However, states that object to CIL may not be bound by them unless these laws are deemed to be jus cogens. Jus cogens, or "compelling law", is a fundamental principle of international law that is accepted by the international community of states as a non-derogable norm. While all jus cogens are CIL through their adoption by states, not all CIL rises to the level of peremptory norms. States can deviate from CIL by enacting treaties and conflicting laws, except in the case of jus cogens, which are non-derogable.
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Frequently asked questions
Customary international law consists of international legal obligations that arise from established or usual international practices. These practices are less formal customary expectations of behavior, often unwritten, as opposed to formal written treaties or conventions.
Treaty law, such as the Geneva Conventions, are written conventions in which states formally establish certain rules. Treaties are binding only on those states that have consented to be bound by them, typically through ratification. Customary international law, on the other hand, exists independently of treaty law and is based on general practices accepted as law.
Yes, states can deviate from customary international law by enacting treaties and conflicting laws. However, it is important to note that not all treaties or customary international laws have the same weight.
Jus cogens, or "compelling law" in Latin, are peremptory norms that are fundamental principles of international law. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms. Jus cogens are non-derogable, meaning any conflicting laws should be considered null and void.
Yes, customary international law can evolve. For example, newer scholarship challenges strict adherence to state practice and opinio juris, advocating for a more relaxed interpretive approach. Additionally, widely ratified multilateral treaties establishing human rights prohibitions against genocide, torture, and slavery are argued to confirm customary international law binding upon all states, not just signatories.
