Customary International Law - Essay Example

?International Law Q. In relation to customary international law, what are the difficulties involved in determining practice” and how is it possible to separate State practice from “opinio juris”? Table of Cases Cited No. Title of Case Year 1 Trendtex Trading Corp v Central Bank of Nigeria 1977 2 The Paquete Habana Case 1900 3 North Continental Shelf Cases: FRG v Denmark; FRG v the Netherlands 1969 4 Asylum Case of Columbia v Peru 1950 5 Nicaragua v USA (Merits) 1986 6 SS Lotus (France v Turkey) 1927 7 Charlton v Kelly 1913 8 United States v Belmont 1937 Table of Statutes Cited No. Title of Statute Year 1 Resolution 1970 of the UN Security Council 2011 2 Article 38(1)(b) of the ICJ 1945 3 Article 38(2) of the ICJ 1945 4 Article 1 of the UN Charter 1945 5 Articles 2(3) & 2(4) of the UN Charter 1945 6 Articles 51 & 53 of the UN Charter 1945 7 Vienna Convention on the Law of Treaties 1969 8 General Assembly Resolution 2625 XXV 1970 9 Manila Declaration on the Peaceful Settlement of Disputes 1982 10 Article 59 of the ICJ 1945 11 Article 38(1)(d) of the ICJ 1945 12 The Genocide Convention 1948 13 International Human Rights Law 1945 INTERNATIONAL LAW DEFINED Primarily speaking, International Law may be defined as the body of laws, precepts and regulatory principles that govern relationships between states on the world stage. As states interact with each other in worldly affairs, a political, economic or financial business situation may be created whereby there is a disagreement or difference of viewpoint or even rules of conduct. As a result, one or both state entities may feel cheated and may either decide to settle their differences amicably with one another on agreed terms, resort to aggressive tactics like wars and embargoes or appeal to internationally recognized institutions like the International Courts of Justice and the United Nations Organization to solve their problems. For example, the UN last year has intervened to monitor the situation in Libya arising from the formation of opposition groups seeking to overthrow the corrupt and decadent regime of Col. Muammar Gaddafi. It passed Resolution 1970 on February 26, 2011 under which it condemned the escalation of violence in Libya, noting the loss of lives and heavy civilian casualties that defined crimes against humanity and the civilian population. It demanded a ceasefire and cessation of violent activities, ensuring safety and security to both citizens as well as foreign nationals. It also pressed for safety of the media which was instrumental in bringing information as to the actual situation on the ground. Among other things, the adoption of this resolution resulted in an arms embargo, the creation of a no-fly zone and freezing of assets as recommended by a high level Committee created in the aftermath of the Arab League meeting and the Organization of Islamic Conferences on the situation. Thankfully, the situation is now returning to normalcy since Gaddafi has been deposed and killed and the rest of his family is either in exile or has been arrested or killed. At the present time, the world community especially European and US officials have asked the Security Council to pass a similar resolution against the regime in Syria, considering the nine month crackdown on protestors in which thousands have been killed or arrested. In terms of Lord Denning’s definition, given at the judgment of the case of Trendtex Trading Corp v Central Bank of Nigeria (1977), International Law may be described as ‘the sum of the rules or usages which civilized States have agreed shall be binding upon them in their dealings with one another’. It is primarily concerned with the behavior of States, and comprises the body of principles, rules and customs recognized as binding obligations by sovereign States and international entities. Higgins points out that ‘it is a system of normative conduct that States consider obligatory to follow’ and as may be formally defined by various conventions and agreements published by the United Nations, the International Courts of Justice and other such global entities. States may also follow regional agreements and conventions like that of the European Union or the NATO members, the OIC, the OPEC and other such internationally recognized legal entities. Such rules and conventions prevent a nation from acting unilaterally when faced with a problem that has regional or international implications. WHAT IS OPINIO JURIS? When we consider the sources of international law, the two most commonly accepted doctrines are those of State Practice and Customary Law. State practices are usually based on international customs. According to Article 38(1)(b) of the ICJ Statutes, international customs are formed by a combination of generally accepted state practices and the law of necessity or obligation. This law of necessity or obligation is usually referred to as ‘opinion juris sive necessitatis’ and abbreviated to ‘opinio juris’ for convenience of use. Thus opinio juris brings into play the subjective element of international law. A State may be forced to retaliate against an unprovoked act of aggression committed by a neighboring country, and can authorize the use of force under the doctrine of necessity stating that such an action was necessary to protect its borders and national interests. This action is warranted because in the absence of other factors, the actions of the hostile neighbor amount to an Act of War. Because opinio juris is subjective and depends upon the psychological beliefs of the state actors involved, it can be difficult to establish why the State or its authorized and elected representatives chose to act, or alternatively not to act in a certain way. One instance where the doctrine of ‘opinio juris’ was referred to was in the case of deciding whether or not small fishing boats could be captured during war with another state. In the Spanish-American War of 1900, the USA had captured the Paquete Habana and the Lola, two Cuban fishing boats in the warzone. While the US District Court argued that the Navy had acted within its jurisdiction, the Cubans countered that customary international law prohibited the USA from seizing the vessels. According to conventions, coastal fishing vessels including their cargo, and crew are exempt from capture as the spoils of war. This established rule in international law had existed from early English customs to protect peaceful fishermen from wartime seizures (Wallace, 2007, 121). The caveat is that these fishing vessels should be going about their normal duties and activities and not acting as spy agents or camouflaging other enemy actions. The US Supreme Court also agreed with this international law, with the effect that all US rules of engagement following this decision leaves fishing boats unharmed if the crew are only involved in the peaceful act of fishing. THE EMERGENCE OF INTERNATIONAL LAW Although there have been many sources of international law and practice, it is surprising to note that the formal codification and wider acceptance of these rules has been made possible only after the Second World War. The League of Nations was the first concerted effort by the USA to get all nations under one roof to agree to general principles and codes of conduct- its primary purpose was to prevent the outbreak of another war like World War I. The League grew out of the Paris Peace Conference that ended World War I and was proposed by US President Woodrow Wilson and his adviser Colonel Edward House- it was a key proponent of Wilson’s Fourteen Points for Peace and sought to end all conflict so that a situation like World War I was never created again(Lowe, 2007, 129). However, it was not very effective as political conditions deteriorated once again resulting in World War II. It merely provided a cooling off period for those involved in conflict. The League depended on the Great Powers for success but failed to prevent Mussolini’s acts of aggression and was unable to enforce sanctions against him. Nevertheless it is considered the forerunner of the United Nations. Apart from this, the local components of International Law are found in each State’s Constitution, legislation and judicial decisions under common law jurisdictions. Some of these matters are even decided by a country’s Parliament as it has a central role in the law making of the land. The absence of a central law making institution and the enforcements of the ICJ, the UN and other bodies depend on the same members for their enforcement. The decisions of the International Court of Justice are derived from its interpretation of the situation or event that has occurred vis-a-vis the various international conventions, statutes, laws of custom, general principles of conduct, judicial decisions and opinions and writings of various publicists, subject to Article 59 of the ICJ, as to what should or should not be done in a given situation. The Vienna Convention on the Law of Treaties 1969 is another popular source of reference (Brownlie, 2008, 608). Treaties can be made between two or more States or even between a State and an international organization. Custom is also recognized under Article 38 (1)(b) of the ICJ which refers to International Customs as being evidence of general practice accepted by law. Under Article 38(2), the ICJ can also decide a case ex aequo et bono, if the parties agree thereto (ICJ Website, 1945). IS THE U.N REALLY A LEGITIMATE FORCE IN WORLD AFFAIRS? The UN was formed in 1945 as an international organization- it replaced the League of Nations. The purposes of the UN as described in Article 1 of the UN Charter are: (i) to maintain international peace and security; (ii) to develop friendly relations among nations based on equal rights; (iii) to solicit the cooperation of member nations in solving problems of economic, cultural, social or humanitarian character; and (iv) to be a centre for harmonizing the actions of nations to achieve these common ends (The UN website, 1945). Yet looking at the mixed performance of the UN ever since its creation, it is doubtful if these objectives have really been achieved. Inability to solve the Kashmir dispute of India and Pakistan, the poor and late handling of the Rwandan conflict in 1993 and the Bosnian and Kosovo conflicts of the 1990s as per International Human Rights Law 1945 and the Genocide Convention 1948 and the lack of action in stopping the USA from attacking Iraq on mere suspicion of WMD by Saddam’s regime are some examples of where it has failed. Another point of contention is the unilateral action of Israel in expanding and changing its boundaries while the world community is silent. Actually the UN has inherited the same weaknesses as the League of Nations- the veto rights given to the Great Powers like Russia, China and the USA often prevent workable solutions to problems. It is hardly any surprise then that Europe and other decolonized nations since the end of World War II have been discontented by the performance of the UN and consider it a product of Western design. A number of nations have adopted the General Assembly Resolution 2625 XXV of 1970 which applies to all States and has been adopted by consensus. It is also supported by the UN Charter. Further, actions regarding use of force and peaceful settlement of disputes in the international arena are subject to the four Geneva Conventions and Article 51 and Article 53 of the UN Charter; recourse is also being had to the Manila Declaration on the Peaceful Settlement of Disputes 1982 (The Avalon Project website). DIFFICULTIES IN ADOPTING STATE PRACTICES While Article 38 (1)(b) of the International Court of Justice recognizes both State practice and ‘opinio juris’ as sources of international law, there may be some inherent difficulties in State practices being adopted as international law. The first difficulty is that States usually act in their own best interests, and may take one action today while adopting another course of action at another time. State policies are usually dictated by the sympathies of the ruling Government with other nations, even depending on the current geopolitical situation. The length of duration of a practice is of less importance compared to how uniform and extensive a custom is among the states comprising the world community. This was the ruling held by the ICJ in the case of the North Continental Shelf Cases: FRG v Denmark and FRG v the Netherlands (1969). The second point is that the practice must be consistent and uniform. In the Asylum Case of Columbia v Peru (1950), when Columbia asked the ICJ to allow a decision based on regional custom, the ICJ ruled that ‘regional custom’ was too uncertain to rely upon. Interpretations of the ICJ have differed from time to time as well- in the judgment on the North Continental Shelf Cases (p 49) the ICJ stated that the practices must be ‘both consistent and virtually uniform,’ while in Nicaragua v USA (Merits) (1986) the ICJ stated that it was not necessary for the practice to be in ‘absolute rigorous conformity.’ In the case of the SS Lotus of France v Turkey (1927), where French and Turkish ships had collided on the high seas (Harris, 2010, 27) the decision by the PCIJ was that though States had refrained from taking legal action and by custom allowed decisions to be made by the Flag State in the jurisdiction of the event, this convention of abstention could not be considered an international custom. Therefore it is apparent that there are some difficulties in adopting State practice as a source of International Law. We therefore also take into account ‘opinio juris’ or conventional custom as a means of reaching decisions. Meanwhile a good resource of State practices can be found through official legal correspondences, policy statements, manuals, judicial decisions and ratification and adherence to international treaties. It may even include cases of extradition of criminals as in Charlton v Kelly (1913) or distribution of confiscated property of foreign nationals as in United States v Belmont (1937). SEPERATING STATE PRACTICE FROM ‘OPINIO JURIS’ Given that State practice by itself is not always sufficient to be a source of International Law, recourse must also be had to ‘opinio juris’ as the supporting element for it to be considered as admissible international custom. Additionally the ICJ has also referred to pertinent judicial decisions and writings by publicists as a subordinate source of international law while making judgments on contemporary issues. Further, Article 59 of the ICJ warns that the decisions of the ICJ in regard to a particular case have no legal binding except between the parties to the case- which means that each decision is individual and specific to the given case. Article 38(1)(d) of the ICJ allows the teachings of the most highly qualified publicists of the various nations to be admissible as a subsidiary source to be considered while determining the rules of international law. The works of Grotius, Oppenheim and Kelsen stand out at the current time (BICIL website). Treaties and agreements with international organizations also are an important source of international law, as membership to these organizations invariably involves the acceptance of their charter, along with adherence to the principles and purpose for which the organization was founded. In cases of disagreement over a proposed action or resolution, a member nation can always voice its opinion and should do so rather than just abstaining from vote (United Nations Audio-visual Library website). It is therefore clear that while the body of International Laws has been well established in some spheres of activity, in others it is just a novice and is still finding its way (Shaw, 2008, 42). It is also evident that as technological advancement ensues, new and unheard of cases will undoubtedly be heard. In all these cases, customary practices and conventions as followed by most of the world community will undoubtedly be upheld and have a good chance of being admitted into the principles of international law (EISIL website). Quite simply and understandably, both international and domestic judicial decisions are invariably enriched and strengthened by principles and practice and this includes State practice and opinio juris, as well as the writings of publicists on contemporary issues. References Brownlie, I. Principles of Public International Law (7th ed.) Oxford, UK: Oxford University Press, 2008. Harris, D. Cases and Materials on International Law (7th ed.) London: Sweet & Maxwell, 2010. Lowe, A. International Law. Oxford; Oxford University Press, 2007. Shaw, M. International Law (6th ed.) Cambridge, UK: Cambridge University Press, 2008. Wallace, R. International Law (2nd ed.) London: Sweet & Maxwell, 2010. Website of the Avalon Project, Yale University. Accessed on 04 Jan 2012 at http://avalon.law.yale.edu/default.asp Website of the British Institute of International and Comparative Law. Accessed on 04 Jan 2012 at http://www.biicl.org/ Website of the Electronic Information System for International Law (EISIL). Accessed on 04 Jan 2012 at http://www.eisil.org/ Website of the International Court of Justice. Accessed on 04 Jan 2012 at www.icj-cij.org Website of the United Nations. Accessed on 04 Jan 2011 at www.un.org Website of the United Nations’ Audiovisual Library. Accessed on 04 Jan 2012 at http://www.un.org/law/avl/ Read More