The Demise of Custom as International Law - Essay Example

Law Introduction Customary laws in its simplest form are a body of rules unofficial and generally unwritten established through cultural or societal norms. Customary laws apply to international law when the conduct of countries becomes so consistent that it is universally believed to be codified as actual law. Customary law can be defined as a rule of conduct which is customarily recognized, adhered to and applied by the inhabitants of a particular community in their relationship with one another within and outside the particular community and which has obtained the force of law, in that non compliance with the rule or custom in question attacks adjudication and possible sanctions1. Customary laws still reside the basis of new laws in modern societies. For instance in the United States, United Kingdom and other countries custom laws takes the form of common law. Modern legal issues such as the application of commerce laws to the internet in the 1990s, started as customary laws. For custom laws to be applied in the international law it needs to have met three conditions. One it should have widespread recurrence in that many states need to be applying that law in their countries. Secondly, each nation should have a sense of obligation to have the set standard and in enforcing the laws2. Third the laws should bring about little dispute among the states internationally to be able to be applied. Customary legal systems tend to the following basic principle in their application. One there should be a strong concern for individual rights. Two; laws enforced by victims backed by reciprocal agreements. Thirdly, standard adjudication procedures must be observed to avoid violence. Four offences treated as torts punishable through economic restitution, five legal changes by means of an evolutionary process of developing customs and norms Cultural law can be seen to have some advantages for the following reasons. They are flexible and easy to implement to suit the situation at hand. Because most of the customary laws are from the peoples who believe they are normally are easily changed and accepted. The peoples and the community’s cultures are given some sense of recognition by these customary laws hence making them easily acceptable to many people in the world. It also gives assurances to the minorities in the world that their way of life is given some preference in the application of law universally3. Through the application of customary laws, it gives the people a sense of belonging and recognition in the application of the laws. Most customary laws have undergone changes in their content, interpretation, and enforcement. While changing, they can also stagnate if amid their evolution, the people give them a rigid interpretation especially if the customs continue when their social base has changed. A community may justify their continuance or avoidance by stating that its forefathers have ordained them. The customary laws change also when they are codified particularly when the formal system that has a written document as its base recognizes them. Discussion Presently, in a majority of cases, where customary law conflicts with domestic law the latter prevails, the exception being where a national law can be shown to conflict with constitutionally recognized customary rights. In such cases, the aggrieved party will still need the authorities to amend the offending legislation, and to take such remedial measures as may be required to redress any wrong, which has occurred. In some cases, there may be little hope of redress where irreversible exploitation of resources has occurred. Where no constitutional protection exists, communities will forever be dependent upon the goodwill of the national authorities, as legislative action can at any time result in the abrogation of ancestral rights. Customary law and practice may be undermined by adoption of culturally insensitive national laws. Similarly, traditional authority is being eroded as those unhappy with their decisions seek recourse to alternative decision-making authorities. Despite having numerous advantages, customary laws can have some disadvantages in that most of these laws are unwritten hence make it difficult to defend in a competent law courts. Some of the customary laws are barbaric in nature and may not be universally accepted by many of the people in the new modern societies4. Since the world is generally democratic, the implementation of some of the customary laws can become hard as most of these laws were created by autocratic states. The demise of custom as international law has been widely forecasted. Whole custom has become a significant source of laws in important areas such as human rights obligations, codification convections and case law of the international court of justice have also contributed to the increased resurrection of the customs. These convections have ultimately raised two opposing approaches which are termed as traditional custom and modern custom. Customary rules of interpretation play a part in any legal system however codified: no written law can give exhaustive directions on its own interpretation, so customary rules and practices inevitably guide judicial interpretation. And those customary rules and practices themselves in turn will be subject to change and development through interpretation. Ancient and modern, international, civilian and common law: every interpretation and application of a written law relies on a complicated set of shared customs. And, once given, each interpretation and application of a written law itself extends that same set of customs. Customs are the ones that enable us to link the abstract legal system to the particular factual situations. The statute of the International Court of Justice describes custom as “evidence of a general practice accepted as law” custom is generally considered to have two elements: state and opinion jurist. State practices refer to general and consistent practice by states while opinion jurist means that practice is followed out of a belief of legal obligation5. Traditional custom is evolutionary and is identified through an inductive process in which a general custom is derived from specific instances of state practice6. Human Rights are those fundamental rights to which a person is “inherently entitled simply because she or he is a human being. Human rights are therefore considered as universal. These rights can exist as a natural right or as a legal right, and has become more prominent in both national and international law. Many of the Human Rights concepts are a direct result of the Second World War and the atrocities seen during The Holocaust. The Universal Declaration of Human Rights is a product of this. This declaration was introduced in 1948 and although it was not intended to impose any legal obligations, it was proclaimed to serve as a “common standard of achievement for all people and nations”7 These Human Rights issues have become more pronounced over recent decades with various councils and commissions becoming more influential in their work. These types of groups work in preparing studies and recommendations. The responsibility of states to prevent human rights abuses is also beginning to be seriously considered, there are many human rights issues. The rules of jus covens are preemptory norms and they generally require or forbid a state to do particular acts or respect certain rights8. There is also a list of criminal offences which the state must enforce against individuals which are the Human Rights norms. The principles of jus cogens therefore bear increasing relation to the principles of human rights and aid in their protection. The jus cogent rules are enshrined in Article 53 of the Vienna Convention of the law of Treaties and no derogation from jus cogens is permitted. The substantive areas covered by jus cogens is limited however they are not exclusive, the main areas are the prohibition of threat or use of force and the basic human rights norms which include the prohibition of war, crimes against humanity, genocide, slavery, torture, terrorism and discrimination. Customary law is still applied in the newly formed Southern Sudan and has some challenges in the modern day world. According to Akeckak, et al, there seems to be a conflict within Southern Sudan that is still struggling from gaining independence, civil war and changing economic tides. In the history of Sudanese jurisprudence, much of the controversy over the definition of customary has related more to its scope than meaning9. Disagreement existed between the judiciary of the colonial era, which advocated a restrictive definition, and the Sudanese courts, which favored a wider definition to include the canon law or personal laws of other communities domiciled in Sudan. Each different tribal group in Southern Sudan has its own discrete body of customary law and there are thought to be over fifty separate tribal groups in Southern Sudan. In effect, there are fifty separate bodies of customary laws. But most of the customary laws in the state of Southern Sudan have some common features such as listed below; Marriage; which includes the scope of union, successive marriages, procreation, sexual cohabitation, marriage payments, and ceremonies. Adultery cases which involve penalties such as divorce: including marriage nullification criteria, consent issues, and bride wealth. Child custody: including choice of law in property distribution. Property: including transfer of title, tracing, testate, and intestate succession and inheritance, land law, personal property, resource rights (including minerals, water, and animals) and loss of title. Social obligations must be enforced to enhance contractual undertakings, tort liabilities for homicide, and liability for injury caused by animals. Procedural laws should also be observed to alleviate foundational principles of customary case management. There are some key issues that the community of Southern Sudan faces when they try to apply custom law to their current modern state such as; Reconciliation and social stability as a basis of customary law. The state of Southern Sudan is struggling with getting social stability to its people, reconciliation among tribes and enact law and order in the region hence there come some issued on whether to use international laws or use their own customary laws (Akeckak, et al 23)10. Change must come from within and at an acceptable pace it also seen that change must come from the tribes and the government of Southern Sudan in the way the like with the outside world. Sudan being a newly independent state must strive to pass these customary laws to all the tribes and make then universally accepted. Another issue is the forces of Change that the government of Sudan must resolve after civil war. Twenty years of conflict has undermined and perhaps irredeemably altered the traditional balance at least of power and systems of governance at the community and tribal level throughout Southern Sudan. It could also be argued that 20 years of war has, in terms of technological advancement, left southern Sudan frozen in the last Century. But change is already beginning to happen at almost every level of society and as the region opens up and peace and stability return the pace of change will rapidly increase. Some of the key forces for change are the involvement of the international community, particularly those organizations whose ethos is rooted in individual and human rights. The second great force for change, which will influence customary law, is technological, global, and irresistible, the information revolution. The influence of this information revolution upon the traditional tribal structures, customs and practices is impossible to predict at this point, but if history is any judge, it will be rapid and far-reaching. In particular it will revolutionize education and in doing so change the traditional balance of social power at the family level. The young will have unfettered access to bodies of knowledge completely foreign to their elders. Their understanding and expectations will consequently be manifestly different from their elders. ‘Old’ customs and practices will be questioned and maybe even abandoned by the young. The potential for family and community conflict will be great and the effect on customs and customary law will be fundamental. Twenty years of martial law and military influence upon society has greatly affected customary law. At the community and tribal level the role of the chiefs, their ability to affect power and execute local governance and laws has been severely constrained by military imperatives. In many areas, military courts have supplanted local courts and military law has replaced customary law11. Military commanders have replaced tribal chiefs in the execution of justice and the AK47 and olive green uniform has become the visible totem of power. Fourth are Social Dislocation and Internally Displaced Persons. The impact of this social dislocation upon customary law is quite considerable in that minority tribal groupings (individuals and families) with differing customs and laws are appearing in traditionally homogenous tribal areas. For the most part, those responsible for executing the law have developed very good coping systems to overcome the potential for conflict of custom. Conflict between Customary Law and Shariah Law. Of all the factors affecting southern Sudanese customary law, Shariah Law has traditionally been the greatest threat to its continued existence. The civil war has its very origins in the attempts by the Government of Sudan to impose ‘Islam’ upon the peoples of the southern regions There are Four Areas of Law that customary law has been applied in Southern Sudan. They are; Family Law that includes the family, levitate wife inheritance, marriage as an alliance of families, bride wealth, bride wealth and the family, Land Law includes law of property, development of property and title ownership and inheritance Law of Obligations that includes law of inheritance, reconciliation and defamation and procedure of reporting cases. Conclusion Even though soft laws under the international law have a limited normative force, these laws can be introduced to different states to enable them adopt at the national level regulatory measures as well as adequate materials that can later turn these soft laws into hard laws that can be enforced by the international court so to speak. There are some key human rights issues that the Sudan government must address for it to be able to fully implement its mandate under the international laws. A number of the more obvious and contentious issues of human and individual rights under the application of some aspects of customary family law might be addressed urgently without great risk of social disruption and to the benefit of women and children in particular and society in general. These include: Giving women equal status before the law especially on matters of forced marriages. Amending adultery laws, which potentially encourage unscrupulous husbands to use their wives as wealth-creation entities through abuse of Court imposed penalties. Amending adultery laws, which result in children being unfairly incarcerated by the action of Courts by punishing one or both of their guardians. Prohibiting child prostitution at all levels, amending customary laws forbidding widows living on in the deceased husband’s estate unless they consent to ‘inheritance by the deceased’s kinsman; repeal customary laws, which sanction physical abuse of women; repeal customary inheritance laws which may prevent female children inheriting property from their family. In conclusion the links between national governance and customary law, traditional knowledge and customary land tenure, require in-depth comparative analysis, if best practices for the development of interfaces between differing legal regimes are to be identified12. Customary law, just like any other soft laws is not itself a source of inter-tribal conflict. To the contrary, the basic tenet of customary law and soft laws is reconciliation, which makes it a vital tool in conflict resolution. In the immediate post-conflict period, as populations return to old tribal areas, old disputes, dormant for many years will resurface and new disputes are inevitable. Conflict resolution through customary law will be essential to developing a peaceful and fair society. The world needs to address the issues of customary laws keenly as it unites the population of the world more than any other laws around. A task force need to form that can analyze and unite the different customs to form one universally accepted law. Works cited Malcolm, Shaw. International Law. 6th edition Cambridge University Press, (2008). Akeckak, et al. “A study of la in Contemporary Southern Sudan.” World Vision International: (March 2004) Barbora, Sanjay. “Ethnic Politics and Land Use: Genesis of Conflicts in India’s North- East.” Economic and Political Weekly, 37 (n. 13, March 30-April 5), pp. 1285-1292. Gardner. “Neither Bush nor the “Jurisprudes.” 97 AJIL (2003) 585, at 585 ff. Macmillan (1961) Hillier, Thomas. Principles of Public International Law. NY: Cavendish Publishing, 1998. p. 109. Obilade, A.O. The Relevance of Customary Law to Modern African Society. London: Mcmillan. 2008. Print Pollock, Fredric. “Jurisprudence & Legal Essays.” African Online Journals, 2010. Shaw, Malcolm. International Law. 6th Ed. NY: Sedge, 2004. Print. Singh. Klen. S. Tribal Ethnography Customary Law and Change. Concept Publishing Company, New Delhi, 1993. Print Youkins, Eunice. Customary law as an evolved good shortcut. 2003. Web. 14th Jan 2012. Read More