Describe the relationship between treaties and customary international law - Essay Example

On the other hand, treaties are deliberate agreements that create clear rights and/or obligations for the parties. Treaties are also referred to as convention, charter, protocol, covenant, pact, statute and concordat2. As far as customary international laws are concerned, peremptory norm (jus cogens) originate from principles of international/natural Law and surpasses all laws. Examples include those that govern international crimes such as slavery, mass evictions, torture, mass murders, aggression wars and criminal activities against humans.

Peremptory norms and international customary laws cannot be interchanged. All peremptory norms become international customary laws after states adopt them. However, not all international customary laws are considered as class of jus cogens. States can move away from international customary law by creating treaties and laws, but peremptory norms are not derogable3. There are two elements that are crucial for formation of the CIL. These are the general state practice behavior patterns and opinion juris, which is simply a legal expectation that certain point is appropriate.

It is always a requirement that both elements coincide, as much as element two is the one that matters in practice. Opinio juris is gathered from the general legal expectations that are shared by humankind, and not some groups. It is worth noting that none of the two elements are subject to universal acceptance, yet CIL has a universal obligation for people and nations. Additional, no consents from nations is necessary but it seeks to align the international community. These features are reflected in various cases. In UK V. Norway Fishing case, UK suit Norway over its claims over exclusive fishing rights and control over expansive waters.

The ICJ ruled that the claims by Norway were never in line with the international laws regarding water resources. In the Colombia v. Peru Assylum Case, ICJ made recognition of the Article 38 of the international court of justice statute comprising of general customs and local customs. Further stipulating that for customs to be proven they ought to have been uniformly and continuously executed. Countries that have an objection to international customary law may not submit to the laws unless deemed by peremptory norms.

The ICJ statute recognizes the existence of international customary law enshrined in article 38(1)(b), which was incorporated by Article 92 of the UN charter4. Treaty and customary international law combine together for the benefit of general international law. Customary international law directly reflects state behavior and so it evolves naturally to meet the needs of the global society. Customary international law is flexible and it can be dynamic in nature. Customary international law rules may be unclear and they cannot be developed quickly.

Treaties can clarify Customary International Law; for instance, the provisions of the VCLT codified CIL in this are of law. Treaties can develop Customary International Law, for example, the provisions of the United Nation Convention on the Law of the Sea (1982) developed CIL rules relating to the Exclusive Economic Zone. Lastly, treaties can inspire new Customary International Law5. Although treaty and international customary law are regarded as different law sources, separating these two entities is not