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20190415202014chpt_8_il_creation_custom.pptxInternational Law-Creation: Custom
Cassese Chpt 8
8.1 Introductory Remarks
What are the two principal methods for creating International Laws?
Treaties
Custom
Traditionally Custom IL was made by ‘tacit agreement’, what does ‘tacit agreement’ mean?
Expressed or carried out without specific words, agreements, treaties
If States could prove that it had tacitly or expressly opposed a customary rule, the rule would not be binding on that State
8.1.2 New Trends
Historically is either form of Law (customary or treaty) superior to the other?
No
BUT now there is a hierarchy in IL.
What type of IL is superior to all other rules in IL?
Peremptory rules or jus cogens
Fundamental values enshrined by States to be upheld/protected in IL
8.2 Customs (PAGE 156)
What is customary international law?
1) Customary IL is not made deliberately, but is developed through the general agreed upon behavior of states over time, ‘spontaneous process’ or ‘unconscious and unintentional lawmaking’
2) Customary IL applies to ALL states, or regional groups of States as the case may be
8.2.2 Elements of custom
How is a custom born? Usus and Opinio—what does this mean?f
Actions of states and written opinions/decisions of States over time
Usually, a practice evolves among certain States under the impulse of economic, political, or military demands
Should not invade another country’s territory, because you don’t want them to invade you
Should not send arms to rebels in another country, because you don’t want other countries to arm your rebels
Should not pollute river water, because you do not want other nations to pollute your water
Should not torture prisoners of war, because you do not want your soldiers tortured
Should not subject other countries to your nation’s courts, because you do not want to be subject to their courts
Should protect civilians in times of warfare, because you would want your civilians protected
Eventually, states begin to conform to these behaviors, because they recognize a unsaid rule/norm of proper behavior—at that moment the custom is born
Does non-compliance with a customary rule mean that a rule has not come into being a customary rule?
No, not necessarily
Especially if generally everyone follows the rule, and sees the other State as a rule breaker for not following the custom
8.2.2 Elements of Custom
When trying to determine if a new custom exists, how does time come into play? (last paragraph pg 158)
The court considers certain elements when deciding if a practice has become customary:
1) Subjective element: is there a conviction/belief that a new standard of behavior is necessary, or is already binding?
2) Objective element: is it a well-settled State practice?
3) TIME—how much time has elapsed in the creation of this new custom/norm/rule—need some time
8.2.3 The Role of usus and opinio in international humanitarian law
The aforementioned court considerations for the creation of customary law are true, except in cases of humanitarian law of armed conflict.
Previously customary IL required that MOST States followed the practice, it needs to be crystalized, and well settled by time
What does the Martins Clause, 1899 adopted at the Hague Peace Conference, argue?
There can be customary laws regarding the restriction of warfare that are developed without widespread State practice
Why?
Need to balance rights of States in war and protect human beings from the devastating impact of warfare
Furthermore, to wait for universal, or near universal, State practice would mean to wait for years only after thousands of civilians are killed
8.2.4 Customary Rules
Do Customary rules need, at their birth, the support of all States to become a custom?
Previously in the traditional era—yes
Modern Era—no
Sufficient for a majority of States to engage in consistent practice corresponding with the rule and be aware of its imperative need
States are bound if they have been indifferent, or refrained from expressing an opinion
8.2.5 Objection by states to the formation of a customary rule
Can a State that objects to the formation of a customary rule disassociate itself from such a rule and thus remain free from the obligations it imposes?
Not really
Some argue that States may dissociate itself from nascent rules by the theory of ‘persistent objector’
Cassese said that in practice the ‘theory of persistent objector’ is not recognized
Are new States bound by existing International Laws and customs?
Yes
8.3 Local Customary rules
What is a local customary rule? How does one operate?
1) It has to be tacitly accepted by all the parties concerned
2) Its existence must be proved by the State that invokes it
Can there be a local custom between just two States?
Yes
8.4 The Present role of custom
According to Cassese, there are some reasons why the role of Custom in International Law has declined since the end of WWII?
More countries—Third World and Socialist states argued that customs needed to be revised as they reflected the Old West’s views
The World is diverse today, difficult to find anything nearing ‘tacit agreement’ on issues
According to Cassese, what are some reasons why the custom-creating process has sped-up?
Extensive use of International Organizations—get members to agree to restrictions in their behaviors
8.4 The Present role of custom
What are some areas in which customary law plays a significant and growing role in the relations among States?
1) Emerging economic interests—the law of the sea
2) Major Political and Institutional Conflicts—custom allows for decisions to be made with the abstention of one of the P5 in the Security Council, by majority vote
3) Updating and Elaboration of accepted areas of customary IL—rules of warfare
8.5 codification
Do States prefer treaties to customs?
Yes
Why?
Because they know explicitly what they have agreed to
What areas of customary IL have been codified in order to avoid ambiguity?
Conventions on the Law of the Sea 1958 & 1982, Vienna Convention on Diplomatic Relations 1961 and Consular Relations 1963; Convention on the Law of Treaties 1969; Convention on the Law of Treaties with International Organizations 1986; Conventions on State Succession 1978 & 1983
8.5 Codification
What are the advantages of codifying customary international law, in domestic laws or treaties? What is the effect of codification of customary IL?
1) Declaratory effect
2) Crystallizing effect
3) Generating effect
