Customary law constitutes a key component of international law. It is established on the practices that over time come to be generally accepted as the law. Customary law has been adopted by different states based on agreed-upon procedures. This paper seeks to indicate the basis upon which customary law constitutes a significant component of international law. In addition, the last portion addresses the binding nature of customary international law.
By definition, customary international law comprises the legal procedures that arise from the stable conduct of States that act out of the conviction that the law mandated them to act that particular way (Baker, 174). The law is made up of three key elements, which include: patterns of practice, opinio juris, and general acceptance. Patterns of practice or behavior arise from the pervasive repetition by States on related international acts over time. Opinio juris, which is the condition that international acts need to happen out of a sense of responsibility. General acceptance means that the actions of the states must be embraced by a substantial number of States and not overruled by a noteworthy count of States.
Opinio juris forms the foundation of customary international law due to its subjectivity. However, all three elements are essential for the creation and unrelenting soundness of a customary rule. Opinio juris needs to be assembled from forms of collective legal expectancy among people, not just among the authorized State leaders. To be accepted as a law, the practice must go through a dynamic process of “acceptance” or prospect amongst the general population (Baker, 176). The method of acceptance does not simply involve wide acceptance involving the top leadership of states. The endorsement has to consider the varying expectations of the people as they are necessary for providing the ultimate criteria for acceptance.
A significant component of customary international law constitutes sanctioned accounts of military operations carried out across the borders. Usually, the law on these operations is also replicated in different other certified documents, such as the case laws, national legislation, as well as military manuals. Opinio juris requires that such practices need to be “accepted as law” (Baker, 175). Therefore, the characteristic sets the conduct required by law apart from activities conducted principally as a matter of policy.
Meanwhile, customary international law can also be violated, like all other legal norms (domestic or international). It does not imply that the standard has become outmoded. The violation of customary international law usually attracts widespread condemnation by other States. Even though the State concerned may deny the offense, the act is perceived as a reinforcing element to the need to strengthen the law as opposed to weakening it. For instance, different states usually carry out attacks on civilians. Usually, different states come together to condemn such violations regardless of whether the accused state may indicate that they were not premeditated. However, the widespread criticism and defense indirectly stress the need to avoid such attacks on civilians (Baker, 180). On the other hand, the international responsiveness that is every so often dedicated to these kinds of abuses should not weaken compliance with the law. Instead, the practices need to support the formation of rules being part of customary international law.
In recent times there has been a push to expand the horizon of customary international law beyond the two components of opinio juris and state practice, which are deeply rooted and have been used for a long time. The latest wave aims to clarify the sources of customary international law, shifting from a complete emphasis on these two factors. There is agitation to include certain international treaties, in particular those that involve human rights responsibilities. The treaties are believed to produce international legal rules (Baker, 181). This is because the treaties are certainly not a simple arrangement of existing legal regulations.
Treaties are sometimes negotiated based on the decisions of the International Court of Justice (ICJ). The ICJ provides a context for the push to change the role of persistent opinio juris and state practice. Modifying conventional (treaty-based) international law that exclusively binds state signatories into universally binding customary international law can be effective through the ICJ (Baker, 185). The recommended strategy comprises a wide range of countries signing a treaty or convention. Despite some researchers’ criticisms, the procedure demonstrates that new customary legal standards can be established.
Customary international law is recognized as a source of international law by the majority of countries. As it tries to govern the relationship between states, international law is generally binding. It is for this reason that national and international courts and tribunals apply customary international law. Customary international law can be consented to directly or indirectly by countries (Baker, 197). If a state does not want to be bound by a new norm of customary international law, it is theoretically free to object vigorously and declare that it does not intend to be obligated.
The objecting state must continue to oppose the rule for the objection to be recorded. Furthermore, two (or more) states can enter into a treaty or agreement with one another. This understanding can be based on a single or a whole set of international customary rules. New nations, on the other hand, do not have the authority to select amongst the several principles of customary international law (Baker, 198). When new nations declare independence, they are simply bound by all of the recognized customary rules. Certain rules of customary international law are so fundamental that no single state is permitted to object to them. Jus cogens rules are a type of such preemptive regulation.
The majority of jus cogens rules are derived from opinio juris, which elevates a customary international law rule to a jus cogens rule. However, this is most common when the majority of individual nations in the global system believe that such a rule cannot be categorically rejected and that no single state can contract itself out of the norm. Moreover, the jus cogens rules also include erga omnes obligations (Baker, 196). The erga omnes obligations involve duties that are regarded to be so vibrant and critical inside the international system such that no individual state can implicitly or explicitly take legal action against a different state as a way of compelling it to meet the particular obligation. Therefore, obligations erga omnes are a determining factor in problems relating to jurisdiction issues and prominence in customary international law. The international treaties are signed, and political acts are carried out on the basis of customary law, which has widely acknowledged international standards. This means that international law has no place to be without customary law because society is the link that is key in the adoption of laws, whether national or international.
Work Cited
Baker, R. B. “Customary International Law in the 21st Century: Old Challenges and New Debates.” European Journal of International Law, vol. 21, no. 1, 2020, pp. 173–204, Web.