Naimul Muquim
One of the most substantial sources of law in the vast expanse of international law is that of customary international law. This is founded upon the idea that countries are obliged to certain norms of international law, according to acts demonstrating their commitment to be bound. Although there is no precise universal agreement on its definition, it is nonetheless a practice that states respect not by blind political regard, but because they reckon and trust that they have a legal responsibility to do so.
Customary international law denotes international obligations resulting from recognised state practice; this is distinctive to the notion of obligations that arise out of signing, acceding or ratifying international treaties. It essentially results from an overall unwavering and consistent practice of states. The principal foundation of this also lies with the declarations of states regarding international law as evidence of custom. Custom in its legal sense suggests something more than simple agreement or usage; this is due to the fact that it is a practice felt by those countries that respect it to be a compulsory one.
On the other hand, international agreements generally establish the practice of states and therefore, can contribute further to the development of customary international law. Conversely, one may beg the question as to how we ought to determine whether a state acts from being conscious of a legal obligation or instead from a sense of mere courtesy or by convention. The answer to this may be derived from the appreciation of a state’s responsibility to a specific practice that is implied by its own acts or omissions.
Article 38(1)(b) of the Statute of the International Court of Justice (ICJ) provides an authoritative elucidation of the basis of customary international law as one of the sources of international law itself. It prescribes that customary international law may be established by exhibiting state practice and “opinio juris.” “Opinio juris” is another element which is a subjective responsibility needed to create a legitimate compulsory custom. The starting point of this was shaped by the decision of the Permanent Court of International Justice in The Case of the SS Lotus (France v Turkey) in 1927. Another landmark judgement of the ICJ’s North Sea Continental Shelf Cases (1969) has similarly observed this.
In addition, the ICJ in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (1986) had also held that some provisions in the United Nations Charter are regarded as international customary law norms. Another vital element in this scenario is something called “jus cogens.” These are “peremptory norms” from which derogation by states is strictly not allowed. Due to the all-encompassing weight of such norms, they are largely recognised by all countries. These are limited in number and comprise actions that a particular state cannot condone, such as crimes against humanity, genocide, apartheid, slavery, and torture.
A country’s laws, including its legislation and judgements of the courts, are the bases of its state practice to the degree that it could pursue to define its own practice and duties under international law. Governments of different countries, including Bangladesh, maintain to comply with customary international law, and habitually integrate its norms into domestic statutes. Correspondingly, when applicable, national courts also apply customary international law as a rule for providing decisions.
In the current era, international customary law is perhaps still one of the most debated and explored sources of international law. For instance, questions such as when does a particular state practice truly develop to a legally binding state practice continue to emerge.
Some contend that the concept of customary international law is still somewhat inexplicit, and the issue of “opinio juris” is rather arduous to determine. Nevertheless, the idea and elements of customary international law continue as a central foundation of international law jurisprudence that is applicable to all nations.
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http://www.dhakatribune.com/juris/2015/mar/21/how-customary-international-law-works#sthash.UniyFwdh.dpuf
