1

1. Introduction

Sources of international law1 include a variety of sources such as treaties, international customs,
scholarly writing, judicial decisions and general principles of law recognized by states around the world.2
Article 38 (1)3 of the Statute of the International Court of Justice specifically states what sources would
be regarded as sources of international law and customs is one of them.

Customary international law 4 refers to international obligations arising from established state
practice.5In a detailed manner, the International Law Association has defined customary international law
as something “created and sustained by the constant and uniform practice of states in circumstances that
give rise to the legitimate expectation of similar conduct in the future.” 6 There are two elements of
customary international law, the first being state practice (usus) and the other being the belief that such

1
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the
Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect
multinational corporations and individuals, an impact increasingly evolving beyond domestic legal
interpretation and enforcement. Public international law has increased in use and importance vastly over the
twentieth century, due to the increase in global trade, environmental deterioration on a worldwide scale,
awareness of human rights violations, rapid and vast increases in international transportation and a boom in
global communications.
The field of study combines two main branches: the law of nations (jus gentium) and international agreements
and conventions (jus inter gentes).
2
Wikipedia. Wikimedia Foundation, n.d. Web. 12 Sept. 2015.
<https://en.wikipedia.org/wiki/Sources_of_international_law>.
3
Article 38 (1) – Statute of the International Court of Justice
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
4
“According to Article 38 of its Statute, the International Court of Justice ‘whose function is to decide in
accordance with international law such disputes as are submitted to it,’ has to apply, inter alia, ‘international
custom.’ This source of public international law is described, in the same Article, as ‘evidence of a general
practice accepted as law.”
5
"Customary International Law." Customary International Law. N.p., n.d. Web. 12 Sept. 2015.
<https://www.law.cornell.edu/wex/customary_international_law>.
6
“customary international law results from a general and consistent practice of states that they follow from a
sense of legal obligation.”
“Customary international law is not a written source but is one based on the state practice throughout time due
to the belief that the state is required to act in a certain way. It bases itself on the idea: the way things have
always been done become the way things must be done.” (Hugh 2003)
“Custom is the foundation stone of the modern law of the nations.” (Dixon Martin)
"International Judicial Monitor - General Principles of International Law." International Judicial Monitor -
General Principles of International Law. N.p., n.d. Web. 12 Sept. 2015.
<http://www.judicialmonitor.org/archive_1206/generalprinciples.html>.
 2

practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinio
juris).7

Customs has been an integral part of law from the beginning of the development of laws and
many scholars are of the view that customs are important sources of law, be it public or private. Before
sophisticated legal systems developed, customs was the governing body which shaped the behaviour of
subjects. The same concept is applied to international law as well. The purpose of this essay is to analyze
the importance of customs as a source of international law, examine whether the significance has
decreased through time and also to analyze the nature of customs and their usage as a mode of conflict
resolution in an international scale.

2. Analysis
2.1 Nature and Usage of Customs
2.1.1 Nature
Customs are subject to change and are also subject to advancements, refusals and modifications
through time. The consistency of customs compared to positive law8 is less as customs are not codified
laws and hence, they lack precision. Therefore, a doubt regarding the existence of a custom will not
render such custom be established as law, for a custom to be law it should be consistent, widespread and
uniform.9 Moreover, customs are not as same as customary law and it was clearly explained in North Sea
Continental Shelf Cases10. Such requisites of customary international law11, including state practice and

7
R v. NY[2008] OJ No 2069 (QL)
"The Statute of the International Court of Justice describes customary international law as a general practice
accepted as law. It is widely agreed that the existence of a rule of customary international law requires the
presence of two elements, namely State practice (usus) and a belief that such practice is required, prohibited or
allowed, depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).”
Goldsmith and Posner – Thoughts on opinio juris
"Opinio juris is described as the psychological component of customary international law because it refers to an
attitude that states have toward a behavioral regularity. The idea of opinio juris is mysterious because the legal
obligation is created by a state's belief in the existence of the legal obligation. Opinio juris is really a conclusion
about a practice's status as international law; it does not explain how a widespread and uniform practice
becomes law."
8
“Positive laws may be promulgated, passed, adopted, or otherwise "posited" by an official or entity vested
with authority by the government to prescribe the rules and regulations for a particular community.”
9
Borg, Erica. "Sources of International Law: A Brief Analysis." Sources of International Law: A Brief Analysis.
N.p., n.d. Web. 13 Sept. 2015.
<http://www.academia.edu/7637590/Sources_of_International_Law_A_brief_analysis
10
“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out
in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very
notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to
what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough.
There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost
 3

opinio juris12 which were discussed before, were set forward by the International Court of Justice from
time to time. As it is expected from the International Court of Justice to decide the acceptability of claims
regarding existing customary practices, the court‟s interpretations on requisites of customary international
law have to be discussed as a part of its nature which would be explained under the usage and legal
validity of customs13 hereinafter.

2.1.2 The Usage and legal Validity

As it is established by the International Court of Justice, usus14 and opinio juris15 is required for a
custom to be a valid legal authority. However, it is always a moot point to decide whether there was a
reasonable belief as to the existence of a legal obligation. Deciding opinio juris has always been a
challenge and the following explanation will provide a basic idea as to how the court acted in various
cases involving customary international law and deciding the validity and legal force of such customs.16
Following are some legal authorities where the validity of customs as a source of law as questioned.

invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any
sense of legal duty.”
11
“Customary International Law (CIL) is defined as a state practice which becomes recognized, generates rules, is
perceived as law and turns out to be binding on all states. Article 38 (1)(b), of the International Court of Justice
defined custom as “evidence of a general practice accepted as law “.(United Nations, 1946)
12
“A customary international law norm arises when states generally believe that it is desirable now or in the
near future to have an authoritative legal principle or rule prescribing, permitting, or prohibiting certain
conduct. This belief constitutes opinio juris, and it is sufficient to create a customary law norm.”
13
“In the opinion of International Court of Justice, jurists, the U.N. and its member states customary
international law is the primary source of international law. Laws of war as envisaged in the Geneva Convention
are an example of customary international law. Another example of customary international law is a nation’s
right to use the high seas for fishing, navigation, over flight, and submarines.”
Zico, P. "THE SOURCES OF INTERNATIONAL LAW." THE SOURCES OF INTERNATIONAL LAW. N.p., n.d. Web. 13
Sept. 2015. <http://www.academia.edu/1757298/THE_SOURCES_OF_INTERNATIONAL_LAW>.
14
State practice: how states behave, what they say and do.
Borg, Erica. "Sources of International Law: A Brief Analysis." Sources of International Law: A Brief Analysis. N.p.,
n.d. Web. 13 Sept. 2015.
<http://www.academia.edu/7637590/Sources_of_International_Law_A_brief_analysis>.
15
Opinio juris: what they believe to be required by law.
Borg, Erica. "Sources of International Law: A Brief Analysis." Sources of International Law: A Brief Analysis. N.p.,
n.d. Web. 13 Sept. 2015.
<http://www.academia.edu/7637590/Sources_of_International_Law_A_brief_analysis>.
“If enough states act in such consistent manner, out of a sense of legal obligation, for a long enough period of
time, a new rule of international law is created” (Roozbeh B. Baker)
“Opinio juris introduces the notion of moral obligation in CIL. When it comes to what states belief they should
do, a lot of it is based on what is considered to be ethical.” (Erica Burg)
16
“International customary law is probably the most disputed and discussed source of international law. For
example, it is not clear when a particular State practice becomes a legally binding State practice. It is also
unclear how one can identify a rule of international custom, or how one can prove its existence.”
 4

 Asylum case (Colombia v. Peru)17

In this case, the ICJ held that “Where a local or regional custom is alleged, it is the duty of the proponent
to prove that this custom is established in such a manner that it has become binding on the other party.”

Furthermore, the case abides by the principle that “custom is created and becomes binding if it is in
accordance with a constant and uniform usage practiced by the States in question.”18 There should be
evidence as to the existence of such practice.19

 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and The
Netherlands)20

These cases had established the fact that in order for a custom to become law, state practice itself will
not be sufficient, opinio juris should also be proved.21 The ratio sets forward that even though there
may be state practices, it could be practices followed by states as means of “courtesy, convenience or
tradition, and not by any sense of legal duty.” Therefore, opinio juris should be established. Furthermore,
the concept of Instant Customary Law22 was also thrown light thorough this authoritative case.23

17
I.C.J. Reports 1950, p.266.
18
Borg, Erica. "Sources of International Law: A Brief Analysis." Sources of International Law: A Brief Analysis.
N.p., n.d. Web. 13 Sept. 2015.
<http://www.academia.edu/7637590/Sources_of_International_Law_A_brief_analysis>.
19
“The Party which relies on a custom of this kind must prove that this custom is established in such a manner
that it has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage
(2) practiced by the States in question, and that this usage is (3) the expression of a right appertaining to the
State granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This
follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a
general practice accepted as law.”
20
I.C.J. Reports 1969, p.3.
21
“The North Sea Continental Shelf cases in 1969, the ICJ expressly accepted the possibility that a wide spread
and representative practice could generate a rule of customary international law even without the passage of
any considerable period of time. This is referred to as instant customary law.”
"LEGAL MIND." : CUSTOMS AND TREATIES AS A SOURCE OF INTERNATIONAL LAW. N.p., n.d. Web. 13 Sept. 2015.
<http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html>.
“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of
the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency or even habitual character of the acts is not in itself enough. There
are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably,
but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of
legal duty.”
Federal Republic of Germany v. Denmark and The Netherlands (I.C.J. Reports 1969, p.3.)
22
The Bush Doctrine can be regarded as an example for instant customary law.
 5

 Advisory opinion on the Use of nuclear Weapons (1996)

It was held by the court that “No rule can be created on opinio juris without state practice.”

 Lotus case (France v. Turkey)24

It was held in this case that “a new rule of customary international law cannot be created unless both these
elements as discussed are present,”25

 Nicaragua v. United States of America (1986)

“In order to deduce the existence of customary rules the court deems it sufficient that the conduct of the
states in general should be consistent with such a rule and that instances of state conduct inconsistent with
a given rule should have been treated as breach of that rule as indication of the recognition of a new

23
“Although the passage of only a short period of time is not necessarily . . . a bar to the formation of a new rule
of customary international law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State practice, including that
of States whose interests are specially affected, should have been both extensive and virtually uniform in the
sense of the provision invoked;—and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.”
North Sea Continental Shelf (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, para. 74 (Feb. 28).
24
PCIJ series A, No 10, (1927)
25
“The Lotus case gives an important dictum on creating customary international law. France alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute
only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary
law on collisions. The Court held that this “…would merely show that States had often, in practice, abstained
from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for
only if such abstention were based on their being conscious of having a duty to abstain would it be possible to
speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of
having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to
show that the contrary is true.” In other words, opinio juris is reflected in acts of States (Nicaragua Case) or in
omissions (Lotus case) in so far as those acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way.”
"Lotus Case (Summary)." Public International Law. N.p., 27 July 2012. Web. 13 Sept. 2015.
<https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotus-case-summary/>.
 6

rule.”26 Furthermore, regarding state practice, the court held that “it was not necessary that the practice in
question had to be „in absolutely rigorous conformity‟ with the purported customary rule27.”28

 Central Gold Mining Company Ltd v. R 29

“The court ruled that for a valid international custom it is necessary that it should be proved by
satisfactory evidence that the custom is of such nature that it has received general consent of the states
and no civilized state shall oppose it”30

In regard to the legal authorities mentioned above and more cases on similar matters31, main
characteristics of customary law can be concluded which says that,

a) Both opinio juris and state practice should be proved and

b) Both concepts are interconnected.32
c) State practice is conveyed through administrative acts, legislation and decisions of the courts
etc.

26
“For a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but
they must be accompanied by opinio juris sive neccessitatis. Either the States taking such action or other States
in a position to react to it, must have behaved so that their conduct is evidence of a belief that the practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such belief..The subjective
element is implicit in the very notion of opinio juris sive neccessitatis. ”[ Nicaragua v. United States of America
(1986)]
27
“In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of states
should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given
rule should generally have been treated as branches of that rule, not as indications of the recognition of a rule.”
28
Shaw, Malcolm N. International Law. Cambridge: Cambridge UP, 1997. Print.
29
([1905] 2 K. B. 391).
30
"Lecture 3 Sources of International Law." Lecture 3 Sources of International Law. N.p., n.d. Web. 13 Sept.
2015. <http://www.slideshare.net/Kingnabalu/lecture-3-sources-of-international-law>.
31
The right of passage over Indian Territory case (ICJ Reports, 1960), p. 6: 31 ILR, p.23.
“Where therefore the court finds a practice clearly established between two states which was accepted by the
parties as governing the relations between them, the court must attribute decisive effect to that practice for the
purpose of determining their specific rights and obligations. Such a particular practice must prevail over any
general rule.”
32
“Opinio juris is “ a belief by states that their practice is legally required by the norm. They must follow the
practice because of this belief rather than because of the demands of courtesy, reciprocity, comity, morality, or
simple political expediency.”
“A more fundamental objection is that this conception of opinio juris – and customary law more generally –
dispenses with or at least minimizes the requirement of general state practice, by viewing state practice as
evidence of opinio juris. Indeed, just to be clear, in my general theory of customary international law I have
taken the position that state practice is not in fact an independent requirement for a customary legal norm, but
rather serves as evidence of opinio juris, which is the essence of customary law. This view appears to represent
almost the “polar opposite” of the opinio juris-minimizing theory I described at the outset of my paper. I have
already summarized there the many arguments in favor of the state practice requirement.”
Lepard, Brian D. "THE NECESSITY OF OPINIO JURIS IN THE FORMATION OF CUSTOMARY INTERNATIONAL LAW."
(n.d.): n. pag. Web. 17 Sept. 2015.
 7

The Scotia case is also of utmost importance to the sphere of customary law as it explained the fact
that a certain practice is “in force not because it is prescribed by any superior power, but because it is
generally accepted as a rule of conduct”.33
2.2 Place for Customary International Law

Customs has always played a major role in the development of law, but does it has the same position
it used to have before the development of various alternative sources of law? What difference does
customary law has with other sources of law? These dimensions will be examined within the corners of
this section. According to Article 38 (1) 34 , customary law is given the place next to international
conventions/ treaties35. What differences are there between customs and other sources of international
law?
2.2.1 Customs and Treaties / Conventions
In general, customs are unwritten, they are values created by the society which expresses the needs of
the society. Customs are mostly spontaneous actions or procedures concerning a certain issue and
customs get authority as a matter of being followed consistently and also through the acceptance of the
society. Conversely, treaties are formal documents agreed upon by member states, members of the
United Nations or international law to be specific, with or without reservations. The persistent objector
rule36 in customary law is similar to reservations to an extent.

33
“Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no law
of one or two nations can create obligations for the world. Like all the laws of the nations, it rests upon the
common consent of civilized communities. It is of force not because it is prescribed by any superior power, but
because it is generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages
of navigation or in regulations of maritime states, or both, it has become the law of the sea only by consistent
acceptance and use of those nations who may be said to constitute the commercial world…..”
Principles laid down in regard to customary international law were;
“(1) That the Sovereign of a conquering State was not liable for the obligations of the conquered, in the absence
of stipulation or convention; (2) International law formed part of the law of England to the extent that it had
received the common consent of civilized nations. Such rules of international law must be shown to have been
actually accepted as binding between nations by satisfactory evidence of international agreement or usage ; (3)
That acts of State are not cognizable by the English Courts.”
Borg, Erica. "Sources of International Law: A Brief Analysis." Sources of International Law: A Brief Analysis. N.p.,
n.d. Web. 13 Sept. 2015.
<http://www.academia.edu/7637590/Sources_of_International_Law_A_brief_analysis>.
34
Article 38 (1) – Statute of the International Court of Justice
35
“A Convention is an international agreement between countries. These are usually developed by the United
Nations or other international organizations. Governments that ratify Conventions are obliged to incorporate
them into their own laws and to make sure that these laws are applied and respected.”
“various terms have been used for such an agreement, including treaty, convention, protocol, declaration,
charter, Covenant, pact, act, statute, exchange of notes, agreement, modus vivendi ("manner of living" or
practical compromise), and understanding. The particular designation does not affect the agreement's legal
character.”
36
Anglo- Norwegian Fisheries Case, ICJ Rep 1951, 116
 8

Furthermore, the procedure regarding the rejection or acceptance is formal and it is not as much as
simple as customs. Writers such as R. Baxter tend to show a close relationship between treaties and
customary laws.37 However, in North Sea Continental shelf case, few instances where a treaty could be an
accurate reflection of customary international law was explained. 38

a) “The treaty could have codified pre-existing international law.

b) A treaty may crystallize an emergent rule of customary international law.
c) The treaty might pass into customary international law after its conclusion.”39

2.2.2 Customs and General Principles Recognized by Civilized States

Generally, customary values constitute the base of the principles agreed upon by the civilized
societies. There is a deep relation between the principles adopted and the customs, as customs constitute
the roots of any system.

2.2.3 Customs and Judicial Decisions

As it was clearly expressed earlier, judicial decisions is a source which affirms or disregards the
validity of a custom as a customary law. Existence of a mere practice would not establish a law. There are

“In any event the ten mile rule would appear to be inapplicable as against Norway as she has always opposed
any attempt to apply it to the Norwegian coast”
37
“if reliance is to be placed on a multilateral treaty as evidence of customary international law, it is first
necessary to establish whether the treaty was intended to be declaratory of existing customary international
law or constitutive of new law. The silence of the treaty, which may which may necessitate resort to the travaux
preparatoiers, can make this task a great difficulty.”
38
"LEGAL MIND." : CUSTOMS AND TREATIES AS A SOURCE OF INTERNATIONAL LAW. N.p., n.d. Web. 16 Sept.
2015. <http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-of.html>.
“Customary laws have been the primary laws to commence any case in the international crimes while treaties
play a vital role during jurisdiction. The relationship is also reflected in that the obligatory nature of treaties is
founded upon the customary international law principle that agreements are binding (pacta sunt servanda).”
39
“The rationale behind this statement may be two-fold. Firstly, the very rule that make treaties binding upon
their parties is one of customary law. This is, of course, the axiom of pacta sunt servanda. The interpretation of
treaties, so important to the settlement of many inter-State disputes, has to be conducted in the light of general
international law, and, despite the controversy surrounding them, considerations of jus cogens.25 Secondly,
treaties reflect or generate customary law. Even where treaties create new law, thus themselves becoming
known as law-making treaties and prevailing over customary law,26 the law so created by the treaties will
undergo a process of transformation into customary law to become law in the true sense of the word.
Otherwise, it remains conventional law in essence due to the operation of the rule of general international law
that treaties do not bind third parties (the cause and effect relationship between the two parts is not necessary
good: the latter is not the cause for the former).”
"Chinese Journal of International Law." The Relations between Treaties and Custom. N.p., n.d. Web. 20 Sept.
2015. <http://chinesejil.oxfordjournals.org/content/9/1/81.long#fn-1>.
 9

requisites and the interpretation regarding the requisites with the existing facts of the case is undertaken
by the courts. Legalizing or rejection is conveyed through judicial decisions.40

2.2.4 Customs and Scholarly Writing

Scholarly writing includes individual opinions, affirmations, justifications and various conclusions.
Customs could be an integral part of certain scholarly writings focused in justifying a certain point but it
always does not have to be the same. Significant number of scholars had set forward various views
regarding customs.41 As examples, Francois Geny and Kelson, R. Baxter had different ideas regarding
customary law and such ideas were important in developing the sphere of customary law.

2.3 Custom as a means for development of International Law

Also being accepted by the Vienna convention42, there is no doubt as to the fact that customs played
the most important role in regard to the development of law, which is the same in regard to International
Law. Important developments of customs/customary law include Jus Cogens, Obligatio Erga Omnes,
multilateral conventions or treaties which developed human rights prohibitions against genocide 43 ,
torture44, and slavery45. Moreover, above developments of customary international law show that customs
have also contributed to the protection and guaranteeing of human rights apart from its other modes of
assistances in conflict resolution.46

40
Legal decisions are not only about customary law, a general view has been adopted for a better
understanding the facts.
41
“Where there is a constant and uniform practice of sufficient generality, in a legal context, it seems legitimate
for members of the community to expect all others to continue to observe that practice.”
Mendelson, Maurice. The Subjective Element in Customary International Law. N.p.: n.p., n.d. Print.
42
“ Believing that the codification and progressive development of the law of treaties achieved in the present
Convention will promote the purposes of the United Nations set forth in the Charter, namely, the maintenance
of international peace and security, the development of friendly relations and the achievement of co-operation
among nations,
Affirming that the rules of customary international law will continue to govern questions not regulated by the
provisions of the present Convention,..” (Preamble of the Vienna Convention - 1155 UN Treaty Series, 331)
43
Prevention and Punishment of the Crime of Genocide, 9 Dec. 1948, 78 UNTS 277
44
International Covenant on Civil and Political Rights (ICCPR), 19 Dec. 1966, 999 UNTS 171, Art. and United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9 Dec.
1975, 1465 UNTS 85.
45
International Covenant on Civil and Political Rights
46
The legal literature discloses that the following international crimes are jus cogens: aggression, genocide,
crimes against humanity, war crimes, piracy, slavery and slave-related practices, and torture. Sufficient legal
basis exists to reach the conclusion that all these crimes are part of jus cogens. This legal basis consists of the
following: (1) international pronouncements, or what can be called international opinio juris, reflecting the
recognition that these crimes are deemed part of general customary law; (2) language in preambles or other
provisions of treaties applicable to these crimes which indicates these crimes’ higher status in international law;
(3) the large number of states which have ratified treaties related to these crimes; and (4) the ad hoc
international investigations and prosecutions of perpetrators of these crimes.
 10

There is sufficient evidence to believe that jus cogens is a development of customary international
law. Article 5347 of the Vienna convention refers to general international law, which is customary law as
believed by many theorists as well. 48 In regard to the said fact, it can be concluded that customary
international law or customs is a strong source of international law which creates rights, but it does not
mean that customs are immune from uncertainties.49

3. Conclusion and present situation of custom as a source of international law

In conclusion it can be indicated that customs had an important role in developing a comprehensive
system of international law, and in the present also the contribution seems to be significant. There are
many arguments for50 and against51 custom as a source of international law by various scholars. Some

Baker, R. B. "Customary International Law in the 21st Century: Old Challenges and New Debates." European
Journal of International Law 21.1 (2010): 173-204. Web. 20 Sept. 2015.
47
(Article 53 of the Vienna Convention)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted
and recognized by the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law having the same
character.
48
“Jus cogens refers to the legal status that certain international crimes reach, and obligatio erga omnes
pertains to the legal implications arising out of a certain crime’s characterization as jus cogens.”
Baker, R. B. "Customary International Law in the 21st Century: Old Challenges and New Debates." European
Journal of International Law 21.1 (2010): 173-204. Web. 20 Sept. 2015.
“In the main this theory prevails even now, and it follows as a necessary consequence that international treaties
create only particular norms. General international law is customary law only. Conventional norms, even if all
States are parties to a treaty, need the opinio juris of these States to become norms of general international
law. In other words, treaty provisions must be converted into customary norms, in order for them to become
norms of general international law.”
Tunkin, Grigory. "Is General International Law Customary Law Only?" (n.d.): n. pag. Web. 20 Sept. 2015.
<http://ejil.org/pdfs/4/1/1216.pdf>.
49
Some scholars are of the view that even there is a clear view regarding Jus Cogens, but there is a certain
uncertainity in terms of Obligatio Erga Omnes.
50
The International Law Commission pointed out that “records of the cumulative practice of international
organizations may be regarded as evidence of customary international law with reference to states’ relations to
the organizations.” Moreover, “existence of rules and principles can also be found in resolutions adopted by the
General Assembly and Security Council of the United Nations”
Shaw, Malcolm N. International Law. Cambridge: Cambridge UP, 1997. Print.
some scholars are in the belief that “custom is a dynamic process of law creation and more important than
treaties since it is of universal application”.
D'Amato, Anthony, "The Concept of Special Custom in International Law" (2010). Faculty Working Papers. Paper
116.<http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/116>
51
.“International customary law is probably the most disputed and discussed source of international law. For
example, it is not clear when a particular State practice becomes a legally binding State practice. It is also
unclear how one can identify a rule of international custom, or how one can prove its existence.”
"Customary International Law." Peace Palace Library. N.p., n.d. Web. 16 Sept. 2015.
<http://www.peacepalacelibrary.nl/research-guides/public-international-law/customary-international-law/>.
 11

scholars are in the view that with the development of Lex Scripta52 , the place for customs has somewhat
deteriorated. In contrast, some are considering the need for custom in the present international context in
dimensions such as instant customs53.

On the other hand, competition between states in terms of trade and superiority, vagueness of
customary law, and time consuming nature in conflict resolution through customary law has somewhat
weaken the place that customary law/ customs had as a source of public international law. Furthermore, it
is believed that most international customs were norms put forward by western colonists on Asian and
African nations which would show resistance over the customs which in result, deteriorates the value of
customs54.

However, unlike in treaties and other codified laws customs have flexibility and the opportunity to
adapt which shows the value of customs and hence, inability to disregard customary law55. Furthermore,
customary law or customs had developed in to higher dimensions as law in the forms of human rights,
obligation to protect rights by states and so on.

52
"... lex scripta, namely statutes or acts of parliament which, in their original formation are reduced to writing,
and are so preserved in their original form, and in the same stile (sic) and words wherein they were first made.”
Hale, Matthew. The History of the Common Law of England and An Analysis of the Civil Part of the Law. London:
Henry Butterworth, 1820. Print.
53
“Instant custom, unlike traditional, slow-forming customary international law, is attuned to the rate of
development in today’s rapidly changing global society. The terrorist attacks of September 11, 2001,
demonstrate why states must be able to act swiftly and in conformity with international law, especially in
instances where their actions are sure to entail extraterritorial consequences. In a world that can be forever
altered by sudden and unexpected developments such as technological advances or, in the present case, suicide
airplane hijackings, states must be able to create new international laws that enable them to react and adapt to
the changing reality. It is both dangerous and counterproductive for states’ actions to be constrained by
antiquated international laws, which, when formed, could not have contemplated all of the world’s future
needs and developments. The international community must heed this call to recognize and accept instant
custom as a viable and necessary method of customary international law formation.”
"Benjamin Langille*." IT'S "INSTANT CUSTOM": HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST
ATTACKS OF SEPTEMBER 11, 2001. N.p., n.d. Web. 17 Sept. 2015.
<http://www.bc.edu/content/dam/files/schools/law/lawreviews/journals/bciclr/26_1/07_TXT.htm>.
54
“Customary Law is only partly and hesitantly accepted by communist states and the younger African and Asian
members of the international community. Indeed, they refuse to be bound by rules which they did not help to
create, the norms in question being, by and large, the product and practice of western world. No wonder that
today international law is mainly developed by bi – or multilateral treaties.”
Hoof, G. J. H. van (Godefridus J. H.), 1949-. Rethinking the Sources of International Law. Deventer, Netherlands ;
Boston : Hingham, MA :Kluwer Law and Taxation Publishers ; Distribution in USA and Canada, Kluwer Academic,
1983. Print.
55
“It is also felt that customary law as a formal source of international law has an enduring role that cannot be
diminished, whatever the situation is with efforts in treaty-making. For a treaty always displays rigidity in the
face of fast-changing conditions of this globalizing world; whereas custom has flexibility and responsiveness to
such changing conditions.”
"Chinese Journal of International Law." The Relations between Treaties and Custom. N.p., n.d. Web. 20 Sept.
2015. <http://chinesejil.oxfordjournals.org/content/9/1/81.long#xref-fn-134-1>.
 12

Therefore, it is reasonable to conclude that customary law in its original form might have lost its
authority to an extent in line with the development of other sources, but yet it is a powerful source as it is
an integral part of the world which reflects common interests of states and people.

Shiran Harsha Widanapathirana

Department of Law

University of Peradeniya
 13

Bibliography

Books

Shaw, Malcolm N. International Law. Cambridge: Grotius Publications, 1986. Print.

Harris, D. J. Cases and Materials on International Law. London: Sweet & Maxwell, 2004.
Hoof, G. J. H. van (Godefridus J. H.), 1949-. Rethinking the Sources of International Law. Deventer,
Netherlands ; Boston : Hingham, MA :Kluwer Law and Taxation Publishers ; Distribution in USA and
Canada, Kluwer Academic, 1983. Print.Print.
Hale, Matthew. The History of the Common Law of England and An Analysis of the Civil Part of the
Law. London: Henry Butterworth, 1820. Print.

Cases

Asylum case (Colombia v. Peru) I.C.J. Reports 1950, p.266.

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and The Netherlands)
I.C.J. Reports 1969, p.3.
Advisory opinion on the Use of nuclear Weapons (1996)
Lotus case (France v. Turkey) PCIJ series A, No 10, (1927)
Nicaragua v. United States of America (1986)
Central Gold Mining Company Ltd v. R ([1905] 2 K. B. 391).

Journal Articles / Web Sites

"Chinese Journal of International Law." The Relations between Treaties and Custom. N.p., n.d. Web. 20
Sept. 2015. <http://chinesejil.oxfordjournals.org/content/9/1/81.long#xref-fn-134-1>.
D'Amato, Anthony, "The Concept of Special Custom in International Law" (2010). Faculty Working
Papers.Paper116.
<http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/116>
Baker, R. B. "Customary International Law in the 21st Century: Old Challenges and New Debates."
European Journal of International Law 21.1 (2010): 173-204. Web. 20 Sept. 2015.
"Benjamin Langille*." IT'S "INSTANT CUSTOM": HOW THE BUSH DOCTRINE BECAME LAW
AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001. N.p., n.d. Web. 17 Sept. 2015.
 14

"Lecture 3 Sources of International Law." Lecture 3 Sources of International Law. N.p., n.d. Web. 13
Sept. 2015. <http://www.slideshare.net/Kingnabalu/lecture-3-sources-of-international-law>.
"LEGAL MIND." : CUSTOMS AND TREATIES AS A SOURCE OF INTERNATIONAL LAW. N.p.,
n.d. Web. 16 Sept. 2015. <http://mkonchellah.blogspot.com/2011/03/customs-and-treaties-as-source-
of.html>.