Symbiosis Law School, Nagpur

Academic Year 2021-22

Batch 2019-24
BA/BBA. LLB
Semester-V

Subject – Public International Law

Name of the Student: - Geethu Sachithanand

PRN No. – 19010421005

Division: - A

Teacher in –charge: - prof. Jimmy Jose

Approaches of International Court in determining the existence of Customary
International Law.

International law arose from a set of customary rules that arose outside of
national legal fields. The law of nations, or international law as it was once
known, was made up of supranational norms governing international issues
including high-seas navigation and diplomatic relations. Most of these rules
were uncodified until the recent explosion of treaties. They were codified laws
of the international community of nations that assumed certain assumptions
about proper behaviour among nation-states. Many cultural practices were
established in international treaties since World War II, but much of the CIL
remains unwritten. Faced with the uncertainty of the application of unwritten
laws, the International Court of Justice (PCIJ) and the International Court of
Justice (ICJ) have developed a guiding principle for identifying the existence
and content of such laws, which has shaped organizational practice in the
international arena. in the last century. Although the initial development of the
international model was the result of purposeful design, accreditation
procedures and institutionalization have led to its adoption in the international
system. The emergence of the CIL language with symbols linked to its two
basic elements: (1) international norms and (2) opinio Juris has been
instrumental in shaping the process (sense of legal obligation). Demonstrating
legitimacy within the international arena, organizations, including courts and
tribunals, incorporate this process to demonstrate that they "work to
communicate their interests fairly and equitably."

Within the international legal system, the calculation of international legal

sources in the ICJ Statute is considered authoritative. The CIL is one of the
identified sources: The Court shall use "international custom, as evidence of
customary law," in accordance with Section 38 (1) (b). This definition, similar
to that found in Article 38 (b) of the Eternal Court of International Justice,
reflects the old belief that the CIL has both a purpose and an independent
component. State action (objective) in conjunction with a sense of legal
obligation (critical factor) serves as evidence of state consent to the law in
question within the extended international legal system.

International custom should constitute evidence of universal practice

acknowledged as law, according to Art. 38 of the ICJ Statute. The feeling that
States are meeting legal obligations by acting as they do is known as opiniojuris
sine ncessitatis. Treaty-based generation of customary rules: As ruled in the
North Sea Continental Shelf Case, a treaty provision can also generate a rule
of customary international law (1969)

The World Court made the following observations in this case:

i.  A treaty provision can create customary international law, but only if the
provision is fundamentally non-creating and might be considered the
foundation of a broad rule of law.

ii. Although the short term is not a barrier to the development of new
international customary law, it is an inevitable requirement that the
performance of the state (including that of the States of particular interest
in particular) be broad and almost identical. the same in the sense of the
requested provision, and that it also happens in a way that will show
widespread recognition that, therefore, before practice/practice can
become customary law, opinio Juris must exist.

Although the universality of practice is not required, it should have been

observed or reproduced by a large number of countries. If a State acts in a way
that appears to be incompatible with a recognized norm but justifies its actions
by citing exceptions or reasons found within the rule, the significance of that
attitude is to affirm rather than weaken the rule (Nicaragua Case, ICJ Reports,
1986).

Opinio juris et necessitates: The Lotus Case (1927) highlights the importance
of opinion juris in the development of a new customary rule of international
law.

The existence of a rule of customary law stating that ships on the high seas are
subject exclusively to the jurisdiction of the State whose flag they fly is not
decisively proven, according to the Court of Appeal. Leaving aside the collision
cases, which will be discussed later, the Court's finding should be noted that
none of them involves infractions involving two ships flying the flags of two
different countries, and so they are of minor consequence in the case at hand. .
The Court has decided that the French Government's second argument, like the
first, does not create a rule of international law forbidding Turkey from
pursuing Lieutenant Demons. Apart from that, it should be noted that these
agreements apply to concerns of a specific nature, directly related to maritime
law, such as slave traffic, underwater cable damage, fisheries, and so on, and
not to common-law offenses.

Nicaragua Case

If customary rules of international law are turned into treaty rules, they cannot
be considered to have ceased to exist. In such instances, the court cannot be
prohibited from using customary rules. Thus, despite the operation of articles of
conventional law in which they have been integrated, principles such as non-use
of force, non-intervention, respect for the independence and territorial integrity
of States, and others remain binding as part of customary international law.

The Court also ruled that the US had broken some duties resulting from a
bilateral Pact of Friendship, Commerce, and Navigation signed in 1956 and that
it had done so in a way that deprived the treaty of its object and purpose.
It was decided that the United States has an urgent duty to redress and
discontinue all acts that violate its legal obligations, and to compensate
Nicaragua for all the damages caused by violations of international law and the
1956 Convention, the amount of compensation to be determined in subsequent
proceedings if the Parties fail to reach an agreement.

Traditionally, according to ancient jurists, it included the actions of a society -

or part of it that was intended to continue in practice because of Tacitus
consensus, which is often translated as "meaningless agreement." Scholars of
international humanitarian law today begin with very similar principles, whether
for support or opposition. It is almost the same, but not exactly because modern
broadcasters describe the process using the principles of state action and opinio
Juris (the concept of imprisonment). Some publishers suggest that the
replacement of the insignificant treaty of the nineteenth century with the opinio
juris was a different caesura with a more sophisticated and practical pre-existing
method.

Conclusion

Individual courts tend to imitate intermediate judges and set their standards of
strict justice without clear cultural norms. Of course, difficulties are
compounded by the lack of a definite standard of behaviour. Given the
abundance of precursors and the opinio juris vaccine options, the courts are sure
to find some support for the desired results based on sound reasons.

And one of the most important lessons we can learn from history is that this has
always been the case. Legal experts have relied on (1) in ancient times this
practice (was it done “long ago”?); (2) the feeling that the practice was
performed in the sense of a legal obligation (opinio juris); (3) the essential
virtues of this practice (for example, its consideration or compliance with
natural law); or (4) the non-existent consent of the actors to be bound by the
practice from time to time. In modern international practice, the accepted
formula that common international law stems from state practice plus opinio
Juris.