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International custom
Custom: An Introduction

In any primitive society certain rules of behavior emerge and

prescribe what is permitted and what is not. Such rules develop
almost subconsciously within the group and are maintained by
the members of the group by social pressures and with the aid
of various other more tangible implements. They are not, at
least in the early stages, written down or codified, and survive
ultimately because of what can be called an aura of historical
legitimacy. As the community develops it will modernize its
code of behavior by the creation of legal machinery, such as
courts and legislature. Custom, for this is how the original
process can be described, remains and may also continue to
evolve."

According to Webster "Long established practice considered as

unwritten law and resulting for authority on long consent; a
usage that has by long continuance acquired a legally binding
force."

Salmond has given the reasons to highlight the importance for

the recognition of custom in law. His two reasons are firstly,
"Custom is frequently the embodiment of those principles
which have commended themselves to the national conscience
as principles of justice and public unity... The national
conscience may well be accepted by the courts as an
authoritative guide; and of this conscience national custom is
the external and visible sign."
Secondly, "The existence of an established usage is the basis of
a rational expectation of its continuance in the future,"
The International Court of Justice in Asylum Case Columbia v.
Peru described custom as a 'constant and uniform usage,
accepted by law', i.e. those areas of state practice which arise
as a result of a belief by states that they are obliged by law to
act in the manner described. The facts of the case have been
discussed in depth later in the compilation, In the
abovementioned case the Court declined to acknowledge the
existence of a custom as claimed by Columbia.

A similar case was also held by the International Court of Justice

in the United States Nationals in Morocco Cases where the
denial was also a cause of ambiguity and uncertainty. Although
an international court is bound in the first instance to consider
any applicable treaty provisions binding on the parties, the
treaty in case of a doubt be interpreted against the background
of customary international law, which in so far as it embodies a
rule of ius cogens with which the treaty is in conflict, will indeed
prevail over the treaty, 16

The various essentials and features of custom as a source on

international law have been discussed in the topics to follow.
One of the most important sources of customary and
universally accepted law is both international law and national
law. Since ancient times, all the rules that have gained general
acceptance as a result of widespread application by states in
inter-state relations have been considered as the main
regulators of inter-state relations as customary laws.

Not all customs can be called laws. Only those customs which
are universally accepted as law can be said to be legitimate
sources of law. According to Article 38 (1/b), the status of the
source can only be given if there is clear evidence that the
State Practice has become customary law, that is, if the custom
is to be given the status of law, its general acceptance by the
States must be verified. .

Certain conditions are essential in conferring the status of law

on custom

First: The custom must be prevalent from time immemorial. The

longer the custom, the easier it is to prove it as law. A custom
of short duration cannot acquire the status of law as it is
worthless. Jurists have laid special emphasis on considering the
antiquity of custom before giving it the status of law. However,
if the universality and continuity of a custom can be proved in a
short period of time, then there is no obstacle in the question of
converting that custom into law. In this context, regulations
related to economic zones and accounting in international
space law and sea law can be mentioned.
Second, custom must be reasonable in order to acquire the
status of international law. If custom is inconsistent with truth
and justice, it will not be accepted. Trim

Thirdly, custom must be related to realization of rights and

establishment of justice. A custom acquires status in
international law as a result of its continuous observance over a
long period of time as a right.

Fourth: The custom must be specific. There must be specific

evidence and recognition of the applicability of the right relied
upon to establish the right.
Article 38(b) of the Statute of the International Court of Justice
refers to international custom as evidence of general customs
recognized by law. Tradition has a positive impact on society.
With the approval of world public opinion, ritual use has
become a long-standing practice. In this way, the international
customs recognized by most of the states of the world have
gained the status of international customs and thus it can be
understood through the conduct of state customs that the
existence of customs exists in international relations. The
following are the methods for determining the existence of
custom as a state ritual behavior:
1. Diplomatic relations: Bilateral and multilateral agreements
indicate that there is international practice in establishing
diplomatic relations between states. For example, any
declaration by the state or its head or any of its public servants
or plans or thoughts made by various legal advisors indicate
the existence of custom in international law.

2. International Organizations: Through the activities of

international organizations, it is understood that the existence
of custom exists in the conduct of states. Such international
organizations include ILO, UNO etc.

3. State Legislation: What is the state law of a country, what is

the procedure of the state court, whether any international
custom is being followed or what the state law has declared,
whether it recognizes the custom or not depends on the state
conduct and the existence of the custom. State court decisions
depend on custom. Famous case in this regard-

Case: The Scotia Case; The case of Scotland; (USA Vs. UK;
Supreme Court of USA, 1871)
In this case, in 1863, the British Parliament enacted a law
requiring the use of lights at night as a deterrent and warning
condition for ships on the high seas to avoid collisions between
ships. At the same time, in 1864, the United States Congress
adopted a similar measure. Slowly many states agreed to take
such measures and all these were state decisions (Domestic
Decision). Then in 1871 the United States ship Berkshire
collided with the British ship called (Scotia). Note that Berkshire
was not using any lamps. As a result the Berkshire sank and
several sailors died. Besides, there is considerable damage to
the goods. As a result, Berkshire filed a lawsuit against Scotia
seeking damages. Allah

The issue in this case is whether the respective duties and

responsibilities of the two ships were determined by the
general maritime law prior to the 1864 Act or not.
In deciding the case, the court said that Berkshire would not
receive any compensation. The court, in explaining its decision,
said that the case was to be tried under customary
international law and that since the policy of lighting a ship had
become customary international law and that it had taken place
on the high seas and that Berkshire had not used any lights,
she had violated international custom. . and did not qualify for
any compensation.
The Scotia case is the best example of how a domestic judicial
decision can become international practice.
Any type of international custom to be converted into
customary international law can But in that case, such practice
has to fulfill some conditions. That means two separate tests
have to be passed. They are as follows:
1. Material test (Material Test): If an international custom is
inevitably used or followed repeatedly in inter-state relations,
then it is assumed to have passed the Material test. Famous
case in this regard Case: The Asylum Case; political asylum
cases; (Colombia vs. Peru, ICJ, 1950)
In this case, Haya De La Torre was a citizen of Peru. In 1948 he
declared a rebellion against the Peruvian government, but
ultimately failed. A warrant was later issued for him and he was
granted political asylum at the Colombian Embassy in Lima
pray Colombia agreed, but the Peruvian government did not.
They refused to guarantee Haya De La Torre's safe-departure.
The issue of this case is whether it was a political crime or not?
And does the Colombian government have the power to grant
such asylum?

The case was tried at the International Court of Justice and the
court ruled that the Colombian government had no right to
provide such safe haven. The court explained in favor of this
decision that a custom must pass the material test to become
law. The party relying on this custom has to prove that the said
custom has been repeatedly used and followed. But since
Colombia could not show any such evidence, it was assumed
that the custom could not be considered as an international
law. That is, it has not passed the material test.
2. Psychological test: Not only should a policy be followed, but
also why it is being followed i.e. whether there is any need for it
or not. Any custom can pass the psychological test only if there
is a specific requirement. In this way, there must be
international consensus behind any practice. That is, if a state
follows a custom, because it appears to it that it is legally
bound to follow that custom; Then the practice is considered to
have passed the psychological test. The Latin term for
psychological test is "opinio juris sive necessitatis" in a famous
case:

Case: Lotus Case; Lotus case; (France Vs. Turkey, PCIJ, 1927)

In this case, Turkish ship Boz Kourt collided with French ship
Lotus in open sea. As a result Boz Kourt sank and several sailors
died. When the Lotus then anchored in Istanbul, Türkiye seized
it and demanded compensation and detained the crew of the
Lotus, Demons. France then asked Lotus to be released but
Türkiye refused and the case was tried in Turkish courts by
doing
The issue of this case is whether the Turkish court has
jurisdiction to try the case or not ?
The matter was brought before the Permanent Court of
International Justice (PCIJ) and the court ruled that both France
and Turkey had jurisdiction to try the crimes in question and
that Turkey had not broken any international law by taking
criminal action. In the judgment of this case, the court said, it is
true that, subject to some exceptions, the flag state has
exclusive jurisdiction to try any crime in the deep sea.
However, this does not mean that a state cannot prosecute
crimes committed against its citizens on its territory. The judge
also said, generally: in these cases a state refrains from taking
criminal proceedings in its courts; This does not mean that the
state is bound to do so. This is a practice, which creates no
obligation. The Court also held that it was true that previously
non-flag States had not prosecuted crimes committed on the
high seas, but it did not appear to the Court that they were
deterred by any legal obligation. That is, state behavior cannot
be recognized as a practice because it has not passed the
psychological test.

Note that the decision of this case is not followed at present.

Case law

1. The Case of the S.S. Lotus

Facts-The lotus case took place in 1927, it was a conflict

between Turkey and France that France brought before the
permanent court international justice. The collision between the
French ship Lotus and the Turkish ship Bozkurt took place on 2
August 1926 north of Cape Sigri. The collision had serious
consequences: the ship shattered apart and 8 Turkish sailors
drowned.
Turkey wanted to prosecute the French captain, because he was
responsible for the collision. As a result, the Turkish army
arrested the captain of the French ship. France did not agree,
and decided to bring the case before the Permanent Court for
International Justice. France claimed that Turkey did not have
the right to arrest the captain, because the accident had not
occurred on Turkish territory.

Legal question does Turkey have jurisdiction?

Consideration The Court considers that the first and foremost

restriction imposed by international law on a state is that it has
no power in the territory of another state, Jurisdiction is
territorial, the only way in which a state can exercise its
jurisdiction outside of its territory is through a rule of customary
law or an international treaty (page 19).

The court considers that there are 2 requirements for a rule to

be considered as a rule of customary law: There must be a
state practice, a constant and uniform exercise of the rule.
There must be opinion juris, the conviction that it is customary
law.

Rule of law-Only Turkey had the jurisdiction to prosecute the

captain. The Lotus principle or Lotus approach, usually
considered a foundation of international law, says that
sovereign states may act in any way they wish so long as they
do not contravene an explicit prohibition.
In the opinion of the right
To assume the status of customary international law the rule in
question must be regarded by states as being binding in law,
i.e., that they are under a legal obligation to obey it. In this way
customary rules of law may be distinguished from rules of
international comity which are simply based upon a consistent
practice of states not accompanied by any feeling of legal
obligations. 33

In other words, the opinio juris, or belief that a state activity is

legally obligatory, is the factor which turns the usage into a
custom and renders it part of the rules of international law. To
put it slightly differently, states will behave a certain way
because they are convinced it is binding upon them to do so.4

The Permanent Court of International Justice expressed this

point of view when it dealt with the SS Lotus Case Francev.
Turkey". The issue at hand concerned a collision on the high
seas between the Lotus, a French ship, and the Boz-Kourt. a
Turkish ship. Several people aboard the latter ship were
drowned and Turkey alleged negligence by the French officer of
the watch. When the Lotus reached Istanbul, the French officer
was arrested
charge of manslaughter and the case turned on whether Turkey
had jurisdiction to try him. Among the various arguments
adduced, the French maintained that there existed a rule of
customary law to the effect that the flag state of the accused
(France) had exclusive jurisdiction in such cases and that
accordingly the national state of the victim (Turkey) was barred
from trying him. To justify this, France referred to the absence
of previous criminal prosecutions by such states in similar
situations and from this deduced tacit consent in the practice
which therefore became a legal custom.
The Court rejected this and declared that even if such a
practice of abstention from instituting criminal proceedings
could be proved in fact, it would not amount to a custom. It
held that 'only if such abstention were based on their [the
states] being conscious of a duty to abstain would it be possible
to speak of an international custom". Thus the essential
ingredient of obligation was lacking and the practice remained
a practice, nothing more.

Customary international law is formed from the consistent and

general practice of states, which is accepted as legally binding
(opinio juris). This type of law evolves over time, drawing from
various forms of state behavior and interactions. Here's an in-
depth analysis of the basis for the creation of customary law,
with specific focus on elements like state practices related to
diplomatic relations, international organizations, state
legislation, and decisions of domestic courts.

### Basis for Creation of Customary Law

1. **State Practice (Objective Element)**

- **Uniform and Consistent Practice**: To establish a
customary rule, state practices must be sufficiently widespread,
representative, and consistent. It means that a significant
number of states must follow a particular practice over time.
- **Duration and Repetition**: Customary law does not
emerge from isolated acts but from prolonged and repetitive
state behavior, demonstrating the practice’s stability and
acceptance.

2. **Opinio Juris (Subjective Element)**

 - States must not only follow a practice consistently but must
do so with the belief that they are legally obliged to act in such
a way. This belief transforms a mere habit into a rule of
customary law.
- Opinio juris differentiates between practices that are
customary law and those followed merely for convenience or
courtesy.
### Points on State Practices Influencing Customary Law

1. **Diplomatic Relations**
- **State Conduct in Diplomatic Matters**: The way states
interact diplomatically can establish customs. For example,
diplomatic immunities and privileges have become customary
norms through consistent state behavior. States have long
respected the inviolability of diplomatic agents and embassies,
forming part of the Vienna Convention on Diplomatic Relations
(1961), which reflects established customary principles.
- **International Courtesies vs. Legal Obligations**: Some
state practices, such as saluting flags or sending condolences
upon the death of a foreign leader, remain courtesies unless
accompanied by a belief in legal obligation (opinio juris).

2. **International Organizations**
- **Role of International Organizations**: Organizations like
the United Nations facilitate the development of customary law
through resolutions and declarations. While not legally binding,
resolutions of the UN General Assembly may influence
customary law if states widely accept and practice them
consistently.
- **International Court of Justice (ICJ) Advisory Opinions and
Judgments**: The ICJ has identified customary law principles,
such as in cases involving the use of force or self-defense,
where widespread state practice and opinio juris have been
confirmed.

3. **State Legislation**
- **Domestic Legislation Reflecting Customary Norms**: When
states enact laws consistent with emerging international
practices, it can support the formation of customary law. For
instance, laws addressing environmental protection or human
rights, enacted by multiple states, can indicate the acceptance
of these principles as binding.
- **Legislation as Evidence of Customary Practice**: National
laws regulating navigation, airspace, or treatment of aliens can
show how states implement international norms, reinforcing the
claim that these norms have become part of customary
international law.

4. **Decisions of Domestic Courts**

- **Court Judgments as Evidence**: Decisions by domestic
courts can contribute to the development of customary law,
especially when courts interpret or apply international norms.
These judgments can provide insight into a state’s acceptance
of certain rules as legally binding.
- **Judicial Opinions and Precedents**: National courts, like
the U.S. Supreme Court or the House of Lords in the UK,
sometimes refer to international norms in their rulings. These
references can serve as evidence of a state’s practice and its
recognition of an obligation under international law.
### Significance of Customary Law in International Legal
Order
1. **Binding Nature**: Customary international law binds all
states, irrespective of whether they have formally agreed to
specific treaties. It plays a crucial role in areas not covered by
treaties.
2. **Adaptability and Evolution**: Customary law can adapt to
new challenges in international relations, such as cyberspace
regulations or climate change norms, through evolving state
practices.
3. **Interaction with Treaties**: Customary law often
complements or informs treaty obligations. When a treaty
codifies a customary rule, it reinforces the binding nature of
that rule, even for non-signatories.
Customary international law remains foundational to the global
legal system, continuously shaped by states' actions, legal
obligations, and interpretations in various international
contexts.

The incorporation of treaties into national law depends on how

a treaty is classified: as *self-executing* or *non-self-
executing*. Here’s how they differ:
How treaty is incorporated in National law
### 1. Self-Executing Treaties
- **Definition**: A self-executing treaty is one that becomes
part of national law as soon as it is ratified and without the
need for any additional legislation. It creates enforceable rights
and obligations for individuals and authorities within the
domestic legal system.
- **Implementation**: Once ratified by the appropriate national
authority (e.g., the President or Parliament), the treaty has
direct legal effect. Courts can apply and enforce the provisions
of the treaty in domestic cases without any additional
legislation.
- **Example**: If a treaty on human rights is self-executing,
individuals can directly invoke the rights granted by that treaty
in domestic courts.
### 2. Non-Self-Executing Treaties
- **Definition**: A non-self-executing treaty, on the other hand,
does not automatically have effect in the domestic legal system
upon ratification. It requires implementing legislation to give its
provisions the force of law within the country.
- **Implementation**: The national legislature must pass laws
or regulations that translate the treaty’s terms into domestic
law. Until such legislation is enacted, the treaty cannot be
enforced or used as the basis for a legal claim in domestic
courts.
- **Example**: If a trade treaty is non-self-executing, the
legislature must pass specific laws addressing tariffs,
regulations, or other measures to make the treaty’s terms
applicable domestically.

In summary, **self-executing treaties** are immediately

applicable and enforceable as national law, while **non-self-
executing treaties** require legislative action to become
enforceable.

In Bangladesh, the process of ratifying a treaty involves

multiple stages and is governed by constitutional provisions
and established practices. Here’s a comprehensive breakdown:

How treaty is ratified in Bangladesh

### Constitutional Framework
The ratification of treaties in Bangladesh is primarily governed
by the Constitution of Bangladesh and relevant parliamentary
practices. Article 145A of the Constitution outlines the
procedure for international treaties.

### Steps for Ratification

1. **Negotiation and Signing**:

- The Government of Bangladesh, through its representatives
(usually diplomats or ministers), negotiates the terms of the
treaty with other state parties.
- Once the terms are agreed upon, the treaty is signed.
However, signing a treaty does not mean it has legal effect
domestically; it indicates Bangladesh’s intention to be bound by
the treaty.

2. **Cabinet Approval**:
- After signing, the treaty is presented to the Cabinet for
approval. The Cabinet, comprising senior government
ministers, reviews the treaty’s provisions to ensure they align
with national interests and laws.
- The Cabinet’s approval is essential before proceeding to the
next step.

3. **Parliamentary Involvement**:
- According to Article 145A of the Constitution, all
international treaties must be laid before Parliament. However,
there is no explicit requirement for parliamentary approval
unless the treaty affects domestic law or requires changes to
existing laws.
- Parliament may discuss and debate the treaty. If the treaty
involves significant matters, such as defense, territorial
boundaries, or major economic agreements, it is often subject
to more intense scrutiny and debate.
- In cases where legislative changes are necessary for the
treaty to be implemented domestically, Parliament must pass
the required legislation.

4. **Ratification**:
- Ratification is the formal process by which Bangladesh
consents to be legally bound by the treaty. The President of
Bangladesh, acting on the advice of the Prime Minister, ratifies
the treaty.
- The Ministry of Foreign Affairs (MoFA) prepares the
instruments of ratification and submits them to the appropriate
authority or depositary (an international organization or the
government of another state) to complete the ratification
process.

5. **Publication and Implementation**:

- Once ratified, the treaty may need to be published in the
official gazette, especially if it directly affects public or
governmental operations.
- For self-executing treaties, this may suffice to make the
treaty enforceable. For non-self-executing treaties,
implementing legislation is required. Parliament must enact
new laws or amend existing laws to give effect to the treaty’s
provisions domestically.

### Role of the President and Parliament

- **President**: The President plays a ceremonial role in
ratifying treaties. The President acts on the advice of the Prime
Minister and the Cabinet, as per the Constitution.
- **Parliament**: The extent of Parliament's role depends on the
nature of the treaty. If the treaty has significant domestic
implications, Parliament’s involvement is crucial for passing any
necessary legislation.

### Key Considerations

- **Treaties Affecting Domestic Law**: If a treaty requires
changes to Bangladesh’s domestic laws, parliamentary
approval and legislative action are essential.
- **Executive Authority**: The executive branch, particularly
the Ministry of Foreign Affairs, plays a central role in
negotiating, signing, and preparing for the ratification of
treaties.

### Examples of Treaty Ratification

- **Human Rights Treaties**: Bangladesh has ratified various
international human rights treaties. For these, relevant
government ministries may have to ensure that national laws
comply with treaty obligations.
- **Trade Agreements**: For trade-related treaties, the Ministry
of Commerce often collaborates with MoFA to negotiate terms
and implement the treaty through domestic regulations.

This process ensures that Bangladesh fulfills its international

obligations while respecting its constitutional framework and
democratic processes.
Brangladesh Constitution and International Treaty (Bangladesh
Constitution and International Treaty)

ve
being

All the necessary laws of a state are under the constitution of

that state. Constitution is a reflection of the aspirations of a
nation. Therefore, if all the laws made by the state are
inconsistent with the constitution, it will be invalidate
The international contract will be effective in accordance with
the constitution of Bangladesh, if it is inconsistent, that
agreement will be cancelled. It is said in the section 26 (2) of
the Constitution of Bangladesh that no law against the
Constitution of Bangladesh can be adopted or enacted and any
law made in a similar manner is considered as a mole as much
as it is inconsistent with the Constitution. That is, the
Bangladesh Parliament adopts any law against the constitution