Customary International Law Essay

1201 words - 5 pages

Customary international Law, according to Article 38(1)(b) of the International Court of Justice Statute is defined as “evidence of general practice accepted as law”. A more implicit definition says, “Customary international law develops from the practice of States. To international lawyers, the practice of states' means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern. (Public International Law In a Nutshell: 22-23). In ...view middle of the document...

” (International Agreements and the Development of Customary International Law: 971). The opinions of the aforementioned scholars suggests that the method of creation of Customary International Law - be it in the conversion of norms and principles or finding through international agreements - is generally characterized by some measure of certainty. Still, some argue that it is this very same characterization which causes the uncertainty concerning the method of creation. They argue that the dependence of the method of creation on states action does not help in the distinction between behaviour undertaken because of law and behaviour The conclusion is that the method of creation is not entirely uncertain. There has been an establishment of some sort of precision in the creation of customary international law.
Those who have argued against the certainty of the method of creation of customary international law have also argued that its application is arbitrary. The word “arbitrary” suggests that the application of customary international law is solely dependent on the “whims and fancies” of states. A surface, fickle analysis would no doubt give credence to this statement, on the basis that the establishment of customary international law is reliant on states‘ decision to put into practice a particular norm. However, an intrinsic analysis will show that to say that the application of customary international law is arbitrary is a most confusing statement as the validity of customary international law lies not in the possibility of the acceptance of norms but in an established common state practice, or general acceptance. In a Yale Law Journal dated 2011, two law professors, Bradley and Gulati made a case for the USA being given the right to opt out of customary international law. They gave credence to their case by critiquing the customary international rule of not searching the pouches of diplomats entering foreign embassies, saying that emerging circumstances such as increases in terrorism, should allow states to reverse that particular customary international rule. This debate suggests that states do not simply have the right to opt out of customary international law, thus rendering it circumspect. More importantly, it brings to light the debate on whether customary international law is progressive enough to continue to be the primary source of the governance of relationships among states.
The method development of customary law is an area of great concern for those who practice international law. There have been questions as to whether customary international law is designed to be flexible in its application to the ever changing international system, and some argue that its development is mysterious. While there have been cases where there has been progressive application and...

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