5 International Costomery law

Prof. Nitin Gomber

A general State practice

The International Court of Justice has iterated that for a general State practice to constitute customary international law; it must be ‘constant and uniform.’ This implies that a certain passage of time is required and during that period of time what matters is consistency in the way a particular matter is handled. However, when it comes to human rights law, the practice will usually have evolved over a long period of time. Also, there is no set number of States which must have adopted such a practice in order to be known as ‘a general State practice,’ but the practice of all the States in this world need not be looked at either.

With respect to the passage of time, in the North Sea Continental Shelf case, the ICJ explained, “the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary law… [yet] 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 especially affected, should have been both extensive and virtually uniform… and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation involved.”

Now, since international law regulates the relationships between States, the practice that is relevant for establishing a rule of customary law is, therefore, the practice (action or inaction) of States in relation to each other or to other recognized international actors such as international organizations. However, when it comes to the creation of customary international law in the field of human rights, the practice of a State in relation to its own citizens is of much more significance. However, this has its own drawbacks. The reason being that States usually paint a very bright picture of their nations, whatever the ground reality may be. Even a country like North Korea, which is virtually isolated in the world with all its fundings cut off by western sanctions, portrays a very merry picture of its citizens, when in fact the ground reality tends to be very different.

The foregoing presents a very interesting question. What happens in the case of divergence between States’ assertion of the existence of a particular rule of customary law, and their practice inconsistent with it. In the field of human rights law, for example, it is probably the case that the municipal law of practically every State of the world prohibits torture, and States generally agree, in theory, that there is a rule of international law forbidding it; yet there is no doubt that torture continues to be widely practised. Now, can a rule which is flouted behind the curtains and is shown to be adhered to consistently and uniformly, crystallize into a customary law? An observation of the ICJ in the case Military and Paramilitary Activities in and against Nicaragua is of particular importance here. The court observed that for the recognition of the existence of a customary rule, it is 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 breaches of that rule, not as indications of recognition of a new rule’.4 The Court in this matter was dealing with customary rules forbidding the use of force or intervention. Based on the ruling, one can infer that if instances of torture do come to light, it is likely that neither the State involved nor the international community is likely to suggest that it indicates recognition of a new rule. In the case of the use of force, the tendency is to seek excuses, as for example that force was needed in self-defence; and on this the Court commented further, “If a State acts in a way prima facie inconsistent with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained in the rule itself, then whether or not the State’s conduct is, in fact, justiciable on that basis, the significance of that attitude is to confirm rather than to weaken the rule”.

Now the question is, where does one find the evidence of practice by States? This question too does not have a very straightforward answer. However, such evidence could possibly be gathered from the following: (a) Decisions of international courts/tribunals, particularly the ICJ; (b) Judgments of national courts, particularly in respect of recognized immunities in favour of another State or its  diplomats; (c) Statements issued by nations on topics of global relevance; (d) Speeches by the heads of State in a formal setting, say on the floor of the General Assembly; (e)Voting practices of States at regional and international fora, among others.

Opinio Juris

Opinio Juris means that an action was carried out by a State because it thought it had a legal obligation to do so. Now, in addition to “a general State practice” it is necessary to demonstrate that States are engaging in a consistent practice because they feel they are under a legal obligation to do so. It is important to note in this regard that a mere social usage will not suffice for this purpose. It has to be proved that the State’s actions are inspired by the rule of law alone!

With respect to opinio juris, the International Court of Justice observed in the North Sea Continental Shelf (Federal Republic of Germany v. The Netherlands) case, “To establish custom… The frequency or even habitual character of the acts is not enough. There are many international acts, e.g., in the field of ceremonial and protocol, which is performed almost invariably, but are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty”.

In fact, in the case concerning Jurisdictional Immunities of the State, the International Court of Justice had the opportunity to particularly elaborate upon the observations it made in the North Sea case. In this case, Italy was arguing for a qualification of the immunity recognized for States in respect of acts jure imperii and relied on alleged State practice in support. The Court observed, “While it may be true that States sometimes decide to accord an immunity more extensive than that required by international law, for present purposes, the point is that grant of immunity in such a case is not accompanied by the requisite opinio juris…” The Court therefore recognized the fact that an international act not motivated by any sense of legal duty does not constitute opinio juris.

Now that it is clear what is opinio juris, it is important to move onto our next query, i.e., how to confirm the existence of an opinio juris? It is not an easy task to gauge “why” a State is acting in a particular manner. The reasons for doing so could be economic, political, religious, diplomatic, etc. In fact, with respect to international human rights, the problem is even more compounded as human rights by their very nature involve the actions of a State towards its nationals and other residents. In this regard, the Committee on the Formation of Customary Law set up by the International Law Association (ILA) in 1985 observed, “… what seems clear is that, if there is a good deal of State practice, the need also to demonstrate the presence of the subjective element of [opinio juris] is likely to be dispensed with”. From the foregoing, it could be deduced that if there is “a good deal of State practice,” the need for the presence of opinio juris could possibly be diluted to find in favour of crystallization of customary international law.

The concept of Opinio Juris can better be understood by way of the following example:

[Stage 1] States recognize that a uniform and consistent practice has come into place.

[Stage 2] States also recognize that the said uniform and consistent practice flows from a rule of law and has become binding practice.

The difficulty arises in finding out when actually the transition from Stage 1 to Stage 2 really takes place. It is in this regard that the observations of ILA come into play.

Significance of Human Rights with customary law status

The question of customary law status of international human rights has over the years become less significant in light of the explosive growth in treaty ratifications dealing with human rights. Today, there are numerous human rights treaties in place dealing with a wide variety of subjects which tend to give out the basic rights of all human beings. On the one hand, we have conventions casting a negative obligation on to the State barring torture, enforced disappearance, discrimination against women, etc. and on the other, we have conventions casting a positive obligation on to the State for providing social and cultural rights.

Now, even though the debate on what is customary law in respect of human rights might seem less significant in light of a number of treaty ratifications, but the debate surrounding the customary status of human rights is relevant in a number of other areas, as well. It sheds light on the issue of which reservations to human rights treaties are invalid because of the customary law status of the underlying provisions and also confirms that a State that denounces a treaty may under certain circumstances remain bound by some of the treaty’s provisions.

Let us take a couple of examples to see how customary status of human rights may come into play in the international arena:

(a) A is a country in Asia which is a UN member state. Until 2014, it is not a party to the International Covenant on Civil and Political Rights (ICCPR). In 2015, it accedes to the ICCPR and appends a statement along with its accession instrument, which says, “The provisions of

Article 7 of the ICCPR shall be subject to the laws in place in country A, which may authorise such treatment or punishment for extracting information or confession.”

Now, Article 7 of the ICCPR says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. However, the reservation made by country A says that its own laws may authorise torture or cruel treatment for extracting information or confessions. Therefore, the laws (or the future laws) of country A are directly conflicting with Article 7 of the ICCPR. In this scenario, the international community could argue that prevention of torture is a customary norm of international law and accordingly such a reservation is void/illegal/inadmissible.

(b) Similarly, if country A was a party to the ICCPR from say the 1970’s and in 2000 assuming it withdraws9 its membership thereof, then it may not formulate legislations which violate Article 7 of the ICCPR, as prevention of torture, has attained the level of a customary norm of international law.

The question of the applicability of a human right as a customary law can also arise at the domestic level. For example, Article 25 of the Constitution of the Federal Republic of Germany reads, “the general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” This shows that customary international law will take precedence over the domestic laws of Germany. This implies that the passage of any domestic law is barred in Germany which is in direct conflict with the customary international law.

Similarly, the Supreme Court of India has played an active role in recognising norms of customary human rights law. For example, in Vellore Citizens Welfare Forum v. Union of India, a public interest litigation was filed by Vellore Citizens Welfare Forum against the Pollution which was being caused by the enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Supreme Court, in this case, held, “we have no hesitation in holding that ‘sustainable development‘ as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international jurists.”

Human rights with customary law status

The International Court of Justice has explicitly recognized the customary law status of the prohibition of genocide. In Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide10, while giving an advisory opinion to the General Assembly of the United Nations, it held that the principles underlying the Convention are recognised by civilised nations as binding on States even without any conventional obligation. It further noted that the Convention on the Prevention of Genocide was intended to be universal in scope with its purpose being purely humanitarian and civilising. The Court also noted that the contracting States do not have any individual advantages or disadvantages nor interests of their own, but merely a common interest. The foregoing language indicates how strongly the Court felt about the prohibition of genocide as a norm of customary status.

In the Case concerning Military and Paramilitary Activities in and against Nicaragua, the International Court of Justice very categorically held that “there was an obligation on the United States Government in terms of Article 1 of the Geneva Conventions to “respect” the Conventions and even” to ensure respect” for them “in all circumstances since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression.” The Court then went on to add that, “The United States is thus under an obligation not to encourage persons or groups engaged in the conflict in Nicaragua to act in violation of the provisions of Article 3 common to the four Geneva Conventions…”. Common Article 3 of the four Geneva Conventions in part provides, “the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples…” Thus, in the foregoing decision, the ICJ explicitly recognized the prevention and prohibition of half a dozen crimes as customary law status thereby giving an impetus to the international human rights regime.

In addition, according to the Restatement of the Foreign Relations Law of the United States, codified by the American Law Institute, a leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law, the following human rights violations are  prohibited by customary law when practised, encouraged, or condoned as a matter of state policy: (a) genocide, (b) slavery or slave trade, (c) the murder or causing the disappearance of individuals, (d) torture or other cruel, inhuman or degrading treatment or punishment, (e) prolonged arbitrary detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross violations of internationally recognized human rights.

Furthermore, the Human Rights Committee, which is tasked with the monitoring of the International Covenant on Civil and Political Rights has also come up with its own list of human rights that represent customary international law. These include the prohibition of slavery, torture, subjecting persons to cruel, inhuman or degrading treatment or punishment, arbitrarily depriving persons of their lives, arbitrarily arresting and detaining persons, denying freedom of thought, conscience and religion, presuming a person guilty unless he proves his innocence, executing pregnant women or children, permitting the advocacy of national, racial or religious hatred, denying to persons of marriageable age the right to marry, or denying to minorities the right to enjoy their own culture, profess their own religion, or use their own language.

Reference

1. Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, by Anthony D’Amato, 25 Ga. J. Int’l & Comp. L. 47-98, Fall,1995 /Winter, 1996.
2. Arthur M. Weisburd, The Effect on the Customary Law of Human Rights of Treaties and other Formal International Acts, 25 GA. J. INT’L & COMP. L. 99 (1995-96)