Customary international law

Customary international law is a form of unwritten international law which arises through general exercise, based on the conviction of the legal liability of the standard.

Definition

According to Article 38 paragraph 1 of the Statute of the International Court of Justice ( ICJ ) is the customary international law in addition to the international treaties and the " general principles of law " one of the legal sources of international law.

According to the generally accepted definition of customary international law is created by a matching common conception of law (Lat. opinio juris sive necessitatis ) of legal subjects - in this case specifically the subjects of international law - and the general exercise (Latin consuetudo ). These two core elements are also found in the definition of Article 38 paragraph 1 b of the ICJ Statute.

Consists of the basic definition still widely accepted, so, however, all further questions in the literature on international law are extremely controversial, especially to each other in the weighting of the two elements. So in parts of the literature the importance of general practice in relation to the carrying them legal conviction is significantly restricted.

General practice

In the international jurisdiction of the International Court of Justice, such as in the Nicaragua decision in 1986 makes clear that some form of general exercise is a constitutive element of customary international law. However, parts of the literature disagree violently here and leave the possibility of "spontaneous" formation of customary international law to (instant customary law ). There a continuous, uniform and extensive training is required especially in the most affected subjects of international law.

Whether a sufficient general practice exists, is measured in the individual case to the spread in many states, in representative countries ( geographical distribution ) or in particularly affected states. The universality of the right exercise can not be determined by means of counting out. Rather, here the facts of the case are to be considered - eg common law legal principles of space law can be influenced only by States which operate space and therefore are particularly affected. In general, therefore, customary international law is given if the behavior of all subjects of international law is recognized that at the particular matter also may participate or whose interests are affected - at least the ICJ in the North Sea Continental Shelf cases 1967-1969. Also regional customary international law is therefore conceivable.

It takes a certain duration of the exercise. In terms of time the formation of customary law can be affirmed even after a relatively short time, by no means necessary is a legal practice since " time immemorial ", or even over a considerable time. To what extent the following the Kosovo mission (1999) and the Bush Doctrine (2002) could be based on customary international law, is disputed.

In addition, must be no opposite Act. The exercise must be sufficiently uniform, ie the subjects of international law involved must behave largely the same. Partly later deviations from this exercise are then qualify as violations of the resulting common law, but do not provide the uniformity of practice in question - as long as the deviations are not so numerous and serious that is expected from the formation of new, different customary international law.

Legal conviction ( opinio juris )

The exercise must be based on the conviction legal obligation ( opinio iuris, also written opinio juris ). The act must not only political meaning or expression of international politeness ( courtliness ) or even arrogance. To the objective element of the exercise so shall be additional a subjective. It is therefore crucial that is visible to the outside that the actors therefore gear their actions in an international exercise because they understand this as a right. It is necessary here but again not complete uniformity of opinion of all subjects of international law, individual deviations are therefore insignificant.

Relation to international treaty law

International treaty law can codify customary law, to hold so in writing and then for the Member States of the Treaty also contractually binding manner. This is the case for large parts of the Vienna Convention on Diplomatic Relations, which is based on customary international law already existing at the conclusion of the contract and it writes down.

A reverse trend is conceivable: Originally only contractually applicable provisions may be part of customary international law, albeit non- Contracting Parties should apply the provision in question and make it clear that they are based on the common law validity. It also requires here the exercise and the opinio juris.

Both developments can ultimately lead to parallel existing customary international law, that is, a certain international rule applies to both contract between the parties as well as customary law in relation to each other of all states - including the non-member States. The International Court has expressly stated for example in Nicaragua case, the prohibition of interstate violence is not only enshrined in the UN Charter and thus applies contract law, but it can also claim common law validity for themselves.

It is also possible that a contractual standard of a norm of customary international law contradicts. In these cases, the answer to the question of what standard can the other displaced prove difficult. Although there is no hierarchy of norms in international law, but a fundamental priority of contractual standards with respect to customary international law can be adopted according to the lex specialis principle. The reason given is that customary international law except the ius cogens norms is dispositive. There stand the subjects of international law, therefore, in their relationship with each other to amend the standards to replace or exclude. This does not mean that no customary international law can be reversed displace international treaty law such as the ICJ has confirmed the North Sea Continental Shelf judgment of 20 February 1969.

Problems and further questions

Whether states (especially hegemonic powers ) can create only by repeated practice ( consuetudo ) new customary international law, if this behavior will only be accepted by other States or contradicted these actions is controversial. According to the definition given at the outset, it should lack the necessary conviction for common law of legal validity. It may be then or at least particulate customary international law between the entities that recognize such a new legal rule of customary international law emerge.

The UN General Assembly can not place international law, but only start initiatives for appropriate contract negotiations between countries. But pronouncements of States and their voting behavior in the UN system can be an expression of the conviction of the stock of a corresponding customary international law and are therefore indicative of the existence of an opinio juris.

With the emergence of customary international law, a State may not prevent the development of customary international law, but rather the validity. The fact that a State is opposed from the outset, however, the resulting customary international law has no validity for him (persistent objector ).

Examples

• Genocide prohibition
• Prohibition of torture and of inhuman or degrading treatment or punishment ( prohibition of torture )
• Common Article 3 of the Geneva Conventions
• The mutual recognition of air space as territory to 80 km altitude
• Coastal waters, 12 nautical miles ( territorial waters ) and fishing areas
• Uti possidetis
• Self -determination of peoples - in the world of states controversial