To take Anthony D’Amato’s distinction between actions and statements, “Actions can form custom only if accompanied by an articulation of the legality of the action.”
The possibility of instant custom in today’s global world is clearly there. The theory of instant custom was officially introduced by the legal scholar Bin Cheng, who wrote, “As international law is a horizontal legal system in which states are both the law-makers and the subjects of the legal system, opinio juris can arise or change instantaneously.” To take a recent example, the newly formed Bush Doctrine is an example of an instant custom in the global world. On September 12th, Bush declared that, “we will make no distinction between the terrorists who committed these acts and those who harbor them.” The idea that Bush proclaimed on the one hand showed Americas resolve against those that perpetrated the heinous crime while on the other hand teaching the world a new way of dealing with the threat of terrorism and thereby introducing a new customary law. Within weeks of the Bush doctrine the U.N passed several resolutions backing the doctrine, and dozens of countries pledged to fight with America in this new war. In the North Sea Continental Shelf Cases, the ICJ deviated from the traditional view of customary international law by stating that rules need not develop over long periods of time and that extensive evidence of opinio juris must be obtained. Rather the justices noted that instantaneous customary law is more desirable since it is attuned to the rate of development in the modern world. The ICJ states that, “Although the passage of only a short period of time is not necessarily . . . a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, 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 specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.” The possibility of instant custom has been criticized by many legal scholars on the grounds that customary international law and instantaneousness are incompatible. For a rule to become a customary international law according to D’Amato’s theory there must be an “articulation” of the rule and an act consistent with articulation. Thus the possibility of instant custom is there when considering the Bush doctrine, in the changing and ever global face of the world the rate of customary international laws is increasing far more rapidly than customary international laws do usually.
The effect of treaties on third-party members is that a treaty does not impose any rights or obligations on the third-party. However both Customary law and the Vienna convention, has established some important exceptions to this rule. “It is asserted that a multilateral treaty may create legal effects for a non-party either if it is declaratory of customary law or it established new customary law. In the case of a treaty imposing obligations on a third-party, the Vienna convention states that, “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.” Furthermore, a third party can be binded to a treaty that it has not signed if a world body such as the Security Council forces it too. In many cases the Security Council decides on major issues which the entire assembly has to accept. Thus if a country for example is not a signatory to the I.C.C, but the UNSC forwards the case of a U.N member country, the I.C.C can then hear the case. Since the UNSC represents all countries in the U.N if they make a decision they can bind a third party to it by threat of sanctions and military force.
General principles of law are basically legal doctrine that allows international tribunals to adopt and apply principles common to the various systems of domestic law, so long as they are consistent with the norms laid down by the international community and don’t conflict with any international conventions or treaties. The general principles of law are also one of the sources laid out in Article 38 (1) (c) of the charter of the International Court of Justice. The content of the General Principles of law has generally been controversial due to the different ways that nations with different cultures interpret the law in their nations. One such general principle, the rule "pacta sunt servanda" can be truly considered as universal, because otherwise the whole edifice of written international law, which is embodied mostly in treaties, would collapse.”
There are other principles like non-interference in the internal matters of another state, respecting territorial integrity of states and the right to self-determination.
Many of the general principles of law conflict with each other, the right to self-determination with a states territorial integrity. The biggest controversy is with the fundamental rights of human beings. Since humanity is a very culturally non-homogenous society there are many different interpretations to what is intolerable. Most fundamental rights of human beings have to be protected internationally and cannot be overridden and thus states deem it necessary to interfere in another states internal matter where the rest of the states believe that the state in question is not respecting the rights of its citizen. The controversy here though is which rights of human are universal and which culture-specific.
In conclusion Article 38 gives general sources for the interpretation of the law and what constitutes a breach of international law. Though it is in a state of infancy as of yet the debate that the article has generated can only be beneficial as my talking about the different ideas and problems the states face can we move forward and implement more and concise and clear goals for the international community. The article though controversial has also aroused us to the fact that nation-states making up the international community are as diverse as they are far from each other and that in making any international law we have to take into account the different culture and different traditions of over 5 billion people.
International Human Rights Law and Article 38(1) of the Statute of the International Court of Justice, Steven C. Perkins
Traditional and Modern Approaches To Customary International Law: A Reconciliation, Anthea Elizabeth Roberts
Traditional and Modern Approaches To Customary International Law: A Reconciliation, Anthea Elizabeth Roberts
Traditional and Modern Approaches To Customary International Law: A Reconciliation, Anthea Elizabeth Roberts
Traditional and Modern Approaches To Customary International Law: A Reconciliation, Anthea Elizabeth Roberts
IT’S “INSTANT CUSTOM”: HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, Benjamin Langille
IT’S “INSTANT CUSTOM”: HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, Benjamin Langille
IT’S “INSTANT CUSTOM”: HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, Benjamin Langille
IT’S “INSTANT CUSTOM”: HOW THE BUSH DOCTRINE BECAME LAW AFTER THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, Benjamin Langille
Hague Convention on the Rules of Land Warfare (1907)
International Law Dictionary English 2000 copyright Ray August.
General Principles of International Law and Cultural Diversity, Blonay, 26th March 1999.
General Principles of International Law and Cultural Diversity, Blonay, 26th March 1999