Evaluation of the relationship and differences between customary law, general principles of law and
EVALUATION OF THE RELATIONSHIP AND DIFFERENCES BETWEEN CUSTOMARY LAW, GENERAL PRINCIPLES OF LAW AND EQUITY.*
INTRODUCTION
Each individual has basic set of principles, doctrines and ideals which guide his various activities. This is also the case in every organization, state, or entity having the legal personality to act as one. It is however a different issue where such organization, state or entity is not yet a legal person within the context of their legal system. Within a State there exist various rules, laws, statutes, treaties, and most importantly the constitution (which is the grundnorm ) which decides the legality of every action. But as is commonly said, where there is no law there can be no crime or offence which ultimately leads to a state of anarchy. But with the enactment of every law comes the issue of which law is to be applied, when it should be applied and also how it should be applied, which brings the judiciary into the picture.
This is also the case internationally. When there is a dispute between states, international organizations or institutions, and also between the both, these questions arise. In answering these questions, however, the Court is guided by certain principles rooted in basic sources of law. These are the provisions operating within the legal system on a technical level. In international disputes, the major and all encompassing provision on these sources is found in article 38 of the Statute of the International Court of Justice . This provision will be the main anchor in this essay.
This essay seeks to examine these sources of international law, critically evaluate how they relate in practice and also the differences between them. It also seeks to answer questions such as; how do these sources of law evolve; is the principle of equality of states an equitable doctrine; and also why these sources of law are different from each other in practice.
Customary Law, General Principles of Law and Equity
Article 38 of the Statute provides thus:
1) the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
(b) international custom,as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2) this provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
These sources of law will now be discussed singly for a proper understanding.
A) CUSTOMARY LAW
This refers to the consistent practice of States which have now been accepted as binding. It is a form of state practice which regulates the relationships of States as well as international organizations/bodies. Article 38(1)(b) refers to it as an evidence of a general practice that is accepted as law. What constitutes State practice? A practice 'consists of an act of accumulation of acts which are material or concrete in the sense that they are intended to have an immediate effect on the legal relationships of the state concerned' . It does not necessarily have to be contained in Statutes, treaties or political documents . Customary law is, however, also found in transnational and international treaties. Prof. d'Aspremont noted that traditionally, 'customary international rules are identified on the basis of a bottom-up crystallization process that rests on a consistent acquiescence by a significant number of States, accompanied by the belief (or intent) that such a process corresponds to an obligation under international law'
The material of customary law is to be found in the actual practice and opinio juris of states. The question then arises here as to how practices evolve as law(s) internationally. For any state practice to become law it has to be consistent and widely recognized as obligatory. In the words of the Court in the Asylum case :
"the party which relies on a custom... must prove that this custom is established in such
a manner that it has become binding on the other party... that the rule invoked... is in accordance with a constant and uniform usage practiced by the states in question and that this usage is the expression of a right pertaining to the state granting asylum and a duty incumbent on the territorial State..."
Also in Nicaragua v United States case the Court said 'in order to deduce the existence of customary law rules, the Court deems it sufficient that the conduct of states should in general be consistent with such rules, and that instances of state conduct is consistent with a given rule should generally have been treated as breaches of that rule, not as indication of the recognition of a new rule'.
The substance of customary law is contained both in the actual practice and opinio juris of states . Opinio juris in customary international law is the belief by a State that acted in a particular way that it was under a legal obligation to act that way. Such a belief coupled with a subsequent action constitutes an acceptance of that rule of international law. The Court noted in the Nicaragua case that "for a new customary rule to be formed, not only must the acts concerned 'amount to a settled practice', but they must be accompanied by the opinio juris sive necessitatis. Either the states taking such action or other states in a position to react to it, must have behaved so that this practice is rendered obligatory by the existence of a rule of law requiring it" . The need for such a belief (i.e. the existence of a subjective element) is implicit in the very notion of the opinio juris sive necessitatis .
Customary law has binding effects in international law. A general custom is binding, not only on states, whose practice created the custom, but also on states whose practice neither supports nor rejects the custom, and on new states that came into being after the custom has become well established. Any action or attitude in defiance of an established rule of customary international law is often viewed as a breach of international law . The only exception here is where a state constantly opposes the custom from inception .
B) GENERAL PRINCIPLES OF LAW.
Article 38(1)c provides for another source of law in 'general principles of law recognized by civilized nations'. Although it is still very unclear what the writers of this Statute had in mind to have made this a separate source of international law to be used by the Court, general principles of law in international law are 'those which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata' . This is why it is very difficult to separate this source of law from customary international law.
Examples of how this principle has been applied are in the cases of sovereign equality of states, estoppel, international environmental law, administration of justice, etc. According to the Tribunal in Laguna del Desierto (Argentina/ Chile) case, "a judgment having the authority of res judicata is judicially binding on the parties of the dispute. This is a fundamental principle of the law of nations repeatedly invoked in the jurisprudence, which regards the authority of res judicata as a universal and absolute principle of international law" .
C) EQUITY
Under national laws, equitable remedies came into existence to fill the void in common law and also to mitigate against the hardship worked as a result of its application. However, equity has become a major source of international law. Worthy of note is the deliberation of the Court in the Continental Shelf cases . According to the Court, "equity as a legal system is a direct emanation of the idea of justice. The Court whose task is by definition to administer justice is bound to apply it. In the course of history of legal systems the term 'equity' has been used to define various legal concepts. It was contrasted with the rigid rules of positive law, the severity of which had to be mitigated in order to do justice. In general, this contrast has no parallel in the development of international law; the legal concept of equity is a general principle directly applicable as law. Moreover,... a court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of justice" .
The Court also gave examples of equitable principles as used in international law. These are "... the principle that there is to be no question of refashioning geography, or compensating for the inequalities of nature; the related principle of non-encroachment by one party on the prolongation of the other,... the principle of respect due to all such relevant circumstances; the principle that although all states are equal before the law and are entitled to equal treatment 'equity does not necessarily imply equality'... nor does it seek to make equal what nature had made unequal; and the principle that there can be no question of distributive justice"
EVALUATION OF THE RELATIONSHIP AND DIFFERENCES BETWEEN THESE SOURCES OF LAW
Each of these sources of law is interrelated locally, nationally and internationally that it makes it very hard to determine the differences between them. However, it should be noted that these sources of law were arranged by the draftsmen of the Statute in order to create an hierarchy of laws as it can be said here that the least of these sources is the ex aequo et bono as it requires the agreement of the parties to the dispute before it can be applied by the Court; whereas customary law creates a stern application process as it is derived from the consent of states as a whole . It is trite to then say that the point where these sources of law either joins or departs is in their application by the Court and also in how they evolve as law.
As most of the instances where these sources of law either relate or contrast have been discussed, it will be very safe to state the following noticeable facts:
- That customary law is an embodiment of the other sources of law. Customary law entails state practice and opinio juris and one major way of knowing the practice of a State is through the principles of law generally accepted in the state (contained in statutes, the constitution, etc) . This includes general principles of law and also equitable principles. In practice, however, most of these laws are 'customarily' accepted as binding through a legal obligation (opinio juris) . One principle of law that calls for attention here is that of equality of states.
- This is a general doctrine of international law which is also a practice among civilized states and also an equitable doctrine. As noted by Schachter, "the development and application of law through State practice is... influenced by that aspect of equity which functions as a corrective to the mechanical application of rules" .
- It was also said by the Court in the Continental Shelf cases that the justice of which equity is an emanation is not an abstract justice but justice according to the rule of law which is to say that its application should display consistency and a degree of predictability even though it also looks beyond it to principles of more general application . The element of predictability and consistency is one which is common and essential to the validity of these sources of law.
-In the words of the Court in the Gulf of Maine case, customary law "can of its very nature only provide a few basic legal principles, which lay down guidelines to be followed with a view to an essential objective. It cannot also be expected to specify the equitable criteria to be applied or the practical, often technical, methods to be used for attaining that objective- which remain simply criteria and methods even where they are also, in a different sense, called 'principles'. Although the practice is still rather sparse, owing to the relative newness of the question, it too is there to demonstrate that each specific case is, in the final analysis, different from all the others, that it is mototypic and that, more often than not, the most appropriate criteria, and the method of combination of methods most likely to yield a result constant with what the law indicates, can only be determined in relation to each particular case and its specific characteristics" .
-Bindingness of the sources; this is one element which is common to all these sources of law except for equity where the consent of the concerned states is needed before it can be applied by the Court . Whichever the source of law used by the Court in any case a binding decision is always the outcome .
Conclusively, it is often a difficult task to separate these sources of law in practice. Although some writers have attempted to distinguish them by classifying them into two; material sources of law and formal sources of law , Shaw noted that this classification will ultimately lead to a distraction of attention from some of the more important problems which is very difficult to maintain in international law . The most important thing, however is that justice is worked by the application of these sources of law.
*BY AWOTOYE, TOBILOBA OPEYEMI
LLM CRIMINAL LAW AND CRIMINAL JUSTICE (2012)
UNIVERSITY OF BIRMINGHAM
INTRODUCTION
Each individual has basic set of principles, doctrines and ideals which guide his various activities. This is also the case in every organization, state, or entity having the legal personality to act as one. It is however a different issue where such organization, state or entity is not yet a legal person within the context of their legal system. Within a State there exist various rules, laws, statutes, treaties, and most importantly the constitution (which is the grundnorm ) which decides the legality of every action. But as is commonly said, where there is no law there can be no crime or offence which ultimately leads to a state of anarchy. But with the enactment of every law comes the issue of which law is to be applied, when it should be applied and also how it should be applied, which brings the judiciary into the picture.
This is also the case internationally. When there is a dispute between states, international organizations or institutions, and also between the both, these questions arise. In answering these questions, however, the Court is guided by certain principles rooted in basic sources of law. These are the provisions operating within the legal system on a technical level. In international disputes, the major and all encompassing provision on these sources is found in article 38 of the Statute of the International Court of Justice . This provision will be the main anchor in this essay.
This essay seeks to examine these sources of international law, critically evaluate how they relate in practice and also the differences between them. It also seeks to answer questions such as; how do these sources of law evolve; is the principle of equality of states an equitable doctrine; and also why these sources of law are different from each other in practice.
Customary Law, General Principles of Law and Equity
Article 38 of the Statute provides thus:
1) the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
(b) international custom,as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2) this provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
These sources of law will now be discussed singly for a proper understanding.
A) CUSTOMARY LAW
This refers to the consistent practice of States which have now been accepted as binding. It is a form of state practice which regulates the relationships of States as well as international organizations/bodies. Article 38(1)(b) refers to it as an evidence of a general practice that is accepted as law. What constitutes State practice? A practice 'consists of an act of accumulation of acts which are material or concrete in the sense that they are intended to have an immediate effect on the legal relationships of the state concerned' . It does not necessarily have to be contained in Statutes, treaties or political documents . Customary law is, however, also found in transnational and international treaties. Prof. d'Aspremont noted that traditionally, 'customary international rules are identified on the basis of a bottom-up crystallization process that rests on a consistent acquiescence by a significant number of States, accompanied by the belief (or intent) that such a process corresponds to an obligation under international law'
The material of customary law is to be found in the actual practice and opinio juris of states. The question then arises here as to how practices evolve as law(s) internationally. For any state practice to become law it has to be consistent and widely recognized as obligatory. In the words of the Court in the Asylum case :
"the party which relies on a custom... must prove that this custom is established in such
a manner that it has become binding on the other party... that the rule invoked... is in accordance with a constant and uniform usage practiced by the states in question and that this usage is the expression of a right pertaining to the state granting asylum and a duty incumbent on the territorial State..."
Also in Nicaragua v United States case the Court said 'in order to deduce the existence of customary law rules, the Court deems it sufficient that the conduct of states should in general be consistent with such rules, and that instances of state conduct is consistent with a given rule should generally have been treated as breaches of that rule, not as indication of the recognition of a new rule'.
The substance of customary law is contained both in the actual practice and opinio juris of states . Opinio juris in customary international law is the belief by a State that acted in a particular way that it was under a legal obligation to act that way. Such a belief coupled with a subsequent action constitutes an acceptance of that rule of international law. The Court noted in the Nicaragua case that "for a new customary rule to be formed, not only must the acts concerned 'amount to a settled practice', but they must be accompanied by the opinio juris sive necessitatis. Either the states taking such action or other states in a position to react to it, must have behaved so that this practice is rendered obligatory by the existence of a rule of law requiring it" . The need for such a belief (i.e. the existence of a subjective element) is implicit in the very notion of the opinio juris sive necessitatis .
Customary law has binding effects in international law. A general custom is binding, not only on states, whose practice created the custom, but also on states whose practice neither supports nor rejects the custom, and on new states that came into being after the custom has become well established. Any action or attitude in defiance of an established rule of customary international law is often viewed as a breach of international law . The only exception here is where a state constantly opposes the custom from inception .
B) GENERAL PRINCIPLES OF LAW.
Article 38(1)c provides for another source of law in 'general principles of law recognized by civilized nations'. Although it is still very unclear what the writers of this Statute had in mind to have made this a separate source of international law to be used by the Court, general principles of law in international law are 'those which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata' . This is why it is very difficult to separate this source of law from customary international law.
Examples of how this principle has been applied are in the cases of sovereign equality of states, estoppel, international environmental law, administration of justice, etc. According to the Tribunal in Laguna del Desierto (Argentina/ Chile) case, "a judgment having the authority of res judicata is judicially binding on the parties of the dispute. This is a fundamental principle of the law of nations repeatedly invoked in the jurisprudence, which regards the authority of res judicata as a universal and absolute principle of international law" .
C) EQUITY
Under national laws, equitable remedies came into existence to fill the void in common law and also to mitigate against the hardship worked as a result of its application. However, equity has become a major source of international law. Worthy of note is the deliberation of the Court in the Continental Shelf cases . According to the Court, "equity as a legal system is a direct emanation of the idea of justice. The Court whose task is by definition to administer justice is bound to apply it. In the course of history of legal systems the term 'equity' has been used to define various legal concepts. It was contrasted with the rigid rules of positive law, the severity of which had to be mitigated in order to do justice. In general, this contrast has no parallel in the development of international law; the legal concept of equity is a general principle directly applicable as law. Moreover,... a court may choose among several possible interpretations of the law the one which appears, in the light of the circumstances of the case, to be the closest to the requirements of justice" .
The Court also gave examples of equitable principles as used in international law. These are "... the principle that there is to be no question of refashioning geography, or compensating for the inequalities of nature; the related principle of non-encroachment by one party on the prolongation of the other,... the principle of respect due to all such relevant circumstances; the principle that although all states are equal before the law and are entitled to equal treatment 'equity does not necessarily imply equality'... nor does it seek to make equal what nature had made unequal; and the principle that there can be no question of distributive justice"
EVALUATION OF THE RELATIONSHIP AND DIFFERENCES BETWEEN THESE SOURCES OF LAW
Each of these sources of law is interrelated locally, nationally and internationally that it makes it very hard to determine the differences between them. However, it should be noted that these sources of law were arranged by the draftsmen of the Statute in order to create an hierarchy of laws as it can be said here that the least of these sources is the ex aequo et bono as it requires the agreement of the parties to the dispute before it can be applied by the Court; whereas customary law creates a stern application process as it is derived from the consent of states as a whole . It is trite to then say that the point where these sources of law either joins or departs is in their application by the Court and also in how they evolve as law.
As most of the instances where these sources of law either relate or contrast have been discussed, it will be very safe to state the following noticeable facts:
- That customary law is an embodiment of the other sources of law. Customary law entails state practice and opinio juris and one major way of knowing the practice of a State is through the principles of law generally accepted in the state (contained in statutes, the constitution, etc) . This includes general principles of law and also equitable principles. In practice, however, most of these laws are 'customarily' accepted as binding through a legal obligation (opinio juris) . One principle of law that calls for attention here is that of equality of states.
- This is a general doctrine of international law which is also a practice among civilized states and also an equitable doctrine. As noted by Schachter, "the development and application of law through State practice is... influenced by that aspect of equity which functions as a corrective to the mechanical application of rules" .
- It was also said by the Court in the Continental Shelf cases that the justice of which equity is an emanation is not an abstract justice but justice according to the rule of law which is to say that its application should display consistency and a degree of predictability even though it also looks beyond it to principles of more general application . The element of predictability and consistency is one which is common and essential to the validity of these sources of law.
-In the words of the Court in the Gulf of Maine case, customary law "can of its very nature only provide a few basic legal principles, which lay down guidelines to be followed with a view to an essential objective. It cannot also be expected to specify the equitable criteria to be applied or the practical, often technical, methods to be used for attaining that objective- which remain simply criteria and methods even where they are also, in a different sense, called 'principles'. Although the practice is still rather sparse, owing to the relative newness of the question, it too is there to demonstrate that each specific case is, in the final analysis, different from all the others, that it is mototypic and that, more often than not, the most appropriate criteria, and the method of combination of methods most likely to yield a result constant with what the law indicates, can only be determined in relation to each particular case and its specific characteristics" .
-Bindingness of the sources; this is one element which is common to all these sources of law except for equity where the consent of the concerned states is needed before it can be applied by the Court . Whichever the source of law used by the Court in any case a binding decision is always the outcome .
Conclusively, it is often a difficult task to separate these sources of law in practice. Although some writers have attempted to distinguish them by classifying them into two; material sources of law and formal sources of law , Shaw noted that this classification will ultimately lead to a distraction of attention from some of the more important problems which is very difficult to maintain in international law . The most important thing, however is that justice is worked by the application of these sources of law.
*BY AWOTOYE, TOBILOBA OPEYEMI
LLM CRIMINAL LAW AND CRIMINAL JUSTICE (2012)
UNIVERSITY OF BIRMINGHAM
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