THE
MEANING OF CUSTOMS
Custom is
a practice common
to many or
to a particular
place or institution;
especially along established practice
that is generally
recognized as having
the force of
law; Also customs can
be defined as an action
or way of behaving that
is usual and
traditional among the people
in a particular
group or place,
something that is done regularly by
a person. For instance
taxes or fees
that are paid
to the government
when goods come into or
go out of
a country.
It is
common knowledge that
in any group,
rules of behavior
develop, prescribing what is
permitted and what
is not. While
they may initially
be un-codified, they
can still survive
because of what
Malcolm Shaw calls “an aura
of historical legitimacy”.
Shaw quotes R. Unger, law
in modern society, London
1976 who notes
that customary law is
“any recurring mode of
interaction among individuals
and groups, together with
the more or less explicit
acknowledgement by these
groups and individuals
that such patterns
of interaction produce
reciprocal expectations of
conduct that ought to be satisfied.
Other examples
of customs in
sentence include: it is
custom for the
bride to wear
a white dress
on her wedding
day, but wearing
white dress it
is not a
law, it is
a custom. Sometime
a bride can
wear a red
or a black
or other colors during
wedding day but
nothing wrong to do
that because it
is a custom
to wear white
dress during wedding
but it is
not a law
which bind the
couple to wear as a custom
require.
INTERNATIONAL
LAW
These are
laws which govern
relations between sovereign
states or individuals
and sovereign states
at international level. Eg
law of high
seas, diplomacy, and
international crimes ( Eg Genoxide
and crimes against
humanity). International law
may be divided
into two classes;
According
to history, previously
there was no
laws as now days.
What existed was
that we call
customs which were
used to give
directions to the
people of the
community. But there
was a sensitive
discussion about if the customs
is a source
of international law.
Most of people
argued it the
way they defined
customs and what
it say according
to their environment.
But generally, most
of the academia
argued that, customs
are the source
international laws because
there was various
circumstance of different
cases across the
world where the
judges decided to
use the customs
to entertain and
give solution to
various disputes.
In
Lotus case,[1]
the first principle
of a case
said that jurisdiction
is territorial; A
state cannot exercise
its jurisdiction outside
its territory unless
an international treaty
or customary law permits
it to do so, This
is the first
principle of lotus
case which help
to lay down
the existence of
customs as a
source of international
law. The case
dispute was between
French and Turkey,
and the main
question of the
case was if the
Turkey violated international
law when Turkish
courts exercised jurisdiction
over a crime
committed by a
French national, outside
Turkey? If yes, should
Turkey pay compensation
to France?.
The courts
finds that, Turkey
by instituting criminal
proceedings against Demons
did not violate
international law, but
what they had
to do was
to deal with
offenders either sending
their case to
be heard in
their nations rather
than prosecuting and
sentence them in
an alien country.
This principle help
to show that,
during an incident
or accident which
caused the death
of Turkish people,
there was no
any customary law
which was used
between France and
Turkey to deal
with offenders/exchange of
offenders between these
two countries.
Second principle
of the Lotus
case, within its
territory, a state
may exercise its
jurisdiction, on any
matter, even if
there is no specific rule
of international law
permitting it to
do so. In
these instances, states have a wide
measure of discretion, which is
only limited by
the prohibitive rules
of international law.
This is the
principle used by
the Turkish courts
to sentence Demons because
the matter was
under their territorial
jurisdiction and there
was no any
customs of exchanging
offenders between France
and Turkey.
FACTS OF
THE CASE
A collision
occurred on the
high seas between
a French vessel-Lotus- and Turkish
vessel- Boz-kourt. The Boz-kourt sank
and killed eight
Turkish nationals on
board the Turkish
vessel. The 10
survivors of the
Boz –kourt (including its
captain) were taken to
Turkey on board
the Lotus. In Turkey,
the officer on watch
of the Lotus
(Demons), and the
captain of the
Turkish ship were
charged with manslaughter.
Demons, a French
national, was sentenced to
80 days imprisonment
and fine. The
French government protested,
demanding the release
of Demons or
the transfer of
his case to
the French courts.
Turkey and France
agreed to refer
thus dispute on
the jurisdiction to
the permanent court
of international justice (PCIJ).
In Asylum case[2],
Peru not
ratified the Montevideo
convention of 1933,
which accepts the
right of unilateral
qualification, and on
which Columbia relied to justify
its unilateral qualification
of offence (Asylum). The
convention, per say,
was not binding
on Peru and
considering the low
numbers of ratification the provisions of the latter
convention cannot be
said to reflect
customary international law.
A part from
not ratifying Montevideo convention
of 1933, which
exclude Peru to be bound
on unilateral qualification
of offence (Asylum)
by Colombia, also Havana
convention which was
ratified by Peru,
had no expressed
or implied right
of unilateral and
definitive qualification of
the state that
grant Asylum under
the Havana convention
or relevant principles
of international law,
so the Colombia
was at wrong
position.
On other
side, Colombia argued that,
regional or local
customs support the
qualification of Asylum. The court held
that the burden
of proof on
the existence of an alleged
customary laws rests
with the party
making the allegation;
The court held
that Colombia did
not establish the
existence of a
regional custom because
it failed to
prove consistent and uniform
usage of the alleged
custom by relevant
states. The fluctuations
and contradictions in
state practice did not
allow for the
uniform usage, the
legal impact of
fluctuations of state.
The court
held that even
if Colombia could
prove that such a regional
customs existed, it
would not be
binding on Peru,
because Peru “far
from having by
its attitude adhered
to it, has,
on the contrary,
repudiated it by
refraining from ratifying
the Montevideo conventions
of 1933, and
1939, which were
the first to
include a rule
concerning the qualification
of the offence
in matters of
diplomatic Asylum.
The court
concluded that Colombia
as the state
granting Asylum, is
not competent to
qualify the offence
by a unilateral
and definite decision,
binding on Peru.
In North
sea continental shelf
case[3], The main
dispute in the
case was the
selection of a way to
divide or to
deliminate a continental shelf
between Germany, Netherlands
and Denmark. The
international court of
justice tried to
find which was
the proper way
to deliminate the
continental shelf between
disputed parties either
by equidistance rule or by
using international customary
laws.
Denmark and
Netherlands argued that
the method of equidistance should
be implemented. This
is that each
state claimed all
areas that are
closer to itself
than any other
state. They claimed that
the Geneva convention supported
this method. Moreover,
it was alleged
to have been
an a prior
rule of law,
a rule of
customary international law
and a general
rule of conventional
practicality.
Germany, who had
not ratified the Geneva
convention, claimed that the
rule of equidistance
was unfair. The
state also argued
for an apportionment
of the shelf,
that was proportional
to the size
of each states
adjacent land, Also
Germany not ratified
the Geneva convention,
so it was unfair
to use it
as a rule
of law.
The court
ruling has a
terminal impact on the principle
of equidistance and
its utilization though
the Geneva convention. The
court does not
proscribe its use,
but eliminate its
legal credibility. This,
of course , has no
impact on the rest of
the Geneva convention.
As the holding
does not prescribe
any specific remedy,
this case does
significantly aid in any future
decisions, other than
for the purpose
of denying the
equidistance principle legal
weight. If this
case were used
as precedent otherwise,
it would merely
direct the disputing
states to look
to customary international
law and co operative action.
In Nicaragua
case,[4] T he
United states of
America breached the
international customary laws
where united states
of America invaded
the boundaries and
territory of Nicaragua.
Also, the united
states of America
interfered sovereign of
Nicaragua by supporting
the rebels in
Nicaragua against government.
CONCLUSION
The use
of international customary laws is
within the thin
line because the
use of international
customary laws require
the disputed parties to
have used such
customs previously, and
such customs must
be uniform used
or at least
uniform used by
both parties.
A court
require consistent and
uniform usage of the
alleged custom by
relevant states to use international
customary laws to
solve disputes.
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