DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:

INTERNATIONAL CUSTOMARY LAW

SUBJECT: POLITICAL SCIENCE

NAME OF THE FACULTY: : PROF. T.Y. NIRMALA DEVI

NAME OF THE STUDENT, ROLL

NUMBER, SEMESTER:

RAMPU PRANATHI

2019LLB034

2nd SEMESTER

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ACKNOWLEDGEMENT

I would sincerely like to put forward my heart felt appreciation to our respected Political
science faculty Prof. T.Y Nirmala devi for giving me a golden opportunity to take up this
project regarding ―International Customary Law. I have tried my best to collect information
about the project in various possible ways to depict clear picture about the given project
topic.

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ABSTRACT

Customary International Law is a characteristic of International Law relating to the rule of

custom. Along, with the general principle and treaties.Customary International Law is
defined as the “general and consistent practice of states followed by them from a sense of
legal obligation”. International customary Law is Discussed under the article 38(1) of ICJ
statute. Custom is considered by the United Nations, International Court of Justice, jurists
and its member states to be among the primary source of International Law. Generally
Customary International Law is accepted by the member states through ratification then it
will become binding on the member states.

International Customary Law contains two elements 1. There must be a wide spread
and uniform practice of nations. 2. Opinio juris which means: a belief in a legal obligation
i.e, states must accord immunity because they believe that they have a legal duty to do so. A
new rule of international customary law cannot be created unless both of these elements are
present.

When a problem arises between two states then Customary International Law can be
used as a guiding principle to resolve the conflict between two states. If there is any conflict
between Customary Law and Domestic Law then the Domestic Law prevails.

The major drawback in customary law is that the member states may not
necessarily follow the customary law. The power to control the member is very limited. Most
of the cases of International Customary law are resolved by the International Court of Justice.

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TABLE OF CONTENTS

1. INTRODUCTION
2. SYNOPSIS
3. CUSTOM
4. WHAT IS CUSTOMARY INTERNATIONAL LAW?
5. EVIDENCE OF INTERNATIONAL CUSTOMARY LAW
 Duration of practise
 Generality of Practise
 Opinio juris
6. TREATIES
7. DIFFERENCE BETWEEN INTERNATIONAL CUSTOMARY LAW AND
TREATIES
8. RELATION BETWEEN INTERNATIONAL ORGANIZATION AND
CUSTOMARY LAW
9. PRACTICE OF INTERNATIONAL ORGANISATIONS
10. CASES
11. CONCLUSION
12. BIBLIOGRAPHY

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INTRODUCTION

Customary International Law is a primary source of International Law,relating to the rule of

custom. Customary International Law is defined as the “general and consistent practice of
states followed by them from a sense of legal obligation”. National courts apply Customary
international Law as a rule of decision, or a defence, or a canon of statutory construction.
Nations also argue about whether certain acts violate Customary International Law. Violation
of Customary International Law are grounds for war or international claims.

The International Court of justice defines the International Customary Law in Article
38(1)(b) as “a general practise accepted as law”. Incorporated into the united nations charter
by article 92. Custom is considered by the United Nations, International Court of Justice,
Jurists, and its member states to be among the primary source of International Law.

There are two essential elements of Customary International they are 1. State
Practice(There must be a wide spread and uniform practice of nations) 2. Opinio Juris
(usually translated “as a belief in legal obligation”). A new rule of Customary International
Law cannot be created unless both of these elements are present. Practise alone is not enough.
Nor can a rule be created by opinio juris without actual practise.

Some international customary laws have been formed through treaties and domestic laws.
Sovereign nations must consent in order to be bound by a particular treaty or legal norm.

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SYNOPSIS

International Customary Law is one component of International Law. International Law

refers to International obligations arising from established International practices, as opposed
to obligations arising from formal written conventions and treaties. International Customary
Law is discussed under the article 38(1) of ICJ statute, The ICJ is the main judicial body of
the UN, it settles the conflicts between member state of the UN. Violation of International
Customary Law are grounds for war or International claims. International Customary Law
contains two elements 1. There must be a wide spread and uniform practice of nations. 2.
Opinio juris which means: a belief in a legal obligation i.e, states must accord immunity
because they believe that they have a legal duty to do so. A new rule of international
customary law cannot be created unless both of these elements are present.

OBJECTIVE OF THE STUDY:

The objective of the study is to understand the International Customary Law and its
importance

RESEARCH QUESTION:

Whether International Customary Law is followed by the sates or not?

REVIEW OF LITERATURE:

The researcher has taken the information from articles, journals, online web sources.

BOOKS:

International Law by Rebecca M.M. Wallace and Olga Martin: The researcher had taken the
sources of International customary Law from this book

Public International Law by James Crawford: The Researcher had used this book to gain
information about treaties.

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ARTICLES:

Chicago Law Review- A Theory of Customary International Law – The researcher has used
this to know about the Introduction to International Customary Law.

RESEARCH METHODOLOGY:

This study is based on the doctrinal type of research This research is a descriptive and
explanatory study.

Secondary sources: books, articles.

SIGNIFICANCE OF THE STUDY

This study helps to know the importance of International customary law by referring to web
sources, journals, books, articles.

SCOPE OF THE STUDY:

The scope of the study is limited and roots and origin of the international customary law.

CHAPTERIZATION:

 CUSTOM
 CUSTOMARY INTERNATIONAL LAW
 ESSENTIAL ELEMENTS.
 INTERNATIONAL ORGANIZATIONS AND CUSTOMARY LAW
 INTERNATIONAL CUSTOMARY LAW AND TREATIES

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CUSTOM

Custom is the original and the oldest source of international Law and at a time it was the most
important amongst the sources for International law1. Custom is the foundation stone of the
modem International Law. It was so because a large part of International Law consisted of
customary rules. International custom may mean a kind of qualified practice, distinguished
from others (for example, from usage) by the existence of a corresponding legal obligation to
act according to this practice, hence by the existence of a corresponding rule of International
Law. They evolve through the practices of and usages of nations and their recognition by the
community of nations. As such, they are not the creatures of the sovereign or a State.

WHAT IS INTERNATIONAL CUSTOAMRY LAW?

Customary International Law is defined as the collection of international behavioural

regularity of conduct that nations over time come to view as binding as a matter of law. This
standard definition contains two elements. There must be a widespread and uniform practice
of nations. And nations must engage in the practice out of a sense of legal obligation. The
second requirement, often referred to as opinio juris, is the central concept of International
Customary Law. Because opinio juris refers to the reason why a nation acts in accordance
with a behavioural regularity, it is often described as the "psychological" element of
International Customary Law. It is what distinguishes a national act done voluntarily or out of
comity from one that a nation follows because it is required to do so by law. Courts and
scholars say that a longstanding practice among nations ripens or hardens into a rule of
International Customary Law when it becomes accepted by nations as legally binding. This
standard account of International Customary Law suffers from well-known difficulties. There
is little agreement about which types of national actions count as state practice. Policy

1
Dr. H.O. Agrawal, International Law and Human Rights 18.(central law publications, 1987)

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statements, national legislation, and diplomatic correspondence are the least controversial
sources. Treaties-especially multilateral treaties, but also bilateral ones-are often used as
evidence of International Customary Law, but in an inconsistent and way. The writings of
jurists are a common but highly tendentious source of International Customary Law. Even
more controversially, United Nations General Assembly Resolutions and other nonbinding
statements and resolutions by multilateral bodies are often viewed as evidence of
International Customary Law. Those who study and use International Customary Law are
courts, arbitrators, diplomats, politicians, scholars-invoke these sources selectively. There is
similar disagreement about how widespread and uniform state practice must be. In theory, the
practice is supposed to be general in the sense that all or almost all of the nations of the world
engage in it. But it is practically impossible to determine whether 190 or so nations of the
world engage in a particular practice. Thus, International Customary Law is usually based on
a highly selective survey of state practice that includes only major powers and interested
nations. Increasingly, courts and scholars ignore the state practice requirement altogether. For
example, they refer to a CIL prohibition on torture at the same time that they acknowledge
that many nations of the world torture their citizens. It is thus unclear when, and to what
degree, the state practice requirement must be satisfied.

EVIDENCE OF CUSTOMARY INTERNATIONAL LAW:

A rule of Customary International law derives through the possession of two elements (1) a
material element (2) opinion juris. The material element refers to the behaviour and practice
of states. However certain criteria have to be considered relating to the behaviour’s duration,
frequency, consistency and universality

Customary International Law results from a general and consistent practice of States which is
followed by them from a sense of legal obligation. Since custom is not a law-creating fact
customary rules do not grow up by themselves they had been followed by the community for
a long period of time. It is a necessary condition for the creation of a customary rule that at
least some States should initiate that a particular rule exists. If it can be shown that the State
which initiated the practice is bound by that particular rule, the customary rule is deemed to
have created. Later, if other States really does consent that practice it will be considered that
they have given their consent to that rule. Acquiescence may take place by the conduct of the
States, i.e if the State does not protest to the rule or if it does not take any action on it. A

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customary rule, therefore, emerges only when it is proved by satisfactory evidence that the
alleged rule has been accepted generally by the States and it has been so established as to be
legally binding on the other party. The International Court of Justice in the Asylum
case2formulated the requirements of custom in International Law by stating that “The party
which relies on custom must prove that this custom is established in such a manner that it has
become binding on the other party”. To do so it needs to prove that the ‘rule invoked by it is
in accordance with a constant and uniform usage practised by States.’ 3 The attitude of judicial
caution with respect to customary rules of International Law is confirmed by International
Law commission and international legal conferences. In the North Sea Continental Shelf case
the Court stated with respect to custom : Not only must the acts concerned amount to a settled
practice, but they must also be such or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it.

In order to establish the existence of an international custom, primarily three elements are
required to be present which are duration, continuity and generality.

Duration of Practice:

There is no set time limit and no requirement that the practice should be engaged in since
“time immemorial”4.It is not an obstacle to the formation of a customary rule if a practice is
engaged in only for a short period of time, so long as the other customary requirements are
met. The ICJ in the North Sea Continental Shelf cases demonstrated the relative importance
of time when other conditions were satisfied: The following:

“Although 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 international law an indispensable requirement
would be that within the period in question, short though it might be, State practice 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 length of time required to establish a rule of customary international law will depend
upon other factors pertinent to the alleged rule. Thus, time may be of little importance in

2
ICJ Reports (1950) p. 266
3
Ibid, pp 276-277
4
Rebecca MM Wallace et al., International Law 12 (sweet & Maxwell, 8th ed. 2018).

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assessing a states behaviour, and its importance in any given case depends on other factors
peculiar to the activity concerned.

Generality of practice:

It is necessary that a usage should be practised by most of the States in order to transform into
a custom. The above implies that there is no rule which prescribes that the consent of all the
States is a necessary condition to the formation of a customary rule. In West Rand Central
Gold Mining Co. Ltd. v. R., it was held that it must be proved by satisfactory evidence that
the alleged rule is of such a nature, and has been so widely and generally accepted, that it can
hardly be supposed that any civilised State would repudiate it.

In Fisheries Jurisdiction the International Court referred to the extension of a fishery zone up
to a 12nm limit ‘which appears now to be generally accepted’ and to ‘an increasing and
widespread acceptance of the concept of preferential rights for coastal states’ in a situation of
special dependence on coastal fisheries. But while refusing to ‘render judgment sub specie
legisferendae, or to anticipate the law before the legislator has laid it down’, the Court did in
fact articulate a rule of preferential coastal state rights, a transitional step towards the
Exclusive Economic Zone regime which would be included in the United Nations
Convention on the Law of the Sea (UNCLOS). It follows that if a usage is practised only by a
limited number of states it will not transform into custom.

Opinio Juris:

The statute of international court of justice refers to opinio juris sive necessitates which
means ‘a general practise accepted as law.’ Opinio juris was introduced as a legal formula in
an attempt to distinguish legal rules from mere social usage, and refers to the subjective belief
maintained by states that a particular practice is legally required to them. A practise which is
generally followed but which states feel they are free to disregard at any time cannot be
characterised as law. In the words of the International Court of justice.

“not only must the acts concerned 'amount to a settled Practise, but they must also be
accompanied by the opinio juris sive necessitatis. Either the States taking such action or other

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States in a position to react to it must have behaved so that their conduct is evidence of a
belief 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.”5

The Court highlighted in the Nicaragua case that opinio juris may, albeit with due caution, be
deduced from, inter alia, the attitude of the parties and states towards General Assembly
Resolutions. It was emphasised that the effect of consent to the text of such Resolutions
cannot be understood as merely that of “reiteration or elucidation” of the treaty commitment
undertaken in the Charter. On the contrary, it may be understood as an acceptance of the
validity of the rule or set of rules declared by the Resolutions. The problem with opinio juris
is one of proof. It is frequently difficult to determine when the transformation into law has
taken place. How can a state’s conviction be proved to exist? Essentially, what must be
established is the state’s acceptance, recognition or acquiescence as to the binding character
of the rule in question. The onus of proof is on the state relying upon the custom. It is the
party alleging the existence of custom which must demonstrate that the custom is so
established that it is binding on the other party. Insufficient evidence of opinio juris is fatal to
the formation of customary international law, as for example in the Lotus case and the North
Sea Continental Shelf cases.

Hence as already said, customary international law demands the presence of two elements,
the material and the psychological. Although art.38 of the Statute of the ICJ calls upon the
Court to apply international custom, as evidence “of a general practice accepted as law” it is
more accurate to define international custom as evidenced by general practice accepted as
law. This is because custom is the source to be applied and that custom is evidenced by
practice accompanied by the belief that the practice is accepted as law. The role of custom as
a source of international law has diminished not least because of the substantial increase in
the number of states participating on the international plane; the extension of the subject
matter of international law beyond the traditional realm of diplomatic relations and the rules
of warfare; and the increased number and speed of interaction between international actors.
These changes in the international community have meant that custom is no longer regarded
as the most appropriate mechanism for the regulation of international discourse and
behaviour. This, reinforced by the desire of states to be fully aware of any obligations
5
Rebecca MM Wallace et al., International Law 19(sweet & Maxwell, 8th ed. 2018)

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undertaken, has led to the increasing use of treaties as the preferred means for the regulation
of international relations.

DIFFERENCE BETWEEN INTERNATIONAL CUSTOMARY LAW AND

TREATIES

Treaties are agreements between two or more States or between other subjects of
International Law6 by which they create or intend to create a relationship between
themselves. Such agreements are sometimes referred to convention, protocol, accord etc.
Treaties embody the express consent of the parties to the rule or rules laid therein. It has,
therefore, become a tendency to transform customary International Law into conventional
law because consent obtained in former is only implied. For instance, customary law relating
to diplomatic and consular relations has been transformed into Vienna Convention on
Diplomatic Relations of 1961 and the Vienna Convention on ‘Consular Relations of 1963
respectively. Similarly, many other customary rules have been also transformed into treaty
rules.

Treaties may be seen as evidence of the existence of a customary norm in several ways. The
most obvious example is the treaty that expressly states that it is a codification of existing
customary law. The existence of a customary norm also may be implied in a treaty that
assumes the existence of that norm. This occurs, for instance, where a treaty sets forth the
modalities for the implementation of a customary norm. A treaty may also constitute
evidence that a norm does not exist, for example, where the treaty states in its preamble that it
is designed to meet the need for a new rule of international law. Silence in the treaty with
respect to whether the norms contained in the treaty are pre-existing norms, however, is not
evidence that such norms did not exist prior to the treaty. States will often enter into a treaty
concerning a pre-existing norm in order to confirm the existence of the norm, provide for the
modalities of its implementation, perform an act of symbolism, or facilitate the passage of the
customary norm into municipal law. In any of these cases, states may neglect expressly to
acknowledge the pre-existence.

6
Dr. H.O. Agrawal, International Law and Human Rights 2323.(central law publications, 1987)

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RELATION BETWEEN INTERNATIONAL ORGANIZATION AND CUSTOMARY
LAW

Customary international law is relevant for international organizations, at times even

essential. International organizations may derive both rights and obligations from this source
of international law. A Dutch court recognized that North Atlantic Treaty Organization
(‘NATO’) entities enjoy immunity from jurisdiction on the basis of customary international
law, in a case involving a private claim of hundreds of millions of US dollars. It is also
increasingly accepted that international organizations are bound by obligations under
customary international law. Such obligations concern, for example, international human
rights law and international humanitarian law. The practical relevance of this is clear if we
ask whether United Nations (UN) peacekeeping forces are fully bound by customary human
rights and humanitarian law, knowing that it is unlikely that many international organizations
will become parties to human rights and humanitarian law conventions in the near future.
Therefore: customary international law is relevant for international organizations, at times
even essential.
In 2012, the International Law Commission(‘ILC’) decided to include the topic ‘Formation
and evidence of customary international law’ in its programme of work and appointed its
member Michael Wood as Special Rapporteur for the topic. In 2013, it changed the title of
the topic to ‘Identification of customary international law’. The Special Rapporteur has
prepared four reports during the last few years, and has actively promoted discussions on the
topic. In 2016, the ILC adopted, at first reading, a set of 16 ‘draft conclusions on customary
international law’. It will resume its work on this topic in 2018, with the intention of
concluding it that year. So, this is the time to react to the draft conclusions, and this is the
time to address the question of whether the ILC has taken international organizations
seriously in the provisional outcome of its work on this topic.

PRACTICE OF INTERNATIONAL ORGANIZATIONS

The notion of ‘practice of the organization’ has been used frequently in decisions of the
International Court of Justice. Usually it is an additional argument in the reasoning of the
Court. After the Court has mentioned a number of arguments in favour of a particular point of

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view (e.g. international legal personality of the UN (Reparation for Injuries), operational
expenses as part of the UN budget, or a broad interpretation of Article 12, the Court adds that
its interpretation is ‘confirmed’ by what it calls ‘the practice of the organization’. 8 In
addition, the notion of ‘established practice of the organization’, is mentioned in the 1975 and
1986 Vienna Conventions, and also in article 2 of the ARIO, as an example of “rules of the
organization”, next to constituent instruments, resolutions, etc.The commentaries to draft
conclusion 4 do not refer to these two notions at all, even though ‘practice of the
organization’ is at the heart of para. 2 of draft conclusion 4. The Special Rapporteur briefly
referred to these two notions in his third report (2015), in which he adopted a restrictive
interpretation (saying that they only concern the internal operation of international
organizations).7 But this did not then lead to a brief analysis in the Commentary which could
have provided conceptual clarification. In this context I refer to a useful (and timely) German
dissertation by Christopher Peters that is devoted to this important topic. Peters refers to
established practice of an international organization as ‘quasi customary law of the
organization’. Now, of course, the purpose of mentioning ‘practice of international
organizations’ in the context of the topic of customary international law is only to identify to
what extent and how it “contributes to the formation, or expression, of rules of customary
international law”. But in order to be able to fully identify this, would it not be necessary to
have a deeper understanding of this notion, its legal meaning, and how it relates to the sister
notions of ‘practice of the organization’ and ‘established practice of the organization?’.

CASES:

Asylums case (Colombia v. Peru)

The Colombian-Peruvian Asylum case, or simply Asylum case, was brought before the 1C]
by Colombia against Peru. Itconcerned the situation of a Peruvian general, who, after an
unsuccessful overthrow, sought refuge in the Colombian embassy in Lima. The main dispute
in the case was whether Peru was bound or not by an alleged local custom that granted
diplomatic asylum, which would force Peru to allow a safe passage of the general to
Colombia.

In order to prove the existence of this customary rule, Colombia presented many cases in
which diplomatic asylum was respected. However, Colombia could not prove this as a rule,
since many of those cases were contradictory and, furthermore, it was impossible to define

7
Third Report on Identification of Customary International Law,  UN Doc. A/CN.4/682 (27 March 2015), 49–50.

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whether it was a matter of politics or law, thus being impossible to conclude that there was
opinio juris. Moreover, the Court stated that Peru could not be bound to this custom. even if
Colombia had successfully proven its existence, since Peru had never had attitudes adhering
to it and had, actually. on the contrary, objected to the rule.

North Sea continental shelf cases (Germany v. Denmark and Germany v. Netherlands)

The judgement in the North Sea continental shelf case, delivered by the International Court of
Justice in 1969, is one of the most important decisions of the Courts jurisprudence and one of
the few occasions in which it went deeply into the analysis of the formation and identification
of customary international law.

The case wasproposed bytheFederalRepublicofGermany against,separately, the Netherlands

and Denmark being reunited in one single case by the ICJ. The main controversy of the case
was whether the rule of delimitation of the continental shelf contained in Article 6 of the
1958 Geneva Convention on the Continental Shelf-the equidistance principle-had become a
customary rule binding on Germany-who was not a party to said convention.

The Court decided that, however a treaty rule can also be a rule of customary law, this was
not the case of Article 6. In its reasoning, it established in which ways custom and treaties
may interact: they can be declaratory of pre-existing customary law, or give rise to a custom
after its adoption. Also. Fora rule of treaty to be also considered a customary law. It must
have a norm-creating character, which means that it cannot admit derogations or be subject to
reservations.

It was also in this case that the Court highlighted the importance of the practice of the
specially affected States, considering it a determining factor in the incorporation of treaty
norms into the corpus of customary international law. As to the necessary duration of
practice. it was affirmed that the passing of only for short period of time was not an obstacle
to the formation of a customary rule, as long as during that time the practice is extensive and
representative. including that of the States whose interests are specially affected.

LOTUS CASE (France v. Turkey):

The Permanent Court of International Justice expressed this point of view when it dealt with
the Lotus case.8 The issue at hand concerned a collision on the high seas (where international
8
PCIJ, Series A, No.10,1927, p.18 ;4 AD, P.153.

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law applies) between the Lotus, a French ship, and the Boz-Kourt, a Turkish ship. Several
people aboard the latter ship were drowned and Turkey alleged negligence by the French
officer of the watch. When the Lotus reached Istanbul, the French officer was arrested on a
charge of manslaughter and the case turned on whether Turkey had jurisdiction to try him.
Among the various arguments adduced, the French maintained that there existed a rule of
customary law to the effect that the flag state of the accused (France) had exclusive
jurisdiction in such cases and that accordingly the national state of the victim (Turkey) was
barred from trying him. To justify this, France referred to the absence of previous criminal
prosecutions by such states in similar situations and from this deduced tacit consent in the
practice which therefore became a legal custom.

The Court rejected this and declared that even if such a practice of abstention from instituting
criminal proceedings could be proved in fact, it would not amount to a custom. It held that
‘only if such abstention were based on their [the states] being conscious of a duty to abstain
would it be possible to speak of an international custom’. Thus, the essential ingredient of
obligation was lacking and the practice remained a practice, nothing more.

Nicaragua case (Nicaragua v. United States of America)

Another important judgement that delimits the notion of custom as law is the one in the
military and paramilitary activities in and against Nicaragua case, proposed by Nicaragua
against the United states of America and decided by the court in 1986. The dispute concerns
the action of united states towards the Nicaragua in the context of Sandinista revolution.
Nicaragua claimed that the united states had breached the international law by using direct
armed force against it and by giving assistance to the “contras”, which were guerrillas
fighting to depose the Sandinista government.

The use of force is outlawed by article2(4) of the UN Charter. Nonetheless, the United states
have made a reservation to its acceptance to the ICJ’s jurisdiction, excluding “disputes arising
under a multilateral treaty”from it. Therefore, the Court could decide whether the United
states had violated Article 2(4), since the United nation is a multinational treaty. However,
the court ruled that the prohibition of the use of force was also a rule of Customary
International Law, thus it could exercise jurisdiction in respect of the application of such
rules.

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 In its reasoning, the court affirmed that, for the establishment of a Customary rule, the
conduct of states does not need to have been completely consistent. It is sufficient that the
practise of states is, in general, consistent with the rule, and that situation of conduct
inconsistent with it are treated as breaches of that rule, and not as indicative of the existence
of a new rule. Also, if a state acts in a manner which is considered incompatible with a
customary rule, but tries to justify its conduct by resorting to exceptions and justifications
contained within the rule, this behaviour confirms, rather than weakens, the rule.

Fisheries case (United Kingdom v. Iceland):

The International Court of Justice considered a dispute between Iceland and the United
Kingdom regarding a proposed extension by Iceland of its fisheries jurisdiction. Iceland
failed to appear or to plead its objection in this case.

The roots of the case were, In, 1948, Iceland’s Parliament passed a law directing the Ministry
of Fisheries to issue regulations establishing explicitly bounded conservation zones for
fishing. A 4-mile zone was subsequently drawn in 1952. In 1958 this zone was extended to
12 miles, establishing a new 12-mile fishery limit around Iceland which was reserved for
Icelandic fisherman. The United Kingdom did not accept the validity of the new regulations,
After the 1960 Second United Nations Conference on the Law of the Sea, England and
Iceland began a series of negotiations to resolve their differences, and in 1961 reached a
settlement in an Exchange of Notes agreeing to a 12-mile fishery zone around Iceland.

In 1971, Iceland decided to extend its fisheries jurisdiction to a 50-mile zone, and maintained
that the 1961 Exchange of Notes was no longer in effect. These actions form the core of this
case. Government of the United Kingdom submit to the Court that the Court and urged the
court to declare:

(a) that the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction
extending 50 nautical miles from baselines around the coast of Iceland is without foundation
in international law and is invalid;

(b) that, as against the United Kingdom, Iceland is not entitled unilaterally to assert an
exclusive fisheries jurisdiction beyond the limits agreed to in the Exchange of Notes of 1961;

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(c) that Iceland is not entitled unilaterally to exclude British fishing vessels from the area of
the high seas beyond the limits agreed to in the Exchange of Notes of 1961 or unilaterally to
impose restrictions on the activities of such vessels.

In this case, the international court of justice recognized the principle of rebus sic stantibus
by stating(which means things that standing) that international law admits that a fundamental
change in the circumstances which determined the parties to accept the treaty, if it has
resulted in radical transformation of the extent of the obligation by it, may under certain
conditions , afford the party affected a ground for invoking the termination of the treaty. And
the court held that the principle of rebus sic stantibus is a customary rule of international
law9.

The Court held that the 1972 Icelandic Regulations constituted a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical miles. Iceland could not unilaterally exclude
the United Kingdom from areas between the fishery limits agreed to in the 1961 Exchange of
Notes.

The court noted two concepts that had been accepted as part of customary law: (1) the idea of
a fishery zone in which each state may claim exclusive fishery jurisdiction independently of
its territorial sea, and that a fishery zone up to a 12-mile limit from the baseline is generally
accepted; and (2) the concept of preferential rights of fishing in adjacent waters in favour of
the coastal state which has special dependence on its coastal fisheries.

9
Dr. H.O. Agrawal, International Law and Human Rights 344. (central law publications, 1987)

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CONCLUSION

International Customary Law is discussed under the article 38(1) of ICJ statute. International
customary law is an aspect of international law involving the principle of custom. There are
two elements for international customary law they are state practice and Opinio Juris.
Treaties are agreements between two or more States or between other subjects of
International Law by which they create or intend to create a relationship between
themselves.Custom and treaties are the two methods for the creation of the legally binding
rules ever since the beginning of the international community. In both the methods consent of
the States is reflected, and therefore, they do not impose obligations on those States which
have not wished to be bound by them.Therefore: customary international law is relevant for
international organizations, at times even essential. Most of the countries do not follow the
Customary International Law even if there is a good if they follow it, for example in the
Donald trump president of United states that the U.S would cease all participation in the 2015
Paris agreement on climate change Mitigation. Hence, nations may no compulsory follow the
customary law it is based upon them.

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BIBLIOGRAPHY

BOOKS:

 International Law by Rebecca M.M. Wallace and Olga Martin

 Public International Law by James Crawford
 International Law and Human Rights by Dr. H.O. Agrawal

Articles:

 University of Chicago Law review -A theory of International Customary Law

Web sources:

 www.jstor.org
 www.Heinonline.com

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