Faculty of law

Assignment
OF
Public International Law
BY
Sejal Patidar
SY BBA LLB DIV.: B
PRN: 1182200161
Topic: Research Paper

Date of submission: 21st December 2021

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The Role of Customary International
Law in the 21st Century

Introduction
In a world where international treaties have become the mainstream instrument of
international law, customary international law still plays an important role. Instead of making
customary international law irrelevant, there has been a shift toward more formal,
institutionalized legal agreements to govern interstate relationships can actually increase the
importance of CIL, both by increasing the credibility and clarity of customary rules and by
relying on the interstitial nature of customary international law to reduce the costs associated
with contracting between states. An environment in which States, exercise a veto over legal
obligations resulting from explicit agreements, can prevent otherwise beneficial legal
obligations from being created through agreements. This gap can be bridged by customary
international law, which can enable less credible, yet valuable, legal obligations to be created.
In other forms of international law such as treaties, an explicit agreement and its associated
bargaining and ratification procedures serve to clarify states' beliefs and expectations. The
lack of procedure involved in the creation of CIL thus creates a problem of clarity. Where
customary rules are vague in terms of content or application, their compliance pull is
necessarily reduced. There are at least two ways states can employ "hard" legalization to
increase the compliance pull of rules of CIL. First, the codification of custom can serve a
signaling function. Second, tribunals can be used to clarify the content of rules of CIL, as
well as to create information about violations, both of which increase the compliance pull of
CIL. 

Objective
The main objective of the research paper is to highlight the role of customary international
law in the 21st century. To attain the clarity of procedure involved in the creation of CIL
which can be done through the codification of customary international law. The role of
Codification assumes profound significance because of the complex nature of growing
international relations, which call for particular formulation and endorsement.

Thesis
The Research paper discusses the ascertainment of Customary International Law (CIL) and
the problem in its nature and solutions. It explores why the ideas regarding customary
international law have not reached clarity and what should be done to attain the same.

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Significance
Customary international laws have existed since humanity began. They are a general set of
norms that are primarily based on humanitarian grounds and the concept of natural justice, no
laws can be drafted that contravene them. Due to the advancement in technology and time,
nation-states have decreased their warfare significantly, while at the same time trade and
diplomatic relations between them have increased significantly. With the rise in trade and
cooperation, no state is completely self-sufficient and even the most developed of the states
depend on others for one thing or another. Customary International Laws have played a huge
role in establishing diplomatic relations between nation-states, but it is the codification of
such norms and voluntary ratification by the states that changed the way they function and
dramatically changed the international scenario.

Every single norm of customary international law must be codified and expressly ratified
these days. Diplomatic immunities, once an essential part of customary international law, did
not need codification but are now reinforced by bilateral agreements, investment insurance,
and other ways. We can observe that the pattern of states’ behavior is changing drastically
from a custom-driven state to a rule of law. This introduces a new feature that tends to make
the pattern more stable and reliable.

However, most of the International Laws are based upon customary norms, the intent behind
these norms are the same, they have just been codified for efficiency. It is not that customary
norms are getting obsolete, all International Laws are based on customary practices.
Codification of such practices ensures a unanimous and uniform International Law.
Uncodified Customary Laws are also important because the ambit of such laws is much
wider, the codified laws are binding upon only those who expressly consent to follow them,
but the Customary Laws based on humanitarian grounds are binding upon everyone, and all
laws must be made in keeping Customary Laws in mind.

The Foundations of International Law (custom and treaty)

Before one can discuss meaningfully the old debates within legal circles about the traditional
sources of customary international law and their primacy in the formation of international
norms, a brief review of the foundations of international law is in order. Traditionally,
International law has had two components – law deriving from custom (customary
international law) and law deriving from international treaties or conventions (conventional
international law).

A Customary International Law

Although long recognized as a primary source of international law, Customary international
law remains replete with enigmas, both conceptual and practical. Article 38(1)(b) of the
International Court of Justice, which provides the most commonly cited definition of CIL,
states that “international custom, as evidence of a general practice accepted as law, is one of
the sources of international law.1 Thus, there are two elements of customary international law
which include: State practice and opinion Juris. The widespread repetition by States of
1
Statute of the International Court of Justice, art. 38 sec. 1 cl. b; Ian Brownlie, Principles of Public International
Law 3 (4th ed. 1990).

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similar international acts over time (State practice) and on the other hand, the requirement
that the acts must occur out of a sense of legal obligation (opinion Juris).

State Practice

State practice can be seen in the actual actions performed by the State (both by way of acts
and omissions), statements made by authorized representatives in international fora, or
through national laws and judicial decisions that deal with international relations. “State
practice” that is necessary for the formation of a CIL must be (1) consistent and uniform; (2)
generally accepted by States; and (3) of a certain duration.

Opinion Juris

The practice must have been followed by the states considering it as a legal obligation that is
binding upon them. It is what turns a state practice into a custom. It must not be merely
considered as a norm of international morality but a norm of customary international law. It
becomes important because the states do not restrict their activities only to the legal
requirements, but also pursue various activities for their goodwill and to benefit and aid their
nationals. Opinio Juris, therefore, helps in distinguishing this behavior of the state.

To establish unanimous customary practices in inter-state relations, the states codify some
customary practices and accept them as laws. The states by way of ratification are bound to
follow such law according to the doctrine of opinion Juris.

Problems associated with Customary International law

International law is entered into by states to advance the interests of the states as expressed
through the states’ political systems. This perspective recognizes that it is generally beneficial
if states can make the types of commitments that they desire, with the types of effects they
desire. Exceptions arise if nonparticipating third states are harmed, or if other external
individuals or groups are harmed in a way that is not sufficiently taken into account. So, the
inevitable question about CIL is in what way is CIL the efficient system for making particular
types of commitments with particular effects. It will be seen that the functional limitations of
CIL are: (a) Customary International law Cannot be Made in a Coordinated Manner in
Advance of Events. (b) Customary International law cannot be made with sufficient detail.
(c) Customary International law cannot be made with sufficiently heterogeneous reciprocity
between states. (d) Customary International law cannot be made with custom-designed
organizational support (e) Tt is generally not subject to national parliamentary control, (f) Tt
purports to bind states that did not consent but failed to object to its formation, and (g) It
provides excessive space for auto-interpretation by states, or for sometimes insufficiently
disciplined interpretation by judges.

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Customary International Law in the 21st Century
 Codifying Custom
The most obvious method for clarifying customary obligations is by codifying them in treaty
form. Numerous major multilateral treaties purport to accomplish this goal. For example, the
Vienna Convention on the Law of Treaties is widely viewed as codifying much of the
customary law of treaties.2 Similarly, the Vienna Convention on Diplomatic Relations
codifies much of the customary international law relating to the protection and treatment of
diplomats.3 Indeed, in the last century, many areas of international law that were exclusively
governed by CIL have been addressed with treaties, such as human rights and the laws of
war, a trend noted by Professor Hudson in the early 1930s.4
The basic trade-off in codifying customary international law is between the benefit of greater
clarity in the rules and the costs associated with the treaty-making process, as well as the
costs that accompany the greater credibility of the commitment. 5 Indeed, the latter is likely to
be significant. Increasing certainty about an obligation allows states to accurately assess
whether actions by another state, which they consider violated it, were taken in good faith.
Thus, rules of CIL should only be codified when this loss is outweighed by the benefits of
greater compliance and the ability to more accurately rely on this compliance.
It may be argued that the codification of custom in the most important areas of law means
that CIL will have no future relevance, regardless of its historic significance.  This view is
mistaken for several reasons. First, With the exception of special custom, CIL is considered
universally binding. Thus, even though the United States has not ratified the Vienna
Convention on the Law of Treaties, other states view the United States as being bound by the
customary law of treaties. Insofar as the Vienna Convention is the most authoritative
statement of what the customary law of treaties is, the United States is bound by the terms of
the treaty.
However, the explicit codification of custom has an additional function. Codification of
custom plays a signaling role rather than being an evidentiary one. If customary norms are
intended to be incorporated into a treaty, that treaty sends a signal to non-parties that those
terms are binding on all states. Because the beliefs of other states determine a given state's
legal obligations, this signal provides all states with detailed information about the content of
the regulations in question.
It follows from this analysis that the codification of custom can increase the significance of
the customary process. Codifying custom gives states a way to signal information to each
other about their beliefs about the prevailing norms, and, thus, gives them a way to “bind”
states that remain outside of a given treaty. The examples of the aforementioned Vienna
Conventions, governing the relationships of states with each other, provide an illustrative
example of this proposition.

2
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332.
3
Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95.
4
Hudson, supra note 1, at 83.
5
Guzman, supra note 27.

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The second reason that CIL as a form of law retains vitality is that CIL is interstitial, filling in
the gaps in more explicit legal instruments such as treaties and soft law, and providing a basis
for the operation of those legal instruments. 6The Vienna Convention on the Law of Treaties,
for instance, provides in its preamble that “the rules of customary international law will keep
on administering questions not managed by the arrangements of the current Convention." The
Convention in this manner examined that the current principles of CIL would contemplate the
Convention in building up states' assumptions regarding the law of treaties.
Third, Customary processes enable more formal legal obligations, such as those arising from
treaties, to be reinterpreted without resorting to an amendment procedure. The underlying
legal obligations of states are defined by the beliefs of states generally about those
obligations, so a shift in beliefs will change the underlying legal obligations. This analysis
suggests that the customary process operates to create implicit legal obligations that go
beyond the open-ended wording of legal texts, both hard and soft.
 Tribunals
Delegating dispute resolution to tribunals, a term used here to encompass at the international
level not only courts but also investigative bodies, such as the U.N. Human Rights
Committee and the Inter-American Commission on Human Rights, which are able to look
into disputes, can also increase compliance with CIL by increasing information, clarifying
obligations, and ensuring compliance with rules. Due to the fact that not all of these tasks can
be done by international tribunals, domestic tribunals, primarily courts, have become
increasingly influential in the CIL development.
By enhancing the amount of information available, tribunals and international organizations
can aid compliance in situations where states are able to observe the behaviour of other states
and, thus, determine whether their behaviour is consistent with their legal obligations. It is
true that, in many cases, state activity will not be observable to any state except the one that is
affected, and even that state may not be certain whether the alleged breach violated the norm
as it is understood by the putatively breaching state or by states more generally. When an
individual or another country files a complaint against a government at an international court
or when an international organization investigates a government's compliance with a
regulation, observing states quickly learn about violations that might not otherwise be known.
Second, tribunals can play an agenda-setting role in clarifying the content of international
norms. Proceedings before a tribunal give the tribunal the ability to elaborate on the content
of particular rules of CIL.7
6
While traditional theories of international law have considered treaties and CIL to be the primary types of
international law, a reputational theory of international leads to a different conclusion. Soft law agreements, to
which states have explicitly consented, generally yield clearer expectations, and thus larger reputational
sanctions in the event of violation, than unclear CIL obligations. Thus, in many cases, soft law agreements will
be more “binding” on the parties, in the sense of having larger reputational costs associated with violation, than
rules of CIL. See Andrew T. Guzman, A THEORY OF INTERNATIONAL LAW, forthcoming (2007).
7
For example, in the context of foreign investment, see e.g., Surya, P. Subedi. The Challenge of Reconciling
The Competing Principles Within the Law of Foreign Investment With Special Reference to the Recent Trend in
the Interpretation of the Term “Expropriation.” 40 Int’l Law. 21 (2006) (discussing how international tribunals
have interpreted the customary international law of foreign investment). In the human rights context, the Inter-
American Commission on Human Rights found the execution of juveniles to be customary international law,
and possible a jus cogens norm. See Michael Domingues, Case No. 12.285, Inter-Am. C.H.R. 62, at P 84-85
(2002).

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Furthermore, the delegation to domestic tribunals of enforcement of CIL rules can facilitate
the performance of informational and agenda-setting functions discussed above, particularly
within the context of jus cogens norms and other human rights norms. The reason why this is
important is that standing and jurisdictional requirements for domestic courts are typically
lower than those for international courts. Indeed, domestic courts have become increasingly
important to the development of CIL in recent decades.
A particularly salient example of the role of domestic courts in the development of CIL is the
decision of the U.S. Supreme Court regarding the illegality of military tribunals used to try
foreign detainees from the war on terror held at Guantanamo Bay. In its decision, the Court
interpreted provisions of the Geneva Conventions governing the military tribunals by
reference to “those trial protections that have been recognized by customary international
law,” and found the government’s procedures failed to comply with the Geneva Conventions
and the applicable rules of CIL.8 Because the United States is engaged in widespread
activities that fall under the purview of the laws of war, both customary and as codified, any
action taken by the United States in response to an adverse decision by its highest court is
costly, and thus sends a costly signal to other nations as to the content of the relevant legal
rules.
Conclusion
We have reached the end of my study. Taking into account the growing use of treaties and
soft law agreements and the criticisms aimed at traditional notions of CIL, one may very well
wonder if CIL is still relevant to the conduct of international relations in the 21st century. In
the absence of a world legislature and the cost involved with forming and ratifying
multilateral treaties, customary law has played a fundamental role in governing relationships
between sovereign states in both historical and modern settings. Yet to dismiss CIL, either
because of the prominence of the treaty in modern international relations or because of the
theoretical shortcomings of traditional CIL doctrine, would be an error.
Rather than being forced into an artificial choice between establishing law through treaties
or not having any law at
all, states have the option to create their legal environment through a variety of different legal 
modes. Even though CIL may be the weakest form of international law from the perspective
of compliance, its ability to alter state incentives makes it an important tool for adding value
to the international legal order. CIL can inform our study of international law and the myriad
ways in which states craft their legal environment. Only by understanding how and why
states use the different legal tools available to them can we truly understand the role of
international law generally in shaping state conduct.

8
Hamdan v. Rumsfeld, 548 U.S. ___ (2006).

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