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Formation Of Customary International Law

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Question:

Discuss About The Formation And Evidence Of Customary International Law?

 

Answer:

Introducation

Aggression is considered as concept under which one state use the armed forces against the sovereignty, territorial integrity or political independence of another state. However, it also includes use of armed forces in any other way which is not consistent with the charter of United Nations as stated in the definition. It must be noted that first use of armed forces by any state in terms of contravention of Charter shall be considered as prima facie evidence of an act of aggression. Below stated acts can be considered as act of aggression except declaration of war:

  • Bombardment done by the armed forces of one state against another state territory or weapons used by the armed forces of one state against the another state territory.
  • Ports and coasts of the one state are blocked by the armed forces of another state.
  • Any attack on the land, sea, air force, or marine of one state by the armed forces of another state.
  • Any invasion or attack done by the armed forces of one state against another state territory. It also includes military occupation because of such invasion or attack.
  • If one state allow its temtory, which is placed at the disposal of another state, and that temtory is used by another state for the purpose of preparing act of aggression against the third state.
  • Sending by or on behalf of the state of armed bands or groups which indulge in the activities of armed forces against other state and such acts results in above stated acts (UN document, 1974).

International humanitarian law is considered as the law which regulates the conduct of states engaged in war (known as jus in Bello). It is considered as that branch of international law which prevent the effects of war by protecting those person who are not participating in the war, and it also protect the non-participants by  restricting the means which are available to combatants. This law mainly focus on humanity and reducing the sufferings of human.

This law is binding on those nations which are bound by appropriate treaties. Some other rules of war are also there which were not written and these rules were explored at the time of Nuremberg War Trials. At the time of extension both permissive rights and prohibitions on conduct of armed forces are imposed even though they are dealing with irregular forces and non-signatories. Rules of IHL are applicable on strict basis in case of international armed conflict and internal armed conflict (ICRC, 2002).

It must be noted that rules stated in the treaties are considered as part of customary law and these rules are binding on all states and also on the other parties to the conflict also,  no matter sate ratified treaties themselves or  not. Additional various rules stated by customary international law are applicable in case of international and non-international armed conflicts. Protection in context of non-international armed conflicts is regulated by common article 3 of the four Geneva Conventions and Additional Protocol II.

Therefore, international humanitarian law is applicable on armed forces of alliance ten nations (UN organization, n.d.).

It is considered as long-standing rule stated by customary international law in Article 3 of the 1907 Hague Convention (IV), and this rule is repeated in Article 91 of Additional Protocol I, that state bears the responsibility of any act committed by the person who is the part of its armed forces. This rule is considered as application of the general rule which states that state is responsible for international wrongful acts, and state is also for the behavior of its organs.

It must be noted that, state is responsible for the breach of the provisions of international humanitarian law, and these violations include:

  • Violations done by the organs of state which also includes its armed forces.
  • Violations done by persons and or entities which has power to exercise the elements related to government authority.
  • Violations done by persons and groups who are acting as per the instructions and directions of the state. In other words, those persons or groups who are under the control of state.
  • Violations done by private persons or groups which acknowledges and adopt its own conduct (ICRC, 2017).

Because of above stated facts state practice make rule under customary international law related to violations of IHL, and this rule is applicable in both international and non-international armed conflicts (Sassoli, 2002). Therefore, in present case also 10 alliance nations are responsible for breach of violations.

International law sources includes treaties, international customs, general principles of law which are recognized by civil nations, etc. some treaties are generated from the codifying existing customary law such as law governing the global commons and also Jus ad bellum. However, the main aim of customary law is to establish the code of general application, and its effectiveness is completely depend on the number of states which ratify that particular convention. It must be noted that few of these instruments have sufficient number of parties which entitled international law.

 


Treaties and customary international law are considered as different but important lawmaking process. It must be noted that these process are not so much different in terms of compliance and enforcement. In fact state practice does not show the difference between the creation of customary law and treaty. Difference between the two can be understood as, customary law is considered as general practices which are accepted as law and treaties are those principles which permit the set of exclusion and agenda control devices which are not present in the customary law (Meyer, 2015).

Customary international law is defined in Article 38(1) (b) by international Court of Justice as “evidence related to general practice which is accepted as law”. Usually, customary law is defined through two factors that is general principles defined as states and what is accepted by state as law. There are different types of customary law which are recognized by state as law. Therefore, customary law is not recognized as doctrine of natural approach but it is considered as evidence of pre-existing legal rules (UFRGS, 2013).

On 20th December 1989 almost 27000 U.S. troops invaded the small country established in Central American country of Panama. As expected, most powerful armed force of the world defeated the 3000 soldiers of Panama Defense Force (PDF). Country was raked by AH-64 Apache helicopter by both bases of military and working class communities. This fight was lasted for few days. Generally, invaders called this Operation Just Cause. Reason given by U.S. president for this invasion was too familiar, as he stated that this invasion removes the evil dictator General Manuel Noriega as he brutalizing his own people.

Rights were acquired by United States for the purpose of building and operate Panama Canal in the first years of 20th Treaty named as Hay-Herrán was negotiated between the Columbia and United Nation which allowed the United Nation to exercise their rights on the land surrounding planned Canal. Ratification of this treaty was refused by senate of Columbia, but at that time Panama was in the process of seceding from Colombia. Therefore, cause of Panamanian independence for Canal was supported by President Theodore Roosevelt. After his support, treaty named as Hay-Bunau-Varilla Treaty was signed by the United States on 8th November 1903. This treaty establish permanent US rights to Panama Canal representative of Panamanian named as Phillippe-Jean Bunau-Varilla entered into negotiations without taking formal consent from the Panamanian government, and he had not reside in Panama for 17 years. In 1914, Canal was opened, but still there were number of Panamanians which put question mark on the validity of the treaty (Office of the Historian, n.d.).

  • Treaty can be void if following provisions are not compiled with the USA:
  • United States does not construct any new Canal in the territory of the republic of Panama.
  • USA does not enter into any negotiations with the third states for the purpose of constructing canal.

Upon the termination of this treaty following factors must be considered by both the governments:

  • After the termination of this treaty complete responsibility of the Canal was shifted on the republic of panama such as responsibilities related to maintenance, management, and operation of the Canal. However such responsibilities must be free from the liens and debts, except as the two Parties may otherwise agree.
  • United States transfer all the right, title and interest possessed by United States of America in respect to all real property of Canal to the Republic of Panama. However, it also includes non-removable improvements (US department of state, n.d.).
 

References:

ICRC, (2002). The Law of Armed Conflict. Viewed at: https://www.icrc.org/eng/assets/files/other/law10_final.pdf.  Accessed on 27th September 2017.

ICRC, (2017). CUSTOMARY IHL. Viewed at:  https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter42_rule149. Accessed on 27th September 2017.

Meyer, T. (2015). AJIL Unbound. Viewed at: https://www.asil.org/blogs/how-different-are-treaties-and-modern-customary-international-law-response-verdier-and-voeten. Accessed on 27th September 2017.

Office of the Historian. The Panama Canal and the Torrijos-Carter Treaties. Viewed at: https://history.state.gov/milestones/1977-1980/panama-canal. Accessed on 27th September 2017.

Sassoli, M. (2002). State responsibility for violations of international humanitarian law. Viewed at: https://www.icrc.org/eng/assets/files/other/401_434_sassoli.pdf. Accessed on 27th September 2017.

US department of State. Panama Canal Treaty of 1977. Viewed at: https://2001-2009.state.gov/p/wha/rlnks/11936.htm. Accessed on 27th September 2017.
UFRGS, (2013). Formation and evidence of customary international law. Viewed at: https://www.ufrgs.br/ufrgsmun/2013/wp-content/uploads/2013/10/Formation-and-Evidence-of-Customary-International-Law.pdf. Accessed on 27th September 2017.

UN Documents, (1974). Resolution adopted by the General Assembly. Viewed at: https://www.un-documents.net/a29r3314.htm#fn3. Accessed on 27th September 2017.

UN organizations. War Crimes. Viewed at: https://www.un.org/en/genocideprevention/war-crimes.html.  Accessed on 27th September 2017.

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