Posted: December 2nd, 2022

Customary International Law

Customary International Law
Introduction
The role of the law is to prevent individual states and armed groups from interfering with the basic rights and freedoms of others. One of the earliest laws resembling customary international law is the Peace of Westphalia of 1648. Customary international law is important in shedding light on the areas in the international conventions that cannot provide solutions to existing conflicts. The law originated from international law during the Roman era between the seventeenth and eighteenth centuries. Countries have a responsibility to abide by the terms of customary international law unlike in treaties where parties can recede or accept the terms. The purpose of the paper is to examine the history of customary international law and its role in the global community.
History of Customary International Law
Custom international law consists of rules that are accepted as a general practice. The law provides relevant principles of custom. For instance, the doctrine of non-refoulment states that countries should not return people to their home country where they could face torture or irreparable harm (Chimni, 2018). Major developments took place between the mid-seventeenth and twentieth centuries. The emergence of the law was meant to establish an environment that protects human beings against violation of basic rights (Chimni, 2018).
The law originated from international law during the Roman era between the seventeenth and eighteenth centuries. One of the earliest laws resembling customary international law is the Peace of Westphalia of 1648 (Matheson, 2017). According to the Peace of Westphalia of 1648, all states have equal rights and sovereignty. In the seventeenth and eighteenth centuries, nations were required to abide by the law of nature as the subjective law (Matheson, 2017).
The history of customary international law dates back to 1993 when the United Nations Security Council adopted the Geneva conventions. The adoption of the conventions was a critical landmark in enforcing customary international law (Blokker, 2017). The law has experienced major developments such as state practice and opinio juris as confirmed by the International Court of Justice (Blokker, 2017). The role of the law is to prevent individual states and armed groups from interfering with the basic rights and freedoms of others.
Importance of Customary International Law
Customary international law is effective in ensuring good working relations among nations. For instance, the law grants immunity for visiting heads of state to avoid a diplomatic row. The law is intended to reduce armed conflict and tension between nations (Born, 2017). For instance, failure to award a sitting president immunity while in a foreign country can trigger a diplomatic row (Born, 2017). Nations have a responsibility to observe customary international law to avoid conflicts that may escalate into war.
Customary international law is vital in filling the gaps left by the treaty law. The law is effective in bolstering the protection of victims (Born, 2017). For instance, customary international law regulates armed conflict between states and armed opposition groups. The rules meant to regulate the conflicts apply equally to all parties (Petersen, 2017). For instance, nations neighboring countries experiencing conflict can benefit from the law. The customary international law binds the states and armed conflict groups. The purpose is to prevent escalation of conflicts that may lead to deaths, destruction of property, or people fleeing their homes. For instance, some countries in the Middle East cannot sign treaties that condemn their actions. Customary international law provides a framework to restrict the nations from undermining human rights. Since countries cannot sign treaties that will condemn them, the international community will use customary international law to restrict actions against human rights. The elements of customary international law are consistent state practices over time. The approach is effective in preventing nations from waging war against others or violating human rights.
Customary law is obligatory to all parties whether they are part of a democratic or authoritative government or militant group (Petersen, 2017). The belief that every state is held accountable makes it important for states to comply with the requirements of the law. Unlike treaties, customary international law does not require parties to accept or reject the terms. One of the important principles in customary international law is that silence means consent (Petersen, 2017). In the case of treaties, parties can recede or accept a treaty. When parties recede treaties the international community stops holding them responsible for their actions. However, customary international law applies at all times and parties have no opportunity to recede or accept the terms (Petersen, 2017). All the parties are bound by the terms of the law and are required to observe the provisions of the law in good faith.
Customary international law allows for the creation of non-derogable jus cogens norms. Jus cogens rules are essential in holding states accountable for the violation of fundamental rights (Matheson, 2017). The law is clear on the role of customary international law to protect citizens in different nations. Customary international law provides an avenue for the parties involved in a conflict to negotiate and find a suitable approach to end conflicts (Matheson, 2017). The law, which applies to all the parties, despite their willingness to sign a treaty is critical in the prevention of freedom and basic human rights.
Customary international law is important in shedding light on the areas in the international conventions that cannot provide solutions to existing conflicts. The law provides solutions to the dynamic environment of conflicts (Matheson, 2017). The customary international law requires states to act consistently. For instance, last month, Israel and Palestine were involved in air missiles which ended up killing over 240 Palestinian citizens. Applications of treaties may present a challenge to the international governing bodies such as the United Nations Security Council. The world tried to use influential nations such as America with little success. The customary international law provides a solution to such a stalemate by ensuring every party should avoid undermining basic human rights (Chimni, 2018). International law may experience some weaknesses or complexities in the application. The focus is to ensure nations are not undermining the rights of others. Defying the terms of customary international law may lead to prosecution or sanctions by the international community (Chimni, 2018). Customary international law plays a role in ensuring the global community is not in chaos.
Conclusion
The world can enjoy the benefits of customary international law since it provides relevant principles of custom. The doctrine of non-refoulment states that countries should not return people to their home country where they could face torture or irreparable harm. The law grants immunity for visiting heads of state to avoid a diplomatic row. The role of the law is to prevent individual states and armed groups from interfering with the basic rights and freedoms of others. Parties can recede or accept treaties, but customary international law requires states to abide by the terms without exemptions.

References
Blokker, N. (2017). International Organizations and Customary International Law: Is the International Law Commission Taking International Organizations Seriously?. International Organizations Law Review, 14(1), 1-12.
Born, G. (2017). Customary international law in United States courts. Wash. L. Rev., 92, 1641.
Chimni, B. S. (2018). Customary international law: A third world perspective. American Journal of International Law, 112(1), 1-46.
Matheson, M. J. (2017). The United States position on the relation of customary international law to the 1977 protocols additional to the 1949 Geneva Conventions. In The Development and Principles of International Humanitarian Law (pp. 233-245). Routledge.
Petersen, N. (2017). The International Court of Justice and the judicial politics of identifying customary international law. European Journal of International Law, 28(2), 357-385.

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