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There are two requirements for a custom to be accepted as law: (i) there should be sufficiently uniform general practice accepted as law, and (ii) the belief that such a practice is obligatory.
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State practice can be categorized into three groups as evidenced: (a) in the mutual relations among States, (b) in the practice of international organizations, and (c) the unilateral practices of States.
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• the fact that there are about 200 states and that crating a new custom is slow process • the question of whether a usage has crystallized into a custom is riddled with many difficulties • the fact that customary law is an unsuitable vehicle to manage and respond to new scientific challenges
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A convention (treaty) may be general either because of the number of parties (as being accepted by a large number of States), or because of the nature of its contents (which is of universal importance). It may be particular because of the limited number of parties, or because of the limited character of its subject-matter.
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A treaty contract is an agreement between two (or only limited number of ) States on a special matter concerning those States exclusively. Such treaties create obligations for the parties that would not have existed under the general international law or they modify the existing rules as applicable to their mutual relations.
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Guidelines of behavior such as those provided by treaties not yet in force, resolutions of the United Nations, or international conferences, that are not binding in themselves but are more than mere statements of political aspiration (they fall into a legal/political limbo between these two states).
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Custom is a habitual course of conduct or general practice accepted as law. Custom evolves after a long historical process culminating in its recognition by the community.
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Custom may be treated as a source of law if it manifests the attributes of antiquity, certainty, continuity, consistency, and uniformity.
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Usages are habits, often repeated but conflicting. They also vary from one State to another. On the other hand, custom is self-consistent and unified. Usage represents the twilight stage of custom. Custom begins where usage ends. However, it is not necessary that a usage should precede a custom or that a usage becomes a custom. Similarly, there is no international rule that determines when usage shall culminate into a custom.
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For a practice or usage to become a customary rule of international law, the following two factors are essential: • A material fact: in similar circumstances States act similarly, in other words, usage has been constantly and uniformly practiced by States. • A psychological element: (opinio juris sive necessitatis) (an opinion of law or necessity)- the feeling on the part of States that in acting as they act they are fulfilling a legal obligation.
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State practice may include treaties, diplomatic correspondence and relations, opinions of national legal advisers, national legislation, policy statements, press releases, official manuals on legal questions, executive decisions and practices, decisions of international and national courts, and the practices of international organizations.
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The importance of treaties is self-evident, because under Article 38(l)(a) of the Statute of the ICJ ‘conventions’ have been mentioned as the first recourse which the Court is directed to resort for settling a dispute between the parties.
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The State practice, even though general and consistent, is not customary law unless an opinio juris or “psychological element” is present, i.e., the practice is recognized as obligatory and there is the conviction that its repetition is the result of a compulsory rule.
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A treaty will bind the non-parties if they (expressly or by their conduct) manifest their intention to be bound by the provisions of the treaty as general rules of international law.
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Non-liquet means “it is not clear.” In law, a non liquet is a situation where there is no applicable law. It refers to a situation in which a competent court or tribunal fails to decide the merits of a case for the absence of suitable law, the vagueness or ambiguity of rules, inconsistencies in law, or the injustice of the legal consequences.
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The fact that they are international, that they are signed between states (or organizations of states) and that they are (written) agreements.
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A treaty may be in the form of an agreement between the heads of states of the concerned countries, in an inter-governmental form, between ministers of the respective countries, or it may be an inter-departmental agreement.
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• it should be embodied in a written instrument between two or more entities; • those entities should be endowed with international personality; • it should be governed by international law.
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The making of treaties involves various steps, viz., consultation, negotiation and adoption of the text, commencement of treaty, ratification, accession, adhesion etc.
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Full powers is a formal document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the state to be bound by a treaty, or for accomplishing any other act with respect to a treaty.
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Heads of states, heads of governments, ministers for foreign affairs, heads of diplomatic missions, and representatives accredited to international conferences or organizations are considered to represent the state ex officio (by virtue of their position). Therefore, they are empowered to sign a treaty on behalf of a state without having to produce full powers to that effect.
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Deferred signatures generally denotes that the negotiated text was not fully acceptable to the signatory state at the time of authentication; and moreover, they are without any legal effect unless confirmed subsequently by the state.
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As a first step towards the conclusion of treaty is the negotiation and adoption of the text. Once the state decides to enter into a treaty relationship, it appoints the representatives to negotiate the text of the treaty. These representatives should be duly empowered through “full powers”.
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A state may express its consent to be bound by a treaty by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means agreed between the parties.
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Ratification is the international act whereby “a State establishes on the international plane its consent to be bound by a treaty” (Art. 2(1)/b, Vienna Convention). Ratification is an act of government to approve the treaty in question. Treaty becomes binding on the state after ratification. Ratification presupposes signing of a treaty by the duly appointed plenipotentiary (person having full powers). Generally, there is no prescribed time limit for ratification and states usually take many years before ratifying the treaty.
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