CUSTOMS AND TREATIES AS A SOURCE OF

INTERNATIONAL LAW
INTRODUCTION
The world needs international law, because no state acting alone can achieve its aims. International
co-operation is necessary: and international law is the framework within which international co-
operation takes place.1

The rules of international law arise from three main sources of obligations; treaties, customary
international law, and the principles of natural law. Article 38 of the statute of International Court of
Justice (ICJ), directs the court to decide cases before it on the basis of:
1. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations.
Treaties and custom as the main sources of international law and their relationships are the main
point of consideration in this discussion.

CUSTOM
Custom is regarded as an authentic expression of needs and values of the community at any given
time. In international law is a dynamic source of law in the light of the nature of the international
system and its lack of centralized government organs.
Customary international laws are aspects of law derived from international community. Custom is
considered by the International Court of Justice, jurist, the UN, and its member states to be among
the primary sources of international law.
For a rule of customary international law to exist, it must be manifested in the general practice of
states. Article 38.1(b) of the ICJ statute refers to International custom as a source of international
law, specifically, emphasizing the two requirements of state practice plus acceptance of the practice
as obligatory. Hence, the challenge is how can one tell when a particular line of action adopted by a
state reflects a legal rule or is merely prompted by courtesy?
The duration of a particular international states practice is what qualifies it into customary
international law. Customary law systems generally suppose that the rule that they apply are long-
established. The main reason for the concerned with time is a matter of authority. Proof that a
practice has long been followed is good evidence that the rule evidence d by the practice is firmly
established. The main challenge with regards to the time factor, are concern with the speed of
creation of new rules and the effect of protest.
On the other hand , in the North Sea Continental Shelf cases in 1969 ,the ICJ expressly accepted the
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possibility that a wide spread and representative practice could generate a rule of customary
international law even without the passage of any considerable period of time. This is referred to as
instant customary law.
Advantages of custom as a source of law:
1. Custom is recognized as being of value since it is activated by spontaneous behavior and
thus mirrors the contemporary concern of society.
2. It is democratic in that all states may share in the formulation of new rule. The factor of
equality of states being constant.
3. If states are unhappy with a particular law, it can be changed relatively quickly without
necessity of convening and successfully completing a world conference.
Critics of this source of international law have denied its significance today stating, it is too clumsy
and slow moving to accommodate the evolution of international law any more. Hence, since
international law now has contended with a massive increase in the pace and variety of state
activities as well as having to come to terms with many different cultural and political traditions, the
role of custom is perceived diminished .3

The pro custom as a source of international law, recognize it as a dynamic process of law creation
and more important than treaties since it is of universal application.

TREATIES
Treaties are known by variety of different names, but all this terms refer to a similar transaction.
This is, the creation of written agreement between states whereby the states participating bind
themselves legally to act in a particular relation between themselves.
Treaties, thus, signify written instrument in which the participants (usually but not always states)
agree to be bound by the negotiated terms.
Treaties are divided into:
1. Law-making treaties-these are multilateral treaties and mainly intend to have universal or
general relevance.
2. Treaty-contracts-this treaties apply only between two or small number of states. They are
mainly bilateral treaties.
Treaties are express agreement and are a form of sustitute legislation undertaken by states.Treaties
as source of international law originates from mainly the law making treaties which are intended to
have a general effect. The law-making treaties are those agreements whereby states elaborate their
perception of international law upon any given topic or establish new rules which are to guide them
for the future in the international conduct. These are multilateral treaties and may produce rules that
bind all states irrespective of their consent.
Article 38 states that, international conventions, whether general or particular, establishes rules
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expressly recognized by the contracting states. Treaties are thus, entered into by consent of states.
A general rule illustrated in the North Sea Continental cases is that parties that do not sign & ratify
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the particular treaty in question are not bound by its terms.

However where treaties reflect customary law then non-parties are bound, not because it is a treaty
provision but because it reaffirms a rule or rules of customary international law.
The pro treaties as a source of international law scholars view it as the most important source of
international law. This is because; in their view they require the express consent of the contracting
parties. Treaties are thus view by these scholars as superior to custom, which is regarded in any
event as a form tacit agreement .6

Critics of this source of international law see it as a difficult process. One can imagine how difficult
it is to try and achieve conformity of views and approaches in relation to a multilateral instrument
that is intended to be comprehensive even where the instruments subject matter is relatively
narrow.
Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with
other law-making treaties. And the legal principles for resolving these conflicts may prove in
particular cases to be anything but clear and simple.
Treaties are codified, making it easy to refer and address a wide range of issues.

Relationship between treaties and custom as a source of international law

The source of treaties and custom are the primary inter-relation between them. The interaction
between them often exists from the beginning of the life of these judicial bodies.
Customary law is the practice followed generally by the nations. A treaty is not a necessity here. On
that logic treaty law could evolve from the long practiced customs if state parties wish to have a
codified form of their customary practice.
In the North Sea Continental shelf case the court set out three distinct ways in which a rule of law
set out in a treaty text could be an accurate reflection of a rule of customary international law:
1. The treaty could have codified pre-existing international law.
2. A treaty may crystallize an emergent rule of customary international law.
3. The treaty might pass into customary international law after its conclusion.
Customary laws have been the primary laws to commence any case in the international crimes
while treaties play a vital role during jurisdiction. The relationship is also reflected in that the
obligatory nature of treaties is founded upon the customary international law principle that
agreements are binding (pacta sunt servanda).

CONCLUSIONS
In practice, the unending interplay between custom and treaty, in the sense that a treaty rule is
fleshed out by practice which in turn becomes evidence of a general practice accepted as law.
Treaties have been favored on one hand as the customary process and its results are vague, slow,
malleable and uncertain but treaties can be made relatively spontaneously in specific terms. On the
other hand as well, the making of multilateral treaty is recognized as a cumbersome process that
may well outlast the formation of a custom outside its framework.
While the interplay between treaties and custom is a constant in international law, there is strong
sense in insisting that the two sources maintain separate existences. The question of the extent to
which treaty rules, together with their attendant conditions for application, may affect the customary
rules of identical content, and vice versa, is still in need of a consistent line of criteria, while taking
into account the circumstances of each concrete case . 7
It is also felt that customary law as a formal source of international law has an enduring role that
cannot be diminished, whatever the situation is with efforts in treaty-making. A treaty will always
display rigidity in the face of fast-changing conditions of this globalizing world; whereas custom
has flexibility and responsiveness to such changing conditions .8

It is thus evidence from the above analysis that there is strong sense in insisting that the two sources
maintain separate existences but are inter-related. Hence, the international community cannot rely
on one in the absence of the other as a source of international law.