Contemporary Validity of Customary International Law with Reference to International Law Making Process

Abstract

In the absence of a designated institution for making or passing international law the international law creation process has created a conundrum. Which authority or institution has the power to originate international law, who has granted the mandate for the task of making law and the validity and acceptance of customary international law are some associated problems with the main issue. The main research problem of this paper is ���??in spite of the significance of international customary law how international custom can continue to provide the same connotation and the validity in the wake of the changes happened in the present international legal system?���?��� Although with the adoption of the Statute of the International Court of Justice the impasse related to the sources of international law has been partly resolved, the contemporary significance and the complex formula related to proving the existence of customary international law remain controversial. Much debate exists on its consistent application and pragmatism. Treaty law seems as taken over the primacy of customary law at the international arena. In this backdrop, the main objective of this research is to examine the actual position of customary international law in the current world as a source of international law. This is a qualitative research, mainly based on secondary sources, i.e., textbooks, journal articles, case law and relevant international instruments. The key findings of the research shows the continued validity of customary law is as unabated but priority-wise it has become secondary to treaties as a source of international law. The two elements involved in the satisfactory establishment of customary law- (state practice and opinio juirs) ���?? have made the burden of proof of a new customary norm rather difficult. However, there prevail interesting examples with regard to the creation of such important norms in the present international legal system as evidence to the sustainability of customary international law in the years to come. Therefore, the research concludes by reiterating the validity and usefulness of custom as a source of international law despite the fact that it has diminished its significance as a source of law in most of the domestic legal systems. Nevertheless, it is emphasized the need to minimize or eliminate the influences of more powerful states on the creation of customary international law norms to get their strategic political goals accomplished in order to depoliticized international law making process