CUSTOMARY INTERNATIONAL LAW & THE PROTECTION OF MINORITIES

Prof. Joshua Castellino, Professor of Law & Head of Law Department, Middlesex University, London, UK

WHAT IS ‘CUSTOMARY INTERNATIONAL LAW?’

• Source of Public International Law• Article 38, Statute of the International Court of

Justice, United Nations Charter, 1945• Other sources: – Treaties – General principles– Academic Writings & Judicial Decisions

PROBLEMS WITH ‘CUSTOMARY INTERNATIONAL LAW’, MINORITIES &

INDIGENOUS PEOPLES• State Centric• ‘Consistent Practice’• Verifiability & Consistency• In Written Format• Not subject to Change• Slow evolution

‘INTERNATIONAL CUSTOM’, MINORITIES, INDIGENOUS PEOPLES & COURTS OF LAW

• ‘Custom’ v ‘Usage’– Evidence of Custom

• Elements of Custom – Uniformity and Consistency of Practice– Duration– Generality of practice– Opinio juris et necessitates

EMERGING DIFFICULTIES WITH ‘INTERNATIONAL CUSTOM’ IN COURTS

• Burden of proof• Bilateral relations and local customs• Opinio juris• State practice

CODIFICATION OF CUSTOM

• The Role of Institutions: – United Nations– International Law Commission– World Trade Organisation– Council of Europe– International Labour Organisation– World Intellectual Property Organisation

• Bilateral Treaties & Agreements• Courts (International, Regional, National)• Domestic Statues• Contributions from jurists

RELATIONSHIP BETWEEN CUSTOM & CULTURE

• Culture is the manifestation of practice dictated by custom. It is the primary source for normative systems. (An-Na’im)

• ‘Culture is a network of perspectives in which different groups

hold different values and views, and in which some groups have more power to present their vision as the true culture…’ (Ibawoh)

• ‘Since culture needs to respond to different & competing

individual and collective needs and aspirations, it tends to combine stability and continuous change, offering its adherents a range of options and seeking to accommodate varying responses to its norms…’ (An-Na’im)

EVOLVING BATTLE BETWEEN ‘FORMAL LAW’ & ‘TRADITIONAL LAW’

• Evidence: Land rights cases• Decisions concerning the codification of

intellectual property rights• Decisions concerning unitary legal systems• Antagonism towards legal pluralism

FORMAL LAW: SOME GENERALISATIONS

• Based on Western legal principles• Monopoly of Law• Focused on individual liberty• Imposed by colonialism • Codified in Writing • Attempts to create egalitarian society

‘TRADITIONAL LAW’: SOME GENERALISATIONS

• Community oriented value system • Developed over time• ‘Indigenous’• Based on cultural practices• Oral• Patriarchal

PERCEPTION OF THE CLASH

• West: – Process of civilisation– Universality of rights– Protection of the individual

• East: – Interference– Hurts of colonialism – Neo-colonialism – Different agenda viz. community basis

MAINTENANCE OF THE FORMAL OVER THE TRADITIONAL

• The role of ‘western’ elites• The impact of Multinational Corporations• The role of the State• The Human Rights Agenda