Customary international law consists of rules derived from a “practice generally accepted as law” and existing independently of treaty law. Customary IHL is crucial in today`s armed conflicts as it fills gaps left by contract law, thereby strengthening the protection of victims. Read more Treaty law and customary international law are sources of international law. Treaties, such as the four Geneva Conventions of 1949, are written conventions in which states formally establish certain rules. Treaties bind only those States that have expressed their consent to be bound by them, usually by ratification. LOSC acts as the “constitution of the sea” by offering protective measures and regulatory measures. It regulates, inter alia, the limits of national jurisdiction over maritime space, access to the seas, navigation, protection and conservation of the marine environment, exploitation and conservation of living resources, scientific research, seabed mining and other uses of non-living resources. It also includes the settlement of disputes, the establishment of international bodies to achieve specific objectives and the promotion of international cooperation on maritime issues such as security and the environment. LOSC seeks to achieve a just general order by balancing the rights and benefits associated with it with duties and obligations.15 States recognize that treaties and customary international law are sources of international law and, as such, are binding. This is provided, for example, in the Statute of the International Court of Justice. An example of the binding nature of customary international law is its application by national and international courts. Customary international law, on the other hand, derives from a “general practice recognized as law”. This practice is reflected in official reports on military operations, but it is also reflected in various other official documents, including military manuals, national legislation and jurisprudence.
The requirement that this practice be “recognized as law” is often referred to as “opinio juris”. This distinguishes practices prescribed by law from practices that are pursued, for example, in the context of policy. In response to Grotius, the English jurist John Selden argued in Mare Clausum that the sea was as capable of appropriating sovereign powers as the land territory. [7] Selden rejected Grotius` premise, stating that there was no historical basis for treating the sea differently from the land, and that there was nothing in the nature of the sea that prevented states from exercising dominion over certain parts of the sea. [8] In essence, international law could evolve to reflect the emerging framework of national jurisdiction over the sea. Grotius` concept of “freedom of the seas” became virtually universal during the 20th century, following the global domination of European naval powers. National rights and jurisdiction over the seas were limited to a specific water belt stretching from the coast of a nation, usually three nautical miles (5.6 km), according to Bynkershoek`s “cannon shot” rule. [9] According to the Mare liberum principle, all waters beyond national borders were considered international waters: free for all nations, but not for any of them.
[10] No agreement was reached on the efforts of the League of Nations in the early 1930s to decide on the extension of the state`s sovereignty claims to adjacent waters. In 1945, President Harry S. Truman extended U.S. control over all natural resources on its continental shelf, under customary international law that a nation has the right to protect its natural resources. Chile, Peru and Ecuador followed suit and extended their claim to 200 nautical miles to include their fishing grounds. Most States have extended their territorial waters to 12 nautical miles. In the years that followed, various attempts were made to establish a comprehensive regime of the law of the sea, culminating in the elaboration of this Convention. Unlike treaties, which are written and easier to search for and quote, the rationale for customary international law may be more difficult to discern. The prevailing view of the United States on the definition and interpretation of international law is very similar to other widely accepted methods of international jurisprudence. A comparison of international and U.S.perspectives illustrates the similarities. In general, the purpose of international law is to regulate relations between States, and it is therefore binding on States. This also applies to international humanitarian law, whether contractual or customary, as it governs armed conflicts between States. It was stated that “an examination of the nature of each provision shows that [the LOSC] constitutes not only the codification of customary norms but also, and above all, the progressive development of international law … This progress carries considerable weight, as the agreement was reached by consensus of UN member states.13 This consensus resulted in a “grand bargain” that extended the sovereign rights of coastal states over their territorial waters and exclusive economic zones, treated the seabed as a common heritage (and resource) of mankind, and codified the key principles of freedom of the seas.14 Although UNCLOS is under the The organization has no direct operational role in implementation.
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