A. State Practice, State practice is fundamental to the formation of a custom. but what amounts to a State practice and v. hat constitutes ...
A. State Practice, State practice is fundamental to
the formation of a custom. but what amounts to a State practice and v. hat
constitutes a State practice may cover every activitv of the State organs or
officials in an international context. it may include treaties. diplomatic
correspondence and relations, opinions of national legal advisers, national
legislation. policy statements. press releases, official manual on legal
questions, executive decisions and practices. decisions of international and
national courts, and the practices eat international organisations."
Broadly speaking. State practices can be categorised into three groups--as
evidenced in the mutual relations among States. in the practice of
international organisations, and the unilateral practices ()I States.
1. Mutual relations among States
PrakAlLes of States with other nations in the form of diplomatic
correspondence, press releases, bilateral treaties, memorandum of
understanding. acts or declarations by statesmen etc. constitute evidence of
practices of States followed in the sphere of international relations. Uniform
practice among nations on a particular aspect icad• to the formation of a
customary ruk. Rules may also he evolved as a result of positiN e statements,
interaction of the nval claims, or the acquiescence in or tolerance of the
other's claim The do N elopment of the law of the sea is the case in point of
the interaction of rival claims. and an example of ,-onipromises and mutual
tolerances. in the Fisheries Jurisdiction rase (UK v. Iceland ),I: the United
Kingdom protested against the legality of the extension by Iceland of its
fishery limits from 12 to 50 miles. on the ground that customary international
law did not recognise the right of a State to establish an exclusive fishery
zone beyond 12 miles from the baselines of its territorial waters The
International Court of Justice recognised the validity of the 12 miles tone der
eloped out of State practice but opined that it did not amount to crystallising
any rule which will make inN alit! more extensi%e claims. For this, the Court
referred to a number of proposals and claims for extensive economic zone at the
Third Law of the Sea Conference made hv large number of States. The fi‘e
judges, in their pint opinion, observed:
There is, at the
moment, great Wit the existing, customary law on account of the conflicting and
discordant practices of states. Once the uncertainty
of such a practice is admitted. The impact of the official pronouncements, And
proposals must undoubtedly have an wing effect on the crystallisation a still
evolving customary law on the subject Furthermore.
The law on
fishery limits has always been and must h %cry essence be a compromise between
the claims and counter-claims of coastal and distant water fishing States. On a
subject N,khere practice is contradictor) and lacks precision. is it possible
and reasonable to discard entirely as irrelevant the evidence of what States
are prepared to claim and to acquiescence in, as gathered from the position
taken by them in e of, or in preparation for a conference for the codification
and progressive development of the law on the subject?"
Acquiescence
found favour in the Anglo-Norwegian Fisheries ease (UK v. Norway) by the
International Court of Justice. In this case. the Norwegian decree of 1935,
delimited Norway's "Fishery Zone's along almost 1000 miles of coastline
north of latitude 66" 28.8' North, by following the straight baseline
joining the foOrds, sands (sounds) and skjaegaard (rocks), because its
coastline was highly indented. This method of a straight baseline was adopted by
Norway in its earlier decrees of 1869 and 1889, to delimit its territorial sea
in the southern coastline, measuring only 89 miles, and no one protested
against it including the United Kingdom. By using this straight baseline
method, Norway enclosed waters within its territorial sea that would, otherwise
have been high seas. The length of the baselines extended as far as 30 to 44
nautical miles in the sea. The United Kingdom, which had the fishing interest
in the region, challenged the legality of Norway's straight baseline system.
The Court after referring to the 1869 and 1889 decrees observed:
The general
toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than 60 years, the United Kingdom
itself in no way contested it.... The notoriety of the facts. the general
toleration of the international community, Great Britain's position in the
North sea, her own interest in the question, her prolonged absentation in any
case warrant Nor►ay's
enforcement of her system against the United Kingdom."
An acquiescence,
however, cannot be established 'unless a State has actual or constructive
knowledge of the claim being made.ls Further, it is not necessary that a new
rule emerges only out of compromises or mutual tolerances, it may also be
evolved by consensus, rather in a short span of period, such as in the case of
law relating to outer space.
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