A custom can come into existence between a group of States or even amongst the two States. The Asylum case has clearly laid down that a loc...
A custom can
come into existence between a group of States or even amongst the two States.
The Asylum case has clearly laid down that a local custom which is observed
amongst a group of States in their relations inter-se, is within the purview of
Art. 38, para. (1)(b) of the Statute of the International Court of
Justice." In the Right of Passage over Indian Territory (India v.
Portugal)," India suspended the right of passage to Portugal through the
Indian territory, which was in between Dadra, Nagar Haveli and Daman after a
revolt in Dadra in July 1954. Before the International Court of Justice,
Portugal claimed this right based on the Treaty of 1779, concluded between
Portugal and the then Maratha ruler. The right of passage granted in favour of
Portugal was subsequently allowed by the British Government also as the
sovereign of that part •of the country which was with the Marathas. This right
was confined to private persons, civil officials andgoods in general, to the
extent necessary to exercise sovereignty by Portugal over these enclaves, but
armed forces did not enjoy this right. For them special permission was sought
and granted by British authorities. After independence, India also allowed this
right. The Court ruled that India did not act contrary to its.
International obligations, and the right was
suspended in July 1954, because of the repercussions and tension created by the
events in Dadra in the border territory of India. The Court also decided that
Portugal was not entitled to send its armed forces through the Indian
territory.
In rendering its
judgment, the Court relied on the Treaty of 1779. The Court also accepted the
validity of the claim of Portugal based on custom, because the right existed
continuously for a long period of time. In reply to India's objection that no
local custom could be established only between two States, the Court observed:
It is difficult
to see why the number of States between which a local custom may be established
on the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continued practice between two States accepted by them
as regulating their relations should not form the basis of mutual rights and
obligations between the two States.
It would hardly
ever be practicable to show that every State has recognised or accepted a
certain practice, and the test of general recognition is basically vague. It is
enough to show that the majority of States have accepted a particular practice
for a custom to evolve. In the North Sea Continental Shelf cases, Judge Lachs
in his dissenting opinion stated that "to become binding, a rule or
principle of international law need not pass the test of universal
acceptance.... Not all States have ... an opportunity or possibility of
applying a given rule. The evidence should be sought in the behavior of a great
number of States, possibly the majority of States, in any case the great
majority of the interested States".2° For example, in the matters related
to maritime law, the practice of the United Kingdom and the United States is of
special importance, just like in the law relating to outer space, the practice
of the United States and Russia is significant.
Further, for a
practice to get the force of law as a customary rule, the precise length of
time required for its existence is immaterial, it is enough that it must be
followed long enough to show that the other requirements, i.e., uniformity and
consistency, are also met. In the North Sea Continental Shelf cases, the
International Court of Justice observed:
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