• Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children, supplementing the United Nations
Convention against Transnational Organized
Crime;
• Protocol against the Smuggling of Migrants by
Land, Sea and Air, Supplementing the United
Nations Convention against Transnational
Organized Crime;
• United Nations Convention against
Corruption.
2.3. CUSTOMARY INTERNATIONAL LAW
RELEVANT TO TRAFFICKING
International customary law is defined as
“evidence of a general practice accepted as
law”.6 Customary international law does not
need to be written. A rule will be considered
to be customary if: (i) it reflects general and
uniform State practice; and (ii) such practice
is accompanied by a subjective sense of legal
obligation (opinio juris).7 It is not necessary
that all countries recognize a rule of customary
international law for the norm to exist and to
bind them. All that is required is a general
consensus that the rule in question is in fact an
obligation and a sufficient level of conforming
State practice.8 In principle, custom and treaty law
are equal in value. If there is a conflict between
a customary and a treaty-based rule then the one
6
In the context of trafficking, customary
international law is important for several reasons.
First, not all States have become parties to all
relevant instruments. The characterization of
a rule as part of customary international law
elevates that rule (and any resulting obligation)
to one of universal applicability. For example,
the prohibitions on torture and discrimination
are widely considered to be norms of customary
international law operating to constrain all
States, not just those that are party to the relevant
international and regional conventions. The
conclusions of the Commentary on how such
prohibitions relate to trafficking would therefore
apply to all States. Another example is provided
by the customary rules relating to the formation
and interpretation of treaties. These rules operate
to bind all States, not just those that are party to
the Vienna Convention on the Law of Treaties.
In this area as in all others, customary
international law can also play an important
role in shedding light on the actual content
of codified rules. For example, it has been
frequently argued that the international
prohibition on slavery, as codified in various
human rights treaties, has been expanded (by
opinio juris as well as by State practice) to
include contemporary manifestations of slavery,
such as trafficking. Such a conclusion, if proved,
Statute of the International Court of Justice, Article 38 (1)(b).
“Not only must the acts concerned be a settled practice,
but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule requiring it.
… The States concerned must feel that they are conforming
to what amounts to a legal obligation.” (North Sea
Continental Shelf Cases (Federal Republic of Germany v.
Denmark; Federal Republic of Germany v. Netherlands)
(1969) ICJ Reports 3, 44. See also Ian Brownlie, Principles
of Public International Law, 4th ed. 1990, pp. 5-7.
7
In the Nicaragua Case, the International Court of Justice
held that: “In order to deduce the existence of customary
rules, the Court deems it sufficient that the conduct of States
8
that emerged later in time or is intended as a
specialized rule will generally prevail.
should in general be consistent with such a rule; and that
instances of State conduct inconsistent with a given rule
should generally have been treated as breaches of that rule,
not as indications of the recognition of a new rule.” Military
and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States) (1986) ICJ Reports pp. 3, 98.
Note also the well-established rule that States objecting to a
norm of international customary law when it is being formed
are not bound by it (the rule of the “persistent objector”). “[I]n .
principle, a State that indicates its dissent from a practice
while the law is still in the process of development is not
bound by that rule even after it matures”: American Law
Institute, Restatement (Third) of the Foreign Relations Law of
the United States (1990), p. 102.
COMMENTARY
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