Rules Of Customary International Law Research Articles

Access to justice for atrocities in the comparison of land-mark cases on state immunity in Brazil and Italy

ABSTRACT This article investigates differences and similarities in the approach of Italian and Brazilian domestic courts to the topic of access to justice for atrocities and the role of state immunity, taking particular note of the limited and select dialogue between the two judiciaries and reflecting on the potential for further developments of the customary international law rule on state immunity. To do so, the article first outlines the rule on state immunity and offers an overview of the articulated Italian case law on why state immunity cannot bar access to justice for atrocities, considering the judicial developments occurred after 2004. The paper moves on to describe the recent 2021 decision of the Brazilian Supremo Tribunal Federal, in which the Brazil judiciary seemingly joined the Italian trend against state immunity when atrocities are committed. The two different judicial trends are then compared and analysed, with a discussion on the limited explicit reference to Italian decisions by the Supremo Tribunal Federal. The article concludes the research by describing the likely impact of these judicial trends on future developments on the relationship between access to justice for atrocities and state immunity.

Has the National Treatment Treaty Standard Evolved into a Customary Rule of International Law?

The present paper examines whether the consistent inclusion of the National Treatment standard in various BITs has led to the emergence of a customary international law rule of similar content. To analyse this issue, the paper tailors the test established by the ICJ in the North Sea Continental Shelf cases, which examines the process of development of a treaty rule into a customary law rule. The article concludes that the mere presence of the National Treatment standard in numerous BITs does not inherently imply that it has evolved into a customary international law rule. The article argues that this is primarily because the assessment of customary international law necessitates state practice to exist separately and autonomously from treaty practice. Hence, the replication of the rule across BITs alone does not provide sufficient grounds for presuming the existence of a customary law rule. By assessing and tailoring the criteria set forth by the ICJ and considering the scholarly perspectives on this matter, this paper offers an understanding of the conditions required for the transformation of a treaty-based rule into a customary law principle. The aim is to contribute to the ongoing scholarly discourse on the development and identification of customary international law, specifically in the context of investment treaties and the National Treatment standard.

Revisiting Veto Power in the Context of Atrocity Crimes: the Syrian Conflict as a Case Study

The excessive, abusive use of veto power during the war in Syria has prompted the international community to seek ways to overcome this veto power, mainly when doing so is necessary to prevent atrocities. The use of veto power to advance the national or regional interests as well as the economic, political, or strategic interests of a Security Council’s permanent member state on a way that impair a vital humanitarian interest of a state under conflict or the international community as a whole, undermines the Security Council’s role to maintain the international peace and security. This usage may also affect other states’ compliance with the veto power. In other words, the veto system could eventually lose its effectiveness if the international community continues to find justifications to non-compliance with the veto. This paper sheds light on events that have occurred during the Syrian war that give rise to Grotian Moments, or have the potential to do so, to create new customary international law rules governing the use of the veto power. Furthermore, this paper sorts out the principles invoked during those events as legal justifications to restrict or overthrow the veto power. Moreover, this paper identifies legal circumstances to facilitate any discussions regarding setting limitations on or obstructions to veto power in the context of atrocities. This research stresses the importance of determining a proper environment to overcome the veto power. This environment consists of unified, clear, and fair circumstances acceptable to all states, regardless of whether they are permanent or non-permanent members of the Security Council. Therefore, this proposal seeks to advance the legal system governing the use of the veto power for fighting brutality. Keywords: International criminal law, human rights law, universal jurisdiction, veto, customary international law, international organizations.

Some Observations on the ‘Ambulatory’ Nature of the Normal Baseline

Abstract From the start of the discussion about the implications of sea level rise for the entitlements of coastal States to maritime jurisdictional zones, the question of the interpretation of Art. 5 unclos (and the corresponding rule of customary international law) on the ‘normal’ baseline of the territorial sea became an essential element of the debate. The then generally accepted interpretation of Art. 5 assumed that this normal baseline, viz., the low-water line along the coast, when physically moving as a result of sea level rise, would have the effect of also moving the outer limits of the maritime zones. This interpretation became known as the ‘ambulatory’ baseline, and was inter alia adopted by the ila Committee on Baselines in the Law of the Sea and the ila Committee on Sea Level Rise and International law. However, this interpretation has recently been challenged by a few authors, as well as, more importantly, by some States. This contribution briefly examines State practice, and concludes that the normal baseline of the territorial sea is indeed ‘ambulatory’ under the current law as reflected in Art. 5 unclos. However, a significant change in the interpretation (and application) of this provision is developing in State practice, to the effect that coastal States affected by sea level rise should be allowed to maintain their current normal baselines, as determined in accordance with the provisions of unclos, notwithstanding future changes to the low-water line. If this changed interpretation is not also reflected in a change of the text of Art. 5 (which would involve an amendment of unclos under its articles 312 or 313), we may be witnessing an example of tacit amendment (modification) of a treaty provision by subsequent practice. At the same time the relevant rule of customary international law would then be changed as well.

A duty under customary international law and a condition for funding under the EU Recovery and Resilience Facility: the genealogy of the “do no significant harm” principle

EU Member States are obliged to apply the “Do no significant harm” principle in their public procurement procedures when their projects are financed under the EU Recovery and Resilience Facility (RRF). Despite the binding nature of this novel principle, doubts persist around its scope and implications. This contribution aims at tracing the evolution of the “no-harm” rule, which is recognised as a rule of customary international law at the international level while in the EU it was elaborated as a mandatory condition on public procurement contracts falling under the RRF framework.

Reappraising Reprisals Against Enemy Civilians in Customary International Humanitarian Law

Abstract Belligerent reprisals are a controversial and largely discredited mechanism for the enforcement of international humanitarian law. Additional Protocol i of 1977 prohibits a range of reprisal activity, including reprisals against enemy civilians. A (relatively small) number of States are not Parties to Additional Protocol i, whilst some States Parties have made declarations and/or reservations to the Protocol which could be seen as attempts to limit the operation of the prohibition. Its status as a rule of customary international law is therefore an important question. This article argues that opposition to the prohibition in customary law is neither as widespread nor consistent as has previously been suggested and that the weight of evidence points towards the existence (or development) of a customary prohibition. Consistent opposition by the UK and the US, however, makes it unlikely that the customary prohibition would be opposable to those particular States.

Systemic Interpretation of the European Convention on Human Rights and its Protocols: Creeping Fragmentation of State Responsibility

The article discusses how the European Court of Human Rights (hereinafter — ECtHR, the Court) influences the way the European Convention on Human Rights (hereinafter — ECHR, the Convention) is systematically interpreted in the context of state responsibility. The article highlights that interpretation of the Convention and general principles of state responsibility is crucial for holding states accountable, ensuring justice for victims, and upholding the credibility and coherence of international law. For this reason, it is essential for the Court to carefully interpret the ECHR within the broader context of international law. The authors believe that one of the most practical strategies to analyse this issue is through determining the consistency of the European Court of Human Rights’ approach to state responsibility issues, elaborated through its case-law, with general customary rules of international law. It can be effectively performed through the lens of three fundamental problems: jurisdiction and attribution interaction problem; issues of state responsibility for the acts of international organisations, paying special attention to peace-keeping operations; and third-state responsibility problem. The analysis shows that the Court creates its own criteria, often conflicting with each other, by ignoring established general rules of international law on state responsibility. Lastly, the authors show that while the Court often acts as a lawmaker, it should create the law in a unified way to apply it fair and equally for the purposes of human rights protection. It is not the states and their particular interests that should govern the application of law by the Court. In the end, the authors come to the conclusion that the policy behind the Court’s decisions is not only predominantly inconsistent with the general customary rules of international law and the object and purpose of the Convention, but also results in the creeping fragmentation of the international law on state responsibility.

Shaping the International Law Principle of the Inviolability of the Right to Peaceful Enjoyment of Property in the Context of International Armed Conflict

The article focuses on the formation of the international law principle of the right to peaceful enjoyment of possessions in the context of an international armed conflict, given the relevance of the issue of damage and destruction of property as part of the armed aggression of the Russian Federation against the sovereignty and territorial integrity of Ukraine. The author examines the right to peaceful enjoyment of possessions through the prism of international human rights law - as such, where the right to peaceful enjoyment of possessions (property rights) has been enshrined in the international law system, and also through the prism of international humanitarian law and international criminal law - as such, which are special in relation to the right to peaceful enjoyment of possessions in the context of international armed conflict.
 The article examines the principle of inviolability of property rights at the national level, in particular, in legislative and judicial sources, and its impact on the formation of the relevant international law principle. In particular, the author analyses the philosophical development of the concepts of “sacredness” of property rights and inviolability of property rights, as well as the natural essence of this right for a person.
 The author examines in detail the rules of conventional and customary international humanitarian law on the right to peaceful enjoyment of property/property rights depending on the type of acts that may be committed against property and the type of property against which certain acts are directed in the context of an international armed conflict or legal regime of occupation. The provisions on the protection of civilian objects, as well as the non-absolute nature of the protection of property rights in international armed conflict in cases of urgent military necessity, are carefully considered. Based on this analysis, the author identifies the key fundamental provisions on the basis of which the international legal principle of the right to peaceful enjoyment of property in the context of international armed conflict is formed.

The Effects Doctrine As a Basis for Jurisdiction of States in Cyberspace

An important feature of cyberspace is its cross-border nature, due to the absence of physical borders and the decentralization of infrastructure and users. Due to the fact that all transactions in cyberspace potentially cross state borders and have an impact on objects and entities in various states, the consequences of certain actions can be felt in many jurisdictions. At the same time, the traditional links between the offense and the State on the basis of territoriality, nationality or the need to protect fundamental national interests may be absent. In such cases, jurisdiction is proposed to be established on the basis of the doctrine of consequences. However, the objections of a number of States to such extraterritorial dissemination of foreign legislation and the uncertain nature of the consequences doctrine have raised questions about the conformity of the consequences doctrine with international law. Based on the analysis of international treaties, practices and positions of States and international organizations, scientific research and other doctrinal sources, the following conclusions were drawn. The doctrine of consequences is increasingly being recognized as a principle of establishing the jurisdiction of States through the formation of a rule of customary international law. However, objections to the application of this doctrine, especially in cases of establishing jurisdiction in criminal cases, continue to be expressed. The generally recognized conditions for the application of the consequences doctrine are as follows: a State enacting legislation based on the consequences doctrine must have an internationally acceptable interest in this; the consequences must be direct, predictable and significant; there must be no infringement of the legitimate interests of other States or foreign persons who do not have a significant connection with the State that claims to implement such jurisdiction. Other mechanisms should be considered to limit the scope of actions falling under the jurisdiction of the State: apply the principle of targeting, which requires an assessment of the actions that a person has taken in order to fall or not fall under the jurisdiction of the State; apply special liability measures related not to the imposition of sanctions on persons engaged in illegal behavior, but to the creation of obstacles to the implementation of such activities, for example, to block access to information that is illegal from the point of view of the State. A combination of such mechanisms could prevent undesirable activities in a more balanced way and not create unjustified risks for cyberspace actors.

Subjective Side (Mens Rea) of Aiding and Abetting War Crimes and Crimes Against Humanity in the Context of the Alien Tort Statute

The American Alien Tort Statute (ATS) is a landmark instrument on a global scale, since, based on its provisions, plaintiffs in American courts have sought compensation for human rights violations committed on other continents. Many of these cases involved war crimes and crimes against humanity. And since such large-scale crimes are almost never committed by a single perpetrator, one of the key issues before the courts in these cases was the question of establishing standards of liability for aiding and abetting such crimes. In considering these cases, the American courts based their decisions on the provisions of international law and thus developed a substantial body of case law, the study of which will undoubtedly be valuable in light of the legal challenges posed by the war in Ukraine. The objective of the article is to examine the requirements for the mens rea of aiding and abetting war crimes and crimes against humanity through the prism of the case law applying the Alien Tort Statute. From a methodological point of view, the study focuses on the analysis of the case law of American courts through the prism of international law. An important component of the research is to determine the contents of customary international law, the provisions of which are subject to separate proof in the relevant cases. The article itself is a part of comparative legal research with the aim of drawing lessons that could be used to solve the complex legal problems arising from the war in Ukraine. The article examines two standards of aiding and abetting used by American courts in cases under the Alien Tort Statute, namely, the purpose standard and the knowledge standard. The author examines the American precedents in which the courts have used one or the other standard. It is argued that the origins of the disagreement should be sought in international law, since American courts in the relevant category of cases rely on international law. The author analyses the arguments of Judge Katzmann, whose position forms the basis for all subsequent decisions applying the purpose standard. The critical analysis of Judge Katzmann's arguments is complemented by a thorough examination of the practice of international criminal tribunals - from the Nuremberg Tribunal to the later tribunals for Yugoslavia, Rwanda and Sierra Leone. The author concludes that the standard of knowledge is predominant and should be considered a rule of customary international law and should define the criteria of liability for harm caused by gross violations of internationally recognised human rights.

The Application of Teachings by the International Court of Justice, 2016–2022

Abstract This article examines the application of teachings by the International Court of Justice between 2016 and 2022. The Court did not cite teachings in its majority opinions during this period. It did cite works from the International Law Commission, which suggests that these are considered different from teachings and possibly have more weight. Judges cited teachings in their individual opinions. Judge Cançado Trindade stands out as a judge with a particularly high citation rate. Teachings played a wide variety of functions in individual opinions, from the classical functions of aiding the interpretation of a treaty and the ascertainment of a rule of customary international law, to a range of other specialized functions such as the interpretation of other texts, in particular judicial decisions, methodological and historical points, and showing the purpose of a rule of instrument, in addition to providing reflections on the role of the international judiciary itself. The article also examines the demographics of the most-cited writers, finding that most of them are men from Western States. The article compares the judges’ practice with findings from prior to 2016 and other international courts and tribunals.

Methodology of identifying customary international law applicable to cyber activities

AbstractWhat is striking about recent scholarship on the application of customary international law to cyber activities is how little has been dedicated to the preliminary question of how one identifies the applicability of existing rules of customary international law to cyber operations. Yet, the answer to this preliminary question holds the key to answering many of the questions which arise regarding whether existing rules of customary international law apply to cyber activities. This article seeks to answer the preliminary question. After providing background on the nature of customary international law, and in light of recent scholarly trends and what is often implied in literature on cyber activities, it makes the argument that rules of customary international law are not interpretable. Accordingly, reference must be made to state practice accepted as law for the purpose of identifying applicable customary international law; the article provides guidance on how this should be done. For a precedent of state practice to be relevant to determining the existence of a customary rule applicable to a cyber activity, pursuant to the International Court’s jurisprudence, the precedent must not have significant distinguishing features from the cyber activity concerned. For determining whether a precedent of opinio juris recognizes the existence of a customary rule applicable to the cyber activity, it is necessary to determine whether the relevant state pronouncement intended to accept as law a rule applicable thereto. In anticipation of objections, the article also addresses the practicability of the approach laid out.

International law and its response to modern security threats that stem from developments in weaponry and technology

The emergence of new technologies such as nanoteachnology, cybertechnology, outer space and unmanned systems and its rapid development have had an impact on the existing rules of international law, and vice versa, due to advances in technology of weaponry. Handling such situations by law goes through interpretation by the ‘old’ international law and application to a new situation, or if necessary via the enactment of new law. In some cases, existing international law might be applicable to it by the extension of as the appropriate reinterpretation of international conventional norms as customary international law counterparts. Despite the fact that some international laws have been adopted during times of reduced development of technologies and weaponry types, they are nevertheless still likely to be applicable to the challenges and issues of security threats. Given the examples of using chemical weapons and cyber-attacks, this can be considered evidence of weaknesses of some international law norms due to interpretation issues as necessity to strength existing law through application of customary international law rules. Therefore, it is difficult to state that international law is unable to secure peace or help to avoid the threats inherent to new technology and weapons development because of states practice and the contribution of academics.

A History of Double Criminality in Extradition

Abstract This article sets out the history of double criminality in the law of extradition. It shows how that it only emerged as a legal requirement in the ‘Jay Treaty’, the 1794 treaty between theUSand UK. The article explores how the ‘Jay proviso’, a procedural requirement that the requesting state produce sufficient evidence to satisfy the requested state of the criminality of the requested person, morphed through interaction between common law and civil law states into a substantive requirement that the acts for which extradition is requested be criminal under the laws of both states. The article diccusses the evolution of the idea, and of its rationale, and then concludes that acceptance of this idea by the early part of the 20th Century confirmed its status as a general principle of law, or perhaps even a rule of customary international law.

The Expulsion of a Permanent Member of the UNSC from the UN

The Russian aggression on Ukraine has triggered a complex question: could Russia, as one of five permanent members of the UNSC, be expelled from the UN regardless of Article 6 of the UN Charter? This Article provides that a UN member state which has persistently violated the principles from the Charter may be expelled from the UN by the General Assembly upon the recommendation of the UNSC. Since this recommendation of the UNSC requires unanimity of all its permanent members, it seems that the international community has been faced with a seemingly unsolvable situation. Nevertheless, there are maneuvers based on the rules of customary international law embodied in the Vienna Convention of the Law of Treaties, that could be exercised. Those maneuvers would not be something unseen in the history of UN law; however extreme and severe consequences would arise this time.

The Prohibition of Prosecution of Child Soldiers: a Desirable Emerging Rule of Customary International Law

Abstract Children taking part, directly or indirectly, in hostilities commit war crimes. Moreover, in many cases, child soldiers are not in control of their actions when forced under threat of death to commit crimes. In such cases they are drugged against their will and act under duress, which is often the defence to mitigate their responsibility and punishment. Many questions arise in this regard. Is the status of being enlisted in itself a state of duress for a child, even in the absence of explicit violence or threat? Is the condition of being a soldier something unnatural and abnormal for a child, to the point of being considered in any case a justification for his actions? Can a child soldier be responsible in some cases for war crimes, when mainly in control of his actions? This article maintains that, notwithstanding the fact that classic IHL and HRL do not prohibit the prosecution of children for war crimes, there is emerging customary law that follows the approach of the UN and non-governmental organization bodies in prohibiting the prosecution of child soldiers. According to this, States should refrain from prosecuting children responsible for war crimes. This is furthermore the consolidated approach of the international criminal law today, as stated in the Statute of the ICC.

Digital Evidence in the Process of the International Court of Justice

The experience of the International Court of Justice of the United Nations, the oldest existing international court, is extremely important for the development of international judicial procedure. One of the important elements is the practice of collecting and using evidence, which serve as the basis for a Court decision. The problem of recent years has been the problem of using digital (electronic) evidence, which can be any material that exists or is transmitted in the form of numbers. Its source can be a computer disk, stationary or mobile, USB drive, smartphone, the Internet. The digital proof may also have a graphical form in the form of a computer file or an email. The source of evidence may also be data obtained from satellites as a result of remote sensing of the Earth. There are no rules of customary international law concerning electronic evidence. It is logical to assume that the relevant regulation is adopted by each international court separately for itself in the form of its internal law or accepted practice. There are no rules in the Statute and Rules of the International Court of Justice that directly regulate the handling of digital evidence. The main task that the Court faces is to select such data that would allow it to make an effective and fair decision in accordance with international law. Since digital information can be on the Internet, and therefore be accessible to everyone, such information can be classified as publicly available, and therefore freely available. There are concerns that its use could make the trial uncertain. In our opinion, for digital data, the same conditions of treatment must be observed as with evidence in another form: deadlines, registration of copies, etc. The final word on the suitability of the submitted digital evidence is taken by the Court, taking into account the clarity of the image and information, the reliability of sources, etc.

Drawing boundaries of police powers doctrine: a balanced framework for investors and states

Abstract The expropriation of alien property should be subject to compensation as a customary international law rule. Known as the host state’s ‘right to regulate’ or ‘police powers’, there is an ongoing debate on whether there can be non-compensable regulatory takings to uphold ‘essential’ public interests, such as public health. The existence or extent of this doctrine is still unclear, especially when the applicable investment treaty does not specifically address this principle. This article seeks to present a possible legal framework in this regard and defend the general legitimacy of the police powers doctrine even when the applicable treaty does not provide an express provision, though when applied in limited conditions. Therefore, the article defends a mitigated police powers doctrine which seeks to offer a balanced framework upholding the essential public interests and conforming to the core principles of international investment law.

SECRET CUSTOM or THE IMPACT OF JUDICIAL DELIBERATIONS ON THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW

AbstractThe literature on the identification of rules of customary international law is extensive. Commentators have focused on isolating the methodologies by which international courts and tribunals identify customary international law, with most of the debate revolving around the use of induction, or deduction and assertion as methods of custom identification. However, the existing literature has overlooked that the choice among custom identification methodologies takes place behind closed doors, during confidential deliberation processes. When all that scholars see may be deduction or assertion, international courts and tribunals may have ascertained the existence of customary rules by induction, but induction may not have made it into the final text of the decision. This article elaborates on the impact of judicial deliberations at the International Court of Justice on the choice among custom identification methodologies. It argues that individual-driven stages of deliberations favour custom identification by induction, while collegial stages promote custom identification by non-inductive methodologies.

Identification as the Process to Determine the Content of Customary International Law

Abstract Scholars recently have been arguing that one can interpret rules of customary international law. This article argues that the case for the interpretability of custom is unpersuasive and that the content of customary rules is determined by the process to ascertain the existence of such rules, known as identification. The main thrust of this article is that state practice and opinio juris are central to determining the content of customary international law, but that the case for the interpretability of custom wrongly downplays that centrality. To develop its argument, this article discusses the overlap between content and existence of customary rules, the means to distinguish between putative customary rules (called ‘individuation’), the means to interpret customary rules and the possibility for customary rules to move between levels of abstraction without evidence of state practice or opinio juris (called ‘plasticity’). This article also criticises the legitimacy of interpreting customary international law.