Rules Of Customary International Law Research Articles

The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq

Many of the authors who have written on the legal issues arising out of the United States' armed actions against Iraq in the decade following Operation Desert Storm have disagreed on the interpretation of the relevant Security Council resolutions and the United Nations Charter, on the possible emergence of a right to unilateral humanitarian intervention, and on possible extensions to the right of self-defence. But the same authors have shied away from considering the root causes of their disagreements: i.e., their sometimes starkly divergent views on foundational aspects of international law. What are the general rules concerning the interpretation of Security Council resolutions? What are the general rules concerning the interpretation of treaties? How are rules of customary international law, in general, made and changed? How does customary international law interact with treaties? These are important questions, not only because our approach to them is likely to determine our analyses of substantive rules, but also because the considerable influence of the United States in this post-Cold War epoch might in fact be changing the answers, with profound consequences for all of international law.

Pinochet

International criminal law — Jurisdiction — Principle of universality — Crimes against humanity — Whether crimes of universal jurisdictionJurisdiction — Universal — Crimes against humanity — United Nations General Assembly Resolution 3074 of 1973 — Whether now recognized as enshrining rule of customary international law on universal jurisdiction over such crimes — Conditions for establishment of rules of customary international lawRelationship of municipal law and international law — Treaties — Crimes against international law — Convention against Torture and other Inhuman or Degrading Treatment, 1984 — Articles 4 and 5 — Provisions on jurisdiction of municipal courts — Whether automatically incorporated into municipal legal order or requiring specific implementing legislation — Conditions for direct applicability of treaty provisions — The law of Luxembourg

The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq

Much has be written on the legal issues arising out of the United States' armed actions against Iraq in the decade following the Second Gulf War. Authors have disagreed on the interpretation of the relevant Security Council resolutions and the United Nations Charter, on the possible emergence of a right to unilateral humanitarian intervention, and on possible extensions to the right of self-defense. But in their analyses, international lawyers have shied away from considering the root causes of their disagreements: i.e., their sometimes starkly divergent views on certain foundational aspects of international law. What are the general rules concerning the interpretation of Security Council resolutions? What are the general rules concerning the interpretation of treaties? How are rules of customary international law, in general, made and changed? How does customary international law interact with treaties? These are important questions, not only because our approach to them is likely to determine our analyses of individual substantive rules, but also because the considerable influence of the United States in this post-Cold War epoch might in fact be changing the answers to these questions.

Leasing West GmbH v. People’s Democratic Republic of Algeria

State immunity — Attachment and execution — Embassy bank account — Account allocated to cover embassy expenditure — Whether enforcement admissible if account not allocated exclusively for sovereign activities of diplomatic mission — Test to be applied — Abstract danger to ability of mission to function — Whether requiring immunity from attachment even if bank account only partly allocated to cover embassy expenditure — Whether any rule of customary international law on the matter — The law of Austria

ZM v. Permanent Delegation of the League of Arab States to the United Nations

643International organizations — Immunity — Jurisdictional immunity — Foreign national employed as secretary by international organization — Contract of employment — Dispute — Whether subject to jurisdiction of national courts — Absence of any headquarters agreement governing the position — Whether international organization under any duty to establish administrative tribunal to settle such disputes — Whether entitlement of international organization to jurisdictional immunity dependent upon establishment of such a tribunalInternational organizations — Immunity — Jurisdictional immunity — Scope — Whether absolute — Whether having erga omnes effect for third States — Whether scope of immunity dependent upon headquarters agreement or rule of customary international law — Whether immunity in private contract disputes dependent upon establishment of an internal dispute settlement procedure — The law of Switzerland

Study on customary rules of international humanitarian law: Purpose, coverage and methodology

In December 1995 the 26th International Conference of the Red Cross and Red Crescent endorsed the recommendations drawn up by the Intergovernmental Group of Experts for the Protection for War Victims which had met, at the invitation of the Swiss government, on 23–27 January 1995 in Geneva. Recommendation II of this Group proposed that: “the ICRC be invited to prepare, with the assistance of experts in IHL [international humanitarian law] representing various geographical regions and different legal systems, and in consultation with experts from governments and international organisations, a report on customary rules of IHL applicable in international and non-international armed conflicts, and to circulate the report to States and competent international bodies.”

A Theory of Customary International Law

This article presents a theory of customary international law (CIL) that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.

United States of America v. Lo Gatto

555State immunity — Jurisdictional immunity — Consular employee — National of receiving State employed as telephonist — Dismissal — Claim for reinstatement and damages — Whether foreign State entitled to jurisdictional immunity — Whether duties of telephonist merely subordinate — Whether telephonist integrated into organizational structure of foreign State — Whether enquiry by municipal courts into lawfulness of dismissal would infringe sovereignty of foreign StateConsular relations — Consular employee — Telephonist — Whether performing consular functions — Vienna Convention on Consular Relations, 1963Relationship of international law and municipal law — Rules of customary international law — Rules on State immunity — Whether incorporated into municipal law — Effect of Article 10 of Italian Constitution — The law of Italy

The 1979 and 1990 Malaysia-Thailand Joint Development Agreements: A Model for International I Legal I Co-operation in Common Offshore Petroleum Deposits?

AbstractOffshore petroleum deposits straddling delimited or claimed maritime boundaries increasingly lead to bilateral joint development agreements between coastal states purporting to resolve the international and domestic legal issues raised by such situations. This article will examine one of the lesser known but arguably more successful of these joint development agreements in recent times, namely, the 1990 Agreement between Malaysia and Thailand on the establishment of the Malaysia-Thailand Joint Authority. The background to and negotiating process of the Agreement and the legal regime thus instituted will be examined. The article also considers the impact of this and other bilateral joint development precedents upon the possible development of a general or regional customary rule of international law requiring states to enter into joint development arrangements when confronted by similar situations.

A. Racke GmbH & Co. v. Hauptzollamt Mainz

A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96.Court of Justice of the European Communities, June 16, 1998.The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.

A Theory of Customary International Law

This article presents a theory of customary international law (CIL) that seeks to sort out the many well-known difficulties with standard accounts of CIL. The theory uses simple game theoretical concepts to explain how what we call CIL arises, why nations with CIL as commonly understood, and how CIL changes. This theory differs from the standard account of CIL in several fundamental respects. It rejects the usual explanations of CIL based on opinio juris, legality, morality, and related concepts. States do not comply with norms of CIL because of a sense of moral or legal obligation; rather, their compliance and the norms themselves emerge from the states' pursuit of self interested policies on the international stage. In addition, the behaviors associated with CIL do not reflect a single, unitary logic. Instead, they reflect various and importantly different logical structures played out in discrete, historically contingent contexts. Finally, the theory is skeptical of the existence of multilateral behavioral regularities that are typically thought to constitute CIL. The article tests the theory using case studies from four traditional areas of CIL: neutrality, diplomatic immunity, prize, and maritime jurisdiction. We find that most purported rules of CIL reflect pure coincidence of interest, rather than international cooperation, and that the rest are best explained as the outcome of repeated bilateral prisoner's dilemmas or coercion analogous to the behavior of the monopolist in predatory pricing games. We conclude by examining the implications of our analysis for understanding the role of CIL in domestic constitutional arrangements, the function of international treaties and international organizations, and the status of modern international human rights law.

Land and Maritime Zones of Peace in International Law. By Surya P. Subedi. Oxford: Clarendon Press, 1996. Pp. xlvi, 261. Index. $75.

During the past few decades a number of initiatives have been undertaken both inside and outside the UN to establish Zones of Peace (ZOP) in various parts of the globe. Currently, there are seven declarations and proposals for ZOP relative to the Indian Ocean, the South Atlantic, the South Pacific, the Mediterranean, Southeast Asia, Nepal and Tibet. On the basis of the areas they cover and the legal issues they raise, the first four zones are termed in this thesis 'maritime zones of peace1 and the remaining three 'land zones of peace'. The State practice relative to such zones demonstrates a significant move towards the acceptance of a variety of methods of creating different regimes with differing legal content. Yet there has been very little academic discussion on this subject from a legal point of view. Therefore, this thesis is designed to examine the legal aspects of the concept of ZOP. This study begins by examining the State practice on maritime ZOP and looks at whether the concept of maritime ZOP is consistent with the existing principles of international law, especially the freedom of the seas, and whether the State practice on ZOP has crystallised into a rule of customary international law. In doing so, it will assess the legal status of the UN General Assembly declarations on maritime ZOP. This is followed by an examination of the proposals for land ZOP. The study then assesses the extent to which the principles underlying the traditional concepts such as neutrality or demilitarised zones, as well as similar emerging principles, could be applied to the concept of ZOP. Another line of enquiry pursued in this thesis is into the concept of objective regimes in international law. After establishing that there exists in international law a rule on objective regimes, this thesis argues that the regimes of ZOP can be regarded as candidates for objective regimes. It is asserted that the methods applied to the creation of various ZOP are among the internationally accepted methods of creating regimes of a dispositive character and the regime of ZOP is similar to other regimes which have generally been regarded as objective regimes in international law. This thesis finds that although the ZOP is a distinct notion developed in response to the peculiar problems of a single State or a territorial entity or a geographical region, it draws upon similar traditional doctrines as well as other emerging rules of international law. On the whole, the declarations on ZOP can be viewed as innovative methods designed to consolidate the already extant and the emerging rules of international law, accord concrete meaning to certain general principles and apply them in the ZOP concerned.

Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules

AbstractFew concepts in international law have attracted as much attention or created as much controversy as jus cogens and erga omnes rules. This article attempts to show that jus cogens rules are rules of customary international law, and then to elucidate the relationship between these customary rules and the concept of erga omnes. This article explains that: in contrast to jus cogens rules, erga omnes rules may arise either as customary rules or through treaties; a jus cogens or erga omnes rule could apply to only a limited number of States; although jus cogens rules are necessarily erga omnes rules, erga omnes rules could exist which were not of a jus cogens character.

Marcos and Marcos v. Federal Department of Police

198State immunity — Head of State — Scope of immunity from criminal jurisdiction — Whether absolute — Whether differing from scope of immunity from civil jurisdiction — Waiver — Conditions — Rules of customary international law — Vienna Convention on Diplomatic Relations, 1961, Article 32 — Application to head of State by analogyState immunity — Head of State — Former head of State — Whether entitled to immunity from the criminal jurisdiction of courts in other States — Whether immunity subsisting in relation to acts performed in exercise of functions — Rules of customary international law — Vienna Convention on Diplomatic Relations, 1961, Article 39 — Application to head of State by analogy — The law of Switzerland

Largueche v. Tancredi Fenu

377Diplomatic relations — Immunity — Diplomatic agent — Immunity from civil jurisdiction — Vienna Convention on Diplomatic Relations, 1961 — Article 31(1)(a) — Whether declaratory of customary international law — Exceptions to immunity — Real action relating to private immovable property situated in the territory of the receiving State — Whether including claims for vacation of apartment required for personal useTreaties — Principles of interpretation — Vienna Convention on the Law of Treaties, 1969 — Articles 31 and 32 — Restrictive interpretation — Interpretation in accordance with rule of customary international law — Vienna Convention on Diplomatic Relations, 1961, Article 31(1)(a) — The law of Italy

Dutch Diplomat Taxation Case

Diplomatic relations — Immunity — Family of diplomatic agent — Entitlement of wife of diplomatic agent to immunity from taxation in receiving State — Vienna Convention on Diplomatic Relations, 1961, Articles 34 and 37Treaties — Application by municipal courts — Interpretation — Intention of the parties — Assumption that parties to a treaty intend to apply rules of customary international law — Belgium-Netherlands Convention for the Avoidance of Double Taxation, 1970 — The law of the Netherlands

Customary International Law in the Nicaragua Case

On 27 June 1986 the International Court of Justice passed judgment in the case concerning military and paramilitary activities in and against Nicaragua. Because of a reservation that the United States had made when it accepted the jurisdiction of the Court, the Court could not pronounce a decision regarding the dispute insofar as it concerned multilateral convertions. As a resuld of this, the Court was compelled to base its judgment largely on rules of customary international law and general principles of law. The rules of customary law which were relevant for the judgment corresponded to a significant extent, as regards their content, to the rules of treaty law which the Court was unable to apply, such as the prohibition on the use of force of Article 2, paragraph 4 of the Charter of the United Nations. This led the Court to indicate in precise terms how rules of treaty law and rules of customary law which have a corressponding content can co-exist and how the existence of rules of customary international law can be established in general. In addition, the Court examined in some detail the existence and content of certain specific rules of customary international law.

Enforcement measures against pollution of the sea

According to some data, pollution from shipping amounts to lO-20% of the total pollutants in the marine environment.’ However, sea-going vessels, in contrast to others, are the most obvious source of pollution, and therefore in recent times special attention has been devoted to drafting and improving international legal measures against pollution from ships. In the period preceding UNCLOS III a significant number of international universal and regional conventions regulating various aspects of the prevention of pollution from ships were adopted. At UNCLOS III these issues had a central place on the agenda. And it should be noted that a characteristic feature of the process of creating norms of the law of the sea in the domain of protecting and preserving the marine environment is the gradual expansion of the measures to enforce the respective basic norms contained therein. The universal international conventions in force which directly regulate pollution of the sea from ships (the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, with amendments of 1962 and 1969; the 1972 International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; and the International Convention for the Prevention of Pollution from Ships of 1973/78) in one way or another contain measures ensuring compliance with and grant specified powers regarding their enforcement not only to the flag state but also to the coastal state, and in certain instances to the port state. The legal regulation of the prevention of pollution from ships involves deciding a complex of crucial issues for international shipping. They are linked with demarcating the competence of the flag state and coastal state to issue appropriate laws and regulations, and primarily to take measures to ensure compliance both by their own ships and by foreign vessels. A complex machinery which has made material changes in the law of the sea as traditionally conceived has emerged as a result of the enforcement of norms against pollution of the sea from ships. For a long time a customary rule of international law operated according to which a ship outside the internal or territorial waters of a foreign state was under the exclusive jurisdiction of the flag state if it violated norms of international law.2 The principle of exclusive

The emerging legal principles and equitable criteria governing the delimitation of maritime boundaries between states

Abstract The purpose of this article is to show that there is an emerging fundamental norm or rule for the delimitation of maritime boundaries between littoral states, and that customary international law is slowly evolving towards this formula. It also maintains that although only part of this formula has yet become entrenched as customary international law, the remaining part of the formula appears to have acquired the status of embryonic customary international law which will, at some future date, eventually crystallize into binding rules of customary international law.

Astrup v. President of the Council of Ministers

Jurisdiction — Territorial — Exceptions — Foreign armed forces — Criminal jurisdiction of receiving State — Acts and omissions of foreign serviceman unconnected with official duties — Whether rule of customary international law that sending State has jurisdiction in such cases — NATO Status of Forces Agreement, 1951, Article VII(3) — Waiver of jurisdictions by receiving State — Whether constitutional — The law of Italy