Rules Of Customary International Law Research Articles

Evidence, the Court, and the Nicaragua Case

The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”

Custom on a Sliding Scale

Every student who has ever taken a traditional international law course has learned Manley Hudson’s four elements for the emergence of a rule of customary international law: (a)concordant practice by a number of States with reference to a type of situation falling within the domain of international relations;(b)continuation or repetition of the practice over a considerable period of time;(c)conception that the practice is required by, or consistent with, prevailing international law; and(d)general acquiescence in the practice by other States.

Italian Consulate Employee Case

97Consular relations — Immunity — Consular employee — National of receiving State — Whether entitled to exemption from taxation in receiving State — Vienna Convention on Consular Relations, 1963, Articles 49(1) and 71(1) — Whether Convention codifies pre-existing rule of customary international law — The law of Switzerland

Investigating Allegations of Chemical or Biological Warfare: The Canadian Contribution

The 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare unequivocally makes the use of chemical and biological weapons an illegitimate means of waging war. Yet enforcement of the Protocol is hindered by the lack of an investigative mechanism to provide prompt and effective verification of an alleged violation. In response to controversy stemming from this omission, in 1982 the General Assembly requested that the Secretary-General enlist the assistance of experts to investigate alleged breaches of the Protocol and relevant rules of customary international law, devise procedures for timely and efficient investigation, and document information relating to the identification of chemical and biological warfare agents. In 1984 the Secretary-General submitted his Report on Chemical and Bacteriological (Biological) Weapons to the General Assembly, which included the provisional procedures recommended by the Group of Consultant Experts. Deeply concerned about the use of such weapons, and perceiving a need for more extensive guidance on the subject, the Canadian Government prepared the Handbook for the Investigation of Allegations of the Use of Chemical or Biological Weapons and presented it to the Secretary-General on December 4, 1985.

Chierici and Rosa v. Ministry of the Merchant Navy and Harbour Office of Rimini

Jurisdiction — High seas — Conception of the high seas and freedom of the sea — Res communis omnium — Artificial island constructed by private individuals just outside territorial waters — Demolition order issued by coastal State — Geneva Convention on the High Seas, 1958 — Geneva Convention on the Territorial Sea and Contiguous Zone, 1958 — Whether creating enforceable rights for individuals to the free use of the high seas — Whether creating duty incumbent upon States to prevent their citizens from interfering with exercise of freedom of the high seas in contiguous zone by other States — Whether such duty also a rule of customary international law — The law of Italy

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundar...

Do general rules of international law exist?

The aim of this short paper is to explore the concept of ‘general’ rules of customary international law (i.e., rules in principle binding upon all states, as contrasted with ‘special’ rules binding only on a few states, usually on a regional or local basis), and-the tension which exists between that concept and the consensual basis of customary international law. It will be suggested that it is possible to hold a view of international law which denies the general applicability of most rules of customary law and preserves its consensual character, while admitting that a few rales of truly general application do exist which, however, must derive their binding force from outside the framework of consensual law creation.

Freedom from Torture and the Jurisdiction of Municipal Courts: Sri Lanka and United States Perspectives

The traditional view that a nation's treatment of its citizens is beyond the concern of international law' is no longer viable. International law now recognizes the principle that governments have an obligation to protect basic human rights.2 This principle is not only binding on states which have acceded to the thirty-five or more multilateral treaties which deal with human rights, but is also generally binding on the international community as a rule of customary international law. One of the most fundamental of those rights is to be free from torture. This is evidenced by resolutions and treaties formulated by the General Assembly and other bodies of the United Nations,3 judgments of international tribunals,4 and constitutional provisions in over 55 states.s All have either expressly referred to, or borrowed from, article 5 of the Universal Declaration of Human Rights which states: No one shall be subjected to torture or to cruel, inhuman or degrading treatment.

State of Japan v. Mitsuyo Kono and Takao Kono

The individual in international law — Extradition — Political crimes — Whether rule of customary international law that political offenders may not be extradited — Municipal law provision that political offenders are not to be extradited — Whether applicable to deportation of alien on informal request from other State — The law of Japan

The State (at the Prosecution of Peter Sumers Jennings) v. J. Furlong

The individual in internationallaw — Extradition — Conditions of extradition — Principle of speciality — Whether a rule of customary international law — Whether a part of municipal law — Whether conferring rights on individuals — The law of Ireland9International law in general — Relation to municipal law — Whether rule of customary international law part of municipal law — Subjects of international law — Whether obligation of State to accept principle of international law in its relations with other States confers any right on an individual — The rule of speciality in extradition matters — Origin of — Whether applicable to the extraditing State — The law of Ireland

Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice

The final preambular paragraph of the 1969 Vienna Convention on the Law of Treaties affirms “that the rules of customary internationallaw will continue to govern questions not regulated by the provisions of the present Convention;” and Article 4 of the Convention, establishing the nonretroactivity of the Convention by providing that it “applies only totreaties which are concluded by States, after the entry into force of the present Convention with regard to such States,” stipulates that this nonretroactivity is “ [w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention.”

International Custom and the Continental Shelf: A Study in the Dynamics of Customary Rules of International Law

International Custom and the Continental Shelf: A Study in the Dynamics of Customary Rules of International Law

Manifest Intent and the Generation by Treaty of Customary Rules of International Law

The World Court’s recent decision in the North Sea Continental Shelf Cases is a major contribution to that branch of the theory of customary international law dealing with norm-creation by means of a treaty. The Court articulated a new methodology for determining which provisions in treaties can form the basis of universally binding customary law. As the spreading network of international conventions becomes more fine-meshed, the substantive rules of international customary law may be expected to conform more and more closely to the provisions in these conventions. The World Court has implicitly recognized this process in many prior opinions, but it was not until the Continental Shelf decision that the link between treaty and custom was focused upon with precision. I shall argue in this essay that the Court used a method which might be called the rule of manifest intent, that this method differs from a more traditional approach found in the writings of publicists, and that this new method accords well with the growing need to objectify and place upon a scientific basis the methodology by which one may determine what in fact are the rules of customary law.

The Lateral Boundaries of the Continental Shelf and the Judgment of the International Court of Justice in the North Sea Continental Shelf Cases

A rule of customary international law of recent origin has conferred sovereign rights over the continental shelf to individual states for the limited purposes of exploration and exploitation. The attribution of such exclusive jurisdiction required the delimitation of boundaries between the submarine areas appertaining to various littoral states. The importance of such partition of the seabed and subsoil is self-evident, but two points do call for comment. First, since the shelf may be considerably extended in the future according to the criterion of exploitability, the method now adopted will have a constantly growing significance. Second, the acquisition of the sea bottom by coastal nations has created inequalities between them, depending on their relative degree of technical development as well as on their geographical circumstances. The drawing of boundaries separating their respective shelves can aggravate or diminish these inequalities.

On the Jurisdiction of the International Court of Justice in the Dispute “Ukraine v. The Russian Federation”

The article examines the Judgment of the United Nations International Court of Justice of November 8, 2019, on the preliminary objections of the Russian Federation in the dispute concerning the application of the International Convention on the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (“Ukraine v. Russian Federation”), filed to the Registry of the Court by Ukraine on January 16, 2017. Given that in its Judgment the International Court of Justice confirmed its jurisdiction ratione materiae on the bases invoked by Ukraine, the article considers the Court’s substantiation of its position in this regard.
 As to the Judgment, for the determination of the Court's jurisdiction ratione materiae in the dispute under art. 24.1 of the ICSFT it is crucial to clarify whether a dispute between the parties concerns the interpretation or application of the relevant Convention. Having interpreted the ICSFT provisions, the Court found that the actions of the Russian Federation contested by Ukraine fall within its scope. The Court, thus, dismissed the RF's objection to the ratione materiae jurisdiction under the ICSFT. As the parties had made a genuine attempt to settle the dispute and since the dispute could not be resolved by negotiations within a reasonable time, the Court stated that Ukraine had satisfied the procedural precondition for art. 24.1 of the ICSFT application.
 In order to determine jurisdiction ratione materiae of the Court under the ICERD, it was essential for the Court to be convinced that the measures of which Ukraine complains fall within provisions of the ICERD. Considering that both parties agreed that Crimean Tatars and ethnic Ukrainians in Crimea constitute ethnic groups protected under the ICERD and based on the provisions of the ICERD interpretation, the Court found that the measures of the Russian Federation challenged by Ukraine were capable of having adverse effect on enjoyment of certain rights protected under the ICERD. These measures fall within provisions of the Convention. Therefore, the Court concluded that Ukraine's claims fall within the scope of the ICERD.
 Determining whether the procedural preconditions under art. 22 of the ICERD have been met, the Court had to define whether two preconditions enshrined in the article are alternative or cumulative. By application of rules of customary international law on treaty interpretation, the Court found that art. 22 of the ICERD imposes alternative preconditions for the Court's jurisdiction. As the dispute between the parties was not referred to the Committee of the Convention, the Court examined whether the parties attempted to negotiate settlement to their dispute.
 The Court found that there has been a failure of negotiations between the parties and those negotiations had become futile or deadlocked by time Ukraine filed its application to the Court under art. 22 of the Convention. Accordingly, the procedural preconditions for the Court’s jurisdiction under art. 22 of the ICERD are satisfied in the circumstances of this case. As a result, the Court has jurisdiction to hear Ukraine's claims based on the ICERD.

Deutsches Reich v. Szachowicz-Isberger.

Warfare on land — Occupation of enemy territory — Inhabitants — Deportation and Internment of — Effect of rebellion by inhabitants against Occupant — Warsaw uprising, 1944 — Deportation and imprisonment of Polish nationals.653War — Effects of outbreak of — On enemy subjects with regard to their property rights — Scope of customary international law rules regarding measures against property of enemy nationals — Confiscation of property for reasons of nationality — Measures taken by German Reich against property of Polish nationals.

The Problem of the Conservation of Salmon with Special Reference to Bristol Bay, Alaska

FISH is one of man's oldest foods, and on the high seas has been reaped without sowing through the ages by man. Traditionally, in the absence of mutual agreements between states, regulations of one nation apply only to nationals of that nation on the high seas. During the last century there has been an acceleration in exploitation by expansion of frontiers, technical progress, accumulation of capital, and increases in population and spending power. The old belief in the renewed and inexhaustible supply of fish has been proved fallacious. Hence, according to dominant interest, three concepts of the high seas and their resources have grown up: (1) that they are not subject to the sole jurisdiction of any state, (2) that fish are not property until caught, and (3) that there should be a development of customary rules of international law for the conservation of the resources of the sea. As the interests of the United States have been confined mainly to fisheries adjacent to her own coast, a domestic policy of conservation has been adopted. The implementation of this policy is complicated, however, by the fact that other states, traditionally more oriented to high-seas fishing, such as Japan, hold to the concept of the freedom of the seas and of their resources. The question of competing national interests therefore arises. This underlines the basic difference between a policy which aims to conserve a resource located completely within the jurisdiction of the national state and one which is not under sole

The Colombian-Peruvian Asylum Case and Proof of Customary International Law

The Judgment of November 20,1950, of the International Court of Justice in the Colombian-Peruvian Asylum Case provides a noteworthy illustration of the judicial technique employed in making a determination as to the existence or non-existence of a rule of customary international law in a particular case.

Extradition (Germany and Czechoslovakia) Case.

State Succession — The Austro-Hungarian Empire — Extradition Treaties — Germany and Czechoslovakia.Extradition — Conditions of — Principle that a Person must only be Tried for the Offence for which he has been Extradited — Conventional and Customary International Law Rules of Extradition.Extradition — In General — International Law of Extradition Independent of Extradition Treaties — Principle that a Person must only be tried for the Offence for which he is Extradited — Extradition Treaties and State Succession as between Austria-Hungary and Czechoslovakia.