Rules Of Customary International Law Research Articles

Merodavno pravo za suštinu spora pred arbitražnim sudovima IKSID - član 42(1) IKSID konvencije i uloga nacionalnog prava

Business transaction which represents a foreign investment is today most commonly regulated by three different layers of legal rules: provisions of an investment contract, rules of international law (treaties and rules of customary international law) and the legislation of the Host State. In the event of a dispute arising out of an investment, a tribunal working under the auspices of ICSID must determine the law applicable to the merits through the application of article 42(1) of the Convention. Although it is clear that one cannot fully comprehend all legal aspects of an investment dispute without the context of the Host State's national legislation, there is a strong tendency in arbitral disputes of neglecting such municipal legal rules in favor of international law. The paper concentrates on the evolution in interpretations of the choice of law provision from the Convention in the practice of ICSID tribunals. It shows the way in which those interpretations have changed during the course of time, leading to the broadening of arbitrators' freedom to decide on the applicable law. This trend resulted in constant widening of the scope of application of international law, contrary to the text of article 42(1) and intentions of the Convention's makers. As a consequence, there is today almost no way in which a state could shield itself from the liability for the breach of the investor's rights by invoking the fact that it acted in accordance with domestic legislation.

The Law of International Customs in the International Law

The area of legal regulation related to customs norm formation isn’t clearly designated and sufficientlyexamined in the doctrine of international law. Also, there is no unified point of view on its title. A varietyof terms can be met in scientific studies. The author proposes to entitle this area of international lawas “law of international customs” - the most accurate term, corresponding to its content. The articlereveals the role and place of the law of international customs in the international legal system. The differencesand similarities of this institute of international law in relation to the law of treaties are shown.Scientific doctrines on the content and development of this institute of international law are also considered.The author shows which rules are lying on the basis of customs norm-formation and substantiateshis position on this issue. The object and the subject of regulation of the law of international customsare clarified. The question of norm-formation and its stages is examined. The article reveals influenceof treaty rules, decisions of judicial and other international bodies on the process of custom normformation.Questions over necessity of the codification of this process, development of appropriatecriteria relating to the formation of international custom and its norms are risen. The author proposesto develop relevant draft articles, adopting them as a UN resolution, and then to sign a Convention onthe Law of international customs, which should fix currently established customary rules of internationallaw, and also new treaty rules aimed to streamline the custom norm-formation, giving it more rigorous,systematic view. The state of scientific researches in this area and the ways of their further developmentare shown. Separate formulations of the law of international customs are presented. The authorgives definition of the law of international customs, which is proposed to be understood as the instituteof international law, including a set of customary rules of international law regulating interstate relationsin the questions of international custom establishment, its validity, amending and termination of existence,the conceptual apparatus in this area.

Article 38 of the ICJ Statute and Applicable Law: Selected Issues in Recent CasesL’article 38 du Statut de la Cour internationale de Justice et le régime de droit applicable: Questions choisies et affaires récentes

This article first highlights some salient features of Article 38 of the Statute of the International Court of Justice and the applicable law system. These include the primacy of States in international law making and the three dimensional process of identification (including proving), interpretation and application of applicable rules of law on the basis of the listed sources of law. It highlights some notable aspects of the Court’s application of Article 38 in selected cases decided in the past decade, by focusing on the identification of tacit agreements and conditions for unilateral acts to take effect; the identification of rules of customary international law; general principles of law as a direct source for rights and obligations and their identification; and judicial decisions and teachings of publicists as ‘subsidiary means’. Finally, the article expresses concerns about the uneven rigour with which the Court identifies and applies applicable rules of law and concludes with a call for a more rigorous and systematic approach in this area.

The Development of Custom in Territorial Dispute Settlement

Although the International Court of Justice is called upon to identify rules of customary international law, the broader effect of these pronouncements has long raised controversial questions. This article opens these queries to further discussion by analysing custom used in the settlement of territorial disputes. The relevant case law is contextualized geopolitically to highlight not only taxonomic, but also practical tensions arising between custom and jurisprudence. Given the links between territorial interests and state sovereignty (and the resulting sensitivity of these disputes), this approach sheds light on a fundamental question: how do courts and tribunals use custom to imbue international relations with greater stability? The author concludes that such bodies must serve this function by developing — rather than merely interpreting or applying — international customary norms.

The unresolved dilemma of self-determination: Crimea, Donetsk and Luhansk

The right to self-determination is found in multiple international treaties and conventions, and has ‘crystallised into a rule of customary international law, applicable to and binding on all states’. In simple terms, self-determination denotes the legal right of a people to decide their own destiny in the international order. What this actually means in practice continues to be a contentious issue amongst international lawyers. This article will explore how lack of a consistent interpretation of the right to self-determination by states has led to confusion about its application within the realm of international law. Referenda held in the Crimea, Donetsk and Luhansk in March and May 2014 are the latest instances where self-determination has been controversially invoked. This article will discuss the notion of self-determination, its history, and how it has been applied and interpreted over the years by states and the international community. It will then examine the events in Eastern Ukraine and assess what impact they have had on the law of self-determination. It will then conclude by stating that the current law of self-determination needs a clearer and more consistent approach in order to avoid posing a serious threat to the stability of the existing state system

Self-Determination during the Cold War: UN General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)

This article uses the history of partition to assess when self-determination became a rule of customary international law prohibiting partition as a method of decolonization. In so doing it revisits the partitions of Indochina, Korea, India, Palestine, Cyprus, South Africa, and South West Africa, and explains that UN practice underwent a transformation when the UN General Assembly opposed the United Kingdom’s partition proposals for Cyprus in 1958. Two years later, the UN General Assembly condemned any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country in Resolution 1514 (1960). The illegality of partition under customary international law was raised during the second phase of the South West Africa Cases (1960–1966) in respect of South Africa’s homelands policy, but the International Court of Justice (ICJ) infamously did not address the merits of those cases. The illegality of partition was also raised in the arbitration between the United Kingdom and Mauritius over the establishment of the British Indian Ocean Territory in 1965. Like the ICJ in the South West Africa Cases, the Arbitral Tribunal decided that it did not have jurisdiction to address the legality of the British excision of the Chagos Archipelago from Mauritius, even though the legality of the excision was argued at length between counsels for Mauritius and the United Kingdom in their oral pleadings and written statements. However, in their joint dissenting opinion, Judge Rüdiger Wolfrum and Judge James Kateka expressed their opinion that self-determination had developed before 1965, and that consequently the partition was unlawful. This paper agrees that selfdetermination prohibited the partition of Mauritius to establish the British Indian Ocean Territory, a new colony, in 1965 although self-determination probably did not emerge as a rule of customary international law until the adoption of the human rights covenants in 1966, after the excision of the Chagos Archipelago in 1965, but before the passage of the Mauritius Independence Act in 1968.

The Arbitrator as a Lawmaker: Jurisgenerative Processes in Investment Arbitration

With the exponential growth of international adjudication fora and of the number of known disputes submitted to them, the international system of investment dispute resolution has taken centre stage and has been placed in a unique position from which to formulate international investment law. At the heart of this system, the arbitrator possesses considerable ‘jurisgenerative’ powers that span over different aspects of the rules governing investment, from treaty provisions relating to jurisdictional and substantive standards to the interpretation of relevant rules of customary international law and the development of new treaty models. The article considers this de facto role of the arbitrator in investment rule-setting by canvassing arbitral interpretation as a jurisgenerative process per se, and by exploring its impact on future treatymaking.

Has the Fair and Equitable Treatment Standard Become a Rule of Customary International Law?:

This article examines whether or not the FET standard has become a rule of customary international law. The article contains the first empirical analysis of this question based on the two conditions under which a treaty-based norm can transform into a customary rule. The article will argue that the standard has not become a rule of custom. While the practice of States to include FET clauses in their BITs can be considered as general, widespread and representative, it is not uniform and consistent. There are in fact many different types of FET clauses and these variations matter a great deal. Also, the practice of States outside treaties shows that they rarely offer FET protection to foreign investors under their foreign investment laws. There is no indication that States parties to BITs believe that they have an obligation (opinio juris) under international law to provide FET protection to each other’s investors.

A Few Observations on the Remaining Fundamental Importance of Customary Rules in the Age of Treatification of International Investment Law

This article examines the contemporary role of custom in the present context of the proliferation of BITs which have become in the last decades the most important source of international law in the area of foreign investment. The article will provide a survey of the changing importance of the different sources of international investment law overtime. I will argue that customary rules remain of fundamental importance even in this age of ‘treatification’. First, custom is the applicable legal regime of protection in the absence of any BIT. Second, custom is important in the many instances where BITs make explicit reference to the concept. Third, custom plays a gap-filling role whenever a treaty, a contract or domestic legislation is silent on a given issue. Finally, I will explain the reasons why arbitral tribunals should always take into account relevant rules of customary international law.

The Sukhoi Su-24 Incident between Russia and Turkey

This note presents an analysis from the viewpoint of public international law of the event that occurred on November 24, 2015, when a Russian Sukhoi Su-24 bomber jet was downed by the Turkish Air Force over the border region between Syria and Turkey. While some of the basic circumstances of the case remain controversial, enough elements have emerged from media coverage to permit for the identification of the main legal issues, if not also to assess the legality of the Russian behavior and of the Turkish reaction in all its details. The known facts warrant the conclusion that the attack and the downing of the Russian jet can be seen as a disproportionate reaction on the part of the Turkish Government and, therefore, as a violation of the prohibition of the use of military force under Art. 2(4) of the UN Charter and under the corresponding customary rule of international law.

Marco Roscini,Cyber Operations and the Use of Force in International Law

It is today widely accepted that cyberspace is regulated by existing positive law. Following this view, the law on the use of force, jus contra bellum as well as jus in bello, applies to cyber operations. This assumption is the starting point of the book by Dr Marco Roscini, Reader in International Law at the University of Westminster School of Law (‘it should be clear that existing primary and secondary rules of international law, including the law of state responsibility, the jus ad bellum and the jus in bello , do apply to cyber operations’, p. 40). However it remains to be examined if existing rules are sufficient enough to grasp all the new challenges raised by activities in cyberspace. Should we develop new evolutive and dynamic interpretations of existing law, or do we need to go further by adopting new rules? If one wishes to contribute in a constructive way to this debate, it is first necessary to have a clear picture of the existing positive law that can regulate cyberspace. It is only after a careful analysis of the existing legal toolbox that it will be possible to identify any gaps or difficulties in the process of ‘adaptation’ of substantive law in cyberspace. The book by Marco Roscini is particularly helpful from this point of view. It offers a precise, detailed and up-to-date analysis of cyber operations and the use of force in international law. The book is structured around five chapters covering the full spectrum of the subject: Chapter 1—Identifying the Problem and the Applicable Law; Chapter 2—Cyber Operations and the jus ad bellum; Chapter 3—The Applicability of the jus in bello to Cyber Operations; Chapter 4—Cyber Operations and the Conduct of Hostilities and Chapter 5—Cyber Operations and the Law of Neutrality. Following a positivist approach and using a very rich and well-informed scientific apparatus (as also evident in the ‘Tables of Legislation, Cases and other Documents’ at the beginning of the book) the author presents his readers with a comprehensive analysis of both treaty law and customary law in statu nascendi because, according to the author, ‘it cannot be excluded that customary international law rules specific to cyber warfare might be in the process of forming and eventually ripen’ (at p. 25).

Подводя итоги 70 лет работы Организации Объединенных Наций: разногласия по вопросу о том, имеет ли Совет Безопасности ООН законодательные полномочия

For 70 years the United Nations has not fully clarified what kind of decision constitutes a resolution made by its Security Council (UNSC) under Chapter VII of the UN Charter. When is a resolution legitimate and when does it extend beyond the UNSC’s mandate? Can a resolution be mandatory as well as supplementary, or can it change the norms of international law, which operate outside the UN. The vast majority of resolutions are intended to solve a specific situation that threatens international peace and security. Russian and foreign scholars refer to the same documents and decisions of international judicial bodies, but interpret them differently. In this article the author analyzes arguments about the existence of the UNSC’s legislative powers, using a comparative analysis formulated for this purpose. Obligations arising from article 25 of the Charter apply only to UNSC decisions adopted for implementing or controlling existing norms of international law and not newly formulated norms. Article 103 is intended for obligations under the UNCharter, and not for acts made pursuant to basic documents. The Charter does not allow the UNSC to make decisions that require acts and at the same time add or modify international law. The UNSC can create subsidiary bodies that extend the scope of discussions related to threats to peace and security, but cannot change the limits of the use of enforcement measures under articles 41 and 42. The Counter-Terrorism Committee, created by Resolution 1373 (2001), supports UN members’ sovereign efforts to prevent terrorism and the 1540 Committee helps members prevent the trafficking of nuclear material and the use of nuclear, chemical or biological weapons. There is no evidence of any customary rule of international law based on UNSC decisions. The author refutes the claim that Resolutions 1373 (2001) and 1540 (2004) support the universal agreement associated with the Counter-Terrorism Committee or the 1540 Committee. The only undisputed basis for the UNSC making normative decisions is article 43, which grants the power to make international treaties. However, in practice the UNSC does not use this provision.The author concludes that the best way to clarify the UNSC’s true legal position, limits and the basis of its activities under Chapter VII to determine the principles and criteria that guide its authority, which allow it to grant permission for the use of force, is to hold a special session of the UN General Assembly.

Impunity Rises from the Ashes?: The Extent of the Rome Statute's Jurisdiction in the Event of State Succession

The International Criminal Court’s (ICC) deterrence effect in situations of armed conflict extends only to the reach of its jurisdiction.1 State succession, which often involves massive human rights violations,2 casts doubt on the jurisdiction of the Court and the protection it offers because of questions regarding the continuity of treaty obligations, including those under the Rome Statute, formerly binding upon the predecessor State. This Note argues that customary international law supports the continued application of the Rome Statute in instances of State succession because the treaty articulates the necessary human rights and humanitarian law principles to fall under the customary international law rule for the continuation of human rights and humanitarian law treaties. Two basic types of international law exist: treaties and customary international law.3 Treaties arise out of express negotiations between State parties, resulting in certain rights and obligations to which the parties agree.4 Human rights and humanitarian treaties obligate State parties to protect individuals living under those treaties.5 Customary international law, on the other hand, arises not from express negotiations between sovereign States,6 but rather from the practice of nations followed out of a sense of legal obligation.7 However, customary international law—as with the law of treaties—imposes human rights and humanitarian obligations

Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?

The doctrine of uti possidetis iuris provides that, in the succession of States arising from secession or disintegration, territorial title is delimited between successors according to internal borders at the time of succession. Although it is commonly accepted that the concept originated in the nineteenth-century successions in the Spanish Americas and was generally adopted by the twentieth-century decolonization successors in Africa, international law scholars have been divided on whether the doctrine has thereafter evolved into a universal rule of customary international law that presumptively binds successors but is rebuttable by common agreement. This article argues that the ‘presumption’ of binding application is not supported by precedent and is inconsistent with the principle of consent. Rather, the law of State succession is neutral on the delimitation of successors’ frontiers: uti possidetis iuris is one of several methods of territorial delimitation that may be adopted by their common consent.

The International Court of Justice and 'Non-Universal' Customary Norms

The primary role of any international court, ICJ included, is to solve a dispute before on the basis of applicable law between the parties. Still, every now and then international lawyers debate whether the ICJ in fact does more than just applying the rules of international law (IL) governing the dispute before it, by going further and developing (or perhaps even creating) rules of IL or at least “rules on how to ascertain the rules” of IL. Having in mind in particular that the formation and evidence of customary IL has finally been included in the ILC agenda, it seems to be a proper moment to (re)engage in discussions about customary IL and the role of the ICJ in their establishment, development or perhaps even creation. Undoubtedly, ICJ’s views and pronunciations on international custom have always drawn much attention of both academics and practitioners, and attracted reactions ranging from fierce criticism to praise and approval. Also, it is hardly arguable that the Court went further than just adjudicating when matters of customary international law were involved in cases before it. One of the most prominent contributions of the ICJ to such a development relates to the body of “non-universal” rules of customary international law. Basically, unlike with the treaties, Article 38(1) of the Statute of the ICJ prima facie does not provide for any other type of international custom other than the one that is “evidence of general practice accepted as law”. The wording might imply that no other customs apart from the “universal” ones could be considered as sources of international law. However, soon after its establishment, the ICJ took a proactive role and recognised the existence of “special” (i.e. local or regional) customary rules and perhaps employed a more creative approach and actually “read them” into Article 38(1) of the Statute. Moreover, the Court also seems to have created the “rules on how to ascertain the rules” of special custom, when it set a higher threshold for proving its establishment through its case-law in Anglo-Norwegian Fisheries, Asylum, Nationals of Morocco and Right of Passage cases. Namely, the fulfillment of ‘“standard” opinio juris and state practice requirements does not suffice for the establishment of a special custom and the ICJ also demands that the party claiming the existence of a special customary rule proves that the opposing party is bound by such a rule and to demonstrate that such party does not explicitly or tacitly object to the rule. The 2009 Navigational and Related Rights case seems out of sync with the previous cases on special custom, and it remains to be seen whether it can be considered as more than anomaly in the Court’s jurisprudence. Even though the ICJ seemingly had quite a proactive role with regards to special custom, it appears that it avoided to pronounce explicitly on some issues such as how to ascertain opinio juris or relation between general and special customary rules.

Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court's jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court's methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms and and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.

An international constitutional moment for data privacy in the times of mass-surveillance

Recently, there have been a lot of intense discussions on how human rights treaties might apply to extraterritorial mass-surveillance programmes. In the light of an increasingly prominent role that data privacy is gaining in the UN agenda in recent months, this article aims to make an original contribution to the international data privacy discourse by scrutinizing the different approaches to customary international law formation and applying these insights to ‘data’ privacy—as opposed to a general right to privacy—to examine whether it could be considered as a binding legal principle under international law. The article argues that different perspectives on customary international law and their respective methodologies of ‘deduction’ and ‘induction’ have different implications for the analysis of data privacy. Whereas under the so-called traditionalist perspective it could be doubted that data privacy has developed into a rule of customary international law, modernist approaches lead to different conclusions. The modern theories stipulate that a steady advancement of technologies in combination with a continued emphasis on international security and the unprecedented shock that international community is undergoing because of mass-surveillance revelations and spying activities of Western and potentially other governments, constitute the circumstances or period of fundamental change—the so-called ‘international constitutional moment’, paving the path for the swift development of a new rule of customary international law—the right to data privacy. Recognizing the ‘relativity’ of the different findings and conclusions, the article favours the modern approach and infers that data privacy has indeed crystallized into a norm of customary international law.

Use of Comparative Law in Determining the Customary International Law of Human Rights

Comparative law method is essential to determining the customary international law status of rules of human rights law. Doing the hard, detailed work of comparative law is necessary if we are to give up on the unfortunate tendency to make overly broad, unsupported claims that wide varieties of human rights have passed into customary international law. The traditional use of only interstate practice in determining rules of customary international law is insufficient where the rules concern relationships between states and individuals, especially their own nationals. This, however, is the essence of human rights law. Comparative law techniques allow, and are necessary to, determining the scope and content of human rights guarantees across different states and legal systems. Only through use of these techniques can we determine state practice on human rights, and the reasons that the rights are protected (opinio juris) — i.e., which rights are protected by customary international law. This piece uses one example, the determination that non-retroactivity of crimes and punishments has passed into customary international law, and shows which version of that principle has become the rule of customary international law. This sort of research may sometimes lead to unwelcome conclusions that, in fact, some rights have not yet become customary international law, or have become customary only in weak or incomplete forms.

International arbitration and the lex arbitri

The Transatlantic Trade and Investment Partnership (TTIP) between the EU and the US will be the most significant of the free trade agreements (FTAs) that the EU and its Member States is contemplating with third states. FTAs generally envisage arbitration as the preferred method for dispute resolution not only between the contracting parties but also between a contracting party and a private investor. Generally, a choice for arbitration entails application of a lex arbitri, which governs the arbitral procedure and provides safeguards ensuring the proper conduct of arbitration proceedings. While the existence and relevance of a lex arbitri is considered self-evident in relation to international commercial arbitration, there is not a similar understanding when it comes to inter-state arbitration or arbitration between states and private parties, i.e. mixed arbitration. This paper posits that inter-state arbitrations are generally subject to public international law, since the adjudicative and the prescriptive jurisdiction of host states are limited by general rules of customary international law. Further, this paper posits that mixed arbitrations, which are not governed by a stand-alone system (such as ICSID or arguably the Iran-U.S. C.T.), nowadays appear to be governed by national arbitration laws. Therefore, if the envisaged mixed arbitration system in the TTIP and other FTAs is to function as a stand-alone regime, independently from national arbitration laws and without interference from national courts, specific regulations in these treaties will be necessary. Draft Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [Wetboek van Burgerlijke Rechtsvordering] UNCITRAL Model Law on International Commercial Arbitration, United Nations Commission on International Trade Law (1985, amended 2006) Dutch Bill Regarding the Applicability of Dutch Law to the Awards of the Tribunal Sitting in The Hague to Hear Claims Between Iran and the United States (1983) (ICSID) Convention on the Settlement of Investment Disputes between States and Nationals of other States (1965) Chagos Marine Protected Area Arbitration (Mauritius v UK), PCA, Reasoned Decision on Challenge, 30 November 2011 Occidental Exploration and Production Company v Republic of Ecuador, Court of Appeal of England and Wales (2005) Gould III, Ministry of Defence of Iran v Gould Incorporated (formerly Hoffman Export Corporation) and ors, US Court of Appeals (1989) British Petroleum Exploration Company (Libya) Limited v Libya, Award (1973) Saudi Arabia v Arabian American Oil Company (Aramco), Award (1958)

Customary International Law: How Do Courts Do it?

The textbook rule for when a custom among nations can be said to have evolved into international law has two parts. First, there has to be widespread acceptance of this practice among nations. And second, nations have to believe that the practice is legally compelled. This rule — which on its face requires a rigorous empirical inquiry into the practices and mental states of nations — is, to put it mildly, difficult (maybe impossible) to apply. The reasons for that range from a lack of logical consistency in the textbook rule to the lack of empirical, historical and anthropological expertise on the part of the courts who are supposed to apply it. The question we are interested in is what do international courts do in the face of this type of legal rule, particularly given that there is often a pressing global need for new types of customary international law rules to be found. The answer: They ignore it. In theory, they could follow the textbook rule and never find new customary international law. That is not the case. Courts do frequently find new rules of customary international law and appear to follow a particular formula in doing so. The formula is that they look primarily to international treaties as support.