Customary International Law Research Articles

Concurrent application and artificially intelligent target selection

ABSTRACT This article explores the alleged use by Israel of its controversial AI targeting system, ‘Lavender,’ to frame a broader research question as to whether such a system complies (or not) with both the ad bellum and the in bello frameworks. Though this article does not seek to address the sensitive issues in Gaza directly, it instead examines how such a system could operate within both realms. The authors emphasise the importance of concurrent application, where ad bellum and in bello principles are simultaneously implemented in target selection. They argue that for an in bello system like Lavender it is crucial to integrate ad bellum considerations to ensure compliance with ad bellum proportionality and necessity under the UN Charter & customary international law. The authors underline that any in bello AI system used in self-defence must incorporate ad bellum factors, and maintain that concurrency is essential and non-negotiable where ambiguity exists.

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.

The law of perfidy and ruses of war at sea

Abstract The principle of distinction is a fundamental principle in the law of armed conflict, aimed at protecting civilians and civilian objects from direct attacks. Adherence to this principle is crucial for minimizing the humanitarian impact of warfare. Nevertheless, the longstanding practice of ruses of war, deeply embedded in customary international law, complicates the application of this principle in combat. While certain deceptive tactics are allowed, the line between acceptable ruses and forbidden acts of perfidy is often unclear, especially in naval warfare. The evolution of modern warfare technology further obscures these distinctions, raising important legal questions regarding their relevance today. This article critically examines the existing legal framework governing ruses and perfidy at sea and explores how these rules apply to contemporary naval operations. Finally, the article identifies key legal gaps and proposes pathways for reform to better align the law with current realities.

Customary international law and OSCE documents: the potential for mutual influence

Customary international law and OSCE documents: the potential for mutual influence

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.

The Resolution on the Srebrenica Genocide and Dayton Peace Agreement: In Which Direction Is It Heading?

This study explores the legal consequences and importance of the United Nations General Assembly (UNGA) Resolution (hereinafter: the Resolution) regarding the Srebrenica Genocide, which was adopted in light of the atrocities that occurred in 1995. The main aim is to assess the Resolution’s ability to initiate a supervening impossibility of performance (ius cogens superveniens) concerning the Dayton Peace Agreement. Utilising a qualitative approach, the research analyses the text of the resolution, the voting process, and the pertinent legal frameworks as well as the relevant scholarship. The findings highlight that although UNGA resolutions lack binding authority, they can significantly aid in the evolution of Customary International Law (CIL). The aforementioned Resolution’s focus on accountability and genocide prevention emphasises its contribution to the development of international legal standards and its interpretative role. The investigation reveals that the Resolution contains elements that could be interpreted as binding, hinting at its intended nature. However, the binding nature of the Resolution, in terms of its components and interpretative role, cannot void nor terminate the Dayton Peace Agreement. For such an outcome to occur, the Resolution would have to establish a peremptory norm of general international law through general principles of international law or Customary International Law. In this context, the research clarifies that the Resolution possesses the legitimacy to support the formation of Customary International Law. Nevertheless, this does not suggest that the potential of Customary International Law automatically overrides the grounds of ius cogens superveniens for invalidating the Dayton Peace Agreement. Instead, the Resolution’s reliance on the binding sources of international law, which include peremptory norms along with the judicial interpretation that applies these norms, plays a vital role in this scenario. At the same time, any potential conflict between those principles and the Dayton Peace Agreement, despite being classified as peremptory principles, appears to be overly broad at this juncture.

The Biological Weapons Amendment to the ICC Statute and National Provisions

Abstract After a contentious path, the amendment incorporating biological weapons into Article 8 of the ICC Statute was finally adopted in 2017. Since then, 18 states have ratified the amendment. This article examines the amendment in light of national provisions addressing the use of biological weapons in armed conflict. By discussing the national provisions before and after the amendment, it is possible to determine the effect of the amendment on subsequent national provisions. Combined with an analysis of states’ rationale for adopting relevant legislation, it is possible to assess the impact on state practice and consequently understand the significance of adopting an amendment to the ICC Statute and incorporating it into national legislation for the development or confirmation of customary international law. The lessons learned in the process could be applied to other existing or future amendments.

Interpreting the Paris Agreement in its Normative Environment

Abstract International and regional courts are increasingly being asked to determine the rights and responsibilities of states in relation to climate harm. The context for such requests is that the 2015 Paris Agreement, comprising primarily procedural obligations and obligations of conduct, and premised on national determination, appears by itself radically insufficient to resolve the existential climate crisis the planet is facing. This article explores if this is indeed the case and argues that the 2015 Paris Agreement must be interpreted in its ‘normative environment’. The ‘normative environment’ includes the customary international law principle of harm prevention, other treaties, including human rights ones, and a set of principles of varying legal status but considerable operational relevance and guidance. This article examines specific obligations from the 2015 Paris Agreement and seeks to concretize and strengthen them based on this interpretative approach. While such strengthened obligations might yet be insufficient to decisively resolve the climate crisis, these nevertheless reflect a richer account of international legal resolve relating to climate change—one that is premised on an understanding of international law as a seamless web of inter-locking obligations rather than of treaties functioning as atomistic reflections of state consent in that area.

Context and perspectives of sub-orbital activities and transit through airspace/ground support activities

This paper provides some considerations on the current context and perspectives concerning the sub-orbital activities and transit through airspace/ground support activities issued in the frame of the IAF-IAA-IISL Working Group on Space Traffic Management (STM). The group brought together experts from different backgrounds and countries in order to analyze the different aspects of these activities, namely, technically, programmatically, and legally.The rise in space activities, both orbital and suborbital, increases the number of possible interactions with national airspace, inducing potential problems of traffic management. Spacecraft transiting through airspace (both international and national) involve different objects (satellites, launch vehicles, rocket bodies, suborbital vehicles, aircraft …) and missions with varied associated risks. These risks can be generally characterized by the time in airspace, the velocity of spacecraft, and its altitude. Despite the increase in space activities, there are currently no binding international rules specific for spacecraft traversing through airspace. However, there are guidelines, national frameworks, recommendations from organizations (e.g. UN-COPUOS, OSI) covering part of the interaction of space activities and transit through airspace. Additionally, some may argue customary international law exists in the current practice of preventing fallout during launch/re-entry activity into sovereign airspace.The rising number of spaceports, both for orbital and suborbital missions, contribute to increase of space traffic in terms of location of the launch sites and of widespread type of launch and re-entry missions.The working group focused on the identification of the objects to be considered for this interaction, the current available rules and guidelines, the recommendations issued by specific organizations on the subject, and the experts’ advice in order to have a global view of the context and summarize some general recommendations for future operations.

Gender-based sexual violence during the international armed conflict on the territory of Ukraine: problem statement

The article highlights the problem of gender-based sexual violence during the international armed conflict on the territory of Ukraine. Based on the analysis of international documents, customary international law, and scientific sources, it is shown that sexual violence and gender-based violence are distinct concepts. However, in the context of Ukrainian judicial practice under Article 438 “Violation of the Laws and Customs of War” of the Criminal Code of Ukraine, gender-based violence is exclusively sexual in nature and is expressed mainly in the form of gender-based rape. The doctrinal approach is supported, according to which the signs of sexual and gender-based violence are: 1) an act (an actual act), 2) coercion (an act committed against the person’s will), 3) a cause (determined by gender), 4) consequences (causing one or more types of harm or suffering to a person). The author identifies the signs of rape related to armed conflict arising from the Rome Statute of the International Criminal Court, the Elements of Crimes of the International Criminal Court, and customary international law. The actus reus of rape is that the perpetrator has assaulted the body of a person by committing an act that resulted in penetration, even minor, of any part of the victim’s or perpetrator’s body with a sexual organ, or penetration of the victim’s anus or vagina with any object or any part of the body; the fact that rape is a component of war crimes is determined by the presence of a specific situation (coercion by military personnel). The mens rea of rape is the need to establish the perpetrator’s awareness of the encroachment on the human body by committing an act that resulted in penetration; the perpetrator’s awareness of the circumstances of the act (use of force or threat of force, use of coercion, use of a coercive environment, inability of the person to give consent expressing his or her true will), including the absence of the victim’s consent.

Економіко-правова сутність митної політики: макро- та мікро- аспект

In the context of martial law and the implementation of international customs law norms and procedures in the domestic economic space, the requirements for customs and business operations efficiency of foreign economic operators are becoming more stringent. The issues of the customs policy of an enterprise, as such, which ensures the systematization of organizational, economic and managerial processes and operations to ensure the effective implementation of foreign economic activity, are becoming increasingly important. Based on a study of scientific publications covering customs policy, the author proves that there is no systematic approach to its identification at the micro level, i.e., at the level of enterprises. The author emphasizes the need for clear regulation of foreign economic activity operations at enterprises. It is proved that the absence of a systematic approach to determining the customs policy of enterprises does not fully ensure the achievement of efficiency of foreign economic activity. The author proposes to consider the customs policy of an enterprise as a set of methodological approaches, standards and mechanisms that ensure effective management of business processes related to customs clearance of goods, compliance with customs legislation and optimization of customs payments. The economic and legal principles of interaction between customs policy at the macro and micro levels are revealed, where the State establishes general rules and regulations, and enterprises adapt their activities in accordance with these requirements. It is proposed to include economic (financial management, customs logistics, customs payments, organization of customs procedures) and legal (risk management, legal regulation, information and legal support, partnership with customs brokers, administration) parameters in the elements of the enterprise’s customs policy, each of which will affect the efficiency of foreign economic activity management. It is argued that the introduction of a comprehensive customs policy of an enterprise will help to increase its competitiveness in international markets and ensure the effective functioning of foreign economic activity. Prospects for further scientific research are determined in the plane of applied projection of the proposed provisions for the formation of customs policy to ensure the development of foreign economic activity of domestic enterprises. Keywords: customs policy, elements of customs policy, foreign economic activity, customs payments, financial management, administration, legal regulation.

The Role of General Assembly Resolutions in the Identification of Customary International Law and the Chagos Archipelago Advisory Opinion

The Role of General Assembly Resolutions in the Identification of Customary International Law and the Chagos Archipelago Advisory Opinion

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.

Ships of State and Empty Vessels: Critical Reflections on ‘Territorial Status in International Law’

Abstract In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.

The First French BIT

Abstract This article draws upon original research in the French government archives to uncover the story of the negotiations of France’s first bilateral investment treaty – a 1963 treaty with Tunisia. France’s model for the treaty was not Germany’s now-famous 1959 investment treaty with Pakistan but, rather, Switzerland’s own (and far more obscure) first investment treaty, also with Tunisia. The article also shows that the treaty’s invocation of ‘fair and equitable treatment’ was intended to reflect only what customary international law already required. The treaty, despite the lack of an investor-state arbitration clause, seems to have been a relative success. France and Tunisia, entangled in a complex and sensitive post-colonial relationship, successfully managed the fallout from Tunisia’s sudden nationalization of French-owned agricultural properties.

Локальные (партикулярные) обычаи, Международный суд ООН и проблема согласия государств

The article examines the problems of local (particular) international customs, which until recently remained on the periphery of the interests of domestic researchers. It is noted that modern ideas about particular customary international law were largely formed by several decisions of the UN ICJ made at different times, in which he briefly addressed these issues. In the decision on the dispute between Costa Rica and Nicaragua, the ICJ finally eliminated the differences between universal and local customs in terms of expressing consent to the binding nature of customary norms, thereby depriving supporters of a consensual approach to the formation of customary norms of one of their key arguments.

To call a spade a spade: use of force depriving a people of their right to self-determination as violation of Jus Contra Bellum

ABSTRACT This article argues that a use of force which deprives a self-determination entity (‘SDE') of its right to self-determination is prohibited under both Article 2(4) of the UN Charter and customary international law, even if there may not be sufficient practice accepted as law (opinio juris) to establish that such forcible deprivation of an SDE's right to self-determination constitutes an armed attack that entitles the SDE to the right of self-defence. The article also argues that a State's use of force to occupy or subjugate an SDE to permanently prevent an armed attack from emanating from that SDE does not qualify as lawful self-defence in the absence of an actual or imminent armed attack. Furthermore, a State's use of force against attacks emanating from an SDE that could have been averted by the State’s relinquishing control over the SDE does not satisfy the necessity requirement to qualify as lawful self-defence.

Perspectives and Prospects for International Water Law in the ASEAN Region: Is There an ASEAN Way to Transboundary Water Cooperation Under International Law?

Around the world there are over 300 transboundary watercourses and around 500 transboundary groundwater bodies shared by two or more States. The Association of Southeast Asian Nations (ASEAN) region contains forty-one transboundary surface and groundwater bodies shared between ten ASEAN States and the five non-ASEAN States at its periphery. As transboundary water resources they are governed under international law found in a series of layers across a spectrum of bindingness (customary international law, global–regional–multilateral–bilateral agreements and non-binding instruments). Through an analysis of the international law relevant to the governance of transboundary water resources in the region, this study seeks to explore the ASEAN approach to transboundary water governance under international law. While this analysis finds that there is no uniform practice across the region, the paper concludes with possible paths forward for the legalization of transboundary water cooperation.

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.

Internal legitimacy as a benchmark criterion for the inclusion of NSAGs in the making of IHL

Currently, non-state armed groups (NSAGs) are bound by customary international humanitarian law (IHL) without their consent or inclusion in its making. On the one hand, NSAGs’ inclusion in law-making would make IHL more adapted to situations of rebel governance, the capabilities of NSAGs, and could result in a compliance pull vis-à-vis NSAGs. On the other hand, such inclusion might be undesirable, unreasonable, and unfeasible. Nevertheless, all arguments pro and contra NSAGs’ inclusion do not necessarily apply to all types of NSAGs. However, scholarship lacks a convincing criterion to decide which NSAGs could participate in the formation of customary IHL. This article attempts to provide such a criterion by approaching the discussion in a non-state-centered manner and puts those most affected by armed conflict at the center: communities under rebel governance. It proposes a more holistic interpretation of the practice-criterion for custom-making in combination with the criterion of internal legitimacy to decide which NSAGs to include in customary IHL’s making. Internal legitimacy is generated when communities consent and support rebel governance in a non-coerced manner, motivated by performance-based and symbolic catalysts for legitimacy. This article elaborates on what is understood by the notions of procedural fairness and non-coerced community consent and support; and how it answers the concerns about delegitimizing national governments, legalizing armed struggle, and the detrimental impact of NSAGs’ practice on the substantive protection offered by IHL.