Customary International Law Research Articles

عدم طرد اللاجئ في القانون الدولي

Abstract The principle of non-refoulement is considered one of the basic principles in the international refugee law, as it protects the refugees from falling at the hands of the authorities persecuting them. The rights that the refugees enjoy according to the international conventions is considered as obligations over the refugees’ host State. The most important of which are: Right to protection against refoulement and constraining the host State’s authority regarding the expulsion of the refugee. The international refugee law rejects the expulsion of the refugee. Also, the principle of Non Refoulement is well entrenched in customary international law; it is binding for contracting and non-contracting states. In addition, he Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. Articles (32) and (33) of the 1951 refugee convention are the core of international refugee protection. Keywords: Refoulement of Refugee, Host State, the 1951 refugee convention.

A Positive International Law Approach to the South Korea–Japan Conflicts: Breaking the Vicious Circle

Abstract South Korea (Republic of Korea, ROK) and Japan have been suffering the vicious circle of serious conflicts concerning South Koreans’ tort claims. Even if two Korean emperors were compelled by Japan in 1905 and 1910, without proving the existence of customary international law prohibiting forced annexation in the early 20th century, the 1910 Annexation Treaty can not become invalid. Even if the 1910 Annexation Treaty was invalid, among other things, the 1951 Peace Treaty can be the evidence of the Japanese rule (1910–1945) being a fait accompli. Even if the Japanese rule was illegal, the issues of South Korean tort claims were already settled by the 1965 Claims Agreement and/or the 2015 Agreement. The ROK government should acknowledge its legal responsibility to satisfy South Korean claims including the so-called Comfort Women victims under the related agreements with Japan. In regard to other issues such as sexual slavery and/or Crime against Humanity, if a diplomatic solution is not available to the ROK and Japan, the two countries should better agree to submit the issues before an ad hoc international tribunal or the ICJ. This would be the only way to break the vicious circle.

Prisma Application as A Measuring Instrument of Corporate Obligations to Respect Human Rights

The corporation’s obligation to human rights is not a moral but a legal obligation. Although in international law, the regulation regarding this corporate obligation is at the level of the Resolution (UN Framework Protect, Respect and Remedy on Business and Human Rights/General Assembly Resolution) and not a convention which is one of the sources of law known in international law. Because many countries follow this provision, it can be categorized as a source of customary international law, which is also a source of international law. However, this paper will not discuss the UN resolution on Human Rights and Business in the sources of international law, but rather how the state implements the resolution and respects or follows the corporation. In September 2014, Indonesia launched the draft National Action Plan (NAP) for Business and Human Rights. Until now, the NAP has not been legalized. However, the Indonesian government has made a policy to ensure that business actors (corporations) respect human rights in running their businesses. In 2021, through the Ministry of Law and Human Rights, the Indonesian government launched an application called PRISMA (Business Risk Assessment and Human Rights). This application aims to help corporations analyze the possibility of violating human rights when they carry out their business activities. This article aims to study and analyze whether the application of PRISMA from a due diligence principal point of view can be an effective tool to measure state duty to protect and corporate compliance with human rights.

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

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

State Immunity, Delegation of Public Powers to Private Actors and Access to Justice: Anything New Under the (European) Sun?

Abstract Two recent judgments of the Court of Justice of the European Union and the Corte di Cassazione added further elements to the current debate on the limits to State immunity. The peculiarities of the facts of the two cases – which relate to the same events – brought the two courts to revisit the current state of play of international law vis-à-vis State immunity with respect to the delegation of public powers to private actors and the right of access to justice. In the present contribution, it is argued that these decisions might contribute to the evolution of customary international law on State immunity, paving the way for a more restrictive interpretation of the rule, at least at the European level.

La Agenda 2030 y el desarrollo sostenible: reflexiones en torno a su naturaleza jurídica y aplicación en el derecho internacional por parte de los Estados y las empresas

La Agenda 2030 fue aprobada por la Asamblea General en 2015. Sin embargo, sus resoluciones no son jurídicamente vinculantes, por lo que resulta confuso qué tipo de obligaciones establece y la posible responsabilidad internacional que se derivaría de su incumplimiento. Siendo un instrumento de derecho indicativo o soft law, su aplicación depende, en mayor medida, de la aceptación de los Estados, lo que resulta una ventaja política que no debe subestimarse. Asimismo, este tipo de normas a menudo impulsan el desarrollo del derecho internacional, contribuyendo a sentar las bases para la codificación e incluso facilitando la creación de derecho internacional consuetudinario. Con este artículo, se pretende analizar la naturaleza jurídica de la Agenda desde un punto de vista normativo internacional y examinar, asimismo, cómo puede articularse su contenido conforme al derecho internacional para los Estados y para las empresas como actores no estatales, cuyo papel es clave en la consecución de los Objetivos de Desarrollo Sostenible (ODS).

‘The world is not organized for Peace’: Feminist manifestos and utopias in the making of international law

AbstractFeminists have utilized manifestos and utopias in order to make important, often revolutionary, contributions to international law. However, these engagements have not been reflected in the substance of international law. The sources of international law – specifically customary international law – rely on a narrow understanding of historical knowledge. This article centres the 1924 manifesto and the ‘New International Order’ created by the Women’s International League for Peace and Freedom, as tools to assess the exclusion of the under-utilized history of feminist peace work from the sources of international law. This allows for a reflection on customary international law’s weaknesses and reaffirms the importance of feminist approaches to international law.

니카라과-콜롬비아 간 카리브해에서의 주권적 권리 및 해역 침해 주장 사건 평석

This article examines the judgment of the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), which was rendered by the International Court of Justice (ICJ) in April 2022. In addition, it provides some comments in law of the sea perspective and also draws implications in Korean perspective. In this judgment, the ICJ dealt with the following issues: the rights and duties-particularly with respect to the fisheries and marine environmental protection -of Nicaragua and Colombia in Nicaragua’s exclusive economic zone (EEZ), the compatibility of Colombia’s contiguous zone with customary international law, Nicaragua’s alleged infringement of the traditional fishing rights of the Colombian nationals, and the compatibility of Nicaragua’s straight baselines with customary international law. In this regard, this article points out several noteworthy features in the judgment: first, the ICJ recognized the spatial limit of the contiguous zone and the contents on the control of the coastal State in this zone in accordance with article 33, of the United Nations Convention on the Law of the Sea (UNCLOS), as customary international law; second, the ICJ found it possible for the EEZ and contiguous zone to be overlapped between States, because the two regimes regulate different rights and duties; and third, the ICJ determined whether the straight baselines system established by the coastal State was in effect legal or not. Lastly, in the broader context of the law of the sea, this article also takes note that the ICJ declared or reaffirmed that not a few articles of UNCLOS reflected customary international law in this judgement. This suggests that UNCLOS is constantly contributing to the materialization of the customary law of the sea and broadening its universality in the law of the sea field, as the so-called Magna Carta of the ocean.

The Customary Obligation to Avoid, Reduce, or Prevent Statelessness in South Asia

AbstractSouth Asia, as a region, consists of several stateless groups as well as groups at the risk of statelessness. However, none of the South Asian states are parties to the 1961 Convention on the Reduction of Statelessness, thus these states do not have specific obligations arising from this Convention to avoid, reduce, or prevent statelessness in the region. In this context, this article ascertains that despite the prevalence of statelessness, there exists state practice and opinio juris in South Asia that point to an emerging customary international law obligation to avoid, reduce, or prevent statelessness.

FULL PROTECTION AND SECURITY STANDARD AS A PREVENTIVE TOOL FOR THE PROTECTION OF A FOREIGN INVESTOR AGAINST ILLEGAL ACTIONS OF THE HOST STATE

The article considers the issue of the application of the standard of full protection and security as a preventive tool for the protection of a foreign investor against illegal actions of the host state. The relationship between a foreign investor and the state-recipient of investments is not always a partnership and mutually beneficial tandem. Carrying out investment activities, moreover, in a foreign country, is a risky activity that requires the protection of the rights of a foreign investor. The standard discussed in this article has a preventive and compensatory nature, as evidenced by court and arbitration decisions. In particular, the main purpose of this standard has traditionally been to protect the investor from various types of physical violence, including the violation of investment property rights, but the concept of this standard has now evolved beyond the physical protection of the investment to include judicial and legal protection. The current state of international investment law jurisprudence regarding the full protection and security standard is not flawless, as is usually the case in jurisprudence regarding other standards. Nor is it irretrievably fragile. The standard of full protection and safety is harm; on the other hand, it was spread to legal detriment. The relationship between the standard of full protection and security based on the treaty and customary international law, which has already been repeatedly given attention by jurists, must be correlated as lex specialis, since its scope is not fully determined by customary international law as lex generalis. It may go beyond the physical and some legal protection already built into customary international law. However, compliance with the treaty-based standard of full protection and security is measured by due diligence, as is the case with the customary international law obligation to provide full protection and security to aliens.

The Effect of the Pre-emtive Military Strike Doctrine on Efforts to Establish New International Legal Provisions

Introduction: One of the interventional measures that can be justified under international law is self-defence. When there has been an armed attack, on the condition that it is instant, overwhelming situation, leaving no means, no moment of deliberation, that is a justifiable proposition for self-defence.Purposes of the Research: To examine and analyze the influence of the doctrine of pre-emtive military strike on efforts to establish new international legal provisions.Methods of the Research: This research uses normative juridical research methods with legal materials used, namely primary legal materials, secondary legal materials and tertiary legal materials. The collection technique is carried out through literature studies and then analyzed using qualitative methods.Results of the Research: The practice of some countries today in order to anticipate such an attack, pre-emtive military strikes are carried out in the context of anticipatory self-defense, with the aim of conducting self-defense before an attack occurs. The practice of anticipatory self-defence has become a serious conversation among academics, even when the act is practiced repeatedly continuously by a number of countries and recognized for its existence, it is certain to set a precedent that leads to the creation of an international customary law. Self-defence anticipatory measures applied in the doctrine of preemptive military strike have been adopted by several countries before and after the formation of the UN organization. But this has not set a legal precedent, despite efforts to make it an International custom through the practice of countries. If this is allowed to take place, it will at some point become customary international law. The application of the preemptive military strike will affect the establishment of new international law provisions.

Actual problems of «recognition» as a main factor of state creation

The article highlights the legal gaps of “recognition” of the state, the existing mechanism, which is based on customary international law and is not uniform and universal. In the context of a multi-year war on different fronts against the Russian Federation, the issues of formation of states and their “recognition” become all over the world, since the political will of the internal elites and support of the population does not play such a significant role in these processes as the position of the world leaders, who are still on our side, although it was not always and it will not always be. In the article it was given a definition of the concept of «state creation» – it is a phenomenon that domestic scientists have used to consider in narrow and broad meaning. It should be emphasized separately that the importance of the issue is also conditioned by the fact that certain so-called people’s republics have already received their legal “recognition”, however, only from a narrow circle of undeveloped countries with manual control from Russian side, in addition, the world’s trends toward globalization and the search for real or imaginary, uttered strata of society can hide the bowls of terrorists not in favor of a unitary Ukraine. International norms have been studied, such as the Statute of the Organization of American States, the views of prominent domestic scientists. In particular, it is pointed out at certain contradictions of the “recognition” of the party in a war, which also “non-recognition” of the states and governments that conduct aggressive policy. The evolution of international customs regarding recognition theory was also highlighted as a result of the liberalization of the world and of the sympathy of small peoples and nationalities without a state. The possible future problem of recognition of so-called puppet republics on the territory of Ukraine against the background of military aggression of the Russian Federation is analyzed. Special attention is paid to finding solutions to key problems that make it impossible to have a single recognition approach, and thus can put international actors in an unequal legal position before each other. Special attention was paid to current situation when only political will partly forms the rules of the game and the attitude of the international establishment to one or another state, and the law is inferior to the regulator of public relations to the interests of a certain number of people. Clear ways to overcome obstacles that hinder the effective functioning of the recognition institute have been identified. Steps have been proposed that may partially neutralize the shortcomings of the current situation. The historical parallels, which testify to the incongruence of the Institute of Recognition, its stagnation and its diligence, are given. Key words: a recognition, a state-building, a quasi-state, an international legal capacity, an international custom, a policy of aggression

Formation and Development of International Customs Law: Periodisation Issues

This article considers and analyses the history of the origin and evolution of international customs law from ancient times up to the present and offers a perspective on its periodisation. The article covers the evolution of norms of international customs law from the norms of international courtesy, norms of international traditions, separate articles of bilateral peace and union international treaties, trade treatises and the first special agreements on customs tariffs before their fixation in the texts of multilateral international customs conventions, as well as the acts of international organisations. It analyses the contribution to the formation of a system of universal international customs law by the League of Nations, the World Customs Organization, the United Nations and other international organisations.

The legal components of benefit‐sharing in transboundary watercourses: An analysis of China's approach

AbstractTransboundary water resources are governed under the rules of equitable and reasonable utilization and the due diligence obligation not to cause significant harm, widely recognized as customary international law. In meeting their obligations, States could allocate water resources between riparian States, but they may also share the benefits of utilization. Although not well defined, benefit‐sharing has received significant attention around the world, particularly in China, a primarily upstream State that prefers bilateral agreements and soft law instruments. This article explores benefit‐sharing through its base legal components, analysing China's transboundary water treaties and instruments to determine if they can act as a foundation for benefit‐sharing, while drawing out lessons for implementing benefit‐sharing globally.

An Assessment of International Law on the Use of Cyber-Espionage as a Substitute for Traditional Spying

Traditionally spying is an integral part of war, economic, and political sabotage among other things. In a bid to curb the incessant act of traditional spying which involves the act of physically and clandestinely crossing over to the countries where spying is to be carried out, various international conventions/instruments covering the act of traditional spying are of the moment. These include; the Hague Regulation of 1907, Vienna Convention of 1961, Geneva Conventions, United Nations Charter among others. In the same vein, Countries have enacted domestic laws to prevent the traditional spying/ clandestine acts within their territorial sovereignty. However, the 21st-century development in the field of technology and its use for a wind range of activities which include cyber espionage have questioned the effectiveness and relevance of international conventions and domestic laws on cyber espionage. It is against this backdrop that this article embarks on the assessment of the conventions/instruments and domestic laws on cyber espionage. Precisely, it examines the assessment of countries’ espionage laws and their relevance to cyber espionage among countries, the assessment of international law and its relevance to cyber espionage, the assessment of customary international law on cyber espionage, and recommendations. Accordingly, it concludes that a holistic assessment of cyber espionage reveals that the applicability of extant international law to it like traditional spying is uncertain.1.

The Emergence of a Definition for the Crime of Terrorism under Conventional- and Customary International Law

The recent terror attacks in Mozambique, which have crippled much of the Cabo Delgado region, once again, illustrates why the crime of terrorism is one of the most serious international crimes that continue to plague States. Historically, the definition of the crime of terrorism has been divisive and uncertain. This article aims to illustrate that the crime of terrorism has become less of an enigma and is, more than ever, susceptible to a common understanding and definition under conventional- and customary international law.

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

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

Principal Purpose Test and Customary International Law: A Note of Caution

The rapid endorsement of the OECD Multilateral Instrument to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) has prompted several commentators to argue that the anti-abuse provision in the MLI, namely the principal purpose test (PPT), could become part of customary international tax law. This article casts some doubt on that possibility. The authors argue that in light of the difficulties in ascertaining customary international law (CIL) and the structural nature of the PPT, it is unlikely that the PPT will become part of CIL. Additionally, the authors take the opportunity to briefly discuss whether the focus on CIL is to some extent a fruitful debate. Instead of emphasizing the source of the norm, which overstates the importance of some norm being “law”, it is the authors’ view that it would be better to focus on improving the quality of the norms regardless of their source.

Malaysian and Indonesian Law and Policy on Rohingya Refugees: A Comparative Review

Majority of ASEAN member countries consider themselves to be non-immigrant countries. As a result, the majority of ASEAN countries are not perfect locations for immigrants to settle. However, all states are bound by the non-refoulment principle laid down under Customary International Law in which, the states are prohibited to return the refugee to their original country where there was danger known around them. Hence, in the absence of a formal mechanism produce by the ASEAN region for the protection of refugees, Malaysia and Indonesia perform their efforts and experiences in terms of handling refugees. The paper explains the comparison of how the policy and law on refugees within Malaysia and Indonesia by referring to the case study on the Rohingya people crisis and also the Vietnamese boat people. The qualitative method has been chosen to explain the literature of the paper. This paper also discusses on how both countries respond to the right of a refugee within their sovereignty since they are non-signatory states to the 1951 Refugee Convention. As a result, the paper intends to elaborate on to what extent the laws and policies apply to the refugee according to the Malaysia and Indonesia experiences.

Article: Pillar 2: An Analysis of the IIR and UTPR from an International Customary Law, Tax Treaty Law and European Union Law Perspective

This article discusses potential jurisdictional conflicts between the Pillar 2 rules and international customary law, taking into account potential frictions with tax treaty law and European Union law. In addition, the authors assess whether the Pillar 2 rules can be justified in the same way as controlled foreign company (CFC) rules, thereby referring to the principle of personality. Part three of the article evaluates how conflicts between the Pillar 2 rules and international law are to be resolved. The authors conclude by providing potential solutions to resolve jurisdictional conflicts. Pillar 2, IIR, UTPR, international customary law, EU law, tax treaties, jurisdiction, nexus, VCLT