Customary International Law Research Articles

Engagement with risk-exposed neighbours: the track record of nuclear newbuild and newcomer states

Abstract Several international norms oblige governments of countries planning to build nuclear installations to proactively consult potentially affected countries in a timely manner. These norms arise from customary international law, the Convention on Nuclear Safety (CNS), the guidelines of the International Atomic Energy Agency (IAEA) and regional treaties and international environmental law. This study has examined 15 examples to assess (i) the extent to which such consultation has taken place and (ii) the effectiveness of measures taken by potentially affected countries in those cases where prior consultation had not taken place. Examples range in vintage from the 1960s to the present day and include both newbuild and newcomer countries. In only 3 of these 15 cases, prior consultation had taken place and all the involved nations had good bilateral relations and/or common interests in the project. Nevertheless, disputes arose later in two of these cases. In the other examples, the degree of success of the potentially affected state in changing the behaviour of the newbuild or newcomer state depended on a number of factors; for example, the state of bilateral relations, the availability of a regional organization to resolve the dispute, the validity of the arguments of both parties and the goodwill of the newbuild or newcomer state. Whilst the CNS and the actions of the IAEA have raised nuclear safety standards substantially over recent decades, the unwillingness of most nations to adhere to the obligation to consult would seem to be a significant weakness.

India and US FONOPs: Oceans Apart

India and the United States have recently and rapidly consolidated a significant bilateral defence partnership, have a clear appetite for bilateral and quadrilateral maritime cooperation, and appear to share a common commitment to the rules and norms that govern the maritime domain. Yet the US decision to undertake and publicise a freedom-of-navigation operation targeting India in April 2021 again highlighted the two countries’ divergent interpretations of the United Nations Convention on the Law of the Sea (UNCLOS) and of customary international law. This divergence has its origins in differences in Washington’s and New Delhi’s historical engagement with UNCLOS and their preferred means of achieving security and status in the Indo-Pacific. Such differences currently preclude a deep bilateral consensus on maritime order and a common multilateral position within the Quadrilateral Security Dialogue.

Customary International Law as a Vessel for Global Accord: The Case of Customary Rules-of- the-Road for Governing the Orbital Highways of Earth

In a time where the international community seems unable or unwilling to commit to binding instruments to solve global-governance issues, ranging from climate to cybercrime, increased reliance on customary norms presents a path forward. Using the case of space traffic, this author investigates if and how customary international law can emerge to govern complex transnational issues. The traditional approach to international custom is augmented with perspectives from the broader field of social science to accord for the influence of private actors and technological development on the formation of customary law. Commercialization of the space sector has unleashed a tremendous proliferation of satellites in the orbits of Earth. Without globally aligned “rules of the road” for the orbital highways, the collective human space activities are on an unsustainable path towards congestion, competition, and rapidly increasing collision risk. In lieu of an elusive treaty solution, binding rules of the road for space may emerge through customary international law.

Rejecting Customary Regression: Unilateral Humanitarian Intervention & the Evolution of Customary International Law

Humanitarian intervention is perhaps one of the most important topics in international affairs. It raises questions of morality and militarism, becoming a platform for sharp debate in international law. This note discusses both the moral and legal questions presented by unilateral humanitarian intervention (“UHI”). It argues that UHI is antithetical to the progression of customary international law due to customary international law’s evolutive nature and the ongoing importance of decolonization. UHI is not only normatively undesirable, but the particular normative criticisms of the doctrine – that it is regressively imperialist and neo-colonial – render it fundamentally incompatible with customary international law.

Limits to the Jurisdiction of States in Private Law Matters under International Law

For decades, public and private international law scholars have debated whether the customary international law on the jurisdiction of States applies to private law. In this article, I argue that it does. Subsequently, I analyse the content of the customary law on jurisdiction of States in different fields of private law with an emphasis on tort law.

Aggression and Responsibility Under International Law – A Case of the Aggression of the Russian Federation Against Ukraine

The aim of this article is to address the relationship between aggression, conceived both as an act of a state and as a crime, and responsibility for it under the law in the light of the Russian aggression against Ukraine. The Russian Federation as a state committed an act of aggression as the internationally wrongful act for which it is responsible under customary international law, while members of its authorities, headed by the president, perpetrated a crime of aggression, as defined in Article 8 bis of the Rome Statute of the International Criminal Court. The author argues that as far as the act of the Russian aggression is concerned not only Ukraine but also other states may make Russia responsible for its act of aggression. As the Russian Federation seriously breached of obligations under peremptory norms of general international law any state may claim from Russia, first, cessation of the internationally wrongful acts, and assurance and guarantees of non-repetition and, second, performance of the obligation of reparation in the interest of Ukraine or of the beneficiaries of the obligation breached. Although international law has not traditionally recognized individuals as victims of the crime of aggression, one should have in mind that not only states but also individuals are victims of the aggression. This is why individuals as victims of the Russian aggression may, even should, participate in the future regimes of criminal responsibility and reparation in the context of prosecutions for this crime. But it will be depended on the determination and good will of the members of the international community and, obviously, on the indictment of suspects. The author claims that a full restoration of peace in Ukraine will not take place if Russia is not held responsible for its wrongful act of aggression and the perpetrators of crimes committed during this armed conflict, including the crime of aggression, are not brought to criminal responsibility.

The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of All Forms of Racial Discrimination

The Definition of Apartheid in Customary International Law and the International Convention on the Elimination of All Forms of Racial Discrimination

Customary International Law and the Shifting Patterns of Refugee Migration

Customary International Law and the Shifting Patterns of Refugee Migration

International customary law

International customary law

МІЖНАРОДНО-ПРАВОВІ ПІДСТАВИ ВИЗНАННЯ РФ ДЕРЖАВОЮ-СПОНСОРОМ ТЕРОРИЗМУ ТА ПОКАРАННЯ ЗА ВЧИНЕННЯ ЗЛОЧИНУ АГРЕСІЇ ТА ВОЄННИХ ЗЛОЧИНІВ НА ТЕРИТОРІЇ УКРАЇНИ

In connection with armed aggression, violation of a range of international treaties, customary norms of international law, commission of acts of terrorism, many questions arise about the status of the state-sponsored terrorism and criminal prosecutions of the perpetrators of the offense. The purpose of this research is to examine and cover current issues of recognizing the Russian Federation as a state-sponsored terrorism and bringing to individual criminal responsibility the military-political leadership for the crime of aggression and war crimes. The research is based on such methods as analysis, synthesis, generalization and comparison, formal-logical and analytical methods. The analysis and researches of the legal grounds in international law for the recognition of the Russian Federation as a state-sponsored terrorism were carried out, along with general provisions of individual criminal responsibility for crimes against international customary law. Doctrinal approaches to granting status and a definition of the concept of "state-sponsored terrorism" were contemplated and formed respectively, the categories for granting that status are emphasized and the recognition of the Russian Federation is justified by means of the analysis of requirements and documented cases and incidents of unlawful acts committed by Russia. The provisions of the Text of the Articles on the Responsibility of States for Internationally Wrongful Acts of the ILC, the United Nations General Assembly Resolution 2625 (XXV), the International Convention for the Suppression of the Financing of Terrorism are covered, as well as the prospects for recognition as a state-sponsored terrorism by the UN Security Council and the imposition of economic sanctions. The study reveals the issues of criminal responsibility of individuals, namely the military and political leadership of the Russian Federation for the crime of aggression and combatants, other persons for war crimes. The concept of crime of aggression and war crimes is defined, the accusations of the Russian Federation of waging an aggressive war of conquest and committing war crimes in accordance with the categories and summary of the reports of independent missions of international organizations are justified and grounded. Having exemined the provisions of international legal instruments, reports and statements of international organizations that were conducted in Ukraine on the fact of unlawful actions of the Russian Federation, several practical advices on the international legal recognition of Russia as a state-sponsored terrorism was developed and the concepts of creating a special tribunal for the crime of aggression were proposed and noted the prospective of the punishment and criminal responsibility of war criminals.

The Right to International Solidarity as a Game Changer when it comes to “Crimes of Solidarity”?

The article discusses whether there is a Right to International Solidarity that hinders the prosecution of “Crimes of Solidarity” in the context of (illegal) migration. The focus lies therefore on European and International Human Rights Law, the Facilitation Directive of the EU, UNCLOS and the Draft Declaration on the Right to International Solidarity. The notion “Crimes of Solidarity” refers to cases where private actors face judicial consequences for “doing good” (sea rescue, providing shelter, food and medical aid to migrants). As there is neither a right to enter a certain harbour nor a duty to let people disembark, a possible ground for justification might be the Right to International Solidarity, providing a right to help and to be helped. This could have the effect of excluding prosecution for these crimes of solidarity. The article analyses to what extent a Right to International Solidarity exists and thus might hinder the criminalisation of acts of solidarity. Under the current international and regional law there is no Right to International Solidarity, neither through treaty nor customary law. Nevertheless, the potential to become a game changer can be seen in its possible effects on the interpretation of other established (human) rights and international standards. Even though the UN Special Rapporteur on Human Rights and Solidarity’s “Draft Declaration on the Right to International Solidarity” cannot be qualified as soft law as long as it is not adopted by the General Assembly, it can nevertheless serve as a starting point for necessary discussions in the decriminalisation of solidarity.

LG and Others v. Rina SpA, Ente Registro Italiano Navale

352State immunity — Jurisdictional immunity — Action for damages against ship classification and certification company acting upon delegation from Republic of Panama — Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Article 2(1) — Whether Italian court having jurisdiction under Regulation — Article 1(1) — Scope of civil and commercial matters — Operations of ship classification and certification societies — Public powers — Whether classification and certification operations conducted in exercise of public powers — Immunity from jurisdiction — Whether customary international law principle of jurisdictional immunity of States precluding court from exercising jurisdiction under Regulation — The law of the European Union

Customary International Law Requiring States to Grant Nationality to Stateless Children Born in Their Territory

Customary International Law Requiring States to Grant Nationality to Stateless Children Born in Their Territory

The Application of Logic and Reason in the Identification and Interpretation of Customary International Law

The Application of Logic and Reason in the Identification and Interpretation of Customary International Law

Disaggregating Slavery and the Slave Trade

International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery and the slave trade from human trafficking, arguing that untangling these prohibitions is important for several reasons. First, slavery and the slave trade persist as harms today as evidenced by, inter alia, kafala system abuses in Lebanon, slave market auctions in Libya, and Islamic State (IS) crimes in Iraq and Syria perpetrated against Yazidis. Second, slavery and the slave trade enjoy peremptory status, offering the highest form of protection in international law. Human trafficking does not. Third, naming and addressing violations of the slave trade—the precursory acts to slavery—helps to identify, provide redress, and prevent slavery and slave trade perpetration. Distinguishing the slave trade from slavery, and the slave trade and slavery from human trafficking, affords additional avenues for redress, maximizing full expressive accountability for states’ obligations to prohibit slavery and the slave trade. Finally, delineating these prohibitions provides legal clarity and accuracy, both by correctly characterizing harms and by properly interpreting treaty provisions and jurisdictional mandates. In the short term, playing “fast and loose” with distinct prohibitions undermines international law’s institutional legitimacy. In the long term, state practice and opinio juris that moves away from enforcing against slavery and slave trade harms might lessen or even erode these protective customary international law prohibitions.

The Court of Justice of the EU and the Interpretation of Customary International Law: Close Encounters of a Third Kind?

The Court of Justice of the EU and the Interpretation of Customary International Law: Close Encounters of a Third Kind?

The Consent-Based Problems Surrounding the Persistent Objector Doctrine

Most analyses of the persistent objector doctrine seem to omit the impact that its application has on the general requirement of consent as a cornerstone of the international legal order, and as an unavoidable requisite in the formation of rules of customary international law. The present work holds that the persistent objector rule not only undermines the consensual nature of obligations in international law, but also generates issues of normative authority, dubious attribution of meaning to silence, temporal determination, and with self-determination and equality. It concludes that the doctrine, furthermore, lacks practice and opinio juris, meaning that its validity and existence in the realm of customary international law is highly questionable.

The Missing Global Right to Health

The World Health Organization's (WHO) Constitution affirms, in its preamble, a fundamental and non-discriminatory right to health and health care. In doing so, it echoes a number of widely ratified treaties and other international legal instruments with a strong claim to having the status of customary international law, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women, the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the ILO Convention on Indigenous and Tribal peoples in Independent Countries, and the Standard Minimum Rules for the Treatment of Prisoners. Most recently, the Institut de Droit affirmed that same fundamental right in Article 4 of its September 2021 Resolution on Epidemics, Pandemics, and International Law.

United States Embassy Employee Case

334State immunity — Employment — Immunity in disputes arising out of an employment contract with an embassy — United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 — Article 11(1) and (2)(a) of Jurisdictional Immunities Convention constituting customary international law — Whether employee was employed to perform sovereign activities — Whether determinative — Whether States enjoying immunity regarding disputes with employees performing activities closely functionally related to diplomatic and consular functions of the State — The law of Austria

Jus Cogens: Redux

In The Boundaries of International Law: A Feminist Critique (Boundaries),1 amidst observations about masculine bias in treaty law, co-authors Christine Chinkin and Hilary Charlesworth queried the masculine configuration, i.e., the gender of jus cogens or peremptory norms. A peremptory norm is “accepted and recognized by the international community . . . as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.”2 Interrogating whether jus cogens privileged the experiences of males over that of females, they challenged jus cogens’ presumed universality and its intended utility. Accepted peremptory norms, they averred, exerted a silencing, deleterious impact on core feminine values such as sexual equality or freedom from gender discrimination.3 Decades after the Vienna Convention on the Law of Treaties’ (VCLT) codification of jus cogens, the International Law Commission (ILC) reified a non-exhaustive list of peremptory norms that explicitly excluded gender-based discrimination.4 This essay proposes a “jus cogens redux” to revive Chinkin and Charlesworth's question by peering at several threads in the thwarted conversations about whether freedom from gender discrimination rises to peremptory norm status. The conversational threads lay tattered by positive law's reliance on enumerated treaty provisions and accepted precepts of customary international law. They are frayed by normative law's philosophical, moralists’ approach. Neither the positivist law nor the normative law's concepts of how to determine jus cogens values grapples with gender or gender minorities. By default, each retains a masculine approach that configures the gender of jus cogens as “non-female.”