Customary International Law Research Articles

City Hall v. The World – Seeking New Paradigms for Foreign Missions Municipal Taxation

Studies of international law and cities have been attracting the attention of scholars and policy makers alike in attempts to understand the complex nature of the central versus municipal government relationship in respect of international legally binding frameworks. One example of such an intricate relationship is the implementation of treaty and customary international law in respect of taxation of foreign missions. Alongside the importance of the issue to the day to day life and functioning of international relations it can present challenges to policy and decision makers of various layers of government.
 The paper offers an analysis of the foreign missions’ taxation case study in the context of the theme of law and international law and the city. Discussion focuses on the basics of the applicable regimes and their history and rationales, as well as on the dilemmas associated with more contemporary forms of municipal taxes. Aiming for developing means to address the challenges presented, a new paradigm is offered, focusing on new methodologies to bring cities to the table to discuss together with state actors how to optimize the balance between the need to facilitate bilateral cross-border relationships and the needs of cities and residents.
 In the final stage of the debate, the paper offers potential lessons which can learned from the analysis of the foreign missions’ taxation case study for engagement of cities and states in international policy and law making for central and municipal government. The modality offered can hopefully facilitate the development of processes conducive to enhanced cooperation between cities and states in making and implementing better and more balanced international law. 

Between ‘Time Immemorial’ and ‘Instant Custom’: The Time Element in Customary International Law

Abstract Article 38.1(b) of the Statute of the International Court of Justice, which refers to customary international law as ‘a general practice accepted as law’, makes no mention of duration. Yet the ‘time element’, as the Court itself called it, has not infrequently been relevant—if not central—to determining whether a rule of customary international law has come into being. The present article seeks to describe how far the passage of time is necessary for the creation of rules of customary international law, and the possible significance of time to the customary process more generally. While noting that no particular duration is required for the formation of customary international law, it suggests that some time must always elapse, and that assertions of a rapid development in customary international law are to be treated with a degree of caution. Light is thrown on particular ways in which time may indeed be of significance for the formation and identification of a rules of customary international law, and on further ways in which time (and timing) may impact the life cycle of such rules, including their possible change and demise.

Grotian Moments: The Concept

Abstract During times of fundamental change, customary international law can form quite abruptly. Scholars have begun to call the paradigm shifts and tipping points that lead to rapid formation of new rules of customary international law ‘Grotian Moments.’ This chapter introduces the concept, explains its appellation, provides historic examples of its application since World War ii, examines its usefulness, and addresses some of the critiques that have been leveled at the notion of accelerated formation of customary international law.

Is the Establishment of Air Defence Identification Zones Outside National Airspace in Accordance with International Law?

Abstract Whereas the right of a state to establish an air defence identification zone (ADIZ) in national airspace falls squarely within its sovereignty, the question whether coastal states may claim such zones outside national airspace remains a matter of controversy. The latter category, referred to as ‘offshore ADIZs’, usually do not amount to sovereignty claims over the open airspace outside national airspace or involve threat or use of force. The right of coastal states to identify aircraft in the open airspace near coastal areas has arguably become part of customary international law. This customary right, however, only extends to ‘passive identification’ by radar detection, radio communication or close visual checks, which thus is only capable of justifying the establishment of offshore ADIZs for this purpose. The identification of aircraft in offshore ADIZs, through either voluntary or passive measures, is nevertheless within the parameters of the obligation of paying due regard to the freedom of overflight. This explains why ‘passive identification’ is ‘permissible’ under customary international law, while ‘voluntary identification’ is at least ‘tolerated’ albeit in the absence of a permissive customary rule.

ON THE ISSUE OF SYSTEMATIZATION AND SYSTEMATIZATION OF THE BRANCH OF INTERNATIONAL CUSTOMS LAW

The article is devoted to the theory of taxonomy of the branch of international customs law (ICL). The article considers scientific positions and innovations that touch upon the issues of consistency and systematization of the industry in the context of established international customs relations. The authors investigate the relationship between the sign of consistency and the processes of theoretical systematization of the industry, prove the presence in its structure of a full complex of backbone elements necessary to establish the place and role of the ICC in the system of international law.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

Functional Immunity of the Marines on the Enrica Lexie: A Reply To Raffaella Nigro

This article is a short reply to Raffaella Nigro’s assessment of the Arbitral Tribunal award in the Enrica Lexie case. Professor Nigro analyzes the rule of functional immunity of State officials from foreign criminal jurisdiction and argues that it cannot be applied to the two marines, even supposing that military personnel are covered by such a rule. Professor Nigro bases this conclusion on the facts that the marines were stationed on a commercial vessel and were servicing the interests of the private shipowner. In reply, this author reaffirms the existence of a rule of customary international law on functional immunity and argues that military personnel assigned to commercial vessels are carrying out these duties in order to protect Italian interests and contribute to the defeat of piracy. Therefore, the marines on board the Enrica Lexie were (and still remain) under the protection of the rule on immunity from foreign criminal jurisdiction.

The Enrica Lexie Award Amid Jurisdictional and Law of the Sea Issues

This article analyzes the Enrica Lexie Arbitral Award, first of all, in relation to international law issues concerning the application of the United Nations Convention on the Law of the Sea (UNCLOS). The article then focuses on the question of the functional immunity of the two marines, from the point of view of the Tribunal’s assertion of its incidental jurisdiction to deal with the matter, as well as of the Tribunal’s affirmation of the existence of a customary international law rule applicable in the present case. Both conclusions appear unconvincing, also in light of the role of the two marines on board a merchant ship. In any case, the fact remains that the judgment has the merit of finally putting an end to a long-standing dispute, to the satisfaction of the two parties involved.

THE IMPACT OF COVID-19 ON HUMAN RIGHTS: A CRITICAL ANALYSIS OF THE LAWFULNESS OF MEASURES IMPOSED BY STATES DURING THE PANDEMIC UNDER INTERNATIONAL LAW

The COVID-19 pandemic provided ideal conditions for the violation of human rights. In efforts to curb the spread of the virus, numerous states violated their international law obligations outlined in treaties and customary international law. This article aims to analyse state responses to the global pandemic and will consider how their lawfulness should be measured. To this end, the framework of due diligence is utilised as a system to regulate and assess the legality of state actions amidst times of emergency. Furthermore, this article argues that the principle of due diligence must be developed to sufficiently regulate instances of derogation that extend beyond restrictions. This development must also be informed by an intersectional approach that prioritises the protection of vulnerable groups, owing to the disproportionate impact of COVID-19 on these communities. Stemming from this analysis, the article will conclude by considering the landscape of state actions in handling COVID-19 under the banner of due diligence and imagines a construction of international law that more adequately protects human rights amid regional and global crises.

Prosecuting Crimes against Humanity and Genocide at the International Crimes Tribunal Bangladesh: An Approach to International Criminal Law Standards

Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated tribunal, namely the International Crimes Tribunal Bangladesh (ICTB). Though the Tribunal is preceded under municipal law, its material jurisdiction, i.e., crimes against humanity and genocide, originated from international criminal law. Therefore, this study examines several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. First, I discuss several legal flaws of the Tribunal by defining crimes against humanity and genocide under the ICTB Statute and jurisprudence. Second, I scrutinize the legal status of international (treaty and customary) laws in Bangladesh’s legal system. Third, by applying international criminal law standards, I focus on the idea that it is one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998. Fourthly, I also discuss whether Bangladesh has any obligation to apply customary international law definition of crimes against humanity because crimes against humanity are considered jus cogens offenses in general international law, from which no derogation is permitted. Lastly, I conclude that Bangladesh Tribunal failed to fulfill its legal obligation to define international crimes under the treaty and customary laws and forward a way to be implemented to improve the legislative system of Bangladesh and harmonize it with international legislation.

The Contemporary Meaning of the Self-Determination of Peoples and Its Limitations

The self-determination of peoples is considered to be one of most important principles of international law. It is enshrined in the UN Charter and numerous international instruments, and the ICJ has confirmed its status as a right of erga omnes character. The right of self-determination under international law served as the legal basis for independence of the colonial peoples, and it has been accepted that it has continued application and effect in the post-colonial era. However, precise nature and content of the right outside the colonial context remains elusive. That is mainly because the right to self-determination was originated from a moral or political concept that had no concrete legal meaning, and the international instruments through which the right has been developed have failed to provide precise definition of the right to self-determination. First of all, there is no consensus on the definition and scope of “people”, and the right to self-determination may have quite different meaning depending on the understanding of a “people”. Further, it is difficult to determine concrete and enforceable rights that emanate from self-determination of peoples. It seems that the right of self-determination has very limited application and meaning in the contemporary world. Many agree that the external aspect of the self-determination has lost much of its relevant in the contemporary world, especially because the territorial integrity of states has been accepted as a limitation to right of self-determination, and right to self-determination does not translate into the right to secede. However, there has been arguments that “remedial secession” should be possible in exceptional cases of gross human rights violation and denial of self-determination. On the other hand, the view that the right to self-determination has evolved into internal self-determination, which essentially means the right to democratic governance. However, a close scrutiny of these attempts to give continued relevance and meaning to the right to self-determination reveals that they lack state practice and opinio juris necessary for customary international law. When abused for political or nationalistic purposes, the right to self-determination can be a dangerous concept as the international community has recently witnessed through a series of events in Ukraine. That is why it is important to embrace clear meaning of the right to self-determination as is, in its limited sense without any embellishments.

Who Enforces an Arrest Warrant of the International Criminal Court?

Abstract Though there is an abundance of literature on the relationship between the jurisdiction of the International Criminal Court ('ICC') and the immunities of non-state parties to the ICC Statute, the arrest process under Part 9 of the ICC Statute has not yet been addressed from the perspective of international organizations law. Yet, the ICC is certainly an international organization, and its arrest process is comparable to other organizations’ activities, e.g. the United Nations Security Council’s smart sanctions process. It is therefore argued that a clarification of the legal relationship between the cooperating state and the ICC under the general law of international organization would be a logical premise for further discussion of the relationship between the ICC’s jurisdiction and the immunities of non-state parties to the ICC Statute. The importance of this kind of analysis has become apparent as a consequence of the employment of the Surrogation of Jurisdiction theory by the Appeals Chamber of the ICC in its Al Bashir judgment. This theory formed an essential part of the judgment. An assessment of this theory from the perspective of the law of international organizations shows both the potential and the limitation of the theory. It will, thus, give us a more comprehensive understanding of the theory’s legal implications in the context of the enforcement of ICC arrest warrants against organs of non-state parties to the Statute who enjoy immunity under customary international law.

Weighing the Sources of International Law

Abstract There is a long-standing debate on the weight or preference given to different sources of international law in jurisprudence. This article aims to discuss the interplay of three pairs of sources of international law; namely between old treaties and new treaties, treaties and customs, and existing treaties and emerging treaties in the context of three regions which are featured with typical maritime related issues. In the Arctic region, the 1925 Svalbard Treaty and the 1982 United Nations Convention on the Law of the Sea (unclos) become the sources of conflicts or different legal positions between Norway and some other States who are parties to both treaties. In the South China Sea, the major legal issue, among many other important ones such as island regime, is the relationship between unclos as a treaty law and historic rights as a customary international law. The Antarctic Treaty System (ATS) may be influenced by the new instrumental arrangements made by Biodiversity Beyond National Jurisdiction (bbnj) negotiation, reflecting the importance of ensuring the emerging treaty will not interrupt the jurisdiction of established treaties.

Russian Diplomatic Espionage in Italy

Abstract After uncovering Russian espionage activities on Italian territory, Italy expelled two Russian diplomats allegedly involved in such activities. The Italian decision, as well as the Russian response, offer a classic example of States’ reaction to acts of non-violent espionage. This comment offers a legal assessment of the events that unfolded in March 2021 and takes into account the implications, in matters concerning espionage, of declarations of persona non grata, diplomatic immunity and, generally, customary international law.

Albanian National Museums: How to Overcome the Digital Gap Towards a Better National Heritage Promotion

Article 53 of the Vienna Convention of 1969 states that a treaty is considered invalid if it is in conflict with existing norms of jus cogens, and under Article 64 of the treaty becomes invalid if it conflicts with a norm youngest of the same nature. The case Nicaragua against the United States made clear that the notion of jus cogens is steadily entrenched in international law, however, is still necessary to determine accurately that power rates referred to in Articles 53 and 64 of the Vienna Convention. Jus cogens norms include more those norms relating to morality or natural law than with traditional positivist rates derived from State practice. In general, this includes making aggressive war, crimes against humanity, war crimes, sea piracy, genocide, apartheid, slavery, and torture.Jus cogens norms are norms of customary international law which are so important, it can not be changed through treaties. Under the Vienna Convention on the Law of Treaties, any treaty that is contrary to jus cogens norms is invalid. Jus cogens norms are not listed, there is no catalog , their determined by any authoritative body, but these rates come from judicial practices and political and social attitudes, which are not values static. Jus cogens norm of unconditional right international, accepted and recognized by the international community norm from which no deviation is permitted. Unlike the common law, which traditionally requires the consent and It lets change obligations between states through treaties, norms jus cogens can not be violated by any state "through treaties international or local regulations or special customary, or even through general rules of customary not have the same normative force.

‘Necessity’ due to COVID-19 as a Defence to International Investment Claims

Abstract Sovereign States have had to take drastic measures to contain the spread of the SARS-CoV-2 virus, including measures severely restricting the operation of businesses in their territory. In addition, and because of, the public health crisis, States will be forced to take a series of measures to stimulate their economies. These measures are likely to affect investments that benefit from international investment protection, leading these investors to contemplate initiating arbitration proceedings against the host State. This article examines whether, when faced with such claims, host States will be able to resort to the doctrine of necessity under customary international law to defend the measures that they have taken. In doing so, it draws on the application of the doctrine of necessity in international investment arbitration so far, including its application to disputes arising out of the Argentine financial crisis. The article proposes a more analytical approach to the doctrine of necessity in customary international law, which will be vital if the doctrine is to remain relevant as a measure of last resort to which States can turn when faced with a crisis.

Interocean v Nigeria: Can a Domestic Investment Statute Provide the Basis for Claims under Customary International law?

In an Award dated 6 October 2020 (Award), the Tribunal in Interocean Oil Development Company and Interocean Oil Exploration Company v Federal Republic of Nigeria3 dismissed all the claims brought by two United States oil companies, Interocean Oil Development Company and Interocean Oil Exploration Company (Interocean), against Nigeria, and awarded arbitration costs to Nigeria. The Award confirms the possibility of bringing an investment claim for breach of customary international law based solely on a domestic investment statute. In doing so, the Award has not only expanded the potential scope of investment claims for foreign investors in Nigeria, especially for those who are not eligible for substantive protections under any investment treaties; it has also enriched investment arbitration jurisprudence. The Award is a landmark decision in Nigeria because it arose from the first investment arbitration instituted against Nigeria with a decision on the merits. Prior to the Interocean case, two...

The Concept of ‘Essence’ and Its Uses in the Identification and Application of Customary International Law by International Criminal Courts and Tribunals

Abstract This paper seeks to provide an analysis of the uses of the concept of ‘essence’ by international criminal courts and tribunals. In particular, it is based on a survey of decisions of the International Criminal Tribunal for the former Yugoslavia (icty), whose Trial and Appeals chambers have used the concept on multiple occasions and with consequences which have been overlooked in the literature. By providing an analysis of the concept’s uses in connection with the icty’s identification and application of customary international law, the paper addresses some of the general international law and philosophical issues raised by the concept’s uses. The paper places the concept’s uses within their respective contexts, and discusses related international decisions and academic commentary. The paper concludes by suggesting potential avenues for elucidating the concept of ‘essence’ and its proper use, with a particular focus on the notions of ‘intension’, ‘extension’ and an intensional ‘extensional property’.

The Role of Customary International Law in Intellectual Property Protection Beyond Borders

The Role of Customary International Law in Intellectual Property Protection Beyond Borders