Customary International Law Research Articles

Значение правовых позиций международных и внутригосударственных судебных органов для предотвращения сецессии: теоретико-исторический аспект

The legal regulation of secession – the unilateral withdrawal of a part of territory from the parent state, is carried out at the junction of two branches of law – international and constitutional. Due to the absence in most of written constitutions of norms directly related to secession, and the laconic nature of relevant principles of international law, allowing for the possibility of ambiguous interpretation, decisions of international and domestic judicial authorities on the admissibility of secession play a special role in the legal mechanisms for its prevention, which determines the relevance of the chosen themes. Based on the analysis of the Advisory Opinion of the International Court of Justice of the United Nations of July 22, 2010 “On compliance with international law of the unilateral declaration of independence of Kosovo”, we formulate a conclusion about the absence of uniform international legal criteria to determine the admissibility of secession. In our opinion, the Inter-national Court of Justice has not resolved the legal issue underlying the pro-tracted political conflict, has not created a new norm of customary interna-tional law, but has not provided the supporters of the unilateral declaration of independence with the necessary and sufficient arguments for the legal justification of their position. This allows us to speak about the importance of this decision in the international legal mechanisms for the prevention of secession, which, however, are at the stage of formation. Their development should take place synchronously with the constitutional and legal intrastate mechanisms, which in modern conditions should be aimed at finding a bal-ance between the interests of the center and regional communities, establish-ing a dialogue with supporters of independence and protecting the national and cultural identity of population.

Filozofija međunarodnog običajnog prava - dovoljna je praksa

The main objective of this paper is to critically assess the dominant additive theory of the formation of Customary International Law by using the concept of discursive normative practice and the work of Gerald Postema. My central conclusion is that the use of this concept provides an explanation of the process of formation of Customary International Law that is superior to the additive theory which consists of two elements - practice and opinio juris. On the other hand, Postema's theory also has its own weaknesses, and this paper explores ways to improve it.

The exhaustion of local judicial remedies in investor-state dispute settlement: a proposal for the African Continental Free Trade Agreement on Investment Protocol

ABSTRACT Over the past few years, the international Investor-State Dispute Settlement (ISDS) mechanisms have been confronted with an unprecedented level of scrutiny, and the system's legitimacy is being questioned by both developed and developing countries alike. This article presents a proposal for the adoption of the old customary international law rule of exhaustion of local remedies in the upcoming Investment Protocol of the African Contin en tal Free Trade Agreement (AfCFTA). It observes that the ISDS mechanism that will be developed under the AfCFTA framework is likely to be shaped by the legitimacy crisis in investment treaty arbitration and ongoing global debates about the reform of the ISDS mechanisms. In particular, the ISDS debate in the African region will continue to characterise and potentially derail the negotiations of the AfCFTA Protocol on Investment. The main contention is that adopting the exhaustion of local remedies under the AfCFTA Protocol on Investment before recourse is had to the ISDS is arguably the single reform with the greatest potential to foster a balanced investment dispute resolution mechanism and reduce political opposition to ISDS while still providing investors with access to ISDS when domestic remedies are inadequate. The article finally proposes a drafting suggestion for the adoption of the exhaustion of local remedies rule into the ISDS provision of the AfCFTA Protocol on Investment. Keywords: Exhaustion of local remedies; African Continental Free Trade Area; Investment Protocol; ISDS; African courts.

The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7

The International Law Commission (ILC) temporarily adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction, listing six international crimes such as genocide and crimes against humanity that state officials don’t share immunity from foreign criminal jurisdiction. This paper holds a conservative attitude to the adoption of Draft Article 7 after combing international and national practice and research on immunity theory. First, by sorting out international practices and national practices, it could be drawn that the exception to immunity of state officials from foreign criminal jurisdiction has not yet formed customary international law. Second, through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient. Based on the above results, this paper argues that the ILC should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations.

Peoplehood Obscured? The Normative Status of Self-Determination after the Chagos Advisory Opinion (Advance)

In international law the right of every people to self-determination is well established. Yet in terms of substance and process this right incident to ‘peoplehood’, on its face the paradigmatically collectively held right, is inadequately articulated. This paper interrogates the normative status of self-determination in the context of colonial domination, after the Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos Advisory Opinion’) issued by the International Court of Justice (‘ICJ’) in 2019. Self-determination is investigated both as a putative norm of customary international law (‘CIL’) and a putative norm jus cogens. The CIL status of self-determination in the post-colonial setting is well established by the ICJ and a higher, peremptory status is strongly implied. In either case territorial integrity is of the essence of the rights conveyed by the norm. Here it is argued that while the formal status of a norm of self-determination is thus to some extent clarified by the Chagos Advisory Opinion, the substance of such a norm remains insufficiently articulated. If anything, the emphasis on territorial integrity compromises the status of peoplehood and conveys that the incidents of statehood take precedence over the collective rights of distinct populations.

Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: The Institutions of Global Vaccine Access

Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: The Institutions of Global Vaccine Access

Litigating Health and Security Exceptions in Investment Treaties: A Simulation

J. Benton Heath introduced the topic. Essential security interests clauses have been invoked in a handful of cases, including several cases arising out of the Argentine debt crisis and the twin cases brought by Deutsche Bank and CC/Devas against India relating to satellite frequencies, with mixed outcomes and reasoning. In several treaties, these clauses also refer to public health measures, but there is little guidance on how such clauses should be interpreted or applied. Using a fictional but realistic scenario, the advocates and tribunal members—playing assigned roles—were asked to consider whether public health exceptions are self-judging, whether they deprive a tribunal of jurisdiction or go to the merits, and what showing is required for the clause to apply. The scenario also raised broader doctrinal questions about the nature of exceptions in investment treaties, their relationship with the treaty's primary obligations, and the interrelationship between security clauses and the customary international law defense of necessity.

The Haitian Independence Debt: A Case for Restitution

In 1825, France demanded $150 million francs from Haiti as a prerequisite to France’s recognition of Haitian independence, and to compensate French colonists for lost revenue from slavery. The perversity of former slaves indemnifying their former slave owners has not escaped the scrutiny of the global justice community, and in recent years, even French President Francois Hollande, has acknowledged that France owes a “moral debt” to Haiti. However, unless France valuates morality at $21-$28 billion dollars, a moral debt will fall far short of the recompense France may be legally obligated to pay Haiti according to the customary international law of unjust enrichment. This paper explores whether the moral injustice of the Haitian independence debt rises to level of illegality. It offers a roadmap of a hypothetical legal claim by Haiti compelling French restitution on the grounds that Haiti’s indemnification unjustly enriched France, and explores the substance, mechanics, and impediments of bringing such a lawsuit.

Functions of compensation for human rights violation in international and national judicial decisions

When establishing human rights violations committed by the state, should it be violation of internationally protected rights or constitutional rights, the violator is obliged to compensate for the harm caused. In the meantime, neither international sources, nor national legal acts and case law answer the question whether the obligation to compensate is exhausted by the compensation awarded in accordance with a decision of an international judicial body or such a payment has punitive nature, and the state keeps the obligation to compensate the damage within the frameworks of national proceedings. Following the first part of opening remarks the second part of the article studies universal international law approach towards the state obligation to compensate for human rights violations, it reviews positions of the International Court of Justice, the model established in international customary law of international responsibility. The third part discusses the compensation mechanism of the European Court of Human Rights and a number of cases where the Russian Federation was the respondent state. The forth part considers national regulation of the Council of Europe states and case law thereof. The author argues that the established international case law in respect of awarding compensations for human rights violations is too restrictive – it does not take into account a complex nature of this phenomenon which includes both correction of the individual applicant situation (restitution of the pre-existed situation) and prevention of similar situations in the future. It is concluded that awarding the compensation by an international body primarily constitutes a measure of international responsibility whereas consideration by a national court is a more effective means of restitution of the applicants rights and that the national court shall not deny consideration of applicants claims due to the fact that they have already been awarded compensation by the international judicial body including the European Court of Human Rights.

Domestic Prosecution of International Crimes in Tanzania: The State of the Law

This article examines Tanzania’s ability to domestically prosecute international crimes following its ratification of the Rome Statute. The Article also analyses the possibility of relying on the provisions of customary international law to prosecute these crimes in the absence of domestication of the Rome Statute. The article probes into the reasons for the non-domestication of the Statute, highlights the strengths and weaknesses of the current legal framework to prosecute international crimes, and proffers a set of recommendations for the identified legal flaws. It finds that although Tanzania is a State Party to the Rome Statute, it has not yet domesticated the Statute. Despite the absence of a direct legal obligation to domesticate or nationally incorporate the provisions of the Rome Statute, the articles states that it is fundamental that Tanzania indicates its ability and willingness to prosecute international crimes within its domestic legal framework. While there are two approaches to prosecuting crimes of the Statute at the national level, this article has discussed the effectiveness of Tanzania’s legal framework to prosecute those crimes through the ordinary crimes approach. It contends that while some of the core crimes can be prosecuted domestically and through customary international law, the current domestic legal framework in Tanzania is incapable of prosecuting the Statute’s core crimes effectively in the absence of domestication or adoption of serious legal amendments in the relevant domestic legislation. Keywords: Customary International Law - International Crimes - International Crimes Approach - Ordinary Crimes Approach - Penal Code - Rome Statute

Ziada v. Gantz and Eshel

Abstract Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and the immunity of states and their officials. The subject of this case note is a civil claim before a Dutch domestic court, against powerful officials of the state of Israel. The claimant, a Palestinian Dutch national, is attempting to sue the officials for the unlawful killing of six members of his family in the intentional bombing of their home in Gaza in 2014. In January 2020, he set out to establish the Dutch court’s jurisdiction based on an exceptional provision of the Dutch Code of Civil Procedure. This contribution argues that the Dutch court erred in allowing the asserted ‘functional immunity’ of the foreign officials to counter its own jurisdiction.

Revisiting the Legal Effect of General Assembly Resolutions: Can an Authorising Competence for the Assembly be Grounded in the Assembly’s ‘Established Practice’, ‘Subsequent Practice’ or Customary International Law?

Abstract The Security Council’s recent intractability in the face of human rights and humanitarian crises has directed increased attention to the General Assembly’s secondary responsibility for international peace and security. Despite considerable academic attention to the issue, however, significant questions remain regarding the scope of the Assembly’s powers. One of the most significant of these questions is whether the Assembly may authorise conduct that would otherwise be unlawful. This question is important, because while there is good authority to support the proposition that the Assembly may recommend measures up to and including the use of force, if the Assembly is not also competent to authorise such measures, we are left with the unsatisfactory scenario in which the Assembly is legally competent to make recommendations that States may not legally be able to act upon. Drawing on the International Law Commission’s 2018 Draft Articles on Subsequent Agreement and Subsequent Practice, as well as those on Identification of Customary International Law, this article explores whether an authorising competence on the part of the General Assembly can be grounded in the Assembly’s practice. Specifically, it considers whether the Assembly’s practice of recommending and seemingly purporting to authorise coercive measures may amount to ‘established practice’, thus forming part of the ‘rules of the organisation’ within the meaning of the Vienna Convention on the Law of Treaties (VCLT); or alternatively if it can be considered ‘subsequent practice’ within the meaning of the VCLT; or alternatively it may attest to a rule of customary international law.

In Search of Due Diligence Obligations in UN Peacekeeping Operations

Abstract It is argued in this article that due diligence, grounded on positive duties under international human rights law, is a standard against which to measure the performance of UN peacekeeping forces. Its adoption by the UN will improve accountability, but in a controlled and principled way. A requirement that the UN act diligently to prevent human rights violations would not impose over-onerous obligations. For responsibility to be incurred an organisation must have clearly failed to take measures that were within its power to take. It is argued that the UN not only should be bound by norms of due diligence but is in fact bound by positive obligations derived from customary international human rights law. The development of some due diligence-type measures by the UN to prevent sexual abuse by peacekeepers and to protect civilians within areas of peacekeeper deployment, and the adoption of an explicit due diligence policy to delineate its relationship with non-UN security actors, are positive signs. However, the article demonstrates that the UN needs to further internalise and develop its due diligence obligations if it is to limit human rights violations committed under its watch. Furthermore, it needs to create accountability mechanisms to ensure that it develops the rather limited measures taken thus far, including provision for victims to be able to hold the organisation to account for failure to protect them from human rights violations. Only by accepting its responsibility and liability to such victims will be the UN be driven to improve its due diligence when mandating, preparing, training, deploying and directing peacekeeping operations.

Right to Truth in International Justice

The right to truth is a phenomenon that appeared in international law after about the 1980s. Its development is associated with the repression of authoritarian governments in Latin America in the context of basic human rights leveling, which received negative reaction from society. The global need for justice and the preservation of a stable world has led to the gradual expansion of the institute to other regions of the world. The uniqueness of the developed methods allowing us to preserve the memory of large-scale crimes against the person in the public consciousness, to improve and fill in the right to receive information (the right to know), makes it possible to talk about the right to the truth as one of the most promising mechanisms of the human rights protection system. The paper attempts to understand the right to the truth at the present stage, the scope of guarantees it contains, and examines particular cases in relation to the right to know the circumstances of crimes, including cases of enforced disappearance, facts about victims, their fate and location, identification of criminals, rights of victims and their families. The right to the truth is a dynamically developing complex institution of international law, a powerful tool in the hands of international justice bodies in the fight against the perpetrators of the most serious crimes and in the prevention of crimes, a tool for the formation of a truly legal, democratic state. It is based on customary international law, supplemented in general terms by special rules of contract law. The incompleteness of material regulation is compensated by the law enforcement activities of international courts. By its legal nature, the right to the truth is based on positive international obligations of states to prosecute, to provide assistance to other states and international bodies, and on negative obligations as a means of prevention.

Specialty: Arresting an elusive ‘right’ in European extradition law

Specialty (a near-universal rule of extradition law whereby a person extradited cannot be prosecuted or punished for matters other than those for which they were extradited) is viewed traditionally as a tool to protect the sovereignty of the extraditing state, rather than as an individual right. A review of international material shows a dispute as to the existence of a rule or principle of specialty in customary international law and emphasises themes such as enforceability and standing of individuals to plead violations. Against that backdrop, the European situation is characterised by the presence of broad specialty rules which are not always implemented in legislation by requesting states, leading to refusal of extradition in some cases. Arguably, combinations of the EU law duty of conforming interpretation and European human rights law principles may offer tools to overcome such situations, approaching protection of specialty ‘rights’ whatever the original doctrinal rationale. If they do not, and international cooperation is further undermined by ineffective specialty protection, EU legislation or the development of soft law standards may be a useful way forward.

Peaks and Valleys: Contemplating Authority of International Law

Often, when we speak about authority of law, we mean two different things. On the one hand, authority of law relates the status of law as a domain of practical reasons. This means that law's authority is an impact it has on people's practical deliberations. On the other hand, authority of law manifests in certain formal institutions that create, apply, enforce, etc. legal norms. Here, authority of law is not so much about its practical impact, but about public authorities that claim normative powers. The common jurisprudential account of authority typically entails that these two meanings of authority are inseparable; there cannot be one without the other. Law's authority as a practical guide depends on there being formal institutions which make legal claims. In this contribution, I show that international law allows to reveal limitations of this approach. In the context of customary international law, which is the primary focus of the article, the gap between the two meanings of authority becomes strikingly visible. Customary international law claims and has the authority without necessarily having a link to formal institutions. I suggest that there are two types of authority of law: mediated and unmediated. Analytical jurisprudence typically accounts only for the first one, but remains silent about the second. However, if we accept that authority can in principle be unmediated, this entails that formal institutions are not necessary ingredients in the normative structure of authority. We should therefore shift the focus in jurisprudential explanations of authority from institutions to norms and their pre-emptive capacities. I suggest that the success with which norms manage to pre-empt first-order reasons is the primary manifestation of the authority of law. I claim that it is not necessary for a norm to be an outcome of delegated practical deliberations in order to be a pre-emptive normative standard. Both mediated and unmediated structures of authority allow to realise the pre-emptive function of norms, albeit by different means.

‘Necessary’ in Non-Precluded Measures Provisions in Bilateral Investment Treaties: The Indian Contribution

One of the controversial issues in international investment law disputes has been the interpretation of ‘necessary’ in the Non Precluded Measures (NPM) provision in bilateral investment treaties (BITs). Investor-State Dispute Settlement (ISDS) tribunals have employed different methodologies to interpret ‘necessary’ in the NPM provisions ranging from using the customary international law defence of necessity codified in Article 25 of the ILC Articles on State Responsibility to using the World Trade Organization (WTO)’s necessity analysis. However, a robust interpretative framework for ‘necessary’ in BIT’s NPM provisions remains elusive. In view of this, the new treaty practice of India to incorporate the least restrictive alternative measure (LRM) test in its newly signed BITs has regenerated the debate on interpretation of ‘necessary’ in NPM provisions. This paper argues that the incorporation of the LRM test in the BIT marks a rejection of the use of customary international law defence of necessity to interpret the treaty defence of necessity. The paper proposes a two-step analytical interpretative framework aimed at operationalizing the LRM test to interpret ‘necessary’. This framework is deferential to the host State’s regulatory autonomy and will also ensure that States fully comply with their treaty obligations towards foreign investors.

Maritime Delimitation Zones in the Framework of Customary Rules

Background and Aim: The international law of the seas is based on the strong shoulders of the powerful system of international custom that has been repeatedly cited by international judicial and arbitration authorities. Therefore, in a comprehensive study, it was necessary to study the customary rules of delimitation of maritime areas, which have undergone many changes and transformations over the centuries. The present article examines this trend with a brief look at the customary rules of delimitation of maritime areas. Materials and Methods: The research method in this paper is descriptive-analytical. Ethical Considerations: Ethical considerations regarding the writing of texts as well as references to sources were observed. Findings: Customary international law has played an important role in the process of forming the international law of the seas and shaping the necessary criteria to evaluate its rules. The principle of the commonality of the seas, the national authority over the seas, the principle of the freedom of the seas in the Middle Ages, the judgment of the maritime courts and the legal opinions of the maritime dispute resolution authorities are evidence of the customary rules governing the seas. If the customary rules are so effective in the formation of the rules of delimitation of maritime areas that need special attention, then the course of its evolution was examined and the impact of customary rules on the development of the law of the sea was examined. Conclusion: This article emphasizes that customary law has not provided a specific method for delimitation that is legally binding or creates a privileged position over other methods.

Mars Colonization Plan: The Possibility And Scheme For Appropriation On Mars

In the dawn of space era, State-driven and monopolized the space activities. This was exacerbated by high cost, military interference and the uncertain possibilities of civilian use. Nevertheless, as space technology grew, the enormous benefits created by space activities gradually motivated private companies to spend more capital and to use space for commercial purposes. Recently, two major of private space firms, SpaceX and Mars One reportedly has released their mission to Mars in order to conducted Mars Colonization Plan. On the other hand, the Outer Space Treaty and the rest of Corpus Juris Spatialis clearly prohibits to do appropriation on the Moon and the other Celestial Bodies, including Mars. It will be a new challenge for all legal actors, especially in the sense of the outer space regime, to explore this concept. This study applies normative legal research methodology. This study found: the current Outer Space Treaty particularly related to the non-appropriation principle is not relevant to the development of space technology and activities. Then, in this study the non-appropriation principle will be revisited based on the customary international law mechanism. Second, this study found the suitable scheme of appropriation during Mars Colonization Plan by establishing an Independent entity which authorize and organize the activities and also by implementing several stages in appropriating the Martian areas. Third, this study then proposed legal framework through amending and modernizing the Outer Space Treaty in order to compromise between the non-appropriation principle and the development of space commercialization. Keywords: Corpus Juris Spatialis; Mars Colonization; Non-Appropriation Rencana Kolonisasi Mars: Kemungkinan Dan Skema Pengambilalihan Di Mars Abstrak Di awal era keantariksaan, kegiatan keantariksaan digerakkan dan dimonopoli oleh negara. Ini diperburuk dengan adanya biaya tinggi, campur tangan militer, dan kemungkinan penggunaan oleh sipil yang tidak pasti. Namun, seiring dengan berkembangnya teknologi ruang angkasa, manfaat besar yang diciptakan oleh aktivitas keantariksaan secara bertahap memotivasi perusahaan swasta untuk menghabiskan lebih banyak modal dan menggunakan ruang tersebut untuk tujuan komersial. Baru-baru ini, dua perusahaan keantariksaan besar swasta, SpaceX dan Mars One, dikabarkan telah merilis misi mereka ke Mars dalam rangka melakukan Rencana Kolonosasi Mars (Mars Colonization Plan). Di sisi lain, Outer Space Treaty dan Corpus Juris Spatialis lainnya secara jelas melarang untuk melakukan perampasan di Bulan dan Benda-benda Langit lainnya, termasuk Mars. Ini akan menjadi tantangan baru bagi semua aktor hukum, terutama dalam arti rezim keantariksaan, untuk mendalami konsep ini. Penelitian ini menggunakan metodologi penelitian hukum normatif. Studi ini menemukan: Traktat Luar Angkasa saat ini khususnya terkait dengan prinsip non-apropriasi tidak relevan dengan perkembangan teknologi dan kegiatan keantariksaan. Kemudian, dalam penelitian ini, prinsip non-apropriasi ditinjau kembali berdasarkan mekanisme hukum kebiasaan internasional. Studi ini juga menemukan, skema apropriasi yang sesuai selama Rencana Kolonisasi Mars adalah dengan membentuk entitas Independen yang menguasai dan mengatur kegiatan dan juga dengan menerapkan beberapa tahap dalam mengambil alih wilayah Mars. Studi ini kemudian mengusulkan kerangka hukum melalui amandemen dan modernisasi Traktat Luar Angkasa untuk mengompromikan antara prinsip non-apropriasi dan pengembangan komersialisasi ruang angkasa. Kata kunci: Corpus Juris Spasialis, Kolonisasi Mars, non-Apropriasi.

The Legal Dimensions of the Principle of Non-refoulement in International Law

The article deals with the principle of non-refoulement, which is widely recognized as indispensable for providing an effective international protection for refugees. Considering the fact that the right to asylum remains within the discretion of the receiving State, some exceptions to this principle have been recognized in the 1951 Convention relating to the Status of Refugees. Although the principle of non-refoulement was adopted by an international convention (the 1951 Convention), it has considerably developed since then until it became a part of customary international law. This means that its binding force extends to all states of the international community, even those that are not bound by the terms of the Convention. Indeed, there has been controversy in jurisprudence on the extent to which the principle of non-refoulement has evolved as one that owns jus cogens character within the rules of international law, which means that its application will not be confined to persons who acquire the status of refugees, but extends to all persons whose lives, freedoms or safety are at risk. The State of Qatar issued Law No. (11) of 2018 regulating political asylum, affirming the principle of non-refoulement in Article (15). The Law did not provide for any exceptions to the principle of non-refoulement, as the case within article (33) of the 1951 Refugee Convention. This reflects State of Qatar’s commitment as to current developments regarding the principle of non-refoulement.