Customary International Law Research Articles

Digitalization and its Systemic Impact on the Use of Force Regime: Legal Uncertainty and the Replacement of International Law

AbstractThis article explores the systemic impact of digitalization on the use of force regime. It identifies two types of impact: (i) legal uncertainty; and (ii) the replacement of international law. The article discusses legal uncertainty in relation to the content of the rules on the use of force and their application to digital uses of force as well as in relation to the facts that underpin digital uses of force. It then goes on to discuss the replacement of international law as a regulatory tool of the use of force by considering the impact of digitalization on the creation of customary law, legal personhood, and international law’s regulatory modality. The article’s findings are not limited to the impact of digitalization on the use of force regime but extend to international law in general.

The Expulsion of a Permanent Member of the UNSC from the UN

The Russian aggression on Ukraine has triggered a complex question: could Russia, as one of five permanent members of the UNSC, be expelled from the UN regardless of Article 6 of the UN Charter? This Article provides that a UN member state which has persistently violated the principles from the Charter may be expelled from the UN by the General Assembly upon the recommendation of the UNSC. Since this recommendation of the UNSC requires unanimity of all its permanent members, it seems that the international community has been faced with a seemingly unsolvable situation. Nevertheless, there are maneuvers based on the rules of customary international law embodied in the Vienna Convention of the Law of Treaties, that could be exercised. Those maneuvers would not be something unseen in the history of UN law; however extreme and severe consequences would arise this time.

The Territorial Principle as a Basis for State Criminal Jurisdiction: Particularly with Regard to Cross-Border Offences and Attempts, and to Multiple Parties to an Offence Acting in Different Countries

Abstract The purpose of this article is to explore the scope of the territorial principle under (customary) international law, with a particular focus on cases of cross-border offences and attempts, and multiple parties to an offence acting in different countries. Our analysis will begin with an examination of the foundations and limits of state criminal jurisdiction and the territorial principle in general. In this context, we will also discuss the justification of this principle vis-à-vis other states and its relationship to other jurisdictional principles. In order to determine the pertinent contours of customary international law, we will use an approach that is both inductive and deductive, and, as such, involves the reporting on and analysis of relevant state practice.

The Territorial Principle as a Basis for State Criminal Jurisdiction: Particularly with Regard to Cross-Border Offences and Attempts, and to Multiple Parties to an Offence Acting in Different Countries

Abstract The purpose of this article is to explore the scope of the territorial principle under (customary) international law, with a particular focus on cases of cross-border offences and attempts, and multiple parties to an offence acting in different countries. Our analysis will begin with an examination of the foundations and limits of state criminal jurisdiction and the territorial principle in general. In this context, we will also discuss the justification of this principle vis-à-vis other states and its relationship to other jurisdictional principles. In order to determine the pertinent contours of customary international law, we will use an approach that is both inductive and deductive, and, as such, involves the reporting on and analysis of relevant state practice.

A Realistic Approach Towards Attaining Sustainable Environment Through Improved Public Participation in Nigeria

Purpose: The aim of this study is to examine the critical need for effective public participation in Nigeria as a means of enhancing sustainable development and cooperation among Indigenous peoples, as well as to advocate for the removal of legislative, judicial, and administrative barriers to participation in environmental law governance. Theoretical Framework: The existing literature has failed to address the gamut of legal, regulatory, and declarations (particularly Principle 10 of Rio 1992) and administrative frameworks for environmental protection and governance in Nigeria. These appeared to be a farce, hence the refusal to integrate the public and stakeholders’ opinions in environmental management that may conflict with official government policy. Design/Methodology/Approach: The doctrinal method of analysis was adopted. It was based on current materials and drew on contrasting views of learned authors and scholars, as well as various legislative sources. Data was obtained using texts, articles, journals, case law, electronic sources, legislation, and other policy documents. Findings: The results shows how the present legal and regulatory framework for the protection of the environment in Nigeria contradicts the concept of improved public participation. Research, Practical & Social implications: The study suggest the development of an effective legislative framework that incorporates the guiding principles of global public participation initiatives for environmental sustainability. Originality/Value: The value of the study reveals the global significance and the potential of public participation to improve the sustainability of the environment in Nigeria are essential to advancing the status of Principle 10 of the Rio Declaration as an emergent customary international law.

Reflections on the Nicaragua v. Colombia case (2022): From the perspective of traditional fishing rights

With respect to theNicaragua v. Colombiacase in 2022, whether Colombian fishermen in the San Andrés Archipelago, particularly the Raizales, have traditional fishing rights in the Nicaraguan Exclusive Economic Zone (EEZ) is one of controversial issues. Since Colombia is not a party to the United Nations Convention on the Law of the Sea (UNCLOS), the International Court of Justice (the Court or the ICJ) embodied customary international law as applicable law. It adopted a two-step method to examine Colombian claims and found that their fishermen did not enjoy traditional fishing rights. The Court found that affidavits of Colombian fishermen as major evidence were too sparse to prove the existence of a long-standing fishing practice. In light of a series of statements from the Nicaraguan President, there was a neither express nor implied recognition of traditional fishing rights of Colombian fishermen. This study reviews the ICJ’s judgment from three aspects. First, the paper will evaluate the Court’s (in)flexibility about the time requirement when examining the spanning period of a long-standing practice relating to traditional fishing activities. Second, concerning whether or in which circumstances the traditional fishing rights of a particular community can survive the establishment of the EEZ of another State, the Court found it unnecessary to examine this issue, the paper will also appraise potential legal impacts at this regard. Third, the Court did not identify Colombian claims of traditional fishing rights as indigenous rights, particularly for the Raizales. An increasing number of scholars of the law of the sea call for applying human rights norms to UNCLOS provisions, but the Court takes a cautious attitude in this regard. The paper will make more comments on the interaction between human rights law and the law of the sea.

Fulfiling the State duty to cooperate on the discharge of Fukushima nuclear contaminated water: Potential pathways

Given the far-reaching impact of the decades-long discharge of Fukushima nuclear contaminated water, Japan and States likely to be affected are unequivocally obligated to cooperate under the United Nations Convention on the Law of the Sea, nuclear safety conventions and relevant customary international law. The fulfilment of the duty to cooperate, however, encounters two primary challenges in practice: the intrinsic nature of the cooperation is discretionary, while the extrinsic form of the duty is polymorphic. Realising the two challenges that are yet to come, this paper contextualises the fulfilment of the duty to cooperate by proposing a three-dimensional cooperation as the potential pathways, namely bilateral communication, regional cooperative arrangement, and multilateral cooperation through competent international organisations. It makes inquiry into the feasibility and effectiveness of the cooperation based on the fundamental principle of good faith, and concludes that States should actively engage to strike a necessary balance between national interest and common interest to protect human health and the environment under this specific context.

Precluding the Wrongfulness of Derogations of International Human Rights Instruments

Abstract Primary and secondary norms represent complementary systems of governance, one specifying the substantive obligations of states and the other imposing consequences upon deviation. Treaties which contain both primary and secondary norms generally operate as self-contained regimes as they oust the application of secondary norms under customary international law, such as those that might be invoked to justify deviations. Conflict, however, arises when the treaty norms seem to overlap with their customary counterpart, while remaining technically disjunct in their form. Derogation and limitation clauses in several international human rights instruments provide conditions in which a violation would be justified. On the other hand, customary international law also prescribes circumstances in which violations cannot be considered wrongful. This article addresses whether the existence of the former in treaties precludes the invocation of the latter. It also highlights the difficulty which arises in the interpretation of those instruments in which such derogation and limitation clauses are absent.

Chemical Weapons Violations in Syria's Civil War: an International Law Perspective

The use of chemical weapons in the Syrian civil war is a grave violation of international law, as it violates the prohibition on using chemical weapons under customary international law. The war has erupted since Syrian President Bashar Al-Assad responded violently to the peaceful opposition toward the regime. The Organization for the Prohibition of Chemical Weapons (OPCW) has confirmed two occasions of using chemical weapons in Syria in 2015 and 2016. However, until recently, there were no necessary measures to protect civilians in Syria from using chemical weapons and prevent any future use of Syria's stockpile of chemical weapons. The study aims to analyze the use of chemical weapons in the Syrian civil war, the violation of the CWC in the Syrian civil war, and the legal protection of Syrian civilians. The study used a normative legal research methodology. The data sources in the study were secondary data obtained from the statutory, analytical, legal, conceptual, and fact approaches. The study's result showed that the Syrian government violated the Chemical Weapons Convention of 1993 (CWC) and should respond with the action, categorized as an infringement of the international legal norm.

‘Objects’? The Legal Status of Computer Data under International Humanitarian Law

Abstract This article discusses whether computer data constitutes an ‘object’, in the meaning of this term under international humanitarian law (IHL). After providing background on what is meant by ‘computer data’, and on the significance of any determination whether computer data constitutes an ‘object’ for the purposes of IHL, the article proceeds to consider the meaning of the term ‘object’ as found in the First Additional Protocol to the Geneva Conventions (API). Recourse is made to the customary rules of treaty interpretation while focusing on both the English and French versions of API. The ordinary meaning of the term ‘object’ in its context in API solely connotes material things, thus excluding computer data. Moreover, recourse to the object and purpose of API, or to so-called ‘evolutionary’ interpretation, does not lead to a different conclusion. Considering the importance of customary international law for states non-parties to API, and for the purposes of non-international armed conflicts, the article proceeds to analyse whether computer data constitutes an ‘object’ for the purposes of custom. The article analyses the development of the term ‘object’ in legal discourse over the past century in determining what states intended this term to mean, and finds that here, too, states considered ‘objects’ in the context of IHL to be material things. It also explains that there is no apparent trend among states as to whether data constitutes an ‘object’, whereas the paucity of official government statements is far from the necessary volume for it to carry particular legal significance.

Towards Understanding the Cameroon-Nigeria and the Eswatini-South African Border Dispute through the Prism of the Principle of uti possidetis juris Customary International Law

This article examines the Cameroon-Nigeria and Eswatini-South Africa border disputes from a comparative perspective within the framework of the doctrine of uti possidetis juris in customary international law. Extant scholarly works on these two border disputes have not been sufficiently cogent to enable an evaluation of the relevance and shortcomings of uti possidetis juris. The study methodology is qualitative and includes archival and newspaper sources, in-depth interviews and focus group discussions. This study reveals that the strict application of the uti possidetis juris doctrine to the Cameroon-Nigeria dispute over Bakassi was inappropriate and did not generate the anticipated peace and security. The Eswatini-South Africa bilateral talks, aimed at adjusting colonially inherited borders, were an attempt to comply with uti possidetis juris, but flopped. Following the Cameroon example, the Eswatini monarchy then contemplated taking South Africa to the International Court of Justice (ICJ). But the two scenarios were different, and the invocation of uti possidetis juris was not an appropriate instrument for resolving the Eswatini- South Africa border dispute. Eswatini irredentism has persisted because of the country’s commitment to Sobhuza’s testament, which sanctioned the unity of the Eswatini people.

Hackers of critical infrastructure: expectations and limits of the principle of target distinction

ABSTRACT I explore reasons why existing defense has failed to prevent cyber attacks on critical infrastructure. I study one of the least studied notions of cyberspace behavior known as target distinction. Drawn from customary international law, the principle posits that states should tell their wartime targets between combatants and noncombatants and use force only toward military objects. States should not target critical infrastructure, like gas pipelines, because to do so harms civilian populations who use it. I investigate four issues that keeps the principle from preventing attacks on critical infrastructure. The first is its inability to capture the networked nature of critical infrastructure beyond the simple dual-use (military and cyber) purposes. The second defect is the interpretive confusion that the principle generates over the rules of engagement. The third problem is the omission from its coverage of actors other than nation states. By design, the principle condones cyber attacks by nonstate actors on infrastructure, or by those whose linkage to state sponsors cannot be legally established. Finally, the principle is prone to fail when hackers lack proper understanding of what it does and does not allow.

The Prohibition of Prosecution of Child Soldiers: a Desirable Emerging Rule of Customary International Law

Abstract Children taking part, directly or indirectly, in hostilities commit war crimes. Moreover, in many cases, child soldiers are not in control of their actions when forced under threat of death to commit crimes. In such cases they are drugged against their will and act under duress, which is often the defence to mitigate their responsibility and punishment. Many questions arise in this regard. Is the status of being enlisted in itself a state of duress for a child, even in the absence of explicit violence or threat? Is the condition of being a soldier something unnatural and abnormal for a child, to the point of being considered in any case a justification for his actions? Can a child soldier be responsible in some cases for war crimes, when mainly in control of his actions? This article maintains that, notwithstanding the fact that classic IHL and HRL do not prohibit the prosecution of children for war crimes, there is emerging customary law that follows the approach of the UN and non-governmental organization bodies in prohibiting the prosecution of child soldiers. According to this, States should refrain from prosecuting children responsible for war crimes. This is furthermore the consolidated approach of the international criminal law today, as stated in the Statute of the ICC.

Upgrading space debris mitigation measures to cope with proliferating cyber threats to space activities

Growing possibilities and actual cases of cyber-attacks against space activities have brought about new challenges to overall space security and safety, aggravating, in all probability, the increasingly severe space debris problem. While space debris mitigation practices are recognized on both the international and national levels, their effectiveness differs, especially confronting space debris-generating cyber threats. Most current mitigation practices envisage only the debris-generating scenarios caused by internal reasons of the space objects, such as lousy design and manufacture, ignoring accidental disablements of space systems, collisions and break-ups caused intentionally by another party, which is the case of cyber-attacks against space activities. With more and more States finding it obligatory to adopt space debris mitigation measures, mitigating practice, if it has not evolved into, is at least on its way to customary international law. Facing new threats, some States and regions have already issued new policies to ensure the cyber-security of space activities, and further specific updates to the already outdated mitigating measures are also necessary. Incorporation in space debris mitigation practices of technical standards aiming to enhance space systems’ cyber-security standards, situational awareness, resilience, and physical robustness is thus of importance. It is also suggested that periodic review regimes and communication and coordination mechanisms between relevant standard-setting platforms be established in response to proliferating new risks in the space environment.

The armed attack requirement and customary international law: whose views count?

ABSTRACT Since the inception of the UN Charter, the specific parameters of an ‘armed attack’ triggering the right of states to use force in self-defence has been the subject of much academic discussion. Debate has intensified over the past two decades, with claims that state actions in the context of counter-terrorism have loosened the armed attack definition previously outlined by the International Court of Justice. This article explores how aspects of TWAIL insights on customary international law could be used to deepen the current debate on the armed attack requirement. Through analysis of opinio juris made outside the context of individual conflict events, it is argued that current debate favours perspectives of those more willing and able to use military force, with apparent geographical trends. Further, it is contended that greater consideration is needed of whose voices – both between and within states – are reflected within debates on the armed attack requirement.

Customary international law is law in South Africa — Now what? Analysing the courts’ identification and application of customary international law over the last decade

Customary international law is law in South Africa as much as property law, company law or contract law. It may not be as frequently relevant or applicable as many parts of domestic law. Courts and domestic legal practitioners may not be as familiar with its contours, nuances and methods of identification. But it is precisely for these reasons that it matters more, not less, how courts, legal practitioners and the parties they represent approach it. This article describes and analyses South African courts’ engagement with customary international law, particularly over the last decade. The analysis reveals that important issues of customary international law are determined and applied by South African courts. Thus, customary international law cannot be avoided; nor should it be. However, the analysis also reveals that the courts’ engagement with customary international law would benefit from a more reflective, rigorous and considered approach. Building on the analysis and description of South African courts’ past identification and application of customary international law, the article offers suggestions for how the road ahead ought to be navigated. It is past time for South African courts to give proper consideration as to how, both procedurally and substantively, they and the parties before them ought to approach the identification of customary international law. For customary international law is not some exotic and indeterminate set of rules emanating from another legal system. It is part of South African law. The sooner it is fully treated as such, the better it will be for courts, practitioners, litigants, and international law more generally.

A Study on the Historical Development of Hydro Diplomacy in South Asia

The South Asian region comprising countries namely India, Pakistan, Afghanistan, Nepal, Bhutan, Sri Lanka, Bangladesh, and Maldives, holds a significant geo-political and economic position. These countries share a complex history of colonialism which led to a political demarcation of boundaries resulting in various problems in sharing common sources/water bodies in the region. This paper focuses on the historical development of hydro diplomacy in South Asia, with an emphasis on the Indus River Basin, Kabul River Basin & GangaBrahmaputra-Meghna River Basin in an attempt to scrutinize water politics in South Asia. A substantial number of bilateral agreements and treaties have been signed amid different countries of the region to ensure the maximum utilization of its vast river systems. However, challenges remain in managing water resources at a regional level effectively and addressing the needs of all stakeholders. Understanding the historical development of hydro diplomacy provides insights into the complexities faced in managing transboundary water resources in South Asia. This paper highlights the importance of cooperation, negotiation, and updated agreements to ensure sustainable and equitable use of water in the region in the backdrop of legal and customary International law on transboundary river water sharing.

Against Imperial Arbitrators: The Brilliance of Canada's New Model Investment Treaty

Investment treaty arbitration has become politically “toxic” even in states that pioneered the development of investment treaties. There is consensus on the need for reform. But there is a dearth of historical research on what went wrong with investment treaties, when it happened, or how to find the way forward in light of the past. As a result, reform efforts have a stumbling quality. One can see this in multilateral fora, such as the United Nations Commission on International Trade Law (UNCITRAL), where over four years of study and negotiations have produced little consensus. One can also see it in the investment treaty practice of individual states, such as Canada, which has recently lurched across the spectrum from investment treaty arbitration to a permanent international investment court, to the abandonment of investor-state dispute settlement (ISDS), and back to investment treaty arbitration. This article fills the gap in understanding by explaining what went wrong with investment treaty arbitration and when it happened. It demonstrates that the customary international law on state responsibility for injuries to aliens evolved during the 19th century to protect foreign investors against exceptional failures of the nightwatchman and rule-of-law states. As the consensus regarding customary international law standards of treatment unraveled during the 20th century due to the spread of communism, decolonization, and economic nationalism, capital-exporting states turned in bilateral investment treaties (BITs) to uphold traditional principles regarding the protection of foreign investment. Starting in the late 1990s, however, an unexpected surge of claims brought under NAFTA’s investment chapter fortuitously opened the door to the central problem of modern investment treaty practice: the rise of “imperial arbitrators” who do not merely police exceptional failures of the nightwatchman and rule-of-law states, but who choose to second-guess the normal operations of modern regulatory states without any meaningful checks or balances. Although the NAFTA Parties nipped that development in the bud, the rise of imperial arbitrators leapt to the broader universe of investment treaty arbitration, where it flourished until claims against developed states for measures such as the phaseout of nuclear power brought investment treaty arbitration to a crisis point. Seeking a way forward in light of the past, the article examines Canada’s recent experimentation with investment treaty reforms, including the development of a permanent international investment court in relations with the EU, the complete elimination of ISDS in relations with the United States, and a return to traditional investment

Landesbericht Österreich: Unmittelbare Anwendbarkeit von völkerrechtlichen Verträgen und Völkergewohnheitsrecht

This article examines the question to what extent the provisions of the Austrian Federal Constitution on the direct applicability of international treaties on the one hand and customary international law on the other can be regarded as “open” (or “friendly”) towards public international law. The question can, in principle, be answered in the affirmative for both constellations, even if direct applicability is of greater practical importance for international treaty law. On closer examination, the specific Austrian instrument of the “reservation of (statutory) implementation” for international treaties also proves to be an instrument that is potentially “friendly” to international law. Consequently, it can be concluded that, with regard to the direct applicability of international law, the Austrian constitution is “relatively” open (or “friendly”) towards public international law.

Property Rights to the World's (Linear) Ocean Fisheries in Customary International Law

Property Rights to the World's (Linear) Ocean Fisheries in Customary International Law