Development Of Customary International Law Research Articles

Rosalyn Higgins on International Organizations and International Law: The Value and Limits of a Policy-Oriented Approach

Abstract Taking an approach to international law that embraced key features of the New Haven School, Rosalyn Higgins has made several important contributions to the law of international organizations. In 1963, at a time when no theory had addressed the work of the United Nations’ (UN) political organs, Higgins showed how General Assembly resolutions and other decisions contribute to the development of customary international law. She also demonstrated that, separate and apart from UN member states, the UN Secretariat was contributing to the development of customary international law regarding treaties. Later, as counsel for the International Tin Council and later rapporteur for the Institut de Droit International, Higgins put on the global agenda the issue of the accountability of international organizations for harm to third parties, highlighting gaps in existing law and competing policy concerns that precluded easy solutions. Higgins made two contributions in marking the path forward for theorizing about international organizations, one substantive and the other methodological. She highlighted the importance of considering international organizations in relation to the full range of actors with whom they interact, including private parties. As a methodological matter, Higgins demonstrated the value of an inductive approach where legal claims are grounded in close, detailed and careful observations of how international organizations actually operate.

State Immunity in Danish Law

Abstract With a primary focus on civil law, the article provides a general overview of the most important legislation, court decisions and other state practice in explaining how international law on state immunity applies in Denmark today. Although Danish court practice has been quite sparse, there have been a number of important decisions effectively implementing international state immunity law into Danish law. The article also reflects on the application and development of customary international law in Danish law outside Danish courts with a particular focus on the 2004 UN Convention on Jurisdictional Immunity of States and Their Property, which Denmark has signed, but not ratified. Other examples of Danish practice are briefly highligthed, underscoring the conclusion that Denmark has broadly embraced the restrictive approach to international law on state immunity.

Evolution of the Customary International law on the Cultural Property Plundered in War

This article presents an unambiguous evolutionary sequence of historical events leading to the development of customary international law, seen with reference to the mutual influence and transformation of legal philosophy, practice and codification on plundering cultural property during wars. The contemporary legal rules and customs working against taking cultural property as spoils of war are rooted in the eighteenth century, and were consistently developed in the nineteenth and twentieth centuries. Restitution appears the best remedy for the country of origin, especially in the condition where the plundered cultural property is existent and identifiable. Achieving this goal depends on the cooperation and coordination throughout the world, based on a wider customary international law space.

Third World Resistance as a Counter-hegemonic Phenomenon in Customary International Law

The role of non-state actors in custom-making provokes divergent views, skewed by state practice and opinio juris and derived from a Western perspective, which promotes hegemony. This paper shines a new light on this perennial debate by presenting resistance of Third World non-state actors as a counter-hegemonic tool in the development of customary international law. It contributes to scholarship relating to non-state actors in the formation of custom from a Global South perspective by reflecting African reality. This has become relevant in the clamour for increased participation of the Third World in international affairs as post-colonial states are deemed ineffective in representing their interests. It is observed that non-state actors employ diverse mechanisms to assert their position in law-making, thereby expanding the frontiers of custom-making. This paper explores such roles by non-state actors in the development of international custom and recommends an inclusive system that accommodates these stakeholders in custom-making.

Enkapsis and the Development of Customary International Law: An Encyclopedic Approach to Inter-Legality

This essay draws from the work of the late Dutch Christian philosopher Herman Dooyeweerd (1894-1977), former chair of jurisprudence and the history of Dutch law at the Vrije Universiteit Amsterdam (1926-1964), to construct an account of customary international law. His little known Encylopedia of the Science of Law (ESL) not only presages by about a century but, in my view, also offers an engaging framework for studying and understanding what is now being called ‘the challenge of inter-legality,’ or the question of a ‘plurality of legalities,’ where ‘the law surfaces as the composite legal nature of the issue under scrutiny,’ and where a certain resilient and reflexive ‘material interconnectedness’ ‘among functional fields’ arises from ‘the overlapping among regimes and orders,’ which are also self-referential and coherent in themselves. Rejecting an account of the state as the sole lawmaker, he proffers a pluralist ontology founded on the philosophical principle sovereinteit in eigen kring (sphere sovereignty) as a source of diverse structural-material principles for legal or jural positivization. Here, there are three inter-related elements: first, is his notion of individuality-structures (entities), which give rise to law unique to their particular practice or sphere (entities as rule complexes, each sovereign in its own orbit, exhibiting a differentiated responsibility unique to its nature). Second is the various ways in which they engage in relations of enkapsis or enkaptic interlacements – resulting in complex intertwinements of the formal and the material sources of law with profound implications on the private-public (law) distinction. Third is his modal theory of the jural aspect, which is one of the irreducible yet interconnected universal multi-dimensional modes or aspects of reality, and through which entities and enkapses are viewed and understood as legal phenomena. In summary, his theory of the sources of law states: All law displaying the typical individuality structure of a particular community of inter-individual or inter-communal relationship, in principle falls within the material-jural sphere of competence of such a societal orbit, and is only formally connected (in its genetic form) with spheres of competence of other societal orbits. Through enkapsis, different sources of law display a mutual interrelationship that bind and limit without altogether canceling one another. For Dooyweerd, insight into the nature of enkapsis, appears to be of fundamental importance for the theory of human society because, in current conceptions, the difference in principle between sphere sovereignty and autonomy is consistently misunderstood. This insight has a fundamental bearing on any theory of the sources of law, because it is only by making a sharp distinction between the internal sphere sovereignty of radically different societal structures (such as for example, state, church, and business organization) and the autonomy of parts of one and the same societal whole (such as, for example, municipality and province within the state) can proper jural insight be obtained into the mutual relationship of the original material spheres of competence with respect to the area of law formation. Thus, a formal source or genetic form of law posivitizing jural principles may be an original source of law in one sphere of competence but may be a derived source of law in another. Applying his theory, customary international law is a formal source of law; that is, a genetic form or mode of generating international law. But its material bases may lie in the particular enkaptic interlacements involved. Further, as a formal source exhibiting the duality of norms in international law, a treaty may be a codification of norms that exist independently as custom, but it may at the same time display a multi-layered interlacement of structural-material principles from various sources.

Treaty Bodies

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

Development of Customary International Law through United Nations General Assembly Resolutions

Development of Customary International Law through United Nations General Assembly Resolutions

The Dynamic Evolution of International Law – The Case for the More Purposeful Development of Customary International Law

A fundamental underpinning of the ongoing relevance of international law is that of its ability to adapt and change to meet new developments and challenges including new technology, new (or newly developing) threats to both the public and the international order and newly developed practices, for example trans-border corporate and taxation practices. How then to effect that change? The timely negotiation of treaties to deal with the subject matter of these new developments and challenges would be ideal but can be difficult due to a number of factors. The answer could lie in the more purposeful and expeditious development of customary international law – that is, by taking coordinated action, and by publicising that action and its legal basis.This will not result in changes to the law of the detail that might be expected in a treaty, but it could address particular issues of moment. Indeed, individual states may well see themselves as having no option but to take action to meet time sensitive and critical aspects of new developments and global challenges either alone or in concert with others with a view to the development of a more widespread custom. Initial characterisation of some such action as "illegal but justified" (or words along those lines), whilst a contradiction in terms, does at the very least point to a real need for a change in the law. An example of such purposeful action may well be the development of the customary international law of self-defence to support the use of force against non-state actors in certain circumstances – such as the force used by a number of states against the Islamic State of Iraq and the Levant (ISIL) in Syria on the basis of the collective self-defence of Iraq.

IMPORTANCIA DE LA JURISPRUDENCIA INTERNACIONAL EN LA DETERMINACIÓN DE LA EXISTENCIA DE UNA NORMA CONSUETUDINARIA

Can judicial decisions influence the progressive development of customary international law? Are the methods of the International Court of Justice adequate for the determination of the existence and scope of customary norms? This paper seeks to examine, first, the role of the International Court of Justice and its predecessor in the determination of the existence, content and scope of customary norms; and, second, the effect that this role of determination has had in the decisions of other tribunals, in the actions of international organizations, and the practice of States. Finally, we will venture an opinion about the importance of this quasi-legislative role of judicial decisions in the formation of customary international law.

Treaty Bodies, States and the Shaping of Customary Law

With the proliferation of international legal actors, each of whom has the potential to contribute to the creation of international law, it is timely to consider the influence of the UN human rights treaty bodies on the development of customary international law. These supervisory mechanisms warrant special attention as several of them enjoy an easily recognised status as the longest continual treaty supervisory mechanisms in the international legal system. The significance of treaty bodies has, in fact, made such an impact on the international community’s understanding of ‘law’ that multiple International Law Commission (ILC) studies have acknowledged the relevance of the human rights treaty bodies. As a starting point, this chapter delivers an account of the treaty bodies as primary interpreters of human rights treaties and contributors to the development of human rights law. Section 3 follows with consideration of the prohibition against torture as a human right that is also recognised as a customary rule of international law. Section 4 will present the interplay between States and the treaty bodies in terms of developing rules of customary international law. Section 5 will offer final comments on how the engagement between States and treaty bodies plays a clear, but often overlooked, role in the identification and development of customary international law.

Customary International Law: A Third World Perspective

AbstractThe article offers an alternative account of the evolution, formation, and function of customary international law (CIL) from a third world perspective. It argues that there is an intimate link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the development of CIL that is concealed by the supposed distinction between “formal” and “material” sources of CIL. In fact, both “traditional” and “modern” CIL sustain the short-term and systemic interests of global capitalism. It proposes a “postmodern” conception of CIL that would contribute to the global common good.

Revisiting the Role of Non-State Actors and International Courts in the Making of (Customary) International Law: General Considerations and the Case of Indigenous Peoples

The (May) 2016 draft conclusions of the International Law Commission (ILC) on the Identification of Customary International Law (CIL) confirm states as primary subject of international law, with a central role in the creation and development of international law, while denying a meaningful, direct role for non-state actors and courts in the creation and development of CIL. In this paper I question the stance taken by the ILC, combining general considerations about the current realities of global governance and the de facto impact of jurisprudence, with arguments focused on indigenous peoples’ rights to Free, Prior and Informed Consent (FPIC) in relation to (projects affecting) their ancestral lands. It is argued that when non-state actors engage in strategic litigation, (international) courts are enabled to develop steady lines of jurisprudence, thus strengthening the latter’s de facto impact on law-development. This role is further enhanced in case of transnational litigation and transnational judicial dialogue, entailing the emergence of similar lines of jurisprudence across jurisdictions/regions. The paper puts forward possible interpretations of the ‘general practice’ and ‘opinio iuris’ element of customary international law that would recognize a more outspoken role for non-state actors and international courts in the (co-)determination of customary international law. The importance of having a sufficient level of state practice that supports the norm for it to be elevated to the status of customary international law is not denied. However, the paper highlights the important role of non-state actors as norm entrepreneurs and of international courts as developers of international law, pointing to an incremental process whereby non-state actors and international courts are becoming co-determinants of international (customary) law. The paper goes on to trace the emergence of the right to FPIC of indigenous peoples with special regard for strategic litigation and jurisprudential trends across jurisdictions, as challenging, persuading and guiding states to adapt their practice while setting normative expectations about the appropriate behaviour towards indigenous peoples in relation to projects affecting their lands.

THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW BY INTERNATIONAL ORGANIZATIONS

AbstractIn his Fourth Report on the Identification of Customary International Law (2016), Special Rapporteur Sir Michael Wood confirmed that ‘[i]n certain cases, the practice of international organizations also contributes to the expression, or creation, of rules of customary international law’. That the practice of international organizations can be relevant when identifying customary international law is relatively uncontroversial. The issue that is more debated is the extent to which the practice of international organizationsas suchmay contribute to the development of customary international law. Using examples from the European Union's treaty practice and from the Court of Justice of the European Union, this article argues that international organizations may contribute to such practice, not only by representing the collective will of States, but as autonomous actors in their own right.

Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion

Methodology is probably not the strong point of the International Court of Justice or, indeed, of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law that it applies. There are only isolated references in the Court's jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law, but the legal literature also has had little to say on this subject. In view of the fact that determining the law has also always meant developing, and ultimately creating, the law it is surprising that the question of the Court's methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law that it applies, and it highlights the role played by methodology in the development of customary international law. It starts by defining the terms and and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom and demonstrates that the main method employed by the Court is neither induction nor deduction but, rather, assertion.

Internationally Wrongful Acts in the Domestic Courts: The Contribution of Domestic Courts to the Development of Customary International Law Relating to the Engagement of International Responsibility

AbstractThe rules of customary international law governing when a state or international organization will be held to have committed an internationally wrongful act, thereby engaging its international responsibility, are relatively well settled in international practice and jurisprudence. A key point of reference in this regard is the work of the International Law Commission on State Responsibility and Responsibility of International Organizations. The present paper examines relevant practice of domestic courts from a variety of jurisdictions which have relied upon the ILC's work, and discusses the extent to which domestic courts may make a contribution to the further development of the rules relating to engagement of responsibility. It concludes that, due to the operation of rules of, inter alia, immunity and non-justiciability, the principal instance in which domestic courts may actually apply the rules of international law is where it is the responsibility of the forum state which is in issue.

Reflections on the Lawmaking Powers of the Security Council - Quis Custodiet Consilium Securitatis?

It is now generally accepted that the UN Security Council is capable of acting in a legislative capacity, and may lay down rules of a general character, directed at all states, for a non-defined period. By entering the field of legislative activity, the Security Council has effectively been added alongside traditional forms of international law-making such as treaty making and the development of customary international law. Yet there has been little discussion about the relationship between its legislative power and these traditional forms of international law-making. The potential for the Security Council to override, modify, or extend the scope of existing international law is immense. The first part of this contribution discusses the relationship between the UNSC’s legislative powers and other forms of international law. The second part examines the potential legal limits to this power. The Council’s foray into ‘legislating’ in a way that modifies existing international law creates new challenges and calls for a re-examination of this debate. The final part examines the potential role of the International Court of Justice (ICJ), as the “principal judicial organ of the United Nations” in regulating the relationship between the Council and other parts of international law. While most of the debate in this field has focused on the potential of ‘judicial review’ of Security Council resolutions, we argue that such a role has no basis in the Charter either explicitly or implicitly. The Court may nevertheless play a role in defining the potential limits of Security Council law-making.

The International Law Commission and the Development of International Investment Law

International investment law has received increasing attention due to the proliferation of investment treaties and the number of arbitral awards made thereunder. At the end of 2011, there were 450 known investment cases that have been settled or are pending. Yet, there are many core questions that remain to be authoritatively answered. Although they are faced with similar problems, arbitral tribunals often adopt diverging solutions to investment disputes. This paper considers the nature of the divergences in investment treaty jurisprudence and the role that could potentially be played by the International Law Commission (ILC) in contributing to the coherent development of international investment law. The paper argues that some areas of international investment law are more appropriate for attention by the ILC than others. It draws a distinction between those aspects of international investment that only have a basis in treaty law and those aspects of international investment law that are underpinned by common standards stemming from customary international law or general principles of law. The paper argues that we cannot necessarily expect the convergence of jurisprudence in the context of treaty provisions that have been specifically negotiated by the parties, as these provisions must be interpreted on a case-by-case basis. This means that topics like the MFN clause are less suitable for codification, as the meaning of these provisions will often depend on the particular context of the treaty and the precise intentions of the parties. In contrast, there is a stronger case for the codification of international investment law where common standards exist. The paper therefore considers the formation and development of customary international law in relation to investment protection. It argues that whilst investment treaty tribunals have struggled with the identification of customary international law in this area, the ILC could play a central role in clarifying the state of the relevant rules and principles, in furtherance of its core mandate of promoting the progressive development and codification of international law.

Self-Defense Against an Imminent or Actual Armed Attack By Nonstate Actors

There has been an ongoing debate over recent years about the scope of a state’s right of selfdefense against an imminent or actual armed attack by nonstate actors. The debate predates the Al Qaeda attacks against the World Trade Center and elsewhere in the United States on September 11,2001, but those events sharpened its focus and gave it greater operational urgency. While an important strand of the debate has taken place in academic journals and public forums, there has been another strand, largely away from the public gaze, within governments and between them, about what the appropriate principles are, and ought to be, in respect of such conduct. Insofar as these discussions have informed the practice of states and their appreciations of legality, they carry particular weight, being material both to the crystallization and development of customary international law and to the interpretation of treaties.

Facilitating humanitarian assistance in international humanitarian and human rights law

AbstractIn 2008, 260 humanitarian aid workers were killed or injured in violent attacks. Such attacks and other restrictions substantially limit the ability of humanitarian aid agencies to provide assistance to those in need, meaning that millions of people around the world are denied the basic food, water, shelter and sanitation necessary for survival. Using the humanitarian crises in Darfur and Somalia as examples, this paper considers the legal obligation of state and non-state actors to consent to and facilitate humanitarian assistance. It is shown that the Geneva Conventions and their Additional Protocols, as well as customary international law, require that states consent to and facilitate humanitarian assistance which is impartial in character and conducted without adverse distinction, where failure to do so may lead to starvation or otherwise threaten the survival of a civilian population. This paper considers whether this obligation has been further expanded by the development of customary international law in recent years, as well as by international human rights law, to the point that states now have an obligation to accept and to facilitate humanitarian assistance in both international and non-international armed conflicts, even where the denial of such assistance does not necessarily threaten the survival of a civilian population.

The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?

In 2005, John Ruggie was appointed as a Special Representative to the Secretary-General of the United Nations with a mandate to investigate a number of important questions relating to the obligations of business for the realisation of fundamental rights. Through investigating a number of important conceptual and normative issues, this article attempts to provide a critique of two central claims made by the Ruggie mandate. The first of these involves the assertion that, in general, corporations do not have binding legal obligations under international law. This article seeks to show that a number of accepted features of international human rights law require as a necessary logical consequence that corporations have binding obligations for the realisation of fundamental rights. Whilst there is a lack of clarity as to the exact nature of these obligations under international law, it is argued that Ruggie's rejection of binding legal obligations also does not assist in the development of customary international law in this area and may in fact hamper progress in this regard. The second major claim this article evaluates is the proposition advanced in the recent Ruggie framework that corporations have only a 'responsibility to respect' fundamental rights. This responsibility effectively involves a duty upon business to avoid causing harm to the fundamental rights of others either through its own actions or those it is associated with. It is contended that Ruggie's attempt to capture the nature of corporate obligations is deeply flawed in its restriction of corporate obligations mainly to those which are negative in nature. In fact, corporations also have positive duties actively to contribute to the realisation of fundamental rights and this article attempts to provide a normative basis for this assertion. The importance of the imposition of positive obligations, particularly for developing countries, is illustrated through an example concerning the duties of pharmaceutical companies to make life-saving drugs available at affordable prices to those who need them. Accepting Ruggie's minimalist framework as it stands would mean reducing widely our expectations of business and the very possibility of transforming our world from the current status quo of vast differentials in well-being into one that offers the possibility of realising the rights of all.