Evidence Of Customary International Law Research Articles

Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines

Abstract This article makes two claims about international human rights norms in three English-speaking courts in Southeast Asia. First, the courts are engaging with the norms, contrary to the prevailing view that the four-walls and dualist doctrines maintain a stranglehold on the region. Singapore courts relied on foreign case law applying the European Convention on Human Rights to rationalize a liberal interpretation of arbitration agreements; Malaysia’s Court of Appeal based its decision on the Association of Southeast Asian Nations Human Rights Declaration, despite lack of legislative incorporation; and the Philippine Supreme Court applied the Convention on the Protection of Persons against Enforced Disappearances (CPPED) as evidence of customary international law, notwithstanding that the government had repeatedly refused to ratify CPPED. Second, their engagement is characterized by inconsistency and arbitrariness as it is governed more by exigency than by human rights philosophy. The Philippine court invoked universality to give direct but selective effect to the norms. In the name of pluralism, Malaysian courts gave direct effect to the norms, but the effect has been transitory. In Singapore, the norms have teleological effect in private law cases involving commercial and investment interests, but not in public law cases involving individual and political rights. The lack of principled practice and the ensuing uncertainty undermine the ethos of human rights and raise the question of whether more practice makes right.

The Presumption of Customary International Law: A Case Study of Child Statelessness

Child statelessness continues to be a global problem that evades easy solutions and demands better legal solutions. Although UNCHR and other bodies have had some success in increasing participation to the 1954 and 1961 Statelessness Conventions during the current multi-year project to eradicate child statelessness, many states still refuse to adhere to those conventions. For this reason, it would also be helpful to know if there are any rules of customary international law on child statelessness. Historically, most authorities were reluctant to find that norms existed under customary international law governing child statelessness. However, as practice on child statelessness has developed, so too has practice on customary international law. As a first step in studying whether there are any norms of customary international law on this topic, we will first examine whether there are any presumptions in establishing norms, that can be helpful in assessing the developing practice. Proving when certain norms have emerged in customary international law is controverisal to say the least. One stumbling block is agreeing on how to assess evidence of customary international law, to determine when the threshold of practice has been met. This author has attempted to identify tools for determining thresholds in the past, but one device for analyzing a threshold question is whether there are any relevant presumptions. This paper will undertake a preliminary case study on customary international law rules governing child statelessness, specifically considering whether there is a presumption in favor of rules on point. Firstly, it will examine the literature and practice applying a presumption in the customary international law methodology. This question will consider several different factors that might trigger a presumption. Secondly, having concluded that a presumption arises in certain situations, the paper will conduct a case study on applying the presumption by gathering and assessing evidence of relevant situations that would result in a presumption in favor of norms governing child statelessness.

The United States and the International Criminal Court: A Complicated, Uneasy, Yet at Times Engaging Relationship

The United States is not a party to the International Criminal Court and this Article demonstrates that it has a complicated relationship to questions of complementarity in the Rome Statute. Federal and (to a small degree) state criminal law in the United States codifies some of the crimes that, conceptually, relate to conduct proscribed in the Rome Statute, but coverage is incomplete and jurisdiction may often be lacking. Thus, the United States is able to prosecute a limited number of ICC crimes in federal courts as such, particularly genocide, torture, and some war crimes including the recruitment or use of child soldiers. Other crimes might be prosecuted as “ordinary” offenses using statutory provisions on murder, rape, etc. There is no U.S. federal legislation on crimes against humanity, although Puerto Rico has a law criminalizing the same, and legislation has been proposed in the Senate. This existing U.S. law might be sufficient in many cases to permit the complementarity principle to deprive the Court of jurisdiction in cases being investigated or prosecuted by the United States. However, considerable legal gaps in coverage, particularly as regards crimes against humanity, could prevent U.S. courts from exercising criminal jurisdiction over U.S. and foreign nationals accused of committing ICC crimes, particularly given the presumption against extraterritoriality in the application of U.S. federal criminal law, and some have also argued that the military courts martial system may be inadequate to cover the commission of war crimes. Although it signed the Final Act of the Diplomatic Conference in Rome, and the Clinton administration signed the Treaty in 2000, successive U.S. administrations have had positions ranging from extreme hostility to cautious engagement and none have embraced the Treaty fully. The 2016 Presidential election in the United States may bring additional uncertainty. This uneasy relationship aside, the Department of Justice works to deny safe haven to human rights violators, many individuals are deported from the United States for acts that might be characterized as ICC crimes and U.S. courts routinely cite the Rome Statute as evidence of customary international law in both civil and criminal cases and at least one reported military commission case. Sometimes the United States government is supportive of efforts to combat impunity for the commission of ICC crimes abroad, if it perceives this support to be in the U.S. national interest or strong civil society coalitions among otherwise disparate actors support U.S. action (as in the case of Darfur) emerge. At the same time, there appear to be tremendous political barriers to accountability for the commission of ICC crimes by U.S. persons. For this reason, the United States continues to have an uneasy relationship with the International Criminal Court and is likely to do so for some time.

The International Court of Justice and 'Non-Universal' Customary Norms

The primary role of any international court, ICJ included, is to solve a dispute before on the basis of applicable law between the parties. Still, every now and then international lawyers debate whether the ICJ in fact does more than just applying the rules of international law (IL) governing the dispute before it, by going further and developing (or perhaps even creating) rules of IL or at least “rules on how to ascertain the rules” of IL. Having in mind in particular that the formation and evidence of customary IL has finally been included in the ILC agenda, it seems to be a proper moment to (re)engage in discussions about customary IL and the role of the ICJ in their establishment, development or perhaps even creation. Undoubtedly, ICJ’s views and pronunciations on international custom have always drawn much attention of both academics and practitioners, and attracted reactions ranging from fierce criticism to praise and approval. Also, it is hardly arguable that the Court went further than just adjudicating when matters of customary international law were involved in cases before it. One of the most prominent contributions of the ICJ to such a development relates to the body of “non-universal” rules of customary international law. Basically, unlike with the treaties, Article 38(1) of the Statute of the ICJ prima facie does not provide for any other type of international custom other than the one that is “evidence of general practice accepted as law”. The wording might imply that no other customs apart from the “universal” ones could be considered as sources of international law. However, soon after its establishment, the ICJ took a proactive role and recognised the existence of “special” (i.e. local or regional) customary rules and perhaps employed a more creative approach and actually “read them” into Article 38(1) of the Statute. Moreover, the Court also seems to have created the “rules on how to ascertain the rules” of special custom, when it set a higher threshold for proving its establishment through its case-law in Anglo-Norwegian Fisheries, Asylum, Nationals of Morocco and Right of Passage cases. Namely, the fulfillment of ‘“standard” opinio juris and state practice requirements does not suffice for the establishment of a special custom and the ICJ also demands that the party claiming the existence of a special customary rule proves that the opposing party is bound by such a rule and to demonstrate that such party does not explicitly or tacitly object to the rule. The 2009 Navigational and Related Rights case seems out of sync with the previous cases on special custom, and it remains to be seen whether it can be considered as more than anomaly in the Court’s jurisprudence. Even though the ICJ seemingly had quite a proactive role with regards to special custom, it appears that it avoided to pronounce explicitly on some issues such as how to ascertain opinio juris or relation between general and special customary rules.

Of Plumbers and Social Architects: Elements and Problems of the Judgment of the International Court of Justice in Jurisdictional Immunities of States

This analysis of the judgment of the International Court of Justice in the Jurisdictional Immunities case is conducted in two parts. The first briefly presents the basic elements of the judgment of the Court in Jurisdictional Immunities of the State (Germany v Italy: Greece intervening); the second part identifies and discusses some problems raised by the judgment. These include the legal character of the rule of state immunity, the limits of the positivist methodology to establish state practice as evidence of customary international law and its exceptions, and the troubles with a strictly procedural approach to consider a possible exception to immunity for serious violations of international law and international humanitarian law. The comment concludes with a brief general assessment of the judgment of the Court, its role and the future development of the law of state immunities by national courts.

Chinese Practice in Public International Law: 2012

This Survey covers materials reflecting Chinese practice in 2012 relating to: I. Fundamental principles of international law; II. Rule of law at the national and international levels; III. Sources of international law (provisional application of treaties; formation and evidence of customary international law); IV. Recognition of new States and governments (Palestine; Kosovo; the new Libyan government); V. Jurisdiction and immunity (Supreme People's Court's interpretation of the Second Amendment to the 1979 Criminal Procedural Code; Case concerning the 5 October Massacre in Mekong River committed by Sai Naw Kham, Hsang Kham, Yi Lai, Zha Xika, Zha Bo and Zha Tuobo); VI. China's territorial integrity (Taiwan; Tibet; China–India agreement on the establishment of a working mechanism for consultation and co-ordination on India–China border affairs; Diaoyu Island and its affiliated islands; Huangyan Island; Xisha Islands; Nansha Islands; Establishment of Sansha Municipality); VII. Polar regions (Arctic Council); VIII. International Law of the Sea (Baselines of the territorial sea adjacent to Diaoyu Dao and its affiliated islands; Selection, defininition and protection of the Protection Scope of Territorial Sea Base Points; Submission to the Commission on the Limits of the Continental Shelf in part of the East China Sea; Revised Regulations on Administration of Coastal Border Security of Hainan Province; Suyan Rock; Okinotori Reef; Marine environment; Marine biodiversity beyond areas of national jurisdiction; Sustainable fisheries; Commission on the Limits of the Continental Shelf; International Seabed Authority; International Tribunal for the Law of the Sea; Fight against piracy); IX. International law on outer space (Militarization of and arms race in outer space; Space debris; International co-operation in peaceful uses of outer space); X. Aliens (Act on Administration of Exit and Entry; 72-hour visa-free travel to Beijing and Shanghai; Draft articles on expulsion of aliens; Refugees); XI. International human rights law (Human rights and the principle of non-interference of internal affairs; Human rights, politicization and double Standards; Human rights and national conditions; Right to survival and right to development; Human security; Discrimination and racism; Right to self-determination; Rights of indigenous peoples; Initial report under the Convention on the Rights of Persons with Disabilities; The Second Amendment to the 1979 Criminal Procedural Code; Act on Administration of Exit and Entry; Work of UN Secretariat in human rights; Office of the High Commissioner for Human Rights; Human Rights Treaty bodies and their reform); XII. International humanitarian law (protection of civilians in armed conflicts; Fourth Annual Session of Chinese National Committee of International Humanitarian Law; Litigation of Chinese victims against Japan before a court in Chongqing; Legal advisers in Chinese armed forces); XIII. International law on disasters (Strengthening of the co-ordination of humanitarian and disaster relief assistance of the UN, including special economic assistance); XIV. International law on arms control, disarmament and non-proliferation (Nuclear disarmament; Mongolia's nuclear-weapons-free status; Chemical Weapons Convention; Biological Weapons Convention; Amended Protocol II to the Convention on Conventional Weapons (CCW); Ottawa Convention; Anti-vehicle landmines; International humanitarian de-mining assistance; Protocol V to the CCW (ERW); China–Laos Memorandum of Understanding on the Provision of Assistance of China to the Laotian Victims of Cluster Munitions; Arms Trade Treaty; Cyber weapons; Conference on Disarmament); XV. International Criminal Law (International Criminal Court; ICTY and ICTR; Scope and application of universal jurisdiction; UN Comprehensive Convention against Terrorism; UN Convention against Transnational Organized Crime; UN Convention against Corruption; Cyber crime; Trafficking in cultural property); XVI. International environmental law (Joint Declaration of the Moscow Meeting on Inclusion of International Civil Aviation in the EU-ETS; Directive on Prohibition from Participating in EU Carbon Emission System; Protection of atmosphere; Effects of atomic radiation; Use of water resources of cross-border rivers); XVII. Law on diplomatic and consular relations (Vienna Convention on Diplomatic Relations; The CHEN Guangcheng incident; The WANG Lijun case); XVIII. International law on international organizations (The reform of the UNSC; Sanctions imposed by the UNSC; The working methods of the UNSC; UN Peacekeeping operations; Regulation on Participation of People's Liberation Army in UN Peacekeeping Operations (Provisional Application); Inter-mission co-operation of UN peacekeeping operations; Scale of assessments for the apportionment of the expenses of the UN); XIX. International law on settlement of disputes (International Court of Justice; Unilateral sanctions imposed by a State against another State).

Formation and Evidence of Customary International Law, Address to the International Law Commission, Geneva, 30 July 2012

Formation and Evidence of Customary International Law, Address to the International Law Commission, Geneva, 30 July 2012

Sengupta v. Republic of India

Sovereign immunity — Foreign State — Restrictive theory of immunity — Contract of employment — Employment on staff of diplomatic mission — Employment in clerical capacity — Employee a national of the employing State — State Immunity Act 1978 — Whether applicable to contract concluded before Act entered into force — Sovereign immunity at common law — Nature of contract — Whether employment at diplomatic mission commercial — Whether employee involved in public acts of State — Nature of breach of contract — Whether relevant under restrictive theory — International law and English law — Value of foreign decisions — European Convention on State Immunity, 1972 — Whether reliable evidence of customary international law — The law of England

On the Evidence of U.S. Treaty Law

According to Article 24 of its Statute, the International Law Commission “shall consider ways and means for making the evidence of customary international law more readily available”. The existence of such law is indeed difficult to prove even at the national level; how much more so in the international sphere. This, however, should not mislead one to think that there are no problems with regard to treaty law. On the international level it may not be too difficult to determine whether a treaty exists on a particular question, but information about the exact status of the treaty (its entry into force, the parties thereto, the amendments thereof, etc.) in most cases is not easily available. Wherefore, I proposed many years ago the creation of an International Legislation Register which would contain up-to-date information at least about the status of multi-partite treaties of general interest.

REVIEWS

Minimum Standards of Judicial Administration. Edited by Arthur T. Vanderbilt.American Administrative Law. By Bernard Schwartz, ll.m. (Harv.)The Sense of Injustice. By Edmond N. CahnLiving Law of Democratic Society. By Jerome HallFederal Rules of Criminal Procedure. With Notes and Institute Proceedings. Edited by Honorable Alexander Holtzoff.Relations between the Federal and State Courts. By Mitchell WendellSistema Y Filosofia Del Derecho Internacional Privado. By Werner Goldschmidt. 2 vols.The Law of Quasi‐Contracts. By John H. MunkmanBullen and Leake's Precedents of Pleadings. Tenth Edition. By His Honour Judge Kirkhouse JenkinsPhipson's Manual of the Law of Evidence for the Use of Students. Seventh Edition. By Sir Roland BurrowsUnderhill's Law of Torts. Sixteenth Edition. By Ralph SuttonLearning the Law. By Glanville L. WilliamsLaw and Conduct of the Legal Profession in New South Wales. By R. C. TeecePatriarcha. By Sir Robert Filmer. Edited by P. Laslett.Beiträge zum Zivilprozessrecht. Festgabe zum 70. Geburtstage von Leo Rosenberg.The Trial of German Major War Criminals. Proceedings of the International Military Tribunal, sitting at Nuremberg, Germany.History of the United Nations War Crimes Commission. Compiled by the United Nations War Crimes Commission.Luftrecht. By Otto Riese.Schweizerisches Jahrbuch für Internationales Recht.Under God and the Law. Papers read to The Thomas More Society of London. Second Series.Report of the International Law Commission Covering its First Session.Ways and Means of Making the Evidence of Customary International Law More Readily Available.The Charter and Judgment of the Nürnberg Tribunal.Historical Survey of the Question of International Criminal Jurisdiction.Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States.The Office and Duties of the Director of Public Prosecutions. By Sir Theobald MathewThe British Journal of Delinquency. Vol. I. No. 1. July, 1950.Planning and Compensation Reports. Edited by John BurkeInternational Monetary Fund. Annual Report of the Executive Directors for the Fiscal Year ended April 30th, 1949.Slater's Mercantile Law. 12th Edition. By R. W. Holland and R. H. Code HollandThe Export Trade. Second edition. By Clive M. SchmitthoffAnnual Review of United Nations Affairs, 1949. Edited by Clyde EagletonPollock's Principles of Contract. 13th Edition. By Sir Percy H. WinfieldThe Court of Appeal in England. By Sir Raymond Evershed, Master of the Rolls.Memorandum on the Present Confused State of the Divorce Law.The Lawyer's Companion and Diary, 1951. Part I, by Ernest L. Buck. Part II, by Leslie C. E. Turner.

Ways and Means of Making the Evidence of Customary International Law More Readily Available: Preparatory work within the purview of Article 24 of the Statute of the International Law Commission

Ways and Means of Making the Evidence of Customary International Law More Readily Available: Preparatory work within the purview of Article 24 of the Statute of the International Law Commission

Ways and Means of Making the Evidence of Customary International Law More Beadily Available. Memorandum submitted by the Secretary General. (A/CN.4/6.) Lake Success: United Nations, 1949. pp. vi, 114. $ .75.

Ways and Means of Making the Evidence of Customary International Law More Beadily Available. Memorandum submitted by the Secretary General. (A/CN.4/6.) Lake Success: United Nations, 1949. pp. vi, 114. $ .75. - Volume 43 Issue 4