General Rules Of International Law Research Articles

Reflections on International Judges and Their Decision-making: A Review Essay on Daniel Terris et al. (eds), The International Judge

In reviewing this valuable book, some reflections were given concerning nominations of candidates for judicial posts, as well as on moral integrity of particular judges in the proceedings before the International Court of Justice on South West Africa (Namibia) between 1950 and 1971. Paradoxically, the controversial Judgment of 1966 had some salutary effects on further development of rules of general international law. 1. At the time when the author of this essay was a student of law in Sarajevo, between 1953 and 1957, only one fully established and universally recognized international forum of jurisdiction existed. This was the International Court of Justice (ICJ), one of the six principal organs of the UN and its principal judicial organ. At that same time, the Court of Justice of the European Coal and Steel Community was established in Luxemburg, and the Commission on behalf of the European Convention on Human Rights also commenced its activities in Strasbourg. 2. Nobody was certain of the future of the entire world during this difficult period. The war in Korea had just ended, happily without bombing China and the “enemy”-armed forces in North Korea with nuclear weapons. After this, there occurred

Interactions between Investment and Non-Investment Obligations in International Investment Law

The accelerated proliferation of international investment agreements, the growing number of treaties in other international domains, and the increase of investor-state arbitrations enhance the prospects of overlap between investment and non-investment obligations. The interactions between international-investment and non-investment obligations may be controlled by two main sets of rules: the relatively well-developed principles of public international law or the nascent body of rules emerging from international investment jurisprudence. As analyzed in this paper, investment tribunals have generally not resorted to the relevant principles of public international law. This practical disregard of the regulatory rules of general international law stands in stark contrast to the extensive reliance of investment tribunals on other rules of the Vienna Convention on the Law of Treaties. This current unawareness of investment tribunals may well change in the future with regard to fundamental human rights that are recognized in public international law as jus cogens rules. Contemporary international investment law does not offer a systematic set of rules to be applied to such questions. International investment tribunals that encountered such questions have tended to address these questions in a sporadic manner. Consequently, the paper examines these investment awards separately and seeks to trace some systematic principles that emerge from this jurisprudence. These principles relates to the relevance of non-investment treaties, the different impact of voluntary and non-voluntary obligations, the parties' motivations, chronological sequence of obligations and available information, and least restrictive measures.

Liability for Omission in International Criminal Law

AbstractWhile deliberately excluding from its scope the issue of superior responsibility, this article considers whether there is a general rule of international law providing for liability for omission on which to base a concept of "improper crimes of omission" or "commission by omission".By analyzing international law sources, the article finds that treaty law contains a provision of only limited scope. A customary law rule, it argues, could not come into existence due to the lack of opinio iuris. Turning to general principles of law, the article studies various legal systems, concluding that there is a general principle of law, which for the purposes of criminal law equates the human conduct of omission with action, if a legal duty to act exists.Based on this finding, the article argues that the International Criminal Court is in a position to apply the concept of commission by omission despite the lack of such a general provision on omission in the Rome Statute.

Breaches of EC Law and the International Responsibility of Member States

The role of subsystems or special regimes, of which the European Community (EC) has been cited as the most striking example, within public international law has been a focus of attention of academic writing in recent years. Such regimes, strictly understood, exclude the operation of secondary rules of general international law, substituting their own rules. As well as providing a useful descriptive framework for certain aspects of international law, subsystems analysis poses the issue of the effect on the overall efficacy of the international law system of such regimes. Applied to the EC, use of the term ‘subsystem’ as strictly understood is debatable. A number of scenarios indicate the potential applicability and need for the regime of state responsibility of general international law. First, a member state may be liable in international law for breach of EC law where that EC law is an international agreement to which the Community is a party. Secondly, Simma’s 1985 conclusions concerning the EC as a self-contained regime, assessed in light of recent developments in EC law on state liability, arguably remain applicable, suggesting that international responsibility for breaches of EC law by member states, in extremis, cannot be absolutely excluded.

Individual Human Rights v. State Sovereignty: The Case of Peru's Withdrawal from the Contentious Jurisdiction of the Inter-American Court of Human Rights

Human rights law is often regarded as a discipline with aspirations of being an autonomous, self-contained regime within the general corpus of international law. Recent debates concerning reservations in the area of treaty law have reinforced views which claim the governing prinicples of human rights law depart – if not contradict – general rules of international law. By examining a landmark decision of the Inter-American Court of Human Rights which declared the recent purported Peruvian withdrawal from its compulsory jurisdiction invalid, against the background of general international law, the author aims to demonstrate that far from deviating from the general rules of the Vienna Convention of the Law of Treaties, this decision supports the view that human rights law is neither insulated from general international law nor divorced from the principle of sovereignty. For the principle of sovereignty has a twofold character: it is the fundament but also the limit of freedom of action by a state.

Waffenentwicklung – Normsetzungen für den Krieg

AbstractArmament Development – Warfare Rules. Modern armament technology was discussed at the Hague Conferences in 1899/1907. Air war was seen already as a coming danger. Nevertheless, the big powers could not reach a specific agreement on air war. There was only a provisional five years' rule not to drop explosives from aircraft. In 1907 the powers did not prolong this rule. The question was, therefore, whether Articles 25 and 27 of the Hague Convention on land warfare as well as the Marten's Clause (Preamble to the Hague Convention) were to be applied to air warfare.During World War I the powers neglected these rules by referring to the ‚legal justification’︁ of achieving the goals of war and of the right of reprisals. The inter‐war years did not see better results. Attempts made at the Washington Conference of 1921/22 to reach an agreement resulted only in the proposals made in 1923 by the Hague Commission of Jurists. No agreement was made between the wars. The military, air‐war planners and industrials hardly even discussed the conflicting relationship between air warfare and international law. Discussions, war games, strategic thought and armaments envisaged area‐bombardment directed against the morale of the population. World War II implemented this kind of war on a great scale. Similar developments took place with respect to chemical warfare. It was only fear of reprisals that prevented gas‐air war. Both kinds of war chemical warfare in World War I and strategic air war directed against non‐combatants in World War II had not been in accordance with the Hague Convention and with general rules of international law.

Antarctic EEZ Baselines: An Alternative Formula

AbstractThe Antarctic has a unique political and physical architecture which is going to be difficult to reconcile with the guidelines and obligations contained within the LOS Convention. This is particularly so in relation to the LOS Convention's rules regarding the delimitation of a baseline from which both the EEZ and continental shelf are measured because of the presence of ice obscuring the true coastline. Of the seven states claiming sovereignty over Antarctic territory, Australia is one which has formally declared an EEZ off its Australian Antarctic Territory. However it has done so without first deciding where its coastal baseline will be positioned. Notwithstanding the possible political ramifications of Australia's preemptive declaration, there are choices available for baseline positioning which are not necessarily contained within the LOS Convention but, if treated in the usual consensual manner of Antarctic Treaty Party negotiations and the general rules of international law, represent a possible solution to this dilemma.

The law of GATT as a special field of international law: Ignorance, further refinement or self-contained system of international law?

This article has the limited ambition of analyzing some special features of the law of the General Agreement on Tariffs and Trade (GATT) and its successor organization, the World Trade Organization (WTO), in the framework of general international law. The GATT, as is the case with all those international organizations which have their own substantive law and are not merely vehicles for international negotiation and co-ordination, inevitably is a special branch of international law. As with all such branches it develops rules which deviate from general international law and which further refine and adapt the rules and principles of international law. In respect of GATT, as in some other exceptional cases (EC), there is even reason to ask the question whether it has or has not become a self-contained regime in international law. That is to say that the system's countermeasures are not the normal countermeasures of international law, such as reprisals and the exceptio non-adimpleti contractus in treaty law, but are entirely separate from those normal countermeasures and are regulated so as to limit the freedom of States to have recourse to them. Although Riphagen has described the GATT not so much as a self-contained system, but as a number of ‘conventional derogations’ from general rules of international law, there is reason to look again at this assessment given the evolution that has taken place in the GATT system since then.

Zennaro

Jurisdiction — Personal — Crimes committed by nationals abroad — Whether acquittal in State of commission of offence precludes prosecution in State of nationality — Principle of ne bis in idem — Applicability — Whether recognized as a general rule of international law — European Convention on the International Validity of Criminal Judgments, 1970 — The law of Italy

E v. Police Inspectorate of Basle

Jurisdiction — Territorial — Whether punishment in State of nationality precludes prosecution in State of commission of offence — Principle of ne bis in idem — Whether recognized as a general rule of international law — The law of Switzerland

Internal waters

It has long been generally admitted that coastal States enjoy sovereignty over their internal waters to the same extent as over their land territory. The implication of this has been understood to be that the rules of general international law, concerning the legal order of the seas, do not affect the internal waters of coastal States. For this reason these waters alone have not been the subject of the codification of the law of the sea by general conventions.

Retroactivity of Laws Case

States as international persons — Recognition of acts of foreign States and governments — Legislation of foreign State with retroactive effect — Whether retroactivity contrary to general rule of international law — Relevance of fact that comparable municipal legislation has no retroactive effect — The law of Austria

Re Hartmann and Pude

232Jurisdiction — In general — Territorial — Jurisdiction over foreigners — In respect of crimes committed in forum State — Whether conviction in State of origin precludes proceedings in State where offences committed — Principle of ne bis in idem — Applicability — Whether recognized as a general rule of international law — European Convention on Extradition, 1957 — The law of Italy

A. V. Lowe on general rules of international law

In his recent Review article, ‘Do general rules of international law exist?’, Lowe states that there are at least two interpretations of the nature of customary international law.1 In the following, I shall attempt to clarify what these two interpretations are, examine the implications which Lowe attaches to the interpretation which he favours, and discuss his assertions about truly general rules of international law.

Do general rules of international law exist?

The aim of this short paper is to explore the concept of ‘general’ rules of customary international law (i.e., rules in principle binding upon all states, as contrasted with ‘special’ rules binding only on a few states, usually on a regional or local basis), and-the tension which exists between that concept and the consensual basis of customary international law. It will be suggested that it is possible to hold a view of international law which denies the general applicability of most rules of customary law and preserves its consensual character, while admitting that a few rales of truly general application do exist which, however, must derive their binding force from outside the framework of consensual law creation.

State Immunity: Federal Republic of Germany

International customary law on state immunity like all other international customary law is adopted into the domestic law of the Federal Republic of Germany in virtue of Article 25 of the Basic Law of the Federal Republic of Germany: “The general rules of international law shall form part of federal law. They shall take precedence over the laws and create rights and duties directly for the inhabitants of the federal territory”.

ReOtto F.

The individual in international law — Extradition — Conditions of — Extraditable crimes — Whether offences punishable only by fines extraditable — General rules of international law — Austro-German Extradition Treaty 1958 — European Convention on Extradition 1957 — The law of Austria

Judicial Review of International Agreements: Federal Republic of Germany

In Great Britain and the USA it has been accepted since Blackstone that [customary] international law is part of the law of the land.1 Since the two world wars, other countries have adopted similar, even stronger, solutions: the Basic Law of the Federal Republic of Germany (BRD), for instance, following Art 4 of the Weimar Constitution of 1919, provides in Art 25 that the general rules of customary international law form part of the law of the land, taking precedence over statutes and immediately creating rights and duties for the inhabitants of the BRD. A similar provision is to be found in Art 9 of the Austrian and Art 10 of the Italian Constitution; the preamble of the French Constitution of 1946, to which the preamble of the Constitution of 1958 refers, states that the French Republic, in accordance with her tradition, observes the rules of international law. All these constitutional provisions aspire to establish harmony between the general rules of international law and municipal law.2 The same tendency may be found in the constitutions of several countries with regard to the relationship between municipal law and international law as embodied in agreements concluded between states. Here the paragon has been Art VI clause 2 of the U.S. Constitution which provides that all treaties made under the authority of the U.S. shall be the supreme law of the land. Treaties which are self executing-those intended to be effective without the need of implementation by legislation-override previously enacted congressional statutes, and state constitutions and laws whenever enacted, in case of conflict.3

The Protection of Shareholders' Interests in the Light of the Barcelona Traction Case

Professor Briggs’ summary of the decision of the International Court of Justice in the Case Concerning the Barcelona Traction, Light and Power Company Limited fairly recapitulates the principal reasons which led the Court to deny “the existence of any general rule of international law or of any special circumstances or considerations of equity which confer a right of diplomatic protection of national shareholders in a foreign company where the acts complained of were directed by authorities of a third state against the company rather than against any legal rights of the shareholders as such.”

Barcelona Traction: The Jus Standi of Belgium

In its Judgment of February 5, 1970, in the Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application, 1962, Belgium v. Spain, Second Phase), the International Court of Justice, by a vote of 15 to 1, rejected, for lack of jus stanai, a Belgian claim of a right of diplomatic protection of alleged Belgian shareholders in a Canadian company allegedly victim of a series of denials of justice by Spanish authorities. Essentially, the Court’s decision denies the existence of any general rule of international law or of any special circumstances or considerations of equity which confer a right of diplomatic protection of national shareholders in a foreign company where the acts complained of were directed by authorities of a third state against the company rather than against any legal rights of the shareholders as such. The opinion of the Court is, for the most part, soundly reasoned and comes after thorough argument of the precedents and brilliant presentation of opposing contentions of law and fact by distinguished counsel. Attorneys may safely advise clients that the Court’s opinion sets forth the existing law and that any special protection of shareholders as such in a foreign company must be based on treaty stipulations or special agreements.