Identification Of Customary International Law Research Articles

State Silence as Acceptance: A Presumption and an Exception

Abstract This study considers State silence which may entail acquiescence and can thus contribute inter alia to the formation of historic rights, the identification of customary international law, and the interpretation of treaties over time. Relying on the historical understanding of acquiescence in British and francophone literature, it argues that there are probability and normative justifications for establishing acquiescence as a ‘presumption of acceptance’ in international law, and that these considerations have influenced the modern international law understanding of acquiescence as an exceptional occurrence subject to stringent qualifications.

ICJ Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago From Mauritius in 1965 (Chagos Advisory Opinion): A Critical Analysis

The Chagos AO is a milestone in the history of decolonization which certainly added some narratives to the jurisprudence of the right to selfdetermination, rules of identification of customary international law, and the practice of the ICJ in relation to its jurisdiction on an advisory opinion. Similarly, ICJ had missed dealing with the human rights of the inhabitants of Chagos Archipelago which was the subject matter of the opinion, whether the right to self-determination qualifies as peremptory norms or not, etc. This paper critically discusses the approach taken by the World Court in this case in five sections, e.g., the judicial propriety in the AO, the territorial aspect of the right to selfdetermination, the right to self-determination and customary international law, the right to self-determination and jus cogens, and human rights of the Chagossians. Dhaka University Law Journal, Vol. 33(1), 2023 P.95-110

The Limits of Deduction in the Identification of Customary International Law

Abstract Much scholarship on customary international law has examined the merits of induction, deduction, and assertion as approaches to custom identification. Save for where international tribunals identify custom by assertion, writers have viewed custom identification that does not rely on evidence of State practice and opinio juris as an example of deductive reasoning. However, writers have stated that, at best, deduction is reasoning from the general to the particular. This article draws on legal philosophy to define the contours of deductive reasoning and argues that pure deduction, namely deduction not combined with other forms of reasoning, is an unsound approach to custom identification. This argument is tested by reference to cases of custom identification by the International Court of Justice, categorised according to three types of deduction: normative, functional, and analogical. This article also explores the authority and utility of custom identification by pure deduction and its impact on content determination.

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.

International Organizations and World Making Practices: Some Notes on Method

Abstract In 2013, the International Law Commission (ilc) embarked on a codification project on identification of customary international law, including the role that international organizations (ios) might play in the formation of customary norms. Parallel discussions in the international law academy surrounding the role of ios reflected similar disciplinary anxieties as older debates on ios and law making. In this piece, I argue that the path to understanding ios’ governance passes neither doctrines of ios’ powers nor restrictive categories such as law making. A shift to ‘worldmaking practices’ and alternative approaches can help us diversify our subjects of enquiry and the ways in which we understand the ‘institutional’ dimension of international law. Here, I specifically focus on International Relations constructivism, Foucauldian ‘governmentality’, and critical political economy approaches. I then conclude with a discussion of international institutional law, interdisciplinarity and critique.

(Meta) Grotian Moment: International Organizations and the Rapid Formation of Customary International Law

Abstract In this paper, I first discuss the concept of ‘Grotian Moment’ in the context of the capacity of international organizations to contribute to the formation and identification of customary international law. Afterward, I apply three levels to discuss the time element of the formation of custom. At the micro-level of the institutional practice, the time required to form a customary norm may depend on whether each form of practice is directed to the institutional or to the international dimension. At the level of the organ, I reflect on the difference played by the presence or absence of member States in the institutional organ that adopts the practice relevant for custom formation. At the macro-level of the characteristics of the organization, I distinguish between so-called supranational and functional organizations. In general, I exclude the relevance of speaking in terms of a ‘Moment’ that produces a paradigm shift, and I stress the continuous change to which international law is subject.

The Rise of Twiplomacy and the Making of Customary International Law on Social Media

Abstract Social media usage by States has increased exponentially in recent years. This phenomenon, known as “twiplomacy”, has become ubiquitous. Given that almost every State in the world now issues statements via social media, this article examines the potential for Twitter posts to form part of the “raw material” for the formation of customary international law. In other words, it considers whether customary international law can be “made”, or evidence of it identified, on social media. Public statements can, in the right contexts, act as State practice or as evidence of opinio juris, and a Twitter post from a State account ultimately is a public statement like any other. Based on an original scoping study, it is argued that there is evidence of statements being posted on Twitter that, were they issued in a more traditional context, would be seen as having the potential to constitute State practice or evidence of opinio juris. The study also suggests that such examples are not yet common, but it is predicted that they will become so. Therefore, this article goes on to examine a number of possible implications of twiplomacy for the identification of customary international law that must be considered, should social media indeed emerge as a notable breeding ground for new rules of custom. These implications include the blurring between the “personal” and the “official”; the brevity and (lack of) clarity and rigour of tweets; the significant increase in the amount of relevant data but also its comparative “centralisation” (with potentially positive as well as negative consequences); and concerns regarding authenticity. It ultimately is concluded that twiplomacy will not change the requirements for the formation of customary international law, but it is likely to have significant implications for how lawyers and researchers go about the practical process of identifying it.

The Nature and Context of Rules and the Identification of Customary International Law

Abstract The International Court of Justice (ICJ) regularly invokes a two-element test for the identification of customary international law: state practice accompanied by opinio juris. Yet the Court’s application of this test has appeared inconsistent. In some cases, an absence of evidence of opinio juris leads to a finding that an alleged rule of customary international law does not exist; yet in other cases, there is no clear evidence of opinio juris on the part of states participating in the practice, but the Court nevertheless concludes that the alleged customary rule exists. In other cases, the Court concludes that a customary rule exists apparently based on evidence of opinio juris alone. This article argues that these judgments do not undermine the ICJ’s claim to be applying a two-element analysis but reveal something fundamental about how customary international law is identified – namely, that how the existence of state practice and opinio juris is evaluated may vary depending on the nature of the customary rule under investigation (for example, whether it is a permissive or prohibitive rule) and the context of underlying international law rules in which that alleged new customary international law rule is located.

Examining a Norm of Customary International Law that Criminalises the Intentional Use of Starvation of the Civilian Population as a Method of Warfare

The criminalisation of intentionally using starvation of civilians as a method of warfare has been laid down in the Rome Statute of the International Criminal Court as a matter of treaty law. The application of treaty law, however, is restricted and states in which current emergency situations of starvation are unfolding are often non-party States to the Rome Statute. To allow for accountability in such situations, this research seeks to contribute to the discussion whether the criminalisation of intentionally using starvation of civilians as a method of warfare could qualify as a rule of customary international law. As such, the provisions could apply to contemporary situations of intentional starvation - not on the basis of the Rome Statute, but on the basis that the content of those Rome Statute provisions have gained the status of customary international law. Ascertaining a rule of customary law conclusively may be hard to do. This paper intends to offer a valuable contribution, relying on the International Law Commission’s draft conclusions on the identification of customary international law, and more particularly the valuable guidance it offers in relation to the identification of both opinio juris and general (state) practice. As such this paper also aims to take part in the discussion on the identification of customary international law rules generally. In the process, the connection between the customary IHL rule on the prohibition of using starvation of the civilian population on the one hand, and the framework of international criminal law on the other is explored.

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

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

Taxes and Custom: Tax Treaties as Evidence for Customary International Law

ABSTRACT Scholars of public international law have not paid attention to international tax law in the past. This article seeks to fill this vacuum and to foster cross-field research by studying customary international law in international tax law. It assesses the value of international tax law’s most prominent feature for the identification of custom: the dense network of almost identical, bilateral double tax treaties. The primacy of source-based taxation for business profits serves as a test case for this purpose. The International Law Commission’s conclusions on the identification of customary international law constitute the theoretical reference point that informs the empirical analysis. Thus, this article simultaneously serves as a treadmill test to appraise whether the International Law Commission’s conclusions actually offer practical guidance. The analysis culminates in the conclusion that tax treaties have only little value for the identification of customary international law. First, tax treaties alone do not entail representative state practice. Second, tax treaties give rise to the pitfalls of the Baxter paradox. Third, the tax treaty network yields no evidence that any state practice originates from opinio juris. Judging by the evidence brought into play so far, states likely display uniform treaty practice in international taxation because they believe it is in their best interest, not due to any legal conviction.

Knowledge Production, Big Data and Data-Driven Customary International Law

This chapter investigates the role of “Big Data” analysis and data crowdsourcing in shifting power relations with respect to the identification of customary international law. Evidence of states’ practice and legal positions is required in order to determine that a new norm of customary international law has crystallized. And yet, international courts have often settled for anecdotal evidence and impressionistic analysis. However, recent academic works have crowdsourced data collection, compiled big datasets and applied computerized analysis methods to make comprehensive and systematic evaluation of the development of customary norms. I argue that this new mode of knowledge production may democratize both the data collected (giving greater weight to smaller states from the global periphery) and the potential contributors to the production process (including lawyers from different countries and language capabilities). Nevertheless, such production requires scientific sophistication and resources, which once more give actors from rich, developed countries a greater role in developing the law.

Comparative Study between Korean Textbooks and Articles related to Customary International Law and the ILC’s 2nd reading Conclusions on “Identification of Customary International Law”(2018)

Comparative Study between Korean Textbooks and Articles related to Customary International Law and the ILC’s 2nd reading Conclusions on “Identification of Customary International Law”(2018)

The ILC in the Eyes of the ILC: Mirror or Looking-Glass?

This paper addresses the treatment by the International Law Commission of its own work in its latest “Commentary to its Draft Conclusions on the Identification of Customary International Law”. It is argued here that the ILC’s choice not to include its own documents under the heading “teachings of the most highly qualified publicists” is correct. This is so (1) because “teachings” should be construed as only encompassing works that are purely or primarily scholarly, and (2) because ILC works are not merely “subsidiary means for the determination of rules of law”, but rather one of the elements that form customary international law. The Commission’s ambiguous stance towards its own work is symptomatic of the project’s deeper problems – the artificiality of the two-element approach, the excessive emphasis on state practice, and the impossibility of extricating ‘identification’ from ‘formation’ of custom. A closer look at the Commission’s purported mirror-image reveals distortions more akin to a looking-glass.

State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

New Kids on the Block

Abstract One of the most contentious issues of the “Identification of Customary International Law”, a topic the International Law Commission has recently finalized its work on, concerns the extent to which international organizations (IOs) play a part in the creation of customary norms. Conclusion 4(2) of the 2018 draft provides that “[i]n certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law.” The official commentary recognizes two such cases: i) when States “have transferred exclusive competences to the [IOs]”, and ii) when States “have conferred competences upon the [IOs] that are functionally equivalent to powers exercised by States.” After questioning the utility of the Commission’s approach, this contribution outlines an alternative analytical framework for IOs’ participation in the creation of customary rules grounded in the principle of speciality and premised on the ratione personae applicability of the rule to be identified.

How to Identify Customary International Law? – On the Final Outcome of the Work of the International Law Commission (2018)

How to identify customary international law is an important question of international law. The International Law Commission has in 2018 adopted a set of sixteen conclusions, together with commentaries, on this topic. The paper consists of three parts: First, the reasons are discussed why the Commission came to work on the topic “Identification of customary international law”. Then, some of its conclusions are highlighted. Finally, the outcome of the work of the Commission is placed in a general context, before concluding.

The Four Lives of Customary International Law

Abstract This article tells the story of customary international law in the 98 years between the introduction of the draft rules to the new Permanent Court of International Justice and the adoption of the Conclusions on the identification of customary international law by the International Law Commission in 2018. This story is articulated around four moments of rupture and metamorphoses: 1920, 1927, 1986, and 2018. Each of these four metamorphoses originates in powerful interventions by actors resulting in a redefinition of how arguments about the customary status of a rule ought to be made. It is argued that the doctrine of customary international law, by undergoing these four metamorphoses, has gone through 4 different stages: the age of innocence (1920–1927), the age of dualism (1927–1986), the age of turmoil (1986–2018), and the return to innocence (2018-present). The story offered in this article is a story about the four lives of customary international law.

Capturing the Juridical Will of International Organisations

The 2018 ILC Conclusions on identification of customary international law bring to light that contemporary international law accords a modest role to international organisations as independent actors in the formation of customary international law. This could seem remarkable, given that international organisations participate ever more fully in international legal affairs. The present chapter argues that one explanatory factor is the hesitation in international law to ascribe to international organisations a ‘juridical Will’. The term is used here as a shorthand for the various subjective, ‘intentional states’ - such as intention, opinion, acquiescence - that systems of law project onto legal participants in order to operationalise legal agency. International law seems to have no problem accomodating States in this respect, but shows signs of hesitation with regard to international organisations. This in turn can be linked to the organisation’s functional, mechanistic identity in international law, which has -in all its political and theoretical facets- persisted even after organisations in the course of the 20th century came to appear as prominent independent legal actors. It is one reason why the ascertainment of an organisation’s opinio juris, or of an organisation’s distinct Will in the attribution of practice, may pose a challenge. The chapter proposes that in light of their current role in global affairs, international organisations should assume a role in the formation of custom in sofar as substantively relevant for their work. More generally, it is time that organisations come of age as international legal persons and be fully susceptible to the projection of a juridical Will.

Anniversary Commemoration and Work of the International Law Commission's Seventieth Session

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, and draft articles on succession of states in respect of state responsibility. The Commission commenced a debate but otherwise did not make progress with respect to its topic on the immunity of state officials from foreign criminal jurisdiction. The Commission, however, added a new topic to its agenda on general principles of law, and added two new topics to its long-term work program, namely on universal criminal jurisdiction and sea-level rise in relation to international law. The Commission did not work on a topic that completed its first reading in 2017 and that, after receiving reactions from governments and others, will likely undergo its second reading in 2019: crimes against humanity.