Customary International Law Research Articles

International Wrongfulness of Japan's NCW Sea Discharge

International Wrongfulness of Japan's NCW Sea Discharge

Examining the complexities of binding international law on international organisations

PurposeThis paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.Design/methodology/approachThe paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.FindingsThe authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.Research limitations/implicationsThe most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.Originality/valueThe paper fulfils an identified gap in the positioning of IOs under the international law.

Ex Post Facto Prosecution of International Crimes in the Bangladesh War Crimes Tribunal: An Issue of Constitutionality

Bangladesh War Crimes Tribunal-a domestic criminal court is currently prosecuting the offenders of atrocious crimes perpetrated in the Bangladesh War of Independence in 1971. Though the atrocious offenses took place in 1971, the International Crimes Tribunal (ICT) Act 1973 was decreed by Bangladeshi Parliament in 1973, and the Tribunal was established in 2010; hence the ICT Act 1973 is considered as an ex post facto (retrospective) legislation because it has been promulgated after the commission of the crimes. Therefore, this study first analyzes the importance of ex post facto law’s prohibition in customary international law. Secondly, the study highlights how the 1973 ICT Act applies to prosecute the ICTB’s defendants retrospectively by amending the constitution of Bangladesh. Thirdly, it examines the ex post facto legislation’s application in the Bangladesh Tribunal and the issue of constitutionality because rules on the prohibition of retrospective legislation is one of the fundamental rights of every citizen that need to be safeguarded by every constitution of civilized nations. Lastly, this study's originality proves that ex post facto law’s application in the ICTB is unconstitutional. Then, this research paper concludes by inferring that the government of Bangladesh needs to amend the constitution to prohibit the ex post facto law’s implementation through the Tribunal that will enhance the legal acceptability of the War Crimes Court because the recent Criminal Court in question is operating under the Bangladeshi government.

Proving Modes of Criminal Liability in Prosecuting International Crimes: An Analysis of International Crimes Tribunal Bangladesh

is study examines how the International Crimes Tribunal Bangladesh (ICTB)- a domestic criminal court, is prosecuting and punishing international criminalities perpetrated in the Bangladesh Freedom War in 1971 through the flaw laws in proving the modes of individual criminal responsibility that hinder securing criminal justice to the parties. By applying a qualitative approach, this study firstly scrutinizes the modes of criminal responsibility in the ICTB’s Statue-the International Crimes Tribunal Act 1973 and whether such notion is supported by international customary law in 1971 and 2010. Secondly, this study outlines different modes of liabilities, such as Joint Criminal Enterprise and Superior Liability, that are extensively applied by the jurisprudence of the ICTB in more than 51 individual cases to date. Lastly, as the originality of this research, it advances ‘Two Proposals’ that need to be executed by the ICTB to secure criminal justice to the relevant bodies in improving its legitimacy to the global criminal justice system. Then, the study concludes that in any failure to uphold the customary law requirement of proving the Joint Criminal Enterprise and the Superior Liability as the particular modes of criminal liability, the tribunal will lose its legal credibility.

Иммунитеты должностных лиц государств от иностранной уголовной юрисдикции: обзор позиций государств

Following the recent changes in the paradigm of the immunity of State officials within the customary international law, the article analyzes the submissions of States to the UN International Law Commission connected to Draft articles on the immunity of officials from foreign criminal jurisdiction. Based on national legislation and jurisprudence provided by States, an assumption is made about the possible universal scope of the Draft Articles, as well as an assumption about its applicability to the Russian criminal procedure.

Revitalizing the International Law Discourse on the Prohibition of Maritime Piracy: Voices from International Law Commission’s Work on Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

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.

Judaization in Palestine: Is It Genocide According to the 1998 Rome Statute?

The purpose of this study is to analyse the act of genocide in the attempt at Judaization in Palestine based on the 1998 Rome Statute and examine the possibility of categorizing the Judaization of Palestine as cultural genocide because Judaization has changed various aspects of Palestinian life and the Palestinian territories themselves. In addition, cultural genocide has been eliminated from its history, but there are still actions that are assumed to lead to it. This research is a type of normative legal research using a conceptual, statutory, case, and historical approach. The results of this study indicate that the Judaization of land and people in Palestine is a crime of genocide, as stated in Article 6 (c) of the 1998 Rome Statute. At the same time, the Judaization of identity and holy places can be categorized as cultural genocide, according to experts. However, the opinions of experts contained in legal works are subsidiary legal sources and, until now, have not been recognized as customary international law. In addition, the Judaization of identity and holy places within the framework of international law can only be viewed as genocidal intent, not cultural genocide.

Redefining doubt in cases of uncertainty: an analysis of the 2023 US DoD Law of War Manual revision to the presumption of civilian status in armed conflict

The third edition of the United States (US) Department of Defense Law of War Manual, updated in December 2016 (2015 DoD Manual) states that “[u]nder customary international law, no legal presumption of civilian status exists for persons or objects”. The 2015 Manual received general support from military circles, but some experts believed that rejecting the customary international law (CIL) status of the presumption of civilian status in instances of doubt was an apparent mistake or important error. The 2023 US DoD Law of War Manual (2023 Manual) has now been promulgated with a revision to the doubt rule. Doubt regarding the character of persons or the nature of dedicated civilian objects results in a “presumption” of civilian status “unless the information available indicates that the persons or objects are military objectives”. The 2023 Manual attracted criticism, with some experts, especially those with military experience, arguing that it is counterproductive to incorporate exponentially legalistic or complex, nuanced judgements about status determinations, presumptions and the sufficiency of rebuttal evidence in practical matters such as targeting decisions. The article evaluates the substance and implications of the revision to the doubt rule in the 2023 Manual. The article further considers whether the doubt rule regarding the civilian character of persons and the nature of certain objects has acquired customary international humanitarian law status. Ultimately, the article concludes that is not realistic to include a presumption for application in targeting decisions due to the complexities of applying legalistic concepts during armed conflict.

Shaping the International Law Principle of the Inviolability of the Right to Peaceful Enjoyment of Property in the Context of International Armed Conflict

The article focuses on the formation of the international law principle of the right to peaceful enjoyment of possessions in the context of an international armed conflict, given the relevance of the issue of damage and destruction of property as part of the armed aggression of the Russian Federation against the sovereignty and territorial integrity of Ukraine. The author examines the right to peaceful enjoyment of possessions through the prism of international human rights law - as such, where the right to peaceful enjoyment of possessions (property rights) has been enshrined in the international law system, and also through the prism of international humanitarian law and international criminal law - as such, which are special in relation to the right to peaceful enjoyment of possessions in the context of international armed conflict.
 The article examines the principle of inviolability of property rights at the national level, in particular, in legislative and judicial sources, and its impact on the formation of the relevant international law principle. In particular, the author analyses the philosophical development of the concepts of “sacredness” of property rights and inviolability of property rights, as well as the natural essence of this right for a person.
 The author examines in detail the rules of conventional and customary international humanitarian law on the right to peaceful enjoyment of property/property rights depending on the type of acts that may be committed against property and the type of property against which certain acts are directed in the context of an international armed conflict or legal regime of occupation. The provisions on the protection of civilian objects, as well as the non-absolute nature of the protection of property rights in international armed conflict in cases of urgent military necessity, are carefully considered. Based on this analysis, the author identifies the key fundamental provisions on the basis of which the international legal principle of the right to peaceful enjoyment of property in the context of international armed conflict is formed.

Responsibility for Offences against Internationally Protected Persons: Contemporary Legal Aspects

The article examines complex legal aspects of the problem of responsibility, when it comes to offences against internationally protected persons (OIPP). The article reveals that, depending on the international legal qualification of the offence, OIPP can be qualified as either an ordinary crime (the one prosecuted under domestic law following the participation of the State in the relevant international conventions the key of which is the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents) or an international crime when it is a violent act against the protected person committed in the situation of an armed conflict. The authors argue that notwithstanding the fact that both cases entail individual criminal responsibility of the delinquent, individual criminal responsibility for OIPP as an ordinary crime occurs to the extent in which a State party to a relevant international convention has provided for punishment in its national legislation for the conduct criminalized thereby. At the same time, with regard to OIPP as a war crime, the article highlights that the commission of OIPP engenders the right to exercise universal jurisdiction under customary international law and the obligation to exercise quasiuniversal jurisdiction under the “Geneva law” for the purpose of bringing delinquents to justice. In the meantime, the most controversial issue is the question of international legal responsibility of a State in cases of OIPP. It is argued that such responsibility can arise, when OIPP is a war crime committed by a State agent or a non-State actor effectively controlled by the State, as well as when it fails to undertake necessary measures to ensure personal inviolability of protected persons in violation of diplomatic law, or in situations of the denial of justice.

Arbitrating Investment Disputes Involving States with Competing Governments (on the Example of Venezuela)

The present article analyses whether investment tribunals are competent to determine which representatives are entitled to act on behalf of respondent states with competing governments. The examination of existing case law and theoretical background suggests that investment tribunals have incidental jurisdiction to decide on the representation issue. In this case, the representation issue is resolved for the sole purpose of proceeding to consideration of claims, which are properly within the tribunals’ jurisdiction ratione materiae and the decision on this issue is not included in the dispositif of the awards and lacks res judicata effect. The most plausible approach to decide the representation issue is to conduct a substantive analysis of the government’s entitlement to act on behalf of the state. The alternative avoidance techniques to resolve the representation issue are questionable from the perspectives of their logical coherence, practical convenience and safeguarding the parties’ procedural rights. This analysis should be conducted in accordance with the criteria of customary international law. The legitimacy of a government’s origin is just one of these criteria and has a limited role in the overall test for identifying the government which is entitled to act on behalf of the state. Finally, this analysis should also take into account the considerations of procedural fairness, which depends on the factual circumstances of each specific case.

Common Article 3 and Asymmetric Warfare in the Context of Cyber Operations

International Humanitarian Law (IHL) serves as the crucial framework governing armed conflicts, seeking to humanize warfare and regulate the conduct of hostilities, whether at the international or non-international level. While the rules outlined in Common Article 3 (CA3) and Additional Protocol II (APII) pertain specifically to non-international armed conflicts (NIAC), customary international law also plays a significant role. The landscape of armed conflicts has evolved, particularly with the rise of asymmetric warfare, where adversaries may possess disparate capabilities in terms of weaponry, arsenal, or digital prowess. In the contemporary era marked by rapid digitalization, the emergence of cyber warfare introduces new challenges to IHL. Defining cyber operations within the context of armed conflicts remains an ongoing process, raising questions about the applicability and extent of IHL to cyber-attacks and establishing clear thresholds for compliance. This article delves into the intricate inquiry of whether cyber attacks amount to armed conflicts, examining the applicability and scope of IHL in addressing this evolving and complex phenomenon. Furthermore, as the dynamics of armed conflicts continue to evolve, the traditional paradigms of warfare are being reshaped by the increasing prevalence of cyber operations. The transformative nature of cyber warfare introduces complexities in determining the initiation, duration, and conclusion of armed conflicts. This article also explores the challenges posed by the attribution of cyber attacks and the identification of responsible actors, crucial aspects for ensuring accountability under IHL. By examining the nuanced intersections of cyber operations and armed conflicts, the research aims to contribute to a comprehensive understanding of how IHL can effectively adapt to and govern these emerging forms of warfare in the contemporary digital age.

СПЕЦІАЛЬНІ МІСІЇ МІЖНАРОДНИХ МІЖУРЯДОВИХ ОРГАНІЗАЦІЙ: ТЕОРЕТИЧНІ ТА ПРАКТИЧНІ АСПЕКТИ ФУНКЦІОНУВАННЯ

The article is devoted to the theoretical and practical aspects of the functioning of special missions of international intergovernmental organizations at the present stage. It is noted that diversification of international relations contributes to the expansion of interactions between subjects of international law in various forms. It is actualized that international intergovernmental organizations, in exercising the right of foreign relations, are increasingly using ad hoc diplomacy or special missions. The author emphasizes that the trend in the development of the institution of special missions is the practice of their implementation by international intergovernmental organizations on various issues at different levels. At the same time, the author underlines that there is no regulatory framework for all aspects of their functioning. Particular attention is paid to the activities of individual special missions of international intergovernmental organizations in Ukraine. It is established that the diplomatic temporary missions of the UN, OSCE, EU and in the context of the Russian-Ukrainian war are carried out in accordance with the provisions of the 1969 Convention on Special Missions, customary law and are additionally regulated by relevant agreements and memorandums. Considering the long existence of the institution of special missions, the practice shows and in the context of the Russian-Ukrainian war, the form of diplomatic activity of the IMO not only occupies an important place in the process of international communication, but also dynamically develops and improves, which in the future will require additional international legal regulation. Key words: ad hoc diplomacy; customary international law; European Union; human rights protection; international law; international intergovernmental organizations; law of external relations; Organization for Security and Co-operation in Europe; Russian-Ukrainian war; special missions; United Nations

Canadian Courts and Customary International Law

Canadian Courts and Customary International Law

INTERNATIONAL LEGAL REGULATION OF PREVENTING THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT

The article is devoted to defining the essence and peculiarities of application of the norms of international law in cases of involvement of children in armed conflicts. The article establishes that in the course of development of international law, a number of international instruments, both legally binding and non-binding, have been adopted in order to minimize the risks to which children involved in armed conflicts are exposed. Such instruments pay special attention to the issue of the minimum age of children involved in hostilities and the types of actions that should be prevented in this regard. The gradual process of codification of the international legal protection regime for children has undoubtedly improved their overall protection from the impact of armed conflict. The author draws the following conclusions. The recruitment of children under the age of 15 is directly prohibited by the Convention on the Rights of the Child, the I and II Additional Protocols to the Geneva Conventions, as well as customary international humanitarian law. In addition, the recruitment of children into armed forces is a crime under the Rome Statute. Military duty and the forced recruitment of children under the age of 18 are prohibited by the Optional Protocol and International Labor Organization Convention No. 182. States must take comprehensive measures at the national level to fulfill their obligations regarding the recruitment of children and their participation in hostilities. The implementation of international obligations at the national level undoubtedly begins with the adoption of laws, which are then followed by regulatory and practical measures. Effective protection of the rights of the child, in particular with regard to the involvement of children in armed conflict, is based on such legal documents.

The Effects Doctrine As a Basis for Jurisdiction of States in Cyberspace

An important feature of cyberspace is its cross-border nature, due to the absence of physical borders and the decentralization of infrastructure and users. Due to the fact that all transactions in cyberspace potentially cross state borders and have an impact on objects and entities in various states, the consequences of certain actions can be felt in many jurisdictions. At the same time, the traditional links between the offense and the State on the basis of territoriality, nationality or the need to protect fundamental national interests may be absent. In such cases, jurisdiction is proposed to be established on the basis of the doctrine of consequences. However, the objections of a number of States to such extraterritorial dissemination of foreign legislation and the uncertain nature of the consequences doctrine have raised questions about the conformity of the consequences doctrine with international law. Based on the analysis of international treaties, practices and positions of States and international organizations, scientific research and other doctrinal sources, the following conclusions were drawn. The doctrine of consequences is increasingly being recognized as a principle of establishing the jurisdiction of States through the formation of a rule of customary international law. However, objections to the application of this doctrine, especially in cases of establishing jurisdiction in criminal cases, continue to be expressed. The generally recognized conditions for the application of the consequences doctrine are as follows: a State enacting legislation based on the consequences doctrine must have an internationally acceptable interest in this; the consequences must be direct, predictable and significant; there must be no infringement of the legitimate interests of other States or foreign persons who do not have a significant connection with the State that claims to implement such jurisdiction. Other mechanisms should be considered to limit the scope of actions falling under the jurisdiction of the State: apply the principle of targeting, which requires an assessment of the actions that a person has taken in order to fall or not fall under the jurisdiction of the State; apply special liability measures related not to the imposition of sanctions on persons engaged in illegal behavior, but to the creation of obstacles to the implementation of such activities, for example, to block access to information that is illegal from the point of view of the State. A combination of such mechanisms could prevent undesirable activities in a more balanced way and not create unjustified risks for cyberspace actors.

<span>Methodological Issues in the Study on Customary International Humanitarian Law Conducted by the International Committee of the Red Cross: An Analysis in Light of the Conclusions on Identification of Customary International Law Reached by the International Law Commission of the United Nations</span>

<span>Methodological Issues in the Study on Customary International Humanitarian Law Conducted by the International Committee of the Red Cross: An Analysis in Light of the Conclusions on Identification of Customary International Law Reached by the International Law Commission of the United Nations</span>

OBLIGATION TO COMPLY WITH ICJ DECISIONS: THE "JURISDICTIONAL IMMUNITIES" SAGA WITHIN THE ITALIAN LEGAL ORDER

The 2012 judgment of the International Court of Justice in "Jurisdictional Immunities" concerned the application of state immunities in Italian courts and its failure to recognize the rights of Germany in this regard. Once the ICJ found Italy in violation of international customary law and ordered that relevant judicial decisions should cease to have effect, Article 94 of the UN Charter providing for the obligation to comply with ICJ decisions began to apply. The paper tracks down attempts to implement "Jurisdictional Immunities" in the Italian legal regime, analyses different – legislative and judicial – means of compliance, and presents general observations on the complexity associated with the fulfilment of the obligation to comply.

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

Free, prior, and informed consent of Indigenous peoples (prior consent) is a principle of international law that requires states to consult and obtain the consent of Indigenous peoples before projects or legislation that may affect their rights are approved. This principle is applicable to land-based mining projects unfolding in lands titled to Indigenous peoples. The extractive industry's extension to the deep sea is imminent, with the promising but controversial prospect of critical minerals essential for the transition to renewable energy. The application of prior consent in deep seabed mining is open to question because these projects are being developed beyond Indigenous peoples’ territories and the impacts on their rights would primarily manifest indirectly. In this essay, I focus on the current plans to approve the new International Seabed Authority (ISA) mining code and to award grant exploration and exploitation contracts to mining companies. I put forward three arguments for why the consent principle applies to deep seabed mining projects. First, despite being developed outside lands titled to Indigenous peoples, mining projects can affect the rights of Indigenous peoples, and therefore, their consent is required. Second, the prior consent principle is applicable to deep seabed mining as a matter of treaty law under the International Labour Organization Indigenous and Tribal Peoples Convention No. 169. Finally, prior consent has the potential to qualify as a rule of international customary law applicable to the “specially affected states” with Indigenous populations under the United Nations Declaration on the Rights of Indigenous Peoples.