Part Of Customary International Law Research Articles

The Principle of Equidistance on Continental Shelf Delimitation

In the field of the international law of the sea, continental shelf delimitation has always been one of the most controversial issues. Since the definition of the Equity Principle in the “United Nations Convention on the Law of the Sea” (UNCLOS) is relatively vague, the connotation of the Equity Principle depends on the accumulation and development of international judicial precedents, arbitration awards, and state practice. The Equity Principle of continental shelf delimitation has been generally recognized by the international community and has become a part of customary international law. Only when all relevant circumstances are fully considered can a fair delimitation result be obtained and a balance of reasonable interests of all parties be achieved.

Principal Purpose Test and Customary International Law: A Note of Caution

The rapid endorsement of the OECD Multilateral Instrument to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI) has prompted several commentators to argue that the anti-abuse provision in the MLI, namely the principal purpose test (PPT), could become part of customary international tax law. This article casts some doubt on that possibility. The authors argue that in light of the difficulties in ascertaining customary international law (CIL) and the structural nature of the PPT, it is unlikely that the PPT will become part of CIL. Additionally, the authors take the opportunity to briefly discuss whether the focus on CIL is to some extent a fruitful debate. Instead of emphasizing the source of the norm, which overstates the importance of some norm being “law”, it is the authors’ view that it would be better to focus on improving the quality of the norms regardless of their source.

Court Decisions in the Republic of Korea on Japan's Accountability for Sexual Slavery of the Comfort Women

Abstract On January and April of 2021, two contradictory decisions on the comfort women issue were ruled by two courts in the Republic of Korea (ROK), stirring much controversy on the various legal issues concerning the comfort women. In the January decision, the court held Japan accountable for the acts committed against the comfort women and denied Japan’s immunity in the courts of the ROK because these atrocities constitute crimes against humanity when Japan illegally occupied Korea. On the other hand, the April decision, which was a case for another group of comfort women victims, dismissed the suit by ruling that Japan was rather immune on this issue in ROK courts because state immunity is considered to be part of customary international law. The court specifically referred to the Jurisdictional Immunities case before the International Court of Justice which found that violations of jus cogens as a substantive norm could not trump over procedural matters such as state immunity. As the April case has been appealed by the victims, this article aims to examine the historical background of the issue of comfort women and the main legal issues of these domestic decisions. The first issue concerns whether Japan is immune in ROK courts for even alleged violations of jus cogens, and the second issue is whether the individual claims of the comfort women are still valid today or whether they have been, as a matter of law, extinguished or waived through the 1965 Claims Agreement and the 2015 Agreement signed by both the ROK and Japan.

Crafting a Right to Water: A Jurisprudential Analysis

The Supreme Court has often reiterated that right to water is a part and parcel of a right to life. Thejudicialization of right to water has raised fundamental questions about the feasibility of culling out ajusticiable fundamental right to water from a social right. While the Jal Boards regulate water supply,sewerage and drainage there are other statutory bodies allocated with the task of maintenance of waterbodies. The water policy prioritizes amongst the various uses of water. The common law principles do notserve the present societal needs. Questions of ownership give conflicting results. Different norms applicable,to surface water and underground water, lead to conflicts. Numerous international legal instruments priorto the General Comment number 15, had not specifically mentioned a right to water. Whether the omissionwas inadvertent - being obvious not requiring specific mention, or implicit and commensurate within theterm ‘food’ or as part of customary international law, or was it because it was not a pressing concern then,needs clarity. While drastic problems call for immediate actions in the form of laws, it is necessary that thelaws be consistent with the nature of the subject matter it seeks to regulate. This research paper addressesthe problem of identifying the various provisioning requirements and feasibility, in case the right to wateris considered as a human right, or granted as a fundamental right or a statutory right. It seeks to comparethe implications arising out of holding a right to water as a human right, a fundamental right or a statutoryright. While the feasibility of water as a fundamental right is in itself a question, to treat it as a human rightleaves it to the whims of the State with only small incremental developments as a result.

The Legal Status of Historic Bays in the Light of the Works of the League of Nations Committee of Experts for the Progressive Codification of International Law

Abstract The status of historic bays has developed over time and forms a part of customary international law. Interestingly, that issue has never been codified in international treaties regarding the law of the sea. However, it has always been discussed in the codification works on that topic carried out in the 20th century within the international organisations. This article discusses, in brief, the origins and evolution of the legal status of bays in international law until the beginning of the twentieth century. However, most of all, it addresses in detail the beginning of codification works carried out after World War I by the League of Nations Committee of Experts for the Progressive Codification of International Law, with a special reference to the legal position of historic bays. Furthermore, it addresses the questions of so-called vital bays and establishment of International Waters Office, that were also discussed during the Committee works.

The Function of Equity in International Law, by Catharine Titi

The study of law is full of fundamental notions without clearly determined content. One of them is equity, a concept with origins in religion and philosophy, making its way into the law since ancient times. Rightly, Catharine Titi does not attempt to define equity but explores its different functions in international law. The book’s main idea is that international courts and tribunals are bound to apply equity as it is a source of international law.1 For that reason, it is applicable even when it is not included in conventional law. To understand equity, we must comprehend its relationship with two other concepts, which are sometimes difficult to grasp: law and justice. Concerning law, Titi sees equity as a general principle that is part of customary international law. The underlying idea is that equity can be found inside international law. The author argues that while equity as a concept is...

Is the Establishment of Air Defence Identification Zones Outside National Airspace in Accordance with International Law?

Abstract Whereas the right of a state to establish an air defence identification zone (ADIZ) in national airspace falls squarely within its sovereignty, the question whether coastal states may claim such zones outside national airspace remains a matter of controversy. The latter category, referred to as ‘offshore ADIZs’, usually do not amount to sovereignty claims over the open airspace outside national airspace or involve threat or use of force. The right of coastal states to identify aircraft in the open airspace near coastal areas has arguably become part of customary international law. This customary right, however, only extends to ‘passive identification’ by radar detection, radio communication or close visual checks, which thus is only capable of justifying the establishment of offshore ADIZs for this purpose. The identification of aircraft in offshore ADIZs, through either voluntary or passive measures, is nevertheless within the parameters of the obligation of paying due regard to the freedom of overflight. This explains why ‘passive identification’ is ‘permissible’ under customary international law, while ‘voluntary identification’ is at least ‘tolerated’ albeit in the absence of a permissive customary rule.

Fair and Equitable Treatment Standard in International Investment Law: The Customary Status

Fair and equitable treatment (FET) is an important standard in international investment law. However, this standard is not free of controversy among governments, scholars and in arbitral tribunals. The historical challenge of FET is its relation with international minimum standard of treatment under customary international law. In recent times, a new challenge arose asking whether FET itself has entered into the family of customary international law or not. This inquiry is important because if the standard has, in fact, become a part of customary international law, then even where States exclude reference to FET for foreign investors in their treaty arrangements, this level of treatment will come into effect by operation of law to such investors. This paper seeks to find an answer for this question. In this respect, the paper first went through the opinions of different scholars. As observed, a few of them supported such a recognition by basing their ideas mostly on the inclusion of FET in the majority of for instance BITs. While the rest of scholars has opposed such an idea by backing the conventional status of FET or pointing on the lack of uniformity of State practice plus the absence of opinio juris among countries. In the second step, the paper analyzed the arbitral cases dealing with such a question. It found, that except a few cases, the rest have not agreed to such a recognition. Finally, the paper looked for the requirement of State practice and opinio juris to see if FET has become part of customary international law. It found that although State practice is general and representative but it is not uniform and consistent. In addition, there was no opinio juris or legally binding believe to accept the customary status of FET. In short, the majority of scholars, arbitral practice, as well as the practice of state and opinio juris does not confirm that FET has entered into the corpus of customary international law. Keywords: Fair and Equitable Treatment, Customary International Law, Multilateral Agreements, BITs, Arbitral Practice, State Practice DOI: 10.7176/JLPG/105-14 Publication date: January 31 st 2021

C and Others v. Director of Immigration and Another (United Nations High Commissioner for Refugees intervening)

Aliens — Refugees — Applicants seeking refugee status in Hong Kong — Convention relating to the Status of Refugees, 1951, and 1967 Protocol (“Refugee Convention”) — Article 33(1) of Refugee Convention — Non-refoulement principle — Whether part of customary international law — Whether acquiring status of jus cogens — Determination of refugee status by Hong Kong Sub-Office of United Nations High Commissioner for Refugees (“the UNHCR”) — Exercise of discretion by Director of Immigration — Whether Director of Immigration under legal obligation to determine refugee status — Whether Director of Immigration having legal obligation to inquire into non-refoulement claims Relationship of international law and municipal law — Refugee Convention — Refugee Convention not extended to Hong Kong — Immigration Ordinance Cap. 115 1972 — Customary international law — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — Whether rule incorporated into Hong Kong domestic law — Judicial review — Whether decision to refoule subject to judicial review — Whether high standard of fairness applicable Sources of international law — Customary international law — Jus cogens — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — The law of the Hong Kong Special Administrative Region of the People’s Republic of China

The Legal Dimensions of the Principle of Non-refoulement in International Law

The article deals with the principle of non-refoulement, which is widely recognized as indispensable for providing an effective international protection for refugees. Considering the fact that the right to asylum remains within the discretion of the receiving State, some exceptions to this principle have been recognized in the 1951 Convention relating to the Status of Refugees. Although the principle of non-refoulement was adopted by an international convention (the 1951 Convention), it has considerably developed since then until it became a part of customary international law. This means that its binding force extends to all states of the international community, even those that are not bound by the terms of the Convention. Indeed, there has been controversy in jurisprudence on the extent to which the principle of non-refoulement has evolved as one that owns jus cogens character within the rules of international law, which means that its application will not be confined to persons who acquire the status of refugees, but extends to all persons whose lives, freedoms or safety are at risk. The State of Qatar issued Law No. (11) of 2018 regulating political asylum, affirming the principle of non-refoulement in Article (15). The Law did not provide for any exceptions to the principle of non-refoulement, as the case within article (33) of the 1951 Refugee Convention. This reflects State of Qatar’s commitment as to current developments regarding the principle of non-refoulement.

Sınır Engellerinin Hukukiliği Üzerine Bir Değerlendirme: Geri Göndermeme İlkesi ve Ülke Dışı Etkisi

It is a common practice for states to build walls and similar structures on their borders primarily for security but also for a variety of reasons. The fact that the principle of non-refoulement as part of customary international law and regulated by the 1951 Convention Relating to the Status of Refugees is deemed valid not only for those who gain the status of refugee but also for everyone who seeks asylum and that it is interpreted in a way to cover all kinds of deportation acts such as expulsion, return, transfer or rejection on the border for those who have a well-founded fear of being persecuted is a requirement of the developments in both international law and humanitarian law. Various border walls and fences completed by Balkan states with the purpose of preventing mass population movement arising from reasons such as civil wars, failed states, drought and climate change in different parts of the world and relevant activities bring into question of whether the principle of non-refoulement has an extra territorial effect or not. The border policies of states are the result of their sovereignty; however, current precautions taken within the framework of the protection of borders can result in the state’s violation of the obligations arising from international law.

Common Heritage of Mankind for Outer Space

ABSTRACTThe paper examines the intention of the drafters of the Outer Space Treaty regime to advance from the principle of “common province of mankind” and adopt “Common Heritage of Mankind”. In this context, the drafting history of the Moon Agreement, which helps discern the meanings ascribed to Common Heritage of Mankind by various countries, is considered. Moreover, the usage of the term in other realms, such as the deep seabed regime and Antarctica, is essential to understand the concept. The introduction of Common Heritage of Mankind in the United Nations Law of the Sea led to various industrialized developed countries, including the United States, to oppose the law. Hence, the approach was diluted to ensure it converts into a more liberal condition that does not enforce strict mandates on parties to the Law of the Sea. A similar view of states exists with respect to the Moon Agreement resulting to date in only 17 ratifications by states with no spacefaring states among them. Consequently, most states argue that the Common Heritage of Mankind principle in the Moon Agreement is not applicable due to not being party to the agreement. It is also argued that since there is no state practice suggesting opinion juris regarding Common Heritage of Mankind, it is not part of customary international law. The non-inclusion of the principle as a customary norm makes the relevance of Common Heritage of Mankind in the present world debatable and uncertain.

Legitimacy of Right to Self-Determination Under International Law

The term self-determination refers to process by which people determine their political status. It is well established that right to self-determination (RSD) is available to all and based on its historical and conceptual evolution, its status amounts to jus cogens or obligations erga omes. In other words, it is a part of customary international law (CIL). While exercising self-determination, people may freely determine their legal and political status vis-a-vis free to pursue economic, social and cultural (ESC) development by virtue of that right. The important milestones for defining and recognizing RSD are (i) the International Covenant on civil and political rights (ICCPR), 1966 and (ii) the International Covenant on economic, social and cultural rights (ICESR), 1966 which defines RSD. In terms of RSD's implementation, there exist certain hurdles and impediments which lead to non-exercise of this right. In this context, this article focuses on legitimacy and various paradoxes of RSD under International law. It analyses its scope, binding nature and legal status with reference to the occupied people in an occupied territory. It discusses different views in relation to its applicability. The argument developed throughout the article is that by virtue of recognition of RSD, in general, international community may implement RSD of those who are denied so far and ensure its availability to all in practical terms. In particular, such right may be implemented in occupied territories by means of referendum or plebiscite under auspices of the United Nations (UN) for securing rights of those who are struggling since decades. It concludes that, by virtue of implementation and enforcement of RSD in all jurisdictions, universal lasting peace can be established and international security can be ensured.

The Interplay Between the Duty Not to Cause Significant Harm and Equitable and Reasonable Utilization Principle

States sharing freshwater resources have developed basic rules governing the use of these resources through their practice over many years. Some of the rules form part of customary international law, which is a body of unwritten law binding on all states. Countries sharing freshwater may also enter into treaties applying and adjusting rules of customary law to suit their specific situations with regard to the watercourses they share.' In contemporary state and institutional practice of none state actors, two doctrines have attained supremacy. The first entitles riparian states to exploit international watercourses in an equitable and reasonable manner. The second principle cautions states to take appropriate measures in the utilization of trans-boundary Rivers such that significant harm to the share of other watercourse states is averted. Today these two principles are indisputably regarded as cornerstones of the regime of international watercourses law. This note tries to look in to the duty not to cause significant harm and its interplay with the equitable and reasonable utilizations rule. The presentation will also explore lingering issues of preeminence between the two principles which may be crucial in understanding the full scope of riparian rights and obligations in the international water basin.

Double Tax Treaties: An Introduction

The existing network of over 2,500 bilateral double tax treaties (DTTs) represents an important part of international law. The current DTTs are all based on two models, the OECD and UN model DTTs, which in turn are based on models developed by the League of Nations between 1927 and 1946. Despite some differences that will be discussed below, all DTTs are remarkably similar in the topics covered (even the order of articles is always the same) and in their language. About 75% of the actual words of any given DTT are identical with the words of any other DTT. Thus, the DTT network is the most important element of the international tax regime, i.e., the generally applicable rules governing income taxation of cross-border transactions. Indeed, I have argued that given the similarities among all DTTs, certain rules embodied in them (such as the requirement to prevent double taxation by granting an exemption or a foreign tax credit) have become part of customary international law, and therefore may be binding even in the absence of a DTT.

Economic Genocide Under International Law

The status of genocide in international law is well developed and forms part of customary international law and also treaty law. International tribunals such as the International Criminal Court and specialised chambers such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have addressed and made a number of convictions regarding genocide. This relative success in the international criminal justice system regarding genocide has given the appearance that perpetrators responsible for genocide will be brought to justice. Yet, there is a fundamental crack in international criminal law with regard to genocide as a crime and how to bring perpetrators to justice. That crack, is essentially, the narrow scope and definition of genocide, and also how to demonstrate that perpetrators had the intention of committing genocide. I contend in this article that the scope of genocide should be extended to include economic genocide and argue that spillover intent of aiders and abettors of genocide requires more clear and coherent rules to include economic genocide as part of how the crime of genocide is assessed in international law. The article first presents and discusses the notion of genocide, taking into consideration the Genocide Convention (1948) and then discusses the status of Article 2(c) of the Convention to define economic genocide. The article then posits the calculated economic measures that affect the conditions of life of peoples involve intent and that intention has a spillover effect.

The Legal Status of the United Nations Declaration on the Rights of Indigenous Peoples (2007) in Contemporary International Human Rights Law

This article explores the legal status or effect of the United Nations Declaration on the Rights of Indigenous Peoples (undrip) in contemporary international human rights law. As a United Nations General Assembly (unga) resolution, the legal significance of undrip may appear uncertain on the surface. However, several unga resolutions do carry some legal weight with far-reaching legal implications in international law. For example, the Universal Declaration of Human Rights 1948 (udhr) has been widely accepted, at least in part, as forming part of customary international law. Through a critical examination of relevant literature and some decisions of international, regional and national courts, this article examines whether the undrip, in whole or in part, reflects customary international law. It also considers the relationship of the undrip with other international human rights instruments, and whether it should be applied as part of general principles of law on issues that are essential to indigenous peoples such as non-discrimination, self-identification, land rights and development.

Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

The subject. The article is devoted to the subject of the exhaustion of domestic remediesbefore filing a complaint to the European Court of Human Rights.The purpose. The purpose of this article is to show and reveal the characteristics of suchimportant condition of lodging a complaint before the European Court of Human Rights asthe exhaustion of domestic remedies.The methodology. The following scientific methods have been used to write this article:analysis, comparing and making conclusions.Results, scope of application. The right of individual petition is rightly considered to be thehallmark and the greatest achievement of the European Convention on Human Rights. Individualswho consider that their human rights have been violated have the possibility oflodging a complaint before the European Court of Human Rights. However, there are importantadmissibility requirements set out in the Convention that must be satisfied beforea case be examined. Applicants are expected to have exhausted their domestic remediesand have brought their complaints within a period of six months from the date of the finaldomestic decision. The obligation to exhaust domestic remedies forms part of customaryinternational law, recognized as such in the case – law of the International Court of Justice.The rationale for the exhaustion rule is to give the national authorities, primarily the courts,the opportunity to prevent or put right the alleged violation of the Convention. The domesticlegal order should provide an effective remedy for violations of Convention rights.Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioningof the protection system under the Convention and its basic principle.

21st Populist Demagogues, Anti-Human Rights Candidatess and the Electorate: A Critical Analysis of the Fitness for Public Officee Rule from an International Human Rights Law Perspective.

The 21st century has seen the rise to prominence of populist leaders who do not respect human rights. The rise of such leaders has been explained in terms of current world problems like terrorism, migration, influx of refugees, economic stagnation and cultural backlash. Populists promise to rectify such problems at all cost, making it clear that nothing will stand in their way – even fundamental human rights. They openly and publicly support racial discrimination, torture and other violations of jus cogens norms of human rights. Despicable as they may seem, some of such populist demagogues have the support of the electorate. This paper discusses whether such ‘anti-human rights candidates’ are fit for public office – offices like the office of the president whose duties include protection of human rights. It further addresses the question whether a state that allows an ‘anti-human rights candidate’ to run for public office violates its international obligations. In this paper, the term ‘anti-human rights candidate’ refers to a candidate whose record, conduct or proposed plans or policies once he or she assumes public office are inconsistent with fundamental rights that are guaranteed in the national constitution, human rights treaties that have been ratified by his or her state and human rights norms that are part of customary international law.

Security of the Civilian Population from the Consequences of Aerial Warfare in the Light of the Hague Rules of Aerial Warfare of 1923

The WWI had introduced a variety of unknown means and method of warfare. Among them, one type of warfare played especially significant part during Great War hostilities – the rise of the air power. From the technical newbie, which was introduced by the Wright Brothers in 1909 the capabilities of aircraft rapidly increase during the first years of war and after the conflict. However, despite the obvious technical development, the new type of warfare is responsible for spreading the fear and terror among civilian population. The first aerial bombings of London and other towns in the United Kingdom had devastating impact on morale of the non-combatants and caused extensive damage to their properties and infrastructure. The applicable international humanitarian law was outrun by this situation. The Fourth Hague Convention from 1907 was accepted before aircraft`s first combat deployment and lacked any specific provisions in this aspect. No other specific rules concerning the conduct of aerial warfare was adopted before the year 1914. When the gun finally silenced it was natural that international community was demanding an increase own security from the negative consequences of new developed types of warfare. Nevertheless, the main agenda concentrate over the problem of chemical weaponry and unrestricted submarine warfare, while the supreme powers of the mid- war world decide to regulate the conduct of modern combat during the Washington Disarmament Conference in 1922-1923. Quickly the conference became a playground for the state members, which focus on the post-war order rather than the solving the main issues of the international humanitarian law. However, the members of the conference had established an mixed commission of jurist and military officers who had been authorized to prepare a draft of aerial warfare code. The document was finally finished in 1923, and its know as Hague Rules of Aerial Warfare (HRAW), containing 60 articles concerning the use of the air power during the armed conflict. The proposed provisions outruns its times, introducing the 'prototypes' principles of military objective and proportionality, which later became an basic rules of contemporary law of armed conflict. As a way of protecting civilian population in urban areas, the draft proposed an restricted rules of engaging combatants in populated zones. Unfortunately, the HRAW has never been adopted as a treaty law. The futuristic approach to the issues of noncombatants security from the implications of unrestricted aerial bombings, as proposed by the mixed commission in 1923, have been ignored by the public opinion, which seemed to forget the fear and terror when the aerial actions against inhabited areas have been conducted by the fighting sides during the WWI. It is important to observe that the mid-war societies generally had been lulled into the false sense of security, considering that the eventual advantages of aircraft capabilities would overturn any possible threats of unregulated aerial warfare. Above explains why the states were unlike to accept any provisions which could constrain the future development of aviation. Nevertheless, the HRAW has significant role in shaping the future conventions and treaties, being considered a part of customary international law. The point of the paper is to examine the core of draft from 1923 and examine how the HRAW protected the civilian population from the consequences of the unlimited aerial warfare and how the 'security of noncombatants' principle and 'military way of thinking' have been balanced by this document.