Customary International Law Principles Research Articles

The Domestication of International Law in African Settings: Seven Normative Options in Ghana

Abstract In this article, we explore seven ways in which Ghana absorbs principles of International Law into her bosom. The safest mechanism Ghana has utilised over the years for this purpose has been the domestic ratification of international conventions through the mechanism of a law passed by her Parliament. Another mechanism is the ratification of such conventions by the passage of a Resolution by her Parliament. Furthermore, existing principles of Ghanaian law may coincide with principles of International Law. Again, principles of Customary International Law are considered a part of the Common Law of Ghana. There are also instances where Domestic Law incorporates International Law by reference. A sixth mechanism is where there is a lacuna in Ghanaian law regarding a particular issue and government officials and judges resort to principles of International Law to fill that void. Finally, International Law may find expression in domestic Ghanaian law where judges, in the process of elaborating on domestic legal principles, call in the principles of International Law.

The Significance and Role of Natural Law Doctrine in the Development of International Law

Natural law, which has played a significant role in the formation and development of international law, continues to be a subject of debate due to the specific definition of it sessence as a legal ideology that transforms depending on the course of history and the tasks set in this process. This ideology is an integral part of legal thought exclusively within Western civilization, the creation of which began with the encounter of Medieval Europe, represented by the Catholic Church, with the ancient philosophy of Ancient Greece, particularly Stoicism, which was utilized by Ancient Rome in the formation of jusgentium as a component of Roman law by magistrates. It was particularly during this period that the doctrine of natural law, in line with the Romans' understanding of jusgentium as a universal law for all of humanity, acquired a universal significance and continues to be one of the pillars of Western legal thought to this day. The spiritual, social, and political revolution in Europe marked by the Renaissance, the Reformation, and the rise of nation-states reshaped the concept of natural law,presenting it as a product of human intellect, namely, as human reason. Consequently,a new philosophical foundation emerged to justify international law among sovereign states, solidified by the Peace of Westphalia in 1648. The new paradigm of relations between states, influenced by the doctrine of natural law, found expression in Hugo Grotius' system of international law, characterized by objective causal connections. In this system, the doctrine of natural law underwent a shift where the postulates of God,while remaining recognized as a basis for its application, lost their decisive significance that characterized the medieval period. The subsequent stages of the development of international law, gradually assuming a contractual character, are associated with the abandonment of the ideology ofnatural law, which in the 19th century was entirely replaced by theories of positivism such as empiricism, pragmatism, and logical positivism. After World War II, a process of "rebirth of positive law" is observed, characterized by the emergence of human rights protection at the international level, the functioning of the international judicial system, and the necessity of interpreting customary international law and general principles of law. Discussions surrounding the principles of the Nuremberg Tribunal Statute, adopted in 1945, have become a significant factor in the reassessment of natural law ideology. Various, often contradictory, views regarding the content and form of natural law compared to the positive norms of international law continue to be expressed. The current crisis of international order and, consequently, international law it selfis leading to the emergence of separate economic and political enclaves, signifying a decline in the importance of universalism in international relations and marking the culmination of the revival period of natural law doctrine. This transition also demonstrates a shift towards a new form of regionalism independent of the UN Charter. Key words: Roman law, jus gentium, nature law, international legal order,international law, international law philosophy, crisis of international relations andinternational law.

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

LG and Others v. Rina SpA, Ente Registro Italiano Navale

352State immunity — Jurisdictional immunity — Action for damages against ship classification and certification company acting upon delegation from Republic of Panama — Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters — Article 2(1) — Whether Italian court having jurisdiction under Regulation — Article 1(1) — Scope of civil and commercial matters — Operations of ship classification and certification societies — Public powers — Whether classification and certification operations conducted in exercise of public powers — Immunity from jurisdiction — Whether customary international law principle of jurisdictional immunity of States precluding court from exercising jurisdiction under Regulation — The law of the European Union

The integration paradox: an ILC view on the EU contribution to the codification and development of rules of general international law

The contribution of international organisations (IOs) to the process of identification, codification or development of rules of general international law is one still enveloped in a measure of mystery. While the United Nations (UN) International Law Commission (ILC) has long relied on IOs’ practice, and the practice of States within IOs, in carrying out its work, it has only recently begun to address the role that IOs might play in the formation or expression of rules of customary international law, jus cogens or general principles of law. In this process, the European Union (EU) has long been seen as an ‘odd’ fit. From the point of view of general international law, EU integration forms an apparent paradox: on the one hand, the degree of transfer of powers to the organisation renders it particularly well suited to be a ‘jus generative’ force and a useful source of practice for the ILC’s work; on the other, its ‘exceptionalism’ often militates against the reliance on EU-related practice as evidence of existing or emerging rules of general application. This article looks at the effects of this ‘integration paradox’ in the ILC’s work by reviewing the references to, and the use of, EU practice in eight distinct codification projects, combined with interviews with ILC members and EU officials. It provides an ILC (outside) view on the relevance of EU practice for the identification, codification, and development of rules of general international law. This view, in turn, has implications for the operation of an EU (inside) foreign policy objective: its ambition to contribute to the development of international law, as expressed in Article 3(5) of the Treaty on European Union (TEU).

Offences against Internationally Protected Persons: Problems of International Legal Qualification

INTRODUCTION.The article examines various aspects of the international legal qualification of offences committed against internationally protected persons. The analysis of different elements of corpus delicti was laid at the heart of the study: namely, those of actus reus (whether the offence was perpetrate in the situation of an armed conflict), mens rea (whether the perpetrator was moved by a special intent, particularly the terrorist dolus specialis), and the legal status of a perpetrator (whether he or she was a state agent).MATERIALS AND METHODS. The materials of the study encompass international conventions, rules and principles of customary international law, case law of international courts and tribunals and international legal doctrine. The paper uses the comparative method and those of analysis and synthesis. RESEARCH RESULTS. The key result of the study consists in the assumption that offences against internationally protected persons can be considered as either a conventional crime within the meaning of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (including, if a terrorist dolus specialis is established, as a crime of terrorism), or (in case of armed conflict) a violation of laws and customs of war, for this category of persons falls within the definition of protected persons by implication of Article 4 of the 1949 IV Geneva Convention, which gives grounds for the application of Article 146 of the 1949 IV Geneva Convention for purposes of the their criminal prosecution.DISCUSSION AND CONCLUSIONS.Given the result of the study, it is states that the following test can be applied for purposes of international legal qualification of offences against internationally protected persons: first, it is necessary to establish whether the offence of committed in a situation of armed conflict; second, it is highly important to enquire about the intent of the delinquent. If there is a terrorist dolus specialis, the offence can be qualified as terrorism-related. Moreover, it is necessary to establish the status of the delinquent and whether the one is a state agent or a private person, or, even if the person is a state agent, whether the one is a person acting sua sponte; additionally, the status of a delinquent and its relation with the belligerent state in regard to the situation of armed conflict is also significant for the qualification of respective offences in light of international law

Ships, sovereign immunity and the subtleties of the Brussels I regulation: Case C-641/18 LG and others v. Rina SpA, Ente Registro Italiano Navale: Ships, sovereign immunity and the subtleties of Brussels I: Rina

More than 1000 passengers on a Panamanian-registered ferry drowned in the Red Sea. Some survivors and relatives of some of the victims sued the classification and certification ship society which had surveyed the ferry. Relying on the Brussels I Regulation, the plaintiffs sued the defendants in the latter’s seat (in Italy). The defendants claimed sovereign immunity as they were acting on behalf of Panama (that is, the flag state). The CJEU ruled that, generally, Article 1(1) of the Regulation means that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of, and upon delegation from, a non-EU Member State, falls within the concept of ‘civil and commercial matters’ in the Regulation. The defendants were therefore not immune. The CJEU qualified its ruling by saying that this is conditional on the activity being not exercised under ‘public powers’ (within the meaning of EU law) because then it would then be a sovereign and not a commercial activity. The CJEU thereby ruled that the customary public international law principle that foreign states have immunity from jurisdiction does not preclude an EU Member State court seised of a dispute from exercising jurisdiction under the Regulation in these circumstances.

The Impact of a Human Right to Water on the Sustainable Balance of Water Uses under the UN Watercourses Convention

This article sets the global scene for the regional and local levels elaborated upon by articles later in this special issue by addressing the following research question: What is the impact of a human right to water on the sustainable balance of water uses under the customary international water law principle of equitable and reasonable utilization as codified in the UN Watercourses Convention? In order to answer this question, first, both a human right to water and vital human needs are introduced. Second, the position of a human right to water under the UN Watercourses Convention is reviewed, focusing on vital human needs that require special regard in order to reach equitable and reasonable utilization of freshwater resources. Third, various water uses to be taken into account when aiming for a sustainable balance are considered. Finally, the shift in balance by the coming into existence of a human right to water is concluded upon: It is argued that the impact of the human right to water results in effective priority of water uses for vital human needs in the application of the principle of equitable and reasonable utilization of international watercourses, reinforcing the human right to water beyond borders in return. This article contributes to the legal discourse by linking the general principles of international water law to the human right to water, which are foremost dealt with separately in existing literature, and clarifies the position of this right in the balance of water uses in cases of transboundary water allocation.

A Duty to Consult Foreign Investors When Changing the Regulatory Framework? Implications for Non-Communicable Disease Prevention and Beyond

Abstract Several decisions of international investment tribunals can be read as suggesting that the fair and equitable treatment standard may oblige governments to consult foreign investors in the course of developing new laws and policies. This position would significantly expand the concept of fair and equitable treatment, and goes far beyond what most domestic legal systems require of governments. Generally speaking, there may be sound instrumental and normative reasons for engaging in consultation with affected stakeholders in the course of legislative and policy development. However, with the exception of treaty provisions that otherwise so provide, no duty of consultation in the lawmaking process arises from fair and equitable treatment clauses, customary international law or general principles of law. Therefore, industries such as the tobacco industry are unlikely to succeed in a claim of failure to properly engage in consultation in the process of lawmaking.

Implementing International Watercourses Law through the WEF Nexus and SDGs: an Integrated Approach Illustrated in the Zambezi River Basin

Abstract International watercourses law, as primarily codified in the UN Watercourses Convention which reflects the basic principles of customary international water law, provides only a broad framework for states to follow. It does not explicitly address the trade-offs of water uses across multiple sectors, such as energy and food, and the interplay between water and sustainable development. These gaps could be filled by turning to policy frameworks such as the Water-Energy-Food Nexus (WEF) and the global development agendas, such as the Sustainable Development Goals (SDGs). This monograph argues that utilizing these frameworks in an integrated manner, could aid riparian states and non-state actors in the consideration of competing water uses, thereby helping to resolve tensions and promoting cooperation among concerned states, as demonstrated using the Zambezi River Basin as a case study.

The Polluter Pays Principle in EU Climate Law: An Effective Tool Before the Courts?

The polluter pays principle (PPP) is often thought of as an aspirational or guiding principle rather than one that is justiciable by courts. While the principle features in many international conventions in varying formulations, it has not been recognized as a principle of customary international law. The legal status of the PPP in EU law is different. The PPP enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (TFEU) enshrines the principle among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the PPP in EU law, in the case-law of the Court of Justice of the European Union (CJEU) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the PPP has been most influential to date: first, cases concerning the EU ETS and emissions; second, cases concerning EU energy law; and third, cases concerning EU state aid law. Some reflections are offered in conclusion about the potential role of the PPP in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.

Adjudicating Cryptocurrencies at the WTO: Potential Threshold and Substantive Issues

Abstract Taking Venezuela’s complaint against the United States at the World Trade Organisation (“WTO”) as the inflection point, this Article will explore whether a characterisation of cryptocurrencies as a ‘currency’ (similar to a fiat currency) would ensure that cryptocurrencies are not covered by WTO disciplines on goods and services. Despite customary international law principles such as ius cudendae monetae and the persuasive argument that a ‘currency’ is neither a good or service – the Article answers this question in the negative. It will divide issues that can arise during such a WTO dispute into three categories: threshold, substantive and compliance issues. Threshold issues would involve interpretative challenges to determine whether the General Agreement on Trade in Services (“GATS”) and General Agreement on Tariffs and Trade (“GATT”) regulate cryptocurrencies. Since the GATS Schedule of Commitments has historically been interpreted in a technologically neutral manner, identifying cryptocurrencies as a ‘service’ may not prove to be insurmountable. However, the claim that cryptocurrencies are barter goods that will be subject to disciplines of the GATT deserves critical scrutiny – more so because the GATT regulates tangible products and contains specific provisions relating to balance-of-payments. The Article also undertakes a theoretical analysis of the heterodoxical nature of the cryptocurrency to evaluate whether it can be classified as a ‘security’ within the meaning of the GATS’ Annex on Financial Services. These threshold issues are, however, the tip of the iceberg. Once a WTO Panel commences its analysis, the substantive issues for consideration would involve determining whether a unique product such as cryptocurrencies has a ‘like product’ in the respondent Member’s market. Further, the Panel’s analysis would involve a consideration relating to ‘general exceptions’ under Article XIV, GATS or Article XX, GATT which would entail an examination of whether the measure was necessary to achieve, amongst other regulatory objectives, either compliance with domestic regulations or the maintenance of public order. If the measure adversely impacting cryptocurrencies is determined to be WTO-inconsistent, issues of compliance and suspension of concessions are imminent. WTO Panels have historically estimated the . quantum of suspensions of concessions by determining the trade volumes affected by the WTO-inconsistent measure and factoring it for a future time period. The decentralised nature of the distributed ledger technology underlying cryptocurrencies complicates any country-specific quantification of the impact on trade volumes of cryptocurrencies affected by the WTO inconsistent measure. Accordingly, determining suspensions of concessions in relation to cryptocurrencies would require significant judicial innovation by the arbitrator. Adjudicating Cryptocurrencies at the WTO: Potential Threshold and Substantive Issues.

A legal obligation to adapt transboundary water agreements to climate change?

Abstract Climate change disrupts the water cycle, jeopardises the security of water, food, and energy systems, and forces states to rethink water management practices to adapt to the new hydrological realities. When states share a water resource, adaptation to climate change proves to be more burdensome, especially if the resource in question is governed by a transboundary water agreement that fails to incorporate flexibility. The focus of this paper is on transboundary water basins with more than two riparian states, where only part of the co-riparian states are party to a transboundary water agreement. The paper discusses whether the recognition of the principle of equitable and reasonable use of water as a principle of customary international law creates an obligation for the party states to such agreements to adapt the terms of their arrangement to climate change. It argues that the principle of equitable and reasonable use of water establishes an obligation of conduct for the states to respect non-parties' riparian rights to a fair share of beneficial uses of water and protect the environment. Therefore, the nature of disruptions caused by climate change may make it imperative for the party states to take all possible measures that allow them to modify their water practices under an agreement to the implications of climate change in order to comply with the principle of equitable and reasonable use of water.

The Namibian Constitution, International Law and the Courts: a Critique

This article examines the Namibian position in relation to the domestic application of international law. Through an analysis of Article 144 as the primary Constitutional touchstone provision, the meaning and binding nature of international agreements is unpacked, in the process identifying how these sources become part of Namibian law. Moreover, the paper advances that Article 144’s phraseology renders both customary international law and general principles of law as sources of binding law in Namibia. A critique of the judicial application of international law, particularly by the Supreme Court, also reveals inconsistencies and errors. In addition to international law’s direct application, the paper identifies the parallel interpretative functionality of international law and enquires into the appropriate method for interpreting international law by domestic courts. The paper concludes by determining the relevance of soft law sources as deliberative, and potentially persuasive interpretative aids.

BEPS principal purpose test and customary international law

AbstractThe overall aim of this article is to analyse the principal purpose test as an emerging rule of customary international tax law. By means of the principal purpose test, the tax administration can deny the tax treaty benefit if one of the principal purposes of the action undertaken by the taxpayer was to obtain a benefit. This principal purpose test has been developed by the OECD with the political support of the G20 as one of the actions to tackle Base Erosion and Profit Shifting by multinationals (BEPS Project). At the time of writing, 137 jurisdictions including non-OECD, non-G-20 countries have committed to the implementation of the principal purpose test in their current and future tax treaties. Based on the analysis of the objective element (state practice) and subjective element (accepted as law), there are indications that this principal purpose test can emerge as a principle of customary international law. In the past, international tax law scholars addressed the customary international law regarding the OECD/UN tax treaty Models, the OECD Harmful Tax Practices, and the arm’s length principle. However, current international tax developments, including the BEPS Project, call for an analysis of the main elements of customary international law in respect of the principal purpose test, a general anti-avoidance rule that by its own nature, is often general, vague, and imprecise. Therefore, the findings of this article can be useful for generating new areas of research by international public law, international law, and international tax law experts.

The International Court of Justice as the Master of the Sources

This chapter shows that the uncontested and unrivalled mastery of the International Courts of Justice in terms of the sources of international law originates in a repressive construction, namely Article 38 which was originally meant to subdue the Court and repress its modes of decision-making. In doing so, this chapter offers a new story about the International Court of Justice, Article 38, and the sources of international law. It is a story where being repressed is what it takes to be a master. This chapter starts by formulating some preliminary remarks on the widely recognized mastery of the Court with respect to the sources of international law (1). It then sheds light on the repressive dimension of Article 38 and particularly demonstrates how such repression was, in 1920, used as a means to justify the conferral of power upon the Court (2). It then elaborates on the concrete uses by the Court of its very mastery of the sources of international law, especially with respect to customary international law, treaties, and general principles (3). Finally, this chapter offers some concluding remarks and thoughts on why repression and mastery often work together in international legal thought (4).

International Law and Legal Regimes of Foreign Direct Investment in Selected African Countries

International Law and Legal Regimes of Foreign Direct Investment in Selected African Countries

The shifting sands of space security: The Politics and Law of The Peaceful Uses of Outer Space

This article argues that the content of the legal term “peaceful purposes,”as used in international space law is changing. Peaceful Purposes as understood throughout the bulk of the Space Age has encompassed not only the UN Charter’s prohibitions on the use of force, but also a number of customary international law principles that enhanced it beyond mere non-aggression. Through an examination of state practice with regards to the military uses of outer space, this article concludes that the legal content of peaceful purposes is eroding towards an alignment with “non-aggressive” as understood in the law concerning the use of force. Specifically, this article argues that geopolitical and technological changes are encouraging states to pursue disruption in the space environment rather than stability, and this has been matched with state practice and rhetoric that exhibits that states are moving toward more offensive, rather than defensive, stances in the space environment.

Transnational state-sponsored cyber economic espionage: a legal quagmire

Transnational state-sponsored cyber economic espionage poses a threat to the economy of developed countries whose industry is largely reliant on the value of information. In the face of rapid technological development facilitating cyber economic espionage from afar on a massive scale, the law has not developed apace to effectively address this problem. Applicable United States domestic laws have been ineffective in addressing the problem due to lack of enforcement jurisdiction, sovereign immunity, and inability to hold the state sponsor accountable. Customary international law principles offer little help in combatting the issue, as countermeasures are typically unavailable since espionage may not be ongoing by the time a victimized state can confidently attribute it to a state and retortions are a relatively weak response. Although existing treaties have not been effective in addressing this problem, a multilateral global treaty specifically addressing transnational state-sponsored cyber economic espionage may be a promising way forward.

Critical perspectives on environmental protection in non-international armed conflict: Developing the principles of distinction, proportionality and necessity

AbstractThis article presents a timely and relevant critical examination of the customary international law principles of distinction and proportionality, and the doctrine of military necessity and the extent to which they can be better interpreted to protect the environment during the conduct of hostilities in non-international armed conflict. In so doing, this article contributes new perspectives to the ongoing debate on how environmental protection ought to be enhanced during non-international armed conflict. The article also suggests ways in which the International Law Commission (ILC) might approach the development of draft principles based on these customary principles as part of their current programme of work.