Rules Of Customary International Law Research Articles

Restatements of Foreign Relations and the Rule of Law

Each of the Restatements of Foreign Relations Law published by the American Law Institute has sought to promote the rule of law. It is easy to endorse this goal, but promoting the rule of law is more complicated than it may initially appear. This chapter surfaces some of the tensions that are built into the project of reaffirming or promoting the rule of law. To start, there are at least three distinct ways that Restatements of foreign relations law might promote the rule of law. They might do so by clarifying the content of the law; by contributing to the development of new legal rules, in particular to the evolution and consolidation of customary international law; and by promoting compliance with the law. The Third and Fourth Restatements have taken quite different approaches to promoting the rule of law. To some extent these different approaches are a consequence of changes in the legal landscape over the past three decades. They also reflect different choices that the reporters and the American Law Institute have made about how to carry out the project of restating foreign relations law. The chapter begins by identifying developments in U.S. case law that have begun to drive a wedge between promoting the rule of domestic law and promoting compliance with international law. The chapter then turns to the diverging approaches of the Third and Fourth Restatements with respect to customary international law. The Third Restatement is notably quick – according to some critics, too quick – to articulate rules of customary international law. In doing so, the reporters of the Third Restatement were quite willing to disagree with the views of the U.S. government. By contrast, the Fourth Restatement is more reticent on both fronts. The approach taken by the Fourth Restatement avoids some of the downsides of that taken by its predecessor, but also forfeits some of the advantages. The chapter closes by arguing that future installments of the Fourth Restatement ought to promote the rule of international law by updating and expanding the sections of the Third Restatement that address the architecture of international law on two key issues: international responsibility and how customary international law evolves over time. The Fourth Restatement need not directly exhort litigants and judges to comply with international law. But by providing this basic information about the international legal system, the Restatement would wave a caution flag and encourage courts to take the procedural steps that would avoid unwitting (and potentially deleterious) engagement with international law.

Military Intervention in Syria and the “Unwilling or Unable” Test: Lawful or Unlawful?

As is known, military intervention by the U.S.-led coalition was commenced in September 2014 in Syria. The justification invoked by some participants of the coalition was that the Syrian government was “unwilling or unable” to deal with Islamic State of Iraq and the Levant (ISIL), an international terrorist group. The “unwilling or unable” test gives rise to various debates among international scholars and practitioners. Some international publicists argue that military intervention on the basis of the “unwilling or unable” test is an emerging rule of customary international law, while others are rather opposed to it. The U.S. announced its intention to withdraw its troops from Syria on 19 December 2018. This, however, does not mean an immediate cessation of operations of the U.S.-led coalition in Syria. It is expressed in the statement made on 6 February 2019 by Mike Pompeo, the U.S. Secretary of State, in which he articulated that the arms cut in Syria is not a shift in mission but a strategic turn in essence. What can be inferred is that it seems unlikely that the military intervention of the U.S.-led coalition in Syria will be terminated in the near future. In fact, it arouses deep concern of humanity that the military intervention in Syria justified by the “unwilling or unable” test might recur in other regions or states. In this respect, the present article argues the compatibility of military intervention based on the “unwilling or unable” test proposed by some states, including the U.S., and some international publicists under universal principles of customary international law formation and international conventions.

Evolution and Cessation of the Existence of Customary Rules of International Law

Evolution and Cessation of the Existence of Customary Rules of International Law

Ne Bis In Idem in Article 20(3) of the Rome Statute and Non-State Courts

Abstract Article 20(3) of the Rome Statute bars the International Criminal Court from trying a person for conduct proscribed by the Statute if the person has already been tried in relation to the same conduct before “another court,” provided that the proceedings in the other court were genuine. The article discusses application of Article 20(3) of the Rome Statute and, by implication, of the Court’s admissibility framework to non-State courts. It argues that Article 20(3) applies where there has a been a trial before a court of a State, whether that State is a party or not to the Rome Statute. Article 20(3) can in principle apply to a trial before a non-State court were the trial to satisfy the customary international law rules on attribution of conduct to a State.

The Status of International Law in Jordan

International treaties and customary international law are the most important sources of international law. They have special legal force at the national level, and they are applicable in the legal systems and invocable in the courts of states. However, some states give international law, or certain types of international law like treaties, the status of higher law in their legal systems, while some states give international treaties legal force higher or equal to the Constitution itself. This article examines the status of international law in the Jordanian legal and judicial systems. It confirms that treaties and customary international law have the force of law and able to be invoked before the Jordanian courts. How international law is applied and how the Jordanian courts deal with arguments based on international law are examined in the article. The article argues that the application of international law, mainly international human rights treaties, in the Jordanian legal system can be directly effective, and international treaties and customary rules of international law can be invoked before the Jordanian courts.

Международно-правовые вопросы установления морских охраняемых районов

Международно-правовые вопросы установления морских охраняемых районов

Customary International Law and the General Principles of Law Recognized by Civilized Nations

Abstract This article looks beyond customary international law and asks whether the source of international law listed in Article 38, paragraph 1(c) of the ICJ Statute (‘the general principles of law recognized by civilized nations’) might join the dance. Is there a risk that general principles of law may be too easily invoked where no applicable treaty or rule of customary international law can be identified? In emphasizing the distinction between customary international law and general principles of law, the article first recalls relevant recent work of the International Law Commission. It then addresses the term ‘general international law’ and certain problems related to it, and raises questions concerning the relationship between customary international law and general principles of law. Before drawing some conclusions, reference is also made to the place of general principles of law within the international legal system.

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.

Treaty Bodies

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

The Implementation of Crimes Against the Peace and Security of Mankind in the Penal Legislation of the Republic of Kazakhstan

AbstractThe penal legislation of the Republic of Kazakhstan includes a number of crimes against the peace and security of mankind. Among these are most of the traditional “core” crimes under international law—genocide, war crimes, and the crime of aggression—as well as some other crimes. Crimes against humanity are not included in the Criminal Code so far but some of their definitional features are shared by so-called “extremist crimes”. In addition to other customary crimes against the peace and security of mankind—such as deliberately attacking internationally protected persons and organizations and abusing internationally protected emblems—the Code also includes more novel crimes, such as participation in foreign armed conflicts. This paper analyses the relevant provisions of the Criminal Code of Kazakhstan in the light of corresponding treaty-based and customary rules of international law, and suggests further improvements to be made to the Code.

The Relationship Between the Outer Space Treaty and Customary International Law

The progress in space-related science and technology has facilitated an exponential expansion of space activities, many of which were not known at the time of adoption of currently applicable international space treaties. Yet, since the adoption of the 1979 Moon Agreement, the further development of international conventional space law has all but ceased. International geopolitics, rapid technological advancement, and the increasingly commercially competitive nature of space activities have all contributed to a move away from the establishment of treaty-based rules towards ‘soft-law’ guidelines that are expressed to reflect practice. It has been argued that some principles included in the United Nations space law treaties have gained the status of customary international law. A new rule of customary international law emerges only after sufficient state practice and opinio juris and is said by some to be capable of amending and/or invalidating certain provision(s) of a treaty, or contributing towards a revised interpretation of the legal obligations under a treaty. When a treaty provision either crystallizes into, or becomes a customary rule of international law, it may give rise to binding obligations (and corresponding rights) upon a third (non-treaty party) state. This paper will examine this issue in the context of Articles I, II, VI and VII of the Outer Space Treaty, focusing in particular upon their (in)applicability to those states that have never been, or are no longer parties to the Outer Space Treaty, with respect to off-Earth mining activities for space natural resources.

Images and Customary International Law, or the Destruction/Construction of International Norms through Images

Abstract This paper explores the power of images vis-à-vis the practice and theory of international law, with a focus on rules of customary international law, i. e. the unwritten general rules of international law, that apply to all states (as well as to non-state actors falling within their scope of application), irrespective of specific acceptance. As Sherwin writes: “We are awash in images.” States, international organizations (IOs), non-governmental organizations (NGOs), insurgents, terrorists and other groups of individuals of all sort, are in the news and our movies, on our TV screens, newspapers, internet and social media. Modern technologies, visual digital technologies, in particular, have a profound impact on the means and speed of communications across the globe and immensely facilitate the task of seeking information of all sort. In international law, images are a means for spreading knowledge about the practice of states and other actors. As with law in general, images are also found to be a valuable resource in explicating the rules of international law. They aid and clarify the analysis of international law and the determination of the existence and content of rules of customary international law. In contemporary international settings, however, modern technologies of visual representation are also a means for influencing the development of international law, i. e. the existence and content of international norms. Moreover, looking at implementation, at no time in history has there been more information available to governments and the public about violations of international norms (particularly, but not exclusively human rights violations): more and more these violations are documented through images. Yet, international law doctrines have failed so far to comprehensively assess the power of images, beyond that of a toolkit for thick cultural description – the power of narrative – and analysis. The present essay offers a contribution in this direction.

Immunity of Heads of State and Senior State Officials from Subpoenas and Witness Summonses

Although the law on immunities under international law is a very rich field of study, not much analysis has been done on the immunities of Heads of State from acts other than prosecution, namely from witness summonses and subpoenas in international criminal law. This article poses the question whether international law allows for Heads of State and Senior State officials to be subpoenaed or summonsed to testify as witnesses, and seeks to answer it by systemizing the relevant case law of international criminal courts and tribunals. After defining the types and the application of subpoenas and witness summonses in international criminal proceedings, the article examines whether the immunity of Heads of State is upheld when such requests are filed before international and national courts. The case law of the ad hoc international criminal tribunals shows that when the tribunal had to adjudicate a request to compel a witness to appear, it adapted the legal standard by considering the type and the object of the subpoena, the status of the prospective witness, and the court’s role and mandate. The International Criminal Court iterated its power to compel the appearance of witnesses. As the immunities that are attached to the office of Heads of State and Senior State officials are largely sourced in rules of customary international law, the article maps the content of the customary rule governing specifically the immunity from subpoenas and witness summonses in international criminal law.

The Exceptio Non Adimpleti Contractus in Public International Law

Abstract The position of the exceptio non adimpleti contractus in public international law as a response to the breach of a treaty is surrounded by uncertainty. This article offers an analytical examination of: i) the notion of the exceptio and its relationship to other responses to the breach of a treaty; ii) the question of its conditions of application; and iii) its character as a rule of international law. It argues that the exceptio is distinct both from responses pursuant to Article 60 of the Vienna Convention on the Law of Treaties (VCLT) and from countermeasures; however, there is uncertainty with regard to its conditions of application. The exceptio can be considered as a general principle of law and, as such, can fill gaps in the regulation of responses to the breach of a treaty. However, it remains unclear whether the exceptio constitutes a rule of customary international law.

Heads of State and Other Government Officials Before the International Criminal Court: The Uneasy Revolution Continues

This essay takes up the current debate about the relationship between Article 27 of the Rome Statute of the International Criminal Court and Article 98 of the Statute concerning the immunity of sitting Heads of State from investigation or prosecution before the Court and the duty of States to cooperate with the Court as regards their arrest and surrender. The essay traces the history of Article 27 and its incorporation into the Statute and observes that it represents a rule of customary international law resting upon the adoption of the Nuremberg Principles after World War II, and reiterated in the Statutes of the ad hoc international criminal tribunals, that was included in the Rome Statute during its negotiation without comment or controversy. Now that the Court has become operational, current efforts to limit Article 27’s application using Article 98 of the Statute – first advanced by the United States and subsequently by member states of the African Union – represent an effort to change that custom by once more cloaking Heads of State with immunity, the same rule that protected Kaiser Wilhelm one hundred years ago. While States could arguably change customary international law by again proposing that high-ranking individuals are immune from prosecution before international courts and tribunals, and presumably amending the Rome Statute to so provide, the essay argues that the Court’s judges do not have this power. It also suggests that the jus cogens status of the norms embedded in the ICC Statute, including the individual criminal responsibility of high-ranking individuals, indicates that an effort to change this norm, even by States, could violate other peremptory norms of international criminal law. Moreover, given the long tenure of many of the leaders arguing in favor of this new rule, and the current tendencies of today’s heads of state to insist upon life tenure, such a change, even if lawful, would be tantamount to a grant of permanent immunity for the individuals thus protected. The essay thus proposes a return to “first principles” of international criminal law, which permit the investigation, arrest, surrender and trial of high-ranking government leaders to international courts, even during their tenure in office, assuming those courts and tribunals are exercising jurisdiction properly.

International Comity in the Restatement (Fourth) of Foreign Relations Law

This paper compares the treatment of international comity in the Restatement (Third) of Foreign Relations Law (1987) and the Restatement (Fourth) (2018). The Restatement (Third) generally avoided international comity and focused on restating international law. In some cases it argued without much support in state practice or opinio juris that rules originating in international comity had developed into customary international law. The Restatement (Fourth) takes a more restrained approach to restating rules of customary international law and correspondingly embraces international comity as a way of distinguishing limits on jurisdiction that are required by international law from limits on jurisdiction that are required only by domestic law. Basing doctrines of foreign relations law on international comity does not mean that these doctrines necessarily grant discretion to courts or to the executive branch. Most of the comity doctrines in the Restatement (Fourth) do not. It does mean that nations are free to shape these doctrines as they see fit. Identifying doctrines of foreign relations law as doctrines of international comity also highlights that they are part of a single toolkit that courts use to address problems in transnational cases.

The Legal and Institutional Challenges to the Implementation of the R2P Principle

The Responsibility to Protect (R2P) is an international legal principle that places both general and customary international law obligation on States to protect their own citizens from mass atrocity core crimes of genocide, war crimes, crimes against humanity and ethnic cleansing. This paper adopts doctrinal research method in examining the legal and institutional challenges to the global implementation of the R2P principle. This paper finds that there exist some teething legal and institutional challenges that affect the effective implementation of the principle.Implementation has been mixed as the case studies shows. Where it had been implemented, as in Libya, the result was quite limited while in situations where it has not been implemented at all, as in Syria, it calls to question the genuineness and integrity of the legal, political and moral commitment of the international community of States to end atrocious crimes in many troubled regions of the world.Conclusively, the R2P principle is an emerging customary rule of international law but has yet to attain full status of “jus cogens” peremptory norm of international law.The paper therefore recommends that an advisory body be established by the United Nations to advise States on the limitation of the R2P principle. It is also recommended that building institutional capacity and preparedness by States backed by greater cooperation between States, the international community and international organizations to implement the R2P principle is central to guaranteeing an effective R2P regime that is properly implemented in a timely manner. It also recommends measures to remove the legal and political uncertainties surrounding the outer bounds and limits of the principle arguing for inclusion of environmental crimes and natural disasters as grounds for invocation of R2P.

The Principle of Non-Refoulement in International Law and its Applicability in Protection of Refugees in India

The principle of non refoulement, as codified in the Article 33 of the Convention relating to the Status of Refugees 1951, is a fundamental principle of the international refugee protection regime. This principle imposes an obligation upon states to ensure that no refugee or asylum seeker is forcibly returned to a country where he or she might be subjected to torture, inhumane or degrading treatment. Keeping in view the importance of the principle in refugee protection, the present work, in the first part, provides an overview of the principle of nonrefoulement as fundamental rule of customary international law. The second part of the paper gives a general overview of India's refugee policy so as to delineate the incorporation of the principle of non-refoulement in the Indian legal system via Article 21 and 51 of the Constitution and also to highlight the excellentjudgments awarded by the judiciary pertaining to adherence to international principles on refugee protection including nonrefoulement.

Multinational Enterprises and the Global Investment Regime: Toward Balancing Rights and Responsibilities

The question of balancing rights and responsibilities of MNEs and host states is of cardinal importance for the legitimacy and stability of the international investment regime. Many of the shortcomings of the regime are the result of its expansion during a period when the focus was almost exclusively on the responsibility of host countries, as well as the speed with which the regime developed over the past 30 years or so. The rebalancing that is underway, and the various improvements that are being discussed, will help to rectify this situation, and hence need to be pursued vigorously. This chapter takes stock of where we stand in the evolution of the investment regime. It also shows that finding the proper balance regarding the rights and responsibilities of all stakeholders in the international investment regime is an ongoing struggle. Particularly now, the regime is very much in flux, given the various changes in the international economy: we are in the middle of a dynamic process in which key actors are reassessing their interest situations and objectives, including in the light of changing attitudes vis-a-vis FDI and changing expectations regarding the role of the regime. In the end, we might well have to transcend the combination of international investment agreements, customary international law, judicial decisions, authoritative statements, and voluntary rules that make up the international investment law and policy regime today and move toward a binding Multilateral Framework for Investment that comprehensively accommodates the rights and responsibilities of the various stakeholders in a manner that provides legitimacy to the entire regime.

The Formation and Identification of Rules of Customary International Law in International Investment Law, written by Patrick Dumberry

The Formation and Identification of Rules of Customary International Law in International Investment Law, written by Patrick Dumberry