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Custom as a Source of International Law
... According to the data gathered by AAPP as of June 2023, there have been (54) lawyers (31 males and 23 females) arrested since the failed coup in 2021 and (40) lawyers still remain in detention, while (9) lawyers were sentenced to prison and (14) lawyers have been released. In some cases, lawyers were even arrested in front of the court immediately after they defend a political client 10 . This emphasizes the collateral impacts of the flow of injustice, demonstrating how lawyer's lives are impacted by defending political prisoners. ...
... Moreover, Myanmar has the same obligation of not to provide impunity for core international crimes under customary international law, as evidenced by the widespread acceptance of numerous international conventions 8 and instruments stating this hallowed principle, 9 such conventions being evidence of the existence of a customary norm. 10 ...
... Compiled list of damages caused by Cyclone Mocha in Chin State.10 In Kachin State, Waingmaw township and Mansi township were primarily affected by strong winds. ...
PROGRESSIVE VOICE WEEKLY HIGHLIGHTS REPORTS UPDATE 7th AUGUST-13rd AUGUST 2023
https://progressivevoicemyanmar.org/2023/08/20/no-protection-from-the-climate-emergency/
NO PROTECTION FROM CLIMATE EMERGENCY
AUGUST 20TH, 2023 • AUTHOR:
PROGRESSIVE VOICE
RESOURCES FROM THE PAST WEEK
Statements and Press Releases
AIPA must take strong stance on Myanmar, Southeast Asian MPs say
By ASEAN Parliamentarians for Human Rights
AIPA MUST TAKE STRONG STANCE ON MYANMAR, SOUTHEAST ASIAN MPS SAY
AUGUST 7TH, 2023 • AUTHOR:
ASEAN PARLIAMENTARIANS FOR HUMAN RIGHTS
WAR CRIMES BY MYANMAR MILITARY ARE MORE FREQUENT AND BRAZEN – MYANMAR MECHANISM ANNUAL REPORT
AUGUST 8TH, 2023 • AUTHOR:
INDEPENDENT INVESTIGATIVE MECHANISM FOR MYANMAR
https://progressivevoicemyanmar.org/2023/08/08/war-crimes-by-myanmar-military-are-more-frequent-and-brazen-myanmar-mechanism-annual-report/
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/ASEAN-AICHR-Petition-Application-Against-Myanmar-on-the-Gross-Human-Rights-Violations.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/Muse-Kutkhai-update-English.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/Muse-Kutkhai-Burmese.pdf
Reports
မင်းမဲ့တိုင်းပြည်။ အကြမ်းဖက်စစ်အုပ်စု၏ နိုင်ငံရေးအကျဉ်းသားနှင့် မိသားစုများအပေါ် ဥပဒေမဲ့ပြုကျင့်မှုများ အစီရင်ခံစာ
By Assistance Association for Political Prisoners
https://progressivevoicemyanmar.org/wp-content/uploads/2023/07/Final_Prison-Situational-Report-10-Jul-2023.pdf
THE FLOW OF INJUSTICE OUTLINED IN THIS REPORT SHINES A LIGHT ON THE HARSH REALITY POLITICAL PRISONERS AND THEIR FAMILIES MUST ENDURE IN BURMA
JULY 11TH, 2023 • AUTHOR:
ASSISTANCE ASSOCIATION FOR POLITICAL PRISONERS
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/flowfojustice_burmese_executive-summary.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/flowfojustice_burmese_final.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/WNR_Issue-116_ENG.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/WNR_Issue-116_MMR.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/ASEAN-AICHR-Petition-Application-Against-Myanmar-on-the-Gross-Human-Rights-Violations.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/G2312500.pdf
https://progressivevoicemyanmar.org/wp-content/uploads/2023/08/GRADE-CycloneMochaMay23Myanmar.pdf
... The first element, the generality of practice, no specific number of states can be ascertained or determined but it shall take into account the participation of states including the reaction of other states towards such practice (Akehurst, 1974). Extensive acceptance among states whose interests are particularly affected is also vital according to the Internatioanl Court of Justice (ICJ) in the Fisheries Jurisdiction Case (United Kingdom v Iceland (1974) Merits, ICJ Reports 3). ...
... Hence, a custom will also state that some states have not consented to the rule and do not object to it. Generality could require a large majority as in South West Africa `Cases (1966) ICJ Reports 291) and in some cases, generality depends on the evidence available for a particular circumstance (Akehurst, 1974;Brownlie, 2008 andKunz, 1953). ...
The application of international custom in domestic courts is a contentious exercise. This paper examined the importance and applicability of the principle of non- refoulement in domestic courts. Discussion begins with the scrutiny of the formation of the principle as international custom. Next, it deals with the status of international customary law in the domestic legal framework of a dualist state with the analysis of the judicial response to attempt to invoke international custom in cases. The result shows that there are legal impediments that must be removed to enable meaningful application of the principle for the benefit of refugees.
... 62 Talmon (2005). 63 Cahin, Ranjeva & Simon (2001) at 95. See also Akehurst (1975) at 11. 64 Nicaragua case, para 188. 65 Ibid, at para 191 development of international law or encapsulating the rules of international law without specifying the content of these rules. ...
The United Nations has voted for the Kashmir dispute to be settled by a referendum in the territory since the inception of both India and Pakistan as independent states in 1947. The Security Council resolutions have mandatory effect since their passage and a plebiscite was overdue when India decided to annex the state in August 2019. In refusing to let the people decide their future the Indian government went against the cardinal principle of self-determination. By revoking its constitutional status as a state within the Indian Union the government revoked the Article 370 without consulting any other interested party including the political representatives of the Kashmiri people. The consequence was the declaration of Martial law in the Valley enforced by an unprecedented security operation whereby the special powers allotted to the military and the auxiliary Border Security forces and Central Reserve Police force have been used to assault the human rights of the people. The Indian government has not only refused to implement the mandate of the UNSC but also breached the International Convention of Civil and Political Rights and the Universal Declaration of Human Rights. The actions of the Indian forces have been under the spotlight of the UN Human Rights Council whose reports in 2018 and 2019 implicate the military of gross human rights abuses in Kashmir. The argument of this paper is that there should be rigorous application of international humanitarian law and war crimes tribunals invested to prosecute the Indian officials for breaches of the rules in Non-International Conflicts (NIC). Keywords: Instrument of Accession; Article 370; cultural genocide; Uti possidetis; UN Chapter VI; International Covenant on Civil and Political Rights; AFSPA Public Safety; ct, OHCHR Report 2018; International
... Michael Akehurst schreibt, eine kleine Anzahl an Uneinheitlichkeit könne zwar die Genese von Völkerge wohnheitsrecht nicht verhindern, erhöhe aber doch die Anforderungen an den Umfang der Staatenpraxis, die hierfür erforderlich sei. 839 Dagegen scheint das Beispiel der Fisheries-Entscheidung gerade zu zeigen, dass auch eine geringe Anzahl an Uneinheitlichkeiten die Feststellung von Völkerge wohnheitsrecht verhindern kann. 840 In jedem Fall hat Uneinheitlichkeit im Vergleich mit befürwortender oder ablehnender Praxis einen stärkeren Einfluss. ...
Peace mediation does not take place in a legal void, but often in a norm-critical or even norm-averse environment. This book contrasts this with the fact that legal conformity contributes to successful and legitimate mediation and that mediation also needs this legitimacy because it itself exerts a lasting influence. However, this need for legitimacy cannot be satisfied without taking legal norms into account. This circumstance is explained, as are the legitimacy issues to which legal norms themselves are exposed and which thus also limit the legitimatory potential for peace mediation.
... 43 As regards the ostensible requirement that verbal acts relate to a particular dispute in order to be considered state practice and not be merely abstract, Michael Akehurst has accurately observed 'there is no clear dividing line between the two classes of assertions; they merge into one another', especially as 'assertions about a particular dispute are [sometimes] dressed up as assertions in abstracto, and vice versa'. 44 In practice, states and courts often turn to national legislation in search of evidence of customary rules of international law. 45 For example, in the landmark case of Paquete Habana, the US Supreme Court relied extensively on historic pieces of domestic law of various states to determine the existence of a customary law rule that fishing vessels were exempt from capture as prizes in armed conflict. ...
... The stakes involved in hard law are higher because it involves clear, mandatory, and sometimes enforceable commitments. Soft law can develop into hard law, for instance, customary international law, but this only happens over time, and only if states demonstrate through consistent practice that they are following the norms and consider them legally binding (Akehurst, 1976;Byers, 1999;D'Amato, 1971). ...
This article compares Russian–Western cooperation in the Arctic and Space, with a focus on why cooperation continued after the 2014 annexation of Crimea. On the basis of this comparative approach, continued cooperation is linked to the following factors: (1) the Arctic and Space are remote and extreme environments; (2) they are militarised but not substantially weaponised; (3) they both suffer from ‘tragedies of the commons’; (4) Arctic and Space-faring states engage in risk management through international law-making; (5) Arctic and Space relations rely on consensus decision-making; (6) Arctic and Space relations rely on soft law; (7) Arctic states and Space-faring states interact within a situation of ‘complex interdependence’; (8) Russia and the United States are resisting greater Chinese involvement in these regions. The article concludes with the following contribution to international relations theory: The more that states need to cooperate in a particular region or issue-area, and the more they become accustomed to doing so, the more resilient that cooperation will become to tensions and breakdowns in other regions and issue-areas. This phenomenon can be termed ‘complex and resilient interdependence’, to signify that complex independence is more than a description. It can, sometimes, affect the course of state-to-state relations.
The present study is dedicated to the analysis of sources of international cooperation in the fight against the illicit drug trafficking and similar substances. The author thoroughly examines the provisions of international treaty law, as well as international legal customs in the aspect of their capacity to serve as sources of international cooperation in combating the illicit drug trade and similar substances. The main sources of international law are studied systematically, and the criteria for their inclusion in the overall normative framework of international cooperation are analyzed. The criteria and principles for the formation of international legal customs are explored separately. The author examines the normative nature of customary norms based on the observance of two criteria: the existence of universal practice and the recognition of that practice as a legal norm (opinio juris). The methodology of the research includes a normative analysis of the provisions of key international treaties and a comparative legal study of doctrinal concepts of international cooperation. The author proposes a definition of international cooperation in the fight against the illicit trafficking of narcotic drugs and similar substances, which should be understood as a collaborative comprehensive activity of states based on international law norms to create and apply material and procedural international and domestic norms aimed at ensuring global and regional drug safety for the world community. The author establishes that international treaties (including UN normative conventions) as well as international custom are the main sources of international cooperation in combating the illicit drug trade and similar substances. At the same time, it is asserted that unilateral acts of states; acts of international law-making by international organizations; agreements between states and international organizations; and analogy are also sources of international cooperation, which must conform to the main sources. The scientific international cooperation in the field of combating drug crimes as a complex institution of international criminal law is also examined.
The present article seeks to evaluate the international effects of the establishment of national economic law rules and the conditions for their application based on the principles of public international law. Considering the emergence of national economic law, which is a response to the social and internal developments of countries and in response to the shortcomings of private law, and considering the phenomenon of globalization and the fading of national borders and the intertwining of many social and economic relations at the international level, the application of national economic law has caused tensions and conflicts between different countries. This problem must be dealt with either through the coordination and unification of national economic law rules or through the resolution of disputes between the countries involved based on the basic principles accepted internationally. This article seeks to examine and present a framework of public international law based on which the limits of jurisdiction of states in the application of national economic law can be applied.
This chapter addresses the legal challenges posed by introducing the contextual element in the structure of the crime of genocide through the Elements of Crimes (EOC) and examines the relationship between the collective context of perpetration and the structure of the crime of genocide. Genocide is analyzed as an endangerment crime, exploring the various nuances that the structure of endangerment acquires when incorporated into inchoate genocidal offenses, specifically focusing on direct and public incitement and conspiracy as outlined in Article III(b)–(c) of the Genocide Convention. These inchoate offenses are chosen as the starting point due to their role in the preventive function of the Convention. They identify the existential risks that the law seeks to address and suppress criminal conduct that threatens the protected legal interest, even when such conduct falls short of genocide proper. The chapter concludes with a discussion on how these offenses reflect the broader preventive logic of the Genocide Convention and the challenges of aligning the legal framework with the realities of perpetrations, namely the collective and contextual nature of genocide.
Although the opinions of the Legal Counsel of the United Nations have been cited by the International Cour of Justice and frequently by scholars, the advisory practice of the Legal Counsel has not attracted in-depth studies. This books tackles this topic by analyzing the legal framework governing the Legal Counsel and analyzing the impact on the development of institutional law of the United Nations. The authority and normative standing of Legal Counsel opinions in UN institutional law and practice are considered, thereby contributing to a better understanding of UN institutional law.
Although the opinions of the Legal Counsel of the United Nations have been cited by the International Cour of Justice and frequently by scholars, the advisory practice of the Legal Counsel has not attracted in-depth studies. This books tackles this topic by analyzing the legal framework governing the Legal Counsel and analyzing the impact on the development of institutional law of the United Nations. The authority and normative standing of Legal Counsel opinions in UN institutional law and practice are considered, thereby contributing to a better understanding of UN institutional law.
Professional sports have unwritten, but nevertheless well-appreciated and behavior-guiding rules that have come to be viewed as obligatory and subject to enforcement. This essay uses such unwritten rules from professional sports as novel lenses through which to view afresh, and more richly to appreciate, customary international law (CIL) rules’ nature, origins, and evolution. Though much CIL scholarship has presumed that merely tradition and self-interest have empowered CIL’s legal force, unwritten rules from professional sports demonstrate that emergent and even unacknowledged norms can and do necessitate widely accepted actions and penalties. This essay begins with a discussion of CIL’s literature, distinct nature, and methodological challenges. It turns next to a review and analysis of four prominent, unwritten rules drawn from professional sports. Finally, based on that analysis, it identifies particular lessons of salience for students of CIL. This essay also specifies the broader implications for CIL of professional sports’ unwritten-but-obligatory rules.
The nineteenth century witnessed an immense looting of cultural property (“art looting”) during international warfare. Nowadays, many countries that had been deprived of their treasures as spoils of war (“countries of origin”) during that period seek to regain lost cultural property. Disputes of this kind become one of the most controversial and difficult issues in international law today. Whether these countries of origin have a legal right to restitution is one of essential discussions with regard to these disputes. This article discusses what legal obstacles countries of origin would face if they bring a claim to restitution of cultural objects that they lost possession of over a century ago in international law. The first obstacle is whether countries of origin could rely on any rules of international law, especially the laws and customs of war (or “the law of war”) in the current international legal framework. The second obstacle concerns whether the statutes of limitations or the passage of time undermine claims for restitution. The third obstacle is whether national patrimony law could be a pretext for preventing claims for the return of historically dispossessed cultural objects.
Self-Determination as Voice addresses the relationship between Indigenous peoples' participation in international governance and the law of self-determination. Many states and international organizations have put in place institutional mechanisms for the express purpose of including Indigenous representatives in international policy-making and decision-making processes, as well as in the negotiation and drafting of international legal instruments. Indigenous peoples' rights have a higher profile in the UN system than ever before. This book argues that the establishment and use of mechanisms and policies to enable a certain level of Indigenous peoples' participation in international governance has become a widespread practice, and perhaps even one that is accepted as law. In theory, the law of self-determination supports this move, and it is arguably emerging as a rule of customary international law. However, ultimately the achievement of the ideal of full and effective participation, in a manner that would fulfil Indigenous peoples' right to self-determination, remains deferred.
INTRODUCTION. Customary international law is the oldest source of International law and has been its main source for centuries. However, even in our time, the importance of custom in International law is preserved – besides and on par with international treaties; this is the other type of its legal norms. The main difference between the two kinds of norm is the unwritten form of custom, but customary and treaty norms have equal legal force.
MATERIALS AND METHODS. The documentary basis of the study is international treaties and international customs, resolutions of the UN General Assembly, Statute of the International Court of Justice and its jurisprudence, reports of the International Law Association. The theoretical basis of the article is the works of scholars of international law. The methodological basis of the study is general and particular scientific methods of cognition.
RESEARCH RESULTS. The research in the article leads to a conclusion that comprises a definition of international custom, and this is the formulation of it as applicable law in cases before the International Court of Justice: “international custom, as evidence of a general practice accepted as law” (Art. 38 (1) (b) of Statute of the Court). According to this definition, the customary legal rule contains two elements: objective, also material the practice of States, and subjective – the conviction of States that this practice is obligatory, i.e. law. It has been established in International law that the subjective element is termed by the Latin expression “opinio juris sive necessitates” (opinion of law or necessity), and most often the subjective element is briefly called only “opinio juris”. The research reveals as its result that by its nature opinio juris represents a conscious, intentional attitude towards State practice. The will of the State has external manifestations – the consent, acceptance, recognition and conviction of the State.
DISCUSSION AND CONCLUSIONS. The main conclusions of the research relate to the question of the formation of opinio juris. This formation is a process that is integrated: it simultaneously forms the practice of States and the opinio juris towards it. Opinio juris does not have an autonomous stage or process of formation, nor is it formed only after the practice of the customary law rule has been completely formed. The conclusion from the integrated process is that each act of the relevant practice, which is the same as the previous one, but also as the next one, helps to form the belief that this is the only, and therefore obligatory, manner to perform the practice. Conversely, States' belief that a given practice is obligatory motivates them to perform only that practice.
Much scholarship on customary international law has examined the merits of induction, deduction, and assertion as approaches to custom identification. Save for where international tribunals identify custom by assertion, writers have viewed custom identification that does not rely on evidence of State practice and opinio juris as an example of deductive reasoning. However, writers have stated that, at best, deduction is reasoning from the general to the particular. This article draws on legal philosophy to define the contours of deductive reasoning and argues that pure deduction, namely deduction not combined with other forms of reasoning, is an unsound approach to custom identification. This argument is tested by reference to cases of custom identification by the International Court of Justice, categorised according to three types of deduction: normative, functional, and analogical. This article also explores the authority and utility of custom identification by pure deduction and its impact on content determination.
The process of formation of customary law is quite unique and different from the process of formation of other sources of law. According to traditional theories, an enforceable custom emerges from two formative elements: (1) a quantitative element consisting of a general practice; and (2) a qualitative element reflected in the belief that the practice reflects a legal obligation. Unlike mere social norms, customary laws are treated by some legal systems as proper sources of law and enjoy the centralized enforcement and adjudication generally reserved to legislation, judge‐made law, or binding international treaties. Parisi and Fon have described the process of customary law formation as a form of “direct legislation through action,” which differs from traditional lawmaking processes in that the resulting rules emerge gradually through the actions of the subjects of the law rather than through political deliberation or adjudication.
This book is about the preservation of biodiversity in the oceans and new solutions for the protection of these important marine creatures and the commitments of governments at the international level
El presente libro fue concebido como tal hace ya algún tiempo, luego de cavilaciones acerca de la conveniencia de escribir un manual o una obra de mayor aliento que pusiera al alcance de los estudiantes de Derecho los avances doctrinarios en el Derecho Internacional Público y el papel de la jurisprudencia en su más reciente desarrollo. Finalmente, optamos por una obra en varios volúmenes, que nos permitiera tratar con detalle materia tan amplia y compleja, consultando y consignando la bibliografía disponible, de forma tal que quede a disposición de los lectores las fuentes que han servido para elaborar nuestro trabajo.
This book seeks to clarify the legal concept of proportionality in international humanitarian law, as it applies during armed conflict. It is argued in the book that a refocus of the interpretation of the proportionality rule is warranted to enhance the protection of civilians. More precisely, this book seeks to dissect the origins of the rule, determine how its components must be interpreted and how it is to be applied in practice. The book considers practical situations that may arise in the conduct of military operations and searches for the limits international humanitarian law sets to commanders' assessments of proportionality during armed conflict. The book concludes that proportionality is an inherently subjective and imprecise yardstick that nonetheless serves to protect civilians during armed conflict.
this book is about pritction of marine bio diversity in high seas and explain about giverments commitments in high seas emphasize on sustainable development.
The operationalization of domestic implementationOperationalization of domestic implementation requires States to specify the geographical ambit of domestic criminal jurisdiction. To avoid State responsibilityState responsibility and corrective interpretations by domestic courts, this exercise of prescriptive jurisdiction needs to be based on a “permissive rulePermissive rule”. Such rules rebut the general presumption that international law prohibits States to extend jurisdiction to matters with a foreign element. The chapter discusses whether the principle of territoriality, the nationality principleNationality Principle, the protective principleProtective principle, the passive personality principlePassive personality principle and universal jurisdiction provide a permissive rulePermissive rule regarding the crime of aggression. The chapter clarifies that the nationality of the perpetrator or the nature of the crime cannot challenge the right of States to exercise territorial prescriptive jurisdiction. Due to the transboundary nature of the crime, territoriality enables States to criminalize aggression committed against them or from their territory. The added value of other principles of jurisdiction is primarily limited to criminalize those situations that do not fall under territorial jurisdiction. The protective principleProtective principle may stretch to allied States whose vital interests are threatened. The chapter argues that it is possible to assume a permissive rulePermissive ruleunder customary international lawCustomary international lawfor third StatesThird States to exercise universal jurisdictionUniversal Jurisdiction over the crime of aggression. This can be argued either under an inductive approach by emphasizing the practice of the International Military Tribunal at NurembergInternational Military Tribunal at Nuremberg, or with support of deductive reasoningDeductive reasoning based on the nature of aggression as a “crime under international law”.
Sommaire
L’idée de considérer la coûtume comme l’une des bases du droit international pose des difficultés que les juristes tentent de résoudre depuis longtemps. Au dix-neuvième siècle, François Gény essaya d’expliquer le rôle de la coûtume comme l’une des sources du droit interne et ses recherches permettent de comprendre un peu comment la coûtume peut être considérée comme l’une des sources du droit international. Gény soulignait la difficulté qu’il y a à décider à quel stade de son développement l’usage devient droit coûtumier et se rendait compte qu’il devait y avoir à la fois un élément matériel et un élément psychologique. Mais il se rendait aussi compte de l’inexactitude fondamentale de toute explication du processus de création du droit coûtumier, cette explication étant influencée par la fait que ceux participant à la formation de la coûtume croient, faussement, qu’ils sont déjà obligés de l’observer. Gény, comme d’autres théoriciens, n’ayant pas réussi à résoudre ce dilemme, il est nécessaire de se pencher à nouveau sur la question de savoir si la coûtume est l’une des sources du droit international.
Uluslararası teamül hukuku kurallarının nasıl tespit edileceği, uluslararası teamül hukukunun en karmaşık konularından biridir. Uluslararası teamül hukuku kurallarının yazısız hukuk kuralları olması, bu kuralların varlığının ve zaman içerisinde geçirdikleri değişimin tespitini önemli hâle getirmektedir. Ancak, uluslararası teamül hukuku kurallarının maksatlı bir kanun yapma sürecinin ürünü olmaması ve kendiliğinden gelişmesi bu kuralların tespitini zorlaştırmaktadır. Mevcut hukuk kurallarını araştıran uluslararası mahkeme kararları ve bu kararlara doktrinde yöneltilen eleştiriler, somut vakaları ele almaları sebebiyle, meselenin aydınlatılmasına önemli katkılar sunmaktadır. Uluslararası mahkeme kararları ve doktrin incelendiğinde, devletlerin uluslararası nitelikteki eylem ve işlemlerinin, iç hukuk işlemlerinin, uluslararası örgütlerin kararlarının, uluslararası andlaşmaların uluslararası teamül hukuku kurallarının tespitinde doğrudan başvurulabilecek araçlar olduğu, uluslararası mahkeme kararlarının ise söz konusu kuralların saptanmasında dolaylı bir rolü olduğu sonucuna varılmıştır. Metodoloji yönünden yapılan değerlendirme neticesinde ise, uluslararası teamül hukuk kurallarının, yalnızca tümevarım metodu ile değil, tümdengelim metodu kullanılarak da tespit edilebileceği düşünülmektedir.
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
One strategy to address environmental degradation caused by transnational human activities is to focus on States as the principal actors and law-makers on the international plane. In order to address environmental challenges, States have by and large three avenues for regulatory management at their disposal: the first one is domestic legislation on pollution control and conservation within the boundaries of jurisdictional limits set by international law; the second avenue is action through regional organisations of economic integration which have the power of supranational law-making, although these also have to observe the same jurisdictional limits in relation to the international community; and the third avenue is traditional international law-making, the method on which this Chapter focuses.
Although customary international law (CIL) has been central to international law from its inception, it is often misunderstood. This edited volume remedies that problem by tracing the history of CIL and provides an in-depth study of its theory, practice, and interpretation. Its chapters tackle the big questions which surround this source of international law such as: what are the rules that regulate the functioning of CIL as a source of international law? Can CIL be interpreted? Where do lines between identification, interpretation, application, and modification of a rule of CIL lie? Using recent developments, this volume revisits old debates and resolves them by proffering new and innovative solutions. With detailed examples from international and national courts, it places CIL in a range of settings to explain, explore and reflect upon this developing and highly significant field. This title is also available as Open Access on Cambridge Core.
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
Few events have influenced our global order as intensely as the events of September 11, 2001. At various levels in the past ten years, persistent attempts have been made to address the threat of terrorism, yet there is still urgent need for a joint and coherent application of a variety of regulations relating to international criminal justice co-operation, the use of force and international human rights law. In an important contribution to international discourse, Larissa van den Herik and Nico Schrijver examine the relationship between different branches of international law and their applicability to the problem of terrorism and counter-terrorism. Using a unique combination of academic perspectives, practitioners' insights and a comprehensive three-part approach, Counter-terrorism Strategies in a Fragmented International Legal Order offers sound policy recommendations alongside thorough analysis of the state of international law regarding terrorism and provides fresh insights against the backdrop of recent practice.
The literature on the identification of rules of customary international law is extensive. Commentators have focused on isolating the methodologies by which international courts and tribunals identify customary international law, with most of the debate revolving around the use of induction, or deduction and assertion as methods of custom identification. However, the existing literature has overlooked that the choice among custom identification methodologies takes place behind closed doors, during confidential deliberation processes. When all that scholars see may be deduction or assertion, international courts and tribunals may have ascertained the existence of customary rules by induction, but induction may not have made it into the final text of the decision. This article elaborates on the impact of judicial deliberations at the International Court of Justice on the choice among custom identification methodologies. It argues that individual-driven stages of deliberations favour custom identification by induction, while collegial stages promote custom identification by non-inductive methodologies.
Obligation to Combat Corruption as Erga Omnes Obligation in Customary International Law and Jus Cogens
In the era of globalization, international trade and cooperation, the era of human rights, rule of law and equality as universal values of the civilized world, corruption is most inimical to the peaceful and sustainable development of mankind. This article deals with the nature of corruption under international law and suggests possible solutions to the issue of corruption on the international level.
Corruption in any form amounts to material or procedural deviations from norms of law that lead to unpredictable behavior of all subjects of law, chiefly all state bodies, and thus states. This unpredictability is an obstacle to international trade, investments, migration, tourism, protection of human rights, cooperation, etc.
This article studies the most recent scholarly works and analyzes, from a comparative perspective, the general features of corruption, anticorruption laws of several states with different legal systems, demonstrating that the notion of corruption has common features in different nations and cultures and in different international conventions, such as the United Nations Convention against Corruption.
The article also studies the nature of states’ obligation to combat corruption as an obligation under customary international law, as obligation erga omnes, and as the jus cogens norm. A separate section is devoted to the study of a nonrecognized human right to freedom from corruption.
The aim of the article is to explore the possibility of creating international tools of joint combat on corruption in a given specific state through the recognition of the erga omnes nature of the obligation to combat corruption.
Provided that all states have an ipso facto positive obligation to combat corruption, we may look at this obligation from the point of view of state responsibility for its violation.
As corruption damages the state mechanism and results in the state’s inefficiency in performing its tasks, both in domestic and foreign affairs, corruption in one state leads to complications for all other states in matters related to this one state. And in a globalized world the scale of such complications is enormous.
Thus, the perception of the obligation to combat corruption as obligation erga omnes is valid and leads to the necessity of creating effective international tools to combat corruption and to bring states to international responsibility for ineffective or hypocritical combat on corruption to the specified extent. Finally, the article examines the existing international mechanisms of cooperative combat of corruption on the international level.
The currency of the concept of restrictive or relative immunity seemed not to have found favour with African countries, except the very few, currently seduced by the seemingly growing appeal of the restrictive theory, which has now become well grounded in the practice of states in the Western world. Most of these African countries have turned deaf ears to the call to cross carpet because of the fact that municipal courts in these countries have not had ample chance to consider the main issues relating to restrictive immunity and incidentally the jurisprudence of these countries remains silent or appears not to give room or allowance that the sovereign be sued in her own court. Some private claims in these countries of late, however, have been preferred against sovereigns before their own courts specifically in the spheres of civil rights, tort claims and declaratory adjudication, but it would appear that such claims are not that popular in these countries since one runs the risk of being silenced by the coercive apparatus of the power of the sovereign, which knows no internal or external superior. In fact, most African countries have a very conservative view of the traditional notion of state immunity because these countries believe steadfastly that international law is based on the patent principles of state equality clearly derived from the concept of sovereignty but not subjection.
The history in regard to the establishment of an international criminal court can be traced back to 1872 when Mr. Gustav Moyuier proposed the establishment of a permanent criminal court in response to the egregious crimes which were committed during the Franco-Prussian war. This noble proposal was initially considered transitory but was brought into reality after the first world war when the drafters of the Treaty of Versailles put in place an ad-hoc international court to prosecute Kaiser and other German war criminals. In fact, the attempt to prosecute Kaiser and his subordinates in crime met with resistance because the Allies at that epochal era failed to agree on the basic principles of international criminal law. Further, it is on record that German nationalist political leaders became recalcitrant and thereby defeated the quest to visit German war criminals with punishment. However, in the end, some German soldiers were tried but only six German soldiers were convicted out of twelve soldiers and this was due to a shameful compromise.
Many would no doubt be wondering as to the current position of African states on the state immunity controversy. Their curiosity is understandable, because state practice is quite scanty in the region. And this is due to the fact that there is paucity of national legislation and municipal court decisions on the subject. It is therefore the purpose of this study to explore the rule of state immunity and the practice of states in Africa and possibly to lay down a framework of legal theories to support the fact that resistance to private suits brought against African states before foreign courts or foreign national authorities can arguably be construed to represent state practice in as much as these African states in one way or the other appear to be making claims duly derived from general international law, i.e., the maxim par in parem non habet imperium or par in parem non habet jurisdictionem. But before we delve into the above mentioned issues, it is apposite first to explore the fact that sovereign immunity had existed in Africa in a form of oral customary traditional law long before Europeans set foot on the Continent.
The doctrine of state immunity was not simply conceived overnight or eo instanti, but was rather gradually developed over a long period of time by municipal courts. In other words, the concept became law specifically through juridical evolution totally influenced by juridical philosophy.
International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality ( lex praevia , scripta , and stricta – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying ex post facto criminal laws. This approach, the relaxation of the concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL.
The purpose of this Chapter is to explore the extent to which a human rights exception (a jus cogens exception) to State immunity is recognised by domestic courts. To this end, it examines the practice of the United States, Canadian, Greek and Italian courts, and, in particular, the developments taking place after the Judgment 238/2014 of the Italian Constitutional Court, which opposed the ruling of the ICJ in the Jurisdictional Immunities of the State case. The main issue is whether a national court can depart from customary law on State immunity, when the ICJ has clearly established its limits. Such a departure would undermine the authority of international adjudication, but on the other hand it could lead to elaboration of a new standard. Consequently, this Chapter will focus on the obligation of national judges to comply with international law and their right to participate in the creation of customary law.
Bu çalışmada uluslararası örf ve âdet hukuku ile uluslararası insan hakları hukuku arasındaki ilişki incelenmektedir. Uluslararası insan hakları hukuku uluslararası hukukun görece yeni bir alt dalı olup, İkinci Dünya Savaşı sonrasında ortaya çıkmıştır. Doktrinde uluslararası insan hakları hukukunun kaynaklarına ilişkin tartışmalar hâlâ devam etmektedir. Bu tartışmalardan bir tanesi de uluslararası örf ve âdet hukukunun, uluslararası insan hakları hukukuna kaynaklık edip etmediğine yöneliktir. Doktrindeki bazı yazarlar, uluslararası örf ve âdet hukuku normlarının uluslararası insan hakları hukuku kurallarının kaynağı olamayacağını ileri sürseler de eldeki çalışma bunun aksini iddia etmektedir. Bu amaçla çalışma öncelikle uluslararası örf ve âdet hukuku ile uluslararası insan hakları hukukunun genel niteliklerini kısaca açıklamaktadır. Daha sonra ise bu ikisi arasındaki ilişkide, ilkinin ikincisine erga omnes nitelik kazandırarak olumlu, ancak bazı devletleri kuralların oluşum sürecinden dışlayarak olumsuz etki yaptığını ileri sürmektedir. Bu olumsuz etki özellikle Uluslararası Hukuka Üçüncü Dünya Yaklaşımları literatürü üzerinden açıklanmaktadır.
Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated tribunal, namely the International Crimes Tribunal Bangladesh (ICTB). Though the Tribunal is preceded under municipal law, its material jurisdiction, i.e., crimes against humanity and genocide, originated from international criminal law. Therefore, this study examines several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. First, I discuss several legal flaws of the Tribunal by defining crimes against humanity and genocide under the ICTB Statute and jurisprudence. Second, I scrutinize the legal status of international (treaty and customary) laws in Bangladesh’s legal system. Third, by applying international criminal law standards, I focus on the idea that it is one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998. Fourthly, I also discuss whether Bangladesh has any obligation to apply customary international law definition of crimes against humanity because crimes against humanity are considered jus cogens offenses in general international law, from which no derogation is permitted. Lastly, I conclude that Bangladesh Tribunal failed to fulfill its legal obligation to define international crimes under the treaty and customary laws and forward a way to be implemented to improve the legislative system of Bangladesh and harmonize it with international legislation.
The definition of crimes under international law in the strict sense, or core crimes—the crime of aggression, genocide, crimes against humanity, and war crimes—is more or less indicated in customary international law. Especially, the crime of genocide and grave breaches of the Geneva Conventions of 1949 as war crimes are defined in multilateral conventions that are recognized as reflecting universally established customary international law. Nonetheless, since the major applicable law of the International Criminal Court (ICC) is its own statute whereas ad hoc international criminal tribunals basically apply customary international law, problematic legal situations arise where the definition of crimes slightly differs among various international judicial forums.
This chapter explores the question as to whether the practice may find its roots in customary international law, drawing on its constituent parts state practice and opinio juris. Both elements will in the first instance be defined, as will the concept of regional custom. This Chapter will look first at state practice from around the world drawing on the research conducted in the context of the Chap. 7 Annex in order to establish whether the state practice element is fulfilled in respect to any of the world regions on a regional level or indeed universally. In this regard, the regions of Latin America and Europe will play a central role owing to the wealth of case examples in this respect. Opinio juris will then be examined in order to ascertain whether a customary practice exists in any of the world regions and indeed whether a universal customary practice exists in favour of diplomatic asylum. In this regard, the region of Latin America will play a central role owing to the wealth of opinio juris emanating from the region.
Nuclear disarmament has been a global aspiration since the advent of the United Nations. However, the structures of positivist international law have often hindered any meaningful progress towards fulfilling this aspiration. The law concerning nuclear disarmament has suffered from the limitations of the fragmentation of international law. For instance, the conclusion of the Treaty on the Non-Proliferation of Nuclear Weapons has also allowed for the more powerful Nuclear Weapon States to differentially treat the goals of disarmament and non-proliferation. The interests of the Nuclear Weapon States have been equally, even if unintentionally, protected by the International Court of Justice. The Court has used technical grounds to disregard the larger interests of the international community on every occasion it has had to adjudicate on the issue of nuclear disarmament. The reason for the reticence of international law to create progressive changes towards nuclear disarmament can be traced to the inequality in the foundations of international law. Thus, the growing influence of Third World Approaches to International Law allows us to engage in correcting such discriminatory foundations. In this light, this article attempts to develop a communitarian theory of customary international law. The theory not only provides a more coherent basis for establishing custom but would also prioritise community interest over the interests of individual States. Such a theory would renew global faith in the power of international law and provide the basis for a nuclear weapon-free world.
There are many practical and theoretical difficulties regarding customary international law which remain unresolved. Pending theoretical debates, not to mention discrepancies between the existing theories on the subject and the realities of State practice, only serve to confirm this. This thesis attempts to explore those difficulties, relating them (though not exclusively) to an institution of international law which has been created by the operation of a customary process, namely, the Exclusive Economic Zone (EEZ). The EEZ is used to exemplify the development of customary law, rather than as a study in the substantive law of the sea. Two main objectives are pursued in this thesis: first, to further the understanding of the nature of customary international law, and secondly, to develop a method or technique whereby a customary rule can be identified. Accordingly, the thesis has been divided into seven chapters. Chapter I introduces the reader to the concept of the international system, and describes the inter-relation between the international system and the international legal system. Chapter II offers a description and analysis of the drafting history of Art. 38 (2) of the Statute of the Permanent Court of International Justice with a view to unravelling the conception of customary law which underlies it and its successor. Art 38 (1)(b) of the Statute of the International Court of Justice. Chapter m is an investigation into the practical and theoretical significance of the concept of consent in the formation of a customary rule. The following two Chapters contain a study of the two components of a customary rule: the practice of States (TV) and the subjective element (V). Chapter IV seeks to determine, inter alia, what types of act constitute State practice and which organs of the State are considered to represent the State in their actions, so far as the customary process is concerned. Chapter V examines the various theories on the subjective element, and presents a tentative definition of the subjective element which takes into account the evolutionary character of the customary process. Drawing partially on the preceding chapters. Chapter VI is a study on the nature and operation of a customary process. This chapter considers three main issues: how State behaviour is affected by the international system; the legal effects of State acts and interactions; and the role of institutional means (i.e., international organizations) on the customary process. To test and illustrate the propositions and conclusions arrived at, this chapter refers especially to the customary process of the Exclusive Economic Zone. Finally, Chapter VII is an inquiry into the nature of the inductive method and its utility as a technique for ascertaining customary law, followed by a proposal for a general method.
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