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Customary International Law in the 21st Century: Old Challenges and New Debates
Abstract
This article will survey the new non-traditional scholarship which has emerged in international law to challenge the two long-established
sources of customary norms, state practice and opinio juris. With the recent growth, in the international system, of self-contained international criminal tribunals, new challenges
facing international law have emerged. Institutionally structured as self-contained legal regimes, international legal tribunals
such as the ICTY, ICTR, and now the ICC have nevertheless contributed to a new paradigm within international law. The jurisprudence
of these international criminal tribunals, on a wide range of international legal questions, has slowly begun to be elevated
into norms of customary international law. Given this fact then, the debate over whether consistent state practice and opinio juris are the only building blocks of customary international law is over, because clearly, for better or for worse, they no longer
are. The new question, the new debate, will be over what the implications of this shift in the traditional building blocks
of customary international law are, not only on the international system as a whole, but also, surprisingly perhaps, on national
(domestic nation state) legal systems as well. The domestic law angle is key, for in the past few years the jurisprudence
of these international tribunals has, aside from finding its way into customary international law, also begun to seep into
the domestic (mainly criminal) law of several countries.
... Why does it have to state that it adheres to customary norms? (Baker, 2010). In contrast to the explanatory question as to why the norm arises, this question is normative rather than empirical it demands an investigation on the basis of legal obligation (Priambodo, 2018). ...
... In 2000, the ILA adopted the London Principles Statement that Applied to the Establishment of (General) Customary International Law (with comments) consisting of thirty-three principles (International Law Association, London Conference & Law, 2000). What can be identified in the literature is what distinguishes between "traditional" and "modern" CIL, with the latter relying on inclusive ideas about state practices (thus for example incorporating international organizational resolutions) and a relatively greater emphasis on the elements of opinojuris (Baker, 2010). ...
This study aims to analyze the traditional law community unit is examined by emphasizing the concept of Tri Hita Karana as a reference for village spatial planning, village buildings, and harmonization with cultural and environmental conservation in Penglipuran village. Based on field surveys, several attractions in Indonesia have not heeded the concepts of Tri Hita Karana, Tri Mandala, and Asta Kosala-Kosali. Sample of this study were the traditional village officers and associations of the Indonesian Hotels and Restaurants Association to test the model of the tourism village that imply the humanist integration of indigenous peoples empowerment. Statistical analysis is based on survey data and records of the amount of environmental damage due to high tourist activity. The results of this study shows that mutual humanist synergy is a collective nature of indigenous peoples and tourism service actors leading to environmentally friendly cultural ecotourism. The steady culture of the survival of traditions, customs, and ancestral culture has an impact on sustainable tourism development. The environmentally unconscious behavior becomes a challenge. Prevention of environmental damage can be overcome by offering a model of the Penglipuran tourism village as a universal model with environmental balance characteristics.
... The referral is an indication of international legal acts in national regulations. Such referrals authorize the direct application of the international rules of law in domestic legal relations (Morten Bergsmo, 2010). ...
... Morten Bergsmo (2010) identified that the most traditional variant of application is the adoption such Laws into National Codes of Crimes under International Law. Second and more alternative approach the process of implementing Law of International Criminal Court, a specific incrimination in domestic law (Schmalenbach Kirsten, 2015). ...
The present research paper describes the most traditional ways of Implementation of Rome Statute. The main section of the paper concerns the effect of adopting Core crimes in different countries as well as determine key way of such implementation and its practical results. Such description aims to comprehend and compare the practical questions which arise in the prism of implementation of International Crimes, as well as find good practical answers which are based on states’ experience. Most issues, which will be introduced in this article should answer following important questions: first is whether the states have to implement international regulations on genocide crimes, terrorism, war crimes with crimes against humanity, and second question is arisen due to the definition of International Crimes in national laws. At main part of the research, we discuss the national legal background to implement the regulations of Rome Statute, as a part of International law, as well as analyze foreign countries experience in this direction. In this legal research, three categories of methods were used: philosophical methods, general scientific methods and legal methods. All the methods, including dialectic method, method of analysis and synthesis, historical, sociological and comparative, the method of the general theory of scientific knowledge of social and legal phenomena, as well as, method of systematic analysis, comparative legal method, and logically legal method were used to consider the most traditional ways of Application of the Rome Statute in domestic laws together with all the regulations of international law in general.
... International custom is seen as a source of international law since it is believed that if governments behave consistently, they may be doing so because they feel obligated to do so by law, a concept known as opinio juris. A new rule of international law is established if enough governments behave consistently, out of a sense of duty, for an extended amount of time (Baker, 2010). ...
International law is derived from both treaty law and customary international law. Treaties are formal written agreements among States that establish specific rules. On the other hand, customary international law is not codified in written form but is based on "a general practice accepted as law". It must be shown that a norm is reflected in state practice and that the international community views it as legally binding in order to prove that it is customary. Rules derived from "a general practice accepted as law" make up customary international law, which exists apart from treaty law. Customary international humanitarian law (IHL) is essential in contemporary armed conflicts because it fills in the legal gaps left by treaty law in both international and non-international conflicts and improves the protections provided to victims.
... 73 According to this provision international custom has two elements: State practice (material element) and opnio juris (psychological element). 74 Besides, international custom has been broadly accepted by states as "source of international law". Most states consider international law as part of their national laws. ...
This study explores the principles of domestic criminal jurisdiction under international law, focusing on universal jurisdiction. It analyzes the contentious nature of universal jurisdiction, particularly its application by international judicial organs post-human rights and international criminal law developments. The research scrutinizes the Rome Statute's provisions, debating whether it implicitly or explicitly endorses universal jurisdiction over non-party state nationals. It also examines the complementarity principle within the Statute, arguing that it safeguards state interests by prioritizing national jurisdiction. The findings affirm universal jurisdiction's recognition under international law and its potential activation under the Rome Statute, while complementarity balances states' interests against the jurisdiction of international courts.
... They are applicable without discrimination. A new state coming into existence has to act in compliance with all existing customary international law norms (Baker, 2010). ...
Purpose
This paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.
Design/methodology/approach
The paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.
Findings
The authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.
Research limitations/implications
The most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.
Originality/value
The paper fulfils an identified gap in the positioning of IOs under the international law.
... 158 However, international law as articulated by these bodies can be used as a catalyst for change on a domestic level by strengthening international customary law in this area. 159 Intra-military sexual assault victims, in the U.S. and around the globe, can petition international human rights bodies. Specifically, they can request acknowledgement of the failures of their government to properly manage and provide independent oversight of intra-military sexual assault in violation of customary international human rights law. ...
In the past several years in particular, intra-military sexual assault and rape in the U.S. armed forces have been the focus of frequent media attention and intense congressional debate. Despite reforms, the rate of intra-military sexual crimes continues to remain high, as does soldiers’ wariness to report instances of sexual violence to military commanders. These problems and others have invigorated the position taken by some that outside judicial review of intra- military sexual crimes is necessary to provide justice to victims and lower the rate of intra-military sexual assault and rape. This Note argues that one of the primary contributors to intra-military sexual assault and rape is the gendered nature of the military itself. Given the nature of these acts, intra-military sexual assault and rape can be properly qualified as “gender crimes.” This Note also points out that this problem is not unique to the United States, as other militaries around the world struggle with intra-military sexual violence. Due to this widespread occurrence and international human rights laws prohibiting rape and gender-based violence more generally, this Note argues that intra-military sexual assault and rape should be viewed as international gender crimes in violation of international customary law. It is theorized that recognizing intramilitary sexual assault and rape in this manner can bring greater attention to these crimes and help push for independent judicial review of intra-military sexual crimes on the domestic level worldwide.
... The relationship between these two elements is complicated, with diverging views highlighting one over the other, and a discussion of these views goes beyond the scope of this paper. For analyses of these different positions see(Petersen, 2008;Baker 2010).Content courtesy of Springer Nature, terms of use apply. Rights reserved. ...
New means and methods of war such as remote warfare by drones—the focus of this special issue—challenge international law, as there no longer exists agreement between states regarding the rules regulating the use of force. The existing legal norms are interpreted in widely diverging manners and seemingly put aside if not in the interest of the state in question. Yet, this article argues that, taking a closer look at the state practice of drone strikes beyond the paradigmatic case of the USA, the demise of international legal norms regulating the use of force seems overstated. Instead, the analysis reveals that the international laws addressing the use of force and means and methods of warfare are not as dead as the general discourse asserts, and can still serve to regulate state action.
... " 15 International law traditionally has consisted of treaty law and customary law. 16 Although a state cannot change treaty law, it can attempt to change customary international law through continuing effective control and regular usage of disputed territory and waters. For example, "fishing reinforced by a robust maritime presence on disputed islands and features, also strengthens" the claimant state's aggressive position because "demonstrated usage, occupation, and administration are all relevant to ownership under UNCLOS. ...
China and the U.S. are both heavily invested in the South China Sea, the first as the claimant for most of the islands, maritime features, and almost all the waters of the disputed sea, the latter as a defender of the rules-based order, freedom of navigation, and rights of its allies and security partners in the region. For more than a decade, China has used legal claims and low-level provocations, seizing, and building artificial islands that have been militarized. China claims the maritime features, islands, and waters as “historic rights,” justifying its claims and actions as legally justified, despite the 2016 arbitration ruling the nine-dash line illegal. The U.S., though not a claimant, has similarly consistently called for the rule of law and conducted dozens of freedom of navigation operations and military exercises in the disputed waters, all in the name of international law. In this article, we argue that both states are using their legal claims and international law regarding the South China Sea as opportunities to justify their military presence in the region. For China, the legal claims and actions justify military expansion and power projection into the Pacific. For the U.S., its freedom of navigation operations and other references to international law justify its strengthened deterrence of China and its continued presence in the region. The legal status of the South China Sea is, therefore, partially a pawn in a greater power struggle in the strategic rivalry between China and the U.S.
This chapter reflects upon mainstream approaches to legal research concentrating on the discipline of international law. It portrays the discipline’s main methodological assumptions and working style as well as their limitations, pointing at the need to revise and complement the traditional doctrinal approach with the other approaches presented in the book. The chapter also discusses the limitations of eclectic combinations.
The rationale behind state support for, and obedience to, normative rules and obligations has long been a topic of international law scholarship discourse. What has yet to be fully established, however, is why virtually all states have agreed to adhere to a seemingly novel global paradigm with ambitious yet non-binding objectives – the United Nations 2030 Sustainable Development Goals (SDGs). This article identifies six factors as contributing to the influencing power of the SDGs – namely, the role of law, particularly inter- and transnational law, the legitimacy of the framework, the notion of reciprocity, reputational concerns, national self-interest, and the moral duty to address the shared global challenges of sustainable development.
By exploring their strengths and limitations through several theoretical frameworks (including Harold Koh's theory of transnational legal processes, Thomas Franck's theory of legitimacy, and Ryan Goodman and Derek Jinks’ three mechanisms of social influence), this article argues that the combination of these factors motivates voluntary state commitment, reporting, and cooperation under the SDG framework and that, overall, the SDGs offer a versatile lens to explore the different motives for state adherence to a soft law framework in the inter- and transnational legal spheres.
This chapter offers a comprehensive look at every applicable law and legal decision as it relates to embryonic stem cells. This part contains specific laws that are discussed as well as court decisions that either relate directly to or have a substantial impact over embryonic stem cell laws. The first set of laws and decisions to be discussed are those that are considered “universal instruments” such as multi-lateral treaties agreed to by various nations, where any nation can be a party to, followed by regional instruments, or treaties that are applicable to a smaller group in comparison to the universal instruments. This is followed by an exhaustive look into the unique laws and decisions of various nations and the reasons that went into their creation or adoption. The next part is a review on United States federal law and decisions in relation to this area of science and breaks down the timing of each major change in relation to the president that was in charge at the time. One will also find an overview of the positions of the major health and research organizations operating in the United States. Finally, there are state specific laws and holdings are discussed and broken down into two categories, those that have pro-embryonic stem cell research laws and those that have anti-embryonic stem cell research laws.
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.
Patent laws and regulations in many countries have utilized the flexibility available under the WTO TRIPS Agreement to apply nationally appropriate standards to define the patentability criteria of novelty, inventive step and industrial applicability, in order to ensure the grant of high-quality patents for genuine inventions. Robust search and examination are crucial for the application of this flexibility to ensure the grant of patents for genuine inventions, e.g., for secondary pharmaceutical patent applications which could lead to patent evergreening and adversely impact access to medicines by restraining generic competition. However, limited examination resources of patent offices have been stretched by the tremendous surge in the number of patent applications to be processed, leading to delays and backlogs. This has led patent offices to prioritize efficient and speedy processing of patent applications with their limited resources by using the search and examination work of other patent offices, sometimes to the extent of granting a patent on the basis of a corresponding grant by another patent office. This chapter discusses how work sharing has been driven by the major patent offices as part of a global patent harmonization agenda, both within the WIPO Patent Cooperation Treaty and through technical assistance and cooperation with other patent offices, and suggests how patent offices in developing countries could best harness the advantages of work sharing, particularly in a South-South cooperation framework, while safeguarding the ability to apply in practice the patentability requirements under their national laws through a robust search and examination of patent claims.
Acts of repetition abound in international law. Security Council Resolutions typically start by recalling, recollecting, recognising or reaffirming previous resolutions. Expert committees present restatements of international law. Students and staff extensively rehearse fictitious cases in presentations for moot court competitions. Customary law exists by virtue of repeated behaviour and restatements about the existence of rules. When sources of international law are deployed, historically contingent events are turned into manifestations of pre-given and repeatable categories. This book studies the workings of repetition across six discourses and practices in international law. It links acts of repetition to similar practices in religion, theatre, film and commerce. Building on the dialectics of repetition as set out by Søren Kierkegaard, it examines how repetition in international law is used to connect concrete practices to something that is bound to remain absent, unspeakable or unimaginable.
The desire for humanity and the desire for security have co-existed as long as humans have been alive. As science has become increasingly sophisticated, so have the methods of self-defence by States. Nanotechnology is already changing warfare by increasing capabilities upon which armed forces are heavily reliant: more efficient energy storage, advanced photovoltaics, and improved military protective equipment, to name a few of these developments. Some applications of nanomaterials by the military are both powerful and subtle, and have neurological and biological applications. The advance of the use or contemplation of use of these types of nanoscale applications by the military requires urgent analysis in light of existing international law, particularly in light of their potential effects on humans and on the environment.
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.
Feminists have utilized manifestos and utopias in order to make important, often revolutionary, contributions to international law. However, these engagements have not been reflected in the substance of international law. The sources of international law – specifically customary international law – rely on a narrow understanding of historical knowledge. This article centres the 1924 manifesto and the ‘New International Order’ created by the Women’s International League for Peace and Freedom, as tools to assess the exclusion of the under-utilized history of feminist peace work from the sources of international law. This allows for a reflection on customary international law’s weaknesses and reaffirms the importance of feminist approaches to international law.
Reexamining Customary International Law takes on the complex issues and controversies surrounding the history, theory, and practice of customary international law as it reexamines customary law's increasingly important role in world affairs. It incorporates the expertise of distinguished authors to probe many difficult issues that remain unresolved concerning the doctrine of customary law. At the same time, this book engages in a profound exploration of the practical role of customary international law in a variety of important fields, including humanitarian law, human rights law, and air and space law.
Reexamining Customary International Law takes on the complex issues and controversies surrounding the history, theory, and practice of customary international law as it reexamines customary law's increasingly important role in world affairs. It incorporates the expertise of distinguished authors to probe many difficult issues that remain unresolved concerning the doctrine of customary law. At the same time, this book engages in a profound exploration of the practical role of customary international law in a variety of important fields, including humanitarian law, human rights law, and air and space law.
This article examines international criminalization, the process by which particular acts come to be established as international crimes in world politics. While international legal scholars suggest international criminalization constitutes a legal process that centres on international legal codification, this article argues, by drawing upon the insights of constructivist International Relations scholarship, that it is better conceived as a social process. More specifically, the process of international criminalization involves the development of an international social consensus on international criminality, which takes hold in international society following diplomatic negotiations between social actors. Furthermore, international criminalization embraces a two-stage process that requires, firstly, the emergence of an international criminal norm and secondly, the translation of that norm into an international legal proscription. Using these conceptual insights, the article analyses, through a close analysis of international archival documents, the historical emergence of genocide, in order to demonstrate how its proposed conceptualization of international criminalization can better explain how and why this act was specifically established as an international crime. In doing so, the article offers an alternative account of genocide's criminalization which, unlike the existing literature, goes some way towards uncovering the processes of social construction that informed its establishment as an international crime.
In this chapter, I trace the development of the prohibition on retroactive law in general international and international criminal law. I begin by clarifying what I mean when I refer to retroactive law, drawing from the views of a number of scholars. I then engage in a comparative-historical analysis to demonstrate that prior to the Judgment of the International Military Tribunal in 1946, the prohibition on retroactive criminal law did not exist in international law. From there, I move to examine the development of the prohibition following the International Military Tribunal’s acceptance that it was a principle of justice in the international legal order. I engage in a comparative examination of the way international and regional courts and tribunals have articulated the prohibition. From that, I clarify the current content of the prohibition in customary international law. I critique international practice for stating the prohibition in absolute terms while permitting exceptions. Drawing from that practice, I articulate the two exceptions to the prohibition on retroactive criminal law which are de facto accepted. I argue that these exceptions are justifiable, and that their use should be openly defended, in a fair legal system.
International Law and Peace Settlements provides a systematic and comprehensive assessment of the relationship between international law and peace settlement practice across core settlement issues, e.g. transitional justice, human rights, refugees, self-determination, power-sharing, and wealth-sharing. The contributions address key cross-cutting questions on the legal status of peace agreements, the potential for developing international law, and the role of key actors – such as non-state armed groups, third-state witnesses and guarantors, and the UN Security Council – in the legalisation and internationalisation of settlement commitments. In recent years, significant scholarly work has examined facets of the relationship between international law and peace settlements, through concepts such as jus post bellum and lex pacificatoria. International Law and Peace Settlements drives forward the debate on the legalisation and internationalisation of peace agreements with diverse contributions from leading academics and practitioners in international law and conflict resolution.
Transnational crimes are varied and occurs more commonly than international crimes. Like international crimes there is no institutionalised system for prosecution and hence need to establish a system called Transnational Criminal Law which is distinguished from International Criminal law. The paper defines transnational law and provides a comparative approach to international criminal law identifying points of difference and convergence. The paper discusses extraterritorial jurisdiction and role of new norms in customary international law and Alien Tort Statute expanding the system of international prosecution of newer crimes.
Este libro es la concreción textual de un proyecto que busca continuar su labor de difusión en el 2020 contribuyendo de manera específica en esta ocasión a dar apoyo al cumplimiento de los 17 Objetivos de Desarrollo Sostenible de la ONU, en especial del 13 y del 14 que tratan sobre “acción por el clima” y “vida marina”, respectivamente, para lo cual la tercera edición de la “Colección Pacífico 20/20”, cuenta con capítulo sobre esta temática.
In its recent decision in Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), the International Court of Justice (ICJ) held that Italy had failed to respect immunities enjoyed by Germany under international law when the Italian courts allowed civil actions to be brought against Germany for alleged violations of international human rights law (IHRL) and the law of armed conflict (LOAC) committed during the Second World War. This article evaluates the three arguments raised by Italy to justify its denial of immunity: first, that peremptory norms of international law prevail over international rules on jurisdictional immunities; second, that customary international law recognizes an exception to immunity for serious violations of IHRL or the LOAC; and third, that customary international law recognizes an exception to immunity for torts committed by foreign armed forces on the territory of the forum state in the course of an armed conflict. The author concludes that the ICJ was correct to find that none of these arguments deprived Germany of its right under international law to immunity from the civil jurisdiction of the Italian courts.
THE NORWICH UNIVERSITY John and Mary Frances Patton Peace & War Center is pleased to publish the second edition of the Journal of Peace and War Studies (JPWS), which addresses a most challenging issue in the current global community—escalation of the U.S.-China rivalry. Our inaugural 2019 edition interrogated North Korea’s nuclear and missile challenges from the perspectives of key stakeholders: the United States, China, South Korea, and Japan. Since the 2008–2009 financial crisis, the international community has witnessed an escalation of the U.S.-China rivalry. Moreover, the present-day COVID-19 pandemic, which began in China in late 2019, seems to have transformed the two great powers’ strategic and economic rivalry into an ideological one. Such intensification of the U.S.-China rivalry is likely to bear largely on the world community, as did the Cold War between the U.S. and the Soviet Union. Reflecting on these circumstances for our 2020 issue, seven strategic thinkers scrutinize various dimensions of the U.S.-China rivalry and share their insights.
Min Ye closely examines central discourses regarding the U.S.-China rivalry in the academic and policy communities, such as the Thucydides Trap, clash of civilizations, and divided peace. Based on her critical assessment of such preexisting approaches, she provides an alternative lens on the roles domestic and international agencies have played in reducing tensions between the two superpowers. While presenting the detailed empirical evidence of the increasing China-Russia military cooperation, Lyle Goldstein and Vitaly Kozyrev offer a number of practical policy recommendations for U.S. national security to deter the strengthening of China-Russia military ties and maintain a certain level of cooperation with the two nations on such global issues as climate change and nuclear non-proliferation. Krista Wiegand and Hayoun Ryou-Ellison analyze U.S. and Chinese strategies concerning the South China Sea through an international law framework, illuminating that both powers have often utilized their own legal interpretations to support their claims on the area, as opposed to simply resorting to military force. By exploring policy positions of Israel, one of America’s closest allies, vis-à-vis the U.S. and China, Zhiqun Zhu reveals a common dilemma that many world nations have faced—i.e. they want to work with both great powers for their security and economic interests, rather than choosing either the U.S. or China, but the rising U.S.-China rivalry tends to force the latter option. Dawn Murphy thoroughly traces the evolution of U.S.-China economic competition during the Trump administration, implying that it might be difficult for the current trend to get reversed considering the transition of economic rivalry to strategic and ideological realms after the COVID-19 pandemic. On top of these scholarly articles, four Norwich University students—John Hickey, Shayla Moya, Kathryn Preul, and Faith Privett—explain America’s foreign policy blunders in Afghanistan utilizing the Just War theory. They also suggest political, economic, and military approaches that could bring stability in conflict-stricken Eastern Ukraine.
This paper analyzes the relationship between custom, one of the main sources of public international law, and the need of consent of the State to which the customary rule should apply. The two main answers that the authors gave in connection to that relationship are reviewed: on the one hand, the authors who require consent as a condition for enforceability of the customary law and, on the other hand, the authors who deny the need of such consent. We adopt the doctrinal opinion that international customary law is compulsory only for those States that had, expressly or tacitly, consented to it.
The question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.
This article tells the story of customary international law in the 98 years between the introduction of the draft rules to the new Permanent Court of International Justice and the adoption of the Conclusions on the identification of customary international law by the International Law Commission in 2018. This story is articulated around four moments of rupture and metamorphoses: 1920, 1927, 1986, and 2018. Each of these four metamorphoses originates in powerful interventions by actors resulting in a redefinition of how arguments about the customary status of a rule ought to be made. It is argued that the doctrine of customary international law, by undergoing these four metamorphoses, has gone through 4 different stages: the age of innocence (1920–1927), the age of dualism (1927–1986), the age of turmoil (1986–2018), and the return to innocence (2018-present). The story offered in this article is a story about the four lives of customary international law.
There has been a recent proliferation of scholarship on the development, identification, and determination of customary international law [CIL]. Much of this has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. However, there are influential voices who argue that CIL nevertheless continues to play a necessary role in the international legal system, and that many of the problems that have been identified are exaggerated. This paper maintains that the problems which have been identified in the processes of identification and determination of CIL are of such a serious and institutionalized nature as to produce a presumptive distrust of any statement about what is or is not CIL. It argues that the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.
This review explores certain challenges related to the notion of customary international law. It seems that it was a long time ago when international law academics and practitioners ever thought that the nature of this source was a well-settled topic. Nowadays international lawmaking processes involve an extraordinary number of interactions, taking place both formally and informally. Such complex features are reflected by an exponential increase in the scholarly study of international legal sources. The legal nature, its applicability and principles regulating customary international law are addressed in the book under review (Brian D Lepard (ed), Reexamining Customary International Law (Cambridge University Press 2017)) through several topical essays. The chapters offer a comprehensive analysis of these lawmaking processes and the challenges they portray from various perspectives and in various fields, such as: What is customary international law and why is it law? Is it law because it reflects a ‘global legislative’ model? What is the current value of the persistent objector theory? Is the two-element definition of customary international law still applicable? By meticulously addressing these and other inquiries, the book presents novel arguments and represents a stimulating addition to the literature on sources of international law.
The article offers an alternative account of the evolution, formation, and function of customary international law (CIL) from a third world perspective. It argues that there is an intimate link between the rise, consolidation, and expansion of capitalism in Europe since the nineteenth century and the development of CIL that is concealed by the supposed distinction between “formal” and “material” sources of CIL. In fact, both “traditional” and “modern” CIL sustain the short-term and systemic interests of global capitalism. It proposes a “postmodern” conception of CIL that would contribute to the global common good.
La mas antigua y simple respuesta a la pregunta sobre las fuentes del derecho internacional refiere dos principales: (i) los tratados, y (ii) el DI consuetudinario. Ambas son creadas por los Estados, de forma tal que los Estados se encuentran obligados en la medida de su consentimiento pasado y presente. Esta respuesta técnica revela muy poco sobre cómo se generan, se invocan y aplican estas fuentes.
En este artículo analizaremos la costumbre como fuente del DI, focalizando en su invocación como medio de prueba en un conflicto internacional y en las decisiones de la Corte Internacional de Justicia y otros tribunales internacionales en que la determinan. Entendemos que además de las conductas estatales y la convicción de su obligatoriedad (opinio iuris), otros elementos deben ser considerados a fin de establecer o negar la existencia de una costumbre internacional, especialmente cuando la misma es invocada como fundamento de los derechos de la persona humana frente al Estado.
Se reitera aquí el conflicto latente entre dos tradiciones: (i) la que prioriza la soberanía estatal y (ii) aquélla que privilegia los derechos humanos. La primera requerirá la aceptación plena de los Estados expresada a través de sus conductas consideradas vinculantes. Aquí el método a utilizar será inductivo. La segunda elaborará sobre las tendencias legislativas modernas, el soft law y la opinio iuris referidas a la obligatoriedad del respeto de un mínimo de derechos como límite a la voluntad soberana estatal. En este caso, el método deductivo será la herramienta a utilizar.
Si sólo se repara en los elementos tradicionales de la costumbre internacional establecidos hace siglos por el DI, llegaremos a decisiones judiciales que consolidan el sistema de Estados soberanos, sin importar si las mismas se alejan del ideal de justicia y protección de los derechos humanos, como por ejemplo, lo refleja las sentencias de la CIJ en Orden de Arresto o en Inmunidades Jurisdiccionales del Estado. Para que esto no suceda, intentaremos demostrar que otros medios reveladores de la práctica general y obligatoria han de ser utilizados. Éstos tienen su base en la doctrina de los derechos humanos, complementan el accionar estatal y le fijan límites.
Introduction This chapter takes up ‘post-modern positivism’ in the context of transnational law. The basic theme I shall develop is that transnational legal phenomena pose a strong challenge to post-modern positivism in that these phenomena problematise the notion of ‘validity’ that is central to positivism and post-modern positivism. I begin by explicating the notion of ‘positivism’. Here I sketch the basic features of the two leading positivist accounts of law, those of HLA Hart and Hans Kelsen. As I explain, despite the differences in their views, both Hart and Kelsen advance the same ‘model’ of a legal order, that is, one that is built from the bottom up. For each, the ‘bottom’ represents a norm that provides the foundation for a legal order. For Kelsen, the Basic Norm (Grundnorm) provides the criteria for legal validity. For Hart, validity is a function of the Rule of Recognition. The Rule of Recognition (Hart) or the Grundnorm (Kelsen) provides the tools necessary to identify legal norms as such. Transnational legal phenomena pose a challenge to this picture insofar as transnational legal phenomena arguably cannot be explained or accounted for within this conception of a legal order.
This article challenges international criminal tribunals’ (ICTs) capacity to perform the socially constitutive work of transitional justice. Highlighting paradigmatic ICT jurisprudence, I show that both the “progress” and “justice” constructs central to the work and legitimacy of international criminal law are unrealizable under current ICT practice. This is due to international criminal law’s foundational, legitimizing basis in natural law rather than political liberalism. I call for a revision of ICT institutional accountability structures.
This thesis is based on research into the area of the complex legal situation behind EU’s external affairs with the conflict between external and internal legal matters in regards to the area of shared competences within the Union. EU legislation, by its own structure, has a unique position in the hierarchy of laws. As can be seen by case law and documentation presented here it also contains its own internal contradictions between the external and internal legislation. The conclusions drawn from these sources leads to an interesting but also debatable answer to the research question – there is no guarantee of legal certainly for third countries under Free Trade Agreement’s concluded with the EU in the area of shared competences. What is presented here should be able to provide a platform for further studies and a better understanding of potential legal issues facing the EU’s trading partners in negotiating FTA’s with the Union.
This chapter firstly contends that in Oakeshott’s political philosophy there are considerations pertaining to the evolution of the international order based on the theory of civil association. In particular, these observations concern war, colonialism, and the evolution of international society. Secondly, the chapter explores and defends the notion of practical association as first presented by Terry Nardin. In particular, it contends that international society may be considered as an association between states constituted by a set of non-instrumental rules that reflect shared moral values, values that represent the shared premises of institutional moral reasoning. Finally, the chapter shows that this approach illuminates the normative nature of customary international law and its relations with international morality.
International Legal Positivism in a Post-Modern World provides fresh perspectives on one of the most important and most controversial families of theoretical approaches to the study and practice of international law. The contributors include leading experts on international legal theory who analyse and criticise positivism as a conceptual framework for international law, explore its relationships with other approaches and apply it to current problems of international law. Is legal positivism relevant to the theory and practice of international law today? Have other answers to the problems of international law and the critique of positivism undermined the positivist project and its narratives? Do modern forms of positivism, inspired largely by the theoretically sophisticated jurisprudential concepts associated with Hans Kelsen and H. L. A. Hart, remain of any relevance for the international lawyer in this 'post-modern' age? The authors provide a wide variety of views and a stimulating debate about this family of approaches.
Introduction The initial encounter between legal realism and legal positivism in the United States did not go well. During the first half of the twentieth century, legal realism came to dominate the legal academy in the United States. Although they shared many assumptions with legal positivism, legal realists utterly ignored Kelsenian legal positivism, seeing it as a version of the various formalisms that legal realism had rejected. HLA Hart’s positivism was largely quarantined in jurisprudence courses far from the core of professional training that is the main mission of law schools in the United States. But twentieth-century legal realism has itself come to seem rather quaint. Its early practitioners aspired to a social scientific approach, but they lacked the requisite empirical and methodological tools. In the past decade, a new legal realism has emerged, and its practitioners are as a group more philosophically sophisticated and more familiar with empirical social scientific methods than were the original legal realists. Perhaps as an inevitable by-product of globalisation, some US academics have attempted to apply the new legal realism to international law, and since positivism is a far greater force in the academic discourse relating to international law than it is in the domestic context, international law becomes the realm in which a dialogue between the new legal realism and legal positivism becomes both inevitable and necessary.
The Charter of the United Nations is the principal source of contemporary international law for the regulation of the use of force in inter-State relations. It sets out the interrelated competences of the main bodies of the United Nations—first of all, of the Security Council, the General Assembly and the International Court of Justice—in the area of maintaining international peace and security, and confirms States’ inherent right of self-defence as a matter of applicable customary international law. The Charter’s main provision pertaining to the prohibition of the use of force—Article 2(4)—is at the heart of the in-depth legal analysis, as a rule of conventional and customary international law as well as one of jus cogens. The chapter suggests that any use of force not falling within one of three categories—Charter-based exceptions, Charter-related exceptions and extra-Charter exceptions to the prohibition of the use of force—might potentially qualify as aggression and entail consequences provided for under international law, including the individual criminal responsibility of its authors.
Laws that regulate the employment relation tend to set forth broad and often ambiguous principles that give organizations wide latitude to construct the meaning of compliance in a way that responds to both environmental demands and managerial interests. Organizations respond initially by elaborating their formal structures to create visible symbols of compliance. As organizations construct and institutionalize forms of compliance with laws, they mediate the impact of those laws on society. The author uses data from a nationwide survey of 346 organizations to develop models of the creation and institutionalization of organizationally constructed symbols of compliance following the 1964 Civil Rights Act.
For the past 15 years an enormous enterprise of global norm making and related national lawmaking has been underway in many areas of global commerce. This article shows that leading global institutions, such as the World Bank, IMF, and United Nations, are building an international financial architecture with law-including corporate bankruptcy law-as its foundation. Building on research on international institutions and three national cases (China, Indonesia, Korea), the authors propose a new framework for legal change in a global context-the recursivity of law. They argue that the globalization of bankruptcy law has proceeded through three cycles: (1) at the national level through recursive cycles of lawmaking, (2) at the global level through iterative cycles of norm making, and (3) at the nexus of the two. Recursive cycles are driven by driven by four mechanisms-the indeterminacy of law, contradictions, diagnostic struggles, and actor mismatch. Thus the recursivity of law both revives and expands the sociological theory of legal change and offers a basis for an integrated theory of globalization and law.
Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States , little harm was done. For in the sharply contested cases prior to Nicaragua , the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.
"Command responsibility" is an umbrella term used in military and international law to cover a variety of ways in which individuals in positions of leadership may be held accountable. In its broadest sense the term refers to the liability of a military commander for failure properly to discharge his duties. The failure need not necessarily imply insufficient control over the conduct of subordinates: a commander could be punished, for example, because he exposed his troops to undue risk. But in a narrower sense, the term refers to the commander's liability for the criminal conduct of his underlings. This type of liability may in turn be variously structured, and be either civil, disciplinary or criminal in nature. Of late, however, the term is usually reserved to denote a species of this latter type - a species in which not only a military commander, but also a non-military leader, is held criminally liable for the conduct of his subordinates as if he personally had executed the criminal deed. Problems related to this particular species of command responsibility, as it has developed in international law, are the subject-matter of this essay.
This chapter extends extant theory on organizational response to law by proposing a theory of law as endogenous—that is, as generated within the social realm that it seeks to regulate. As organizations respond to legal ideals by themselves becoming legalized, they shape social understandings of law and of
the meaning of compliance. Courts, as actors within the same broad social environments—or organizational fields—as organizations,
tend to incorporate ideas about law that have arisen and become institutionalized within these fields. Thus, as law becomes
progressively institutionalized in organizational fields, it is simultaneously transformed by the very organizational institutions
that it is designed to control.
Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law', 97 American J. Sociology (1992) 1531; Edelman, 'Legality and the Endogeneity of Law
- See
- Edelman
See, e.g., Edelman, 'Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law', 97 American J. Sociology (1992) 1531; Edelman, 'Legality and the Endogeneity of Law', in R.A. Kagan, M. Krygier, and K. Winston (eds), Legal And Community: On the Intellectual Legacy of Philip Selznick (2002);
Droit Pénal Général et Procédure Pénal (1964), at 226 ff.; J. Pradel, Manuel de Droit Pénal Général (9th edn, 1994), at 436 ff.; Dupont and Fijnaut
- E G See
- G Stefani
- G Levasseur
See, e.g., G. Stefani and G. Levasseur, Droit Pénal Général et Procédure Pénal (1964), at 226 ff.;
J. Pradel, Manuel de Droit Pénal Général (9th edn, 1994), at 436 ff.; Dupont and Fijnaut, 'Criminal Law
(Belgium)', in R. Blanpain and M. Colucci (eds), International Encyclopedia of Laws (Criminal Law) (1993)
(2008 supp.), at paras 109, 126 (2008);
Criminal Law (Yugoslavia)', in ibid
- Perić Stojanović
Stojanović, Perić, and Ignjatović, 'Criminal Law (Yugoslavia)',
in ibid., at paras 133-134, 150-152 (2008);
109; Stojanović, Perić, and Ignjatović, supra note 113, at para. 137; Card, supra note 113, at sects 3.6, 3.7; Stuart, supra note 113, at 83-84, 89; LaFave, supra note 113
- Fijnaut Dupont
Dupont and Fijnaut, supra note 113, at para. 109; Stojanović, Perić, and Ignjatović, supra note 113, at
para. 137; Card, supra note 113, at sects 3.6, 3.7; Stuart, supra note 113, at 83-84, 89; LaFave, supra
note 113, at sect. 3.2(a).
supra note 113, at para. 138; Card, supra note 113, at sect. 3.6; Stuart, supra note 113
- Perić Stojanović
Stojanović, Perić, and Ignjatović, supra note 113, at
para. 138; Card, supra note 113, at sect. 3.6; Stuart, supra note 113, at 83-84;
supra note 113, at sect. 3 .7 ff.; Stuart, supra note 113
- Card
Card, supra note 113, at sect. 3.7 ff.; Stuart, supra note 113, at 90;
This was the fact pattern in the well-known Miller case in the UK: see R. v. Miller
This was the fact pattern in the well-known Miller case in the UK: see R. v. Miller [1983] AC 161 (HL).
Čelebići), Case No. IT-96-21-T, Trial Chamber Judgment, at para
- Prosecutor V Delalić
Prosecutor v. Delalić et al. (Čelebići), Case No. IT-96-21-T, Trial Chamber Judgment, at para. 393 (16 Nov.
1998).
See also Prosecutor v. Strugar, Case No. IT-01-42-T
- Ibid
Ibid. See also Prosecutor v. Strugar, Case No. IT-01-42-T, Trial Chamber Judgment, paras 369-370 (31
Jan. 2005).
at 1144, 1146-1147. See also supra note 77
- Ibid
Ibid., at 1144, 1146-1147. See also supra note 77.
Prosecuting International Crimes in Belgium', 3 J Int'l Criminal Justice (2005) 400; Baker, 'Universal Jurisdiction and the Case of Belgium: A Critical Assessment
- E G See
- Reydams
- Belgium Reneges On Universality
See, e.g., Reydams, 'Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of
International Humanitarian Law', 1 J Int'l Criminal Justice (2003) 679; Vandermeersch, 'Prosecuting
International Crimes in Belgium', 3 J Int'l Criminal Justice (2005) 400; Baker, 'Universal Jurisdiction and
the Case of Belgium: A Critical Assessment', 16 ILSA J Int'l & Comp L (2009) 1.
/6 on the Appointment and Removal from Offices of International Judges and International Prosecutors
- Unmik See
- Reg
See UNMIK Reg. 2000/6 on the Appointment and Removal from Offices of International Judges and
International Prosecutors (15 Feb. 2000).
- Prosecutor V. Latif
- Gashi
Prosecutor v. Latif Gashi et al. (Llapi), C.C. No. 425/2001 (Dist. Ct. Priština, 16 July 2003), reprinted in
T.L.H. McCormack and A. McDonald (eds), Yearbook of International Humanitarian Law: Volume 6 (2003),
at 594-601.