The Role of Judges When Determining Customary International Law

2017 ◽  
pp. 117-123
Author(s):  
Thomas Rauter
Keyword(s):  
International Law ◽  
Customary International Law

Customary International Law

2021 ◽  
Author(s):  
Pierre-Marie Dupuy ◽  
Keyword(s):  
General Practice ◽  
International Law ◽  
Complex Relationship ◽  
Customary International Law ◽  
Progressive Development ◽  
The World ◽  
International Law Commission ◽  
Law Commission

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Reviewing the National Courts in Creating Orderly International Law and Community

2017 ◽  
Vol 3 (2) ◽  
pp. 148
Author(s):  
Johanis Leatemia
Keyword(s):  
International Law ◽  
National Court ◽  
National Interest ◽  
The Other ◽  
Peaceful Coexistence ◽  
National Sovereignty ◽  
Customary International Law ◽  
National Courts ◽  
The One

Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.

The Great War and International Law: German Justifications of Prevention and Pre-emptive Self-Defence

2021 ◽  
pp. 183-206
Author(s):  
Isabel V. Hull
Keyword(s):  
International Law ◽  
Military Leaders ◽  
Customary International Law ◽  
Preventive War ◽  
Early Modernity ◽  
European State ◽  
Jus Ad Bellum ◽  
The Great War ◽  
Self Defence

Isabel V. Hull uses the German declarations of war in 1914 to examine three issues: 1) the role of customary international law (CIL) in statesmen’s decision to go to war (using Germany as an example); 2) the assumptions that state actors held a jus ad bellum; and, especially, 3) how they distinguished self-defence, prevention, pre-emption, and aggression. Hull uses not the claims of jurists, but the arguments and actions of civilian and military leaders, i.e. those who actually made the decisions for war. With this, she continues Anuschka Tischer’s and Hendrik Simon’s examination of the question whether there was a transformation of war discourses in (early) modernity that led to overcoming the need to justify war. The chapter confirms that, even as Germany began a ‘preventive war’, the European state consensus held that, on the continent, preventive war was illegal, pre-emptive war was severely restrained, and genuine self-defence – meaning both fending off armed attack against one’s territory, independence, or sovereignty, and defending the treaty-structure that guaranteed the inter-state order – was the only justification for war acceptable to the community of states.

scholarly journals Kiobel and the New Battle Over Congressional Intent

AJIL Unbound ◽  
2013 ◽  
Vol 107 ◽  
pp. 9-13
Author(s):  
David H. Moore
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Common Law ◽  
Customary International Law ◽  
Alien Tort Statute

Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court's second installment on the ATS. Like Sosa v. Alvarez-Machainbefore it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL's status as federal common law than by arguments about congressional intent.

scholarly journals The Requisite Rigour in the Identification of Customary International Law

2017 ◽  
Vol 19 (1) ◽  
pp. 9-46 ◽  
Author(s):  
Noora Arajärvi
Keyword(s):  
United Nations ◽  
International Law ◽  
General Assembly ◽  
Special Rapporteur ◽  
Customary International Law ◽  
United Nations General ◽  
United Nations General Assembly ◽  
International Law Commission ◽  
Law Commission

Over the last few decades, the methodology for the identification of customary international law (cil) has been changing. Both elements of cil – practice and opinio juris – have assumed novel and broader forms, as noted in the Reports of the Special Rapporteur of the International Law Commission (2013, 2014, 2015, 2016). This contribution discusses these Reports and the draft conclusions, and reaction by States in the Sixth Committee of the United Nations General Assembly (unga), highlighting the areas of consensus and contestation. This ties to the analysis of the main doctrinal positions, with special attention being given to the two elements of cil, and the role of the unga resolutions. The underlying motivation is to assess the real or perceived crisis of cil, and the author develops the broader argument maintaining that in order to retain unity within international law, the internal limits of cil must be carefully asserted.

The Principle of Legality and the Role of Customary International Law in the Interpretation of the icc Statute

2015 ◽  
Vol 14 (2) ◽  
pp. 233-254 ◽  
Author(s):  
Alessandro Bufalini
Keyword(s):  
International Law ◽  
Rome Statute ◽  
Customary Law ◽  
Customary International Law ◽  
Different Shapes ◽  
Principle Of Legality

This article endeavours to determine the role of customary international law in the prosecution of crimes under the jurisdiction of the icc. In its first findings dealing with the meaning of Article 21(b) of the icc Statute, the Court has attributed to customary international law the subsidiary role of filling the lacunae of the Statute. This interpretation seems to admit, although in a limited and imprecise way, an application of customary international law in the proceedings before the Court. However, the principle of legality, as perceived in the icc Statute, appears to limit the recourse to customary international law to the interpretation of written rules. Moreover, an analysis of relevant Articles of the Rome Statute, in which an application of customary rules could be, or has been, invoked, discloses the different shapes that the potential interpretative resort to customary law in determining the meaning of the statutory provisions might take.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

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