scholarly journals Specially-Affected States and the Formation of Custom

2018 ◽  
Vol 112 (2) ◽  
pp. 191-243 ◽  
Author(s):  
Kevin Jon Heller
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Global South ◽  
Customary International Law ◽  
Significant Power ◽  
The Icj ◽  
Global North

AbstractAlthough the United States has relied on the ICJ's doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has never been systematically developed by the ICJ or by legal scholars. This article fills that lacuna by addressing two questions: (1) what makes a state “specially affected”?; and (2) what is the importance of a state qualifying as “specially affected” for the formation of custom? It concludes that a theoretically coherent understanding of the doctrine would give states in the Global South significant power over custom formation.

Civil Suits

2020 ◽  
pp. 315-339
Author(s):  
Beth Van Schaack
Keyword(s):  
United States ◽  
International Law ◽  
Criminal Liability ◽  
The United States ◽  
Public Authorities ◽  
Sovereign State ◽  
Domestic Courts ◽  
The Matrix ◽  
The Icj ◽  
Convention Against Torture

Rounding out the matrix of accountability, chapter 8 presents several nonpenal options to bring justice to Syria, including civil suits in domestic courts against responsible individuals and entities and options for exercising jurisdiction over the sovereign state of Syria. Because there is no notion of state criminality under international law, only civil claims seeking money damages can be advanced against sovereign states. Jurisdiction over Syria exists before the International Court of Justice (ICJ) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; however, so far no state has been willing to take Syria to task before the ICJ. And so, victims must bear this burden. In this regard, some tort law options exist in domestic courts, especially in the United States with its suite of statutes giving its domestic courts jurisdiction over certain international law violations in certain circumstances. This chapter features a groundbreaking suit against Syria under the United States’ Foreign Sovereign Immunities Act, which resulted in a $300 million judgment for the surviving family members of Marie Colvin, the intrepid war correspondent assassinated by the Syrian regime. The chapter observes that although civil remedies are no substitute for vigorous criminal liability, these suits do extend victims some dignitary benefits that may not accrue with participation in a criminal process, even as a partie civile, including the opportunity to control the litigation process and act where the public authorities may be unable or unwilling to do so.

The World Court and Jus Cogens

1987 ◽  
Vol 81 (1) ◽  
pp. 93-101 ◽  
Author(s):  
Gordon A. Christenson
Keyword(s):  
United States ◽  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
The United States ◽  
Customary International Law ◽  
The World ◽  
The United Nations ◽  
Jus Cogens ◽  
United Nations Charter

In the merits phase of decision in the case brought by Nicaragua against the United States, the World Court briefly mentions references by states or publicists to the concept of jus cogens. These expressions are used to buttress the Court’s conclusion that the principle prohibiting the use of force found in Article 2(4) of the United Nations Charter is also a rule of customary international law.

scholarly journals Acts of genocide and international law

2021 ◽  
pp. 44-54
Author(s):  
Stefan Kirchner ◽  
Doly P. Orozco López
Keyword(s):  
United States ◽  
International Law ◽  
Central America ◽  
United States Of America ◽  
The United States ◽  
International Treaty ◽  
Customary International Law ◽  
Treaty Law ◽  
Women And Children ◽  
Jus Cogens

In addition to the loss of over 200,000 lives due to the COVID-19 pandemic, racist violence, riots, wildfires, storms and political controversies in an election year, the United States of America might now also see acts of genocide. If recent reports are confirmed, multiple acts of genocide have been committed against migrants from Central America, targeting in particular women and children. This text outlines the elements which define the crime of genocide under international law and explains the special, jus cogens, status the prohibition of genocide has under both international treaty law and customary international law. It includes a call for further investigations, pursuant to the obligation of all States to combat genocide.

Toward An Econometric Model of Guzman'S Theory of Customary International Law

2011 ◽  
Vol 56 (2) ◽  
pp. 98-107
Author(s):  
Ryan Luby
Keyword(s):  
United States ◽  
International Law ◽  
Econometric Model ◽  
The United States ◽  
Theoretic Model ◽  
Diverse Group ◽  
Customary International Law ◽  
Game Theoretic ◽  
Game Theoretic Model ◽  
The One

The United States' recent incursions into both Iraq and Afghanistan have resituated debates concerning the validity and effectiveness of customary international law (CIL). On the one hand, scholars such as Goldsmith and Bradley argue that CIL is neither valid nor effective. Recently, Guzman formulated a response to such arguments as those proposed by Goldsmith and Bradley (1997). In a lucid critique of Goldsmith's argument, Guzman categorizes such arguments as “doctrinal” (2006). Instead, Guzman proposes a game theoretic model that seeks to quantify “reputation” in order to ascertain a given norm's status as CIL. The following paper proposes an econometric model in order to operationalize Guzman's theory of CIL. Indeed, looking at a politically and economically diverse group of five countries between the years of 1960 and 2008, the analysis herein suggests a more nuanced conception of CIL than the absolutist position of Goldsmith.

scholarly journals Custom and Treaties as Interchangeable Instruments of National Policy

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 41-45 ◽  
Author(s):  
Bart M. J. Szewczyk
Keyword(s):  
United States ◽  
International Law ◽  
International Cooperation ◽  
National Policy ◽  
The United States ◽  
Medium Term ◽  
Customary International Law ◽  
Rules And Standards ◽  
Multilateral Treaties

As treaties decline, customary international law can be an important mechanism of international cooperation over the medium term. There are increasingly fewer treaties ratified by the United States, with a record-low number of five in 2009–2012, and fewer multilateral treaties adopted worldwide. Yet, the demand for global rules and standards has not abated. Thus, for many international questions where treaties are not available as a source of new rules, customary international law may serve as an interchangeable instrument of national policy.

Evidence, the Court, and the Nicaragua Case

1987 ◽  
Vol 81 (1) ◽  
pp. 1-56 ◽  
Author(s):  
Keith Highet
Keyword(s):  
United States ◽  
International Law ◽  
Use Of Force ◽  
The United States ◽  
Customary International Law ◽  
Counter Measures ◽  
Self Defense ◽  
International Court ◽  
United Nations Charter ◽  
Multilateral Treaty

The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”

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