scholarly journals A Disaggregative View of Customary International Law-Making

2016 ◽  
Vol 29 (2) ◽  
pp. 365-388
Author(s):  
EMMANUEL VOYIAKIS
Keyword(s):  
International Law ◽  
Practical Problem ◽  
Customary Law ◽  
Fair Play ◽  
Customary International Law ◽  
Normative Force ◽  
The Impact ◽  
Customary Practices ◽  
Law Making

AbstractThis article argues that some familiar principles, like the protection of reasonable expectations or fair play, can justify the normative force and binding character of some types of customary international practices. We have no reason to think that any one of those principles can justify all customary practices that are typically taken to have such force. Accordingly, instead of proposing a unifying justification for all customary international law-making, I will suggest that the impact of past international practices on the normative situation of international agents is determined not by one master principle, but by a range of different normative principles, each applicable in different situations. If this is correct, i.e., if the principles that give customary practices their normative force vary depending on the kind of principle governing the practical problem that those practices are meant to respond to, both the critique and the defence of customary law-making must proceed on what I will call a ‘disaggregative’ basis.

International Law, Informal Law-Making, and Global Governance in Times of Anti-Globalism and Populism

2019 ◽  
pp. 242-264
Author(s):  
Jan Wouters
Keyword(s):  
International Law ◽  
Global Governance ◽  
First Century ◽  
Public International Law ◽  
Customary International Law ◽  
Twenty First Century ◽  
The Impact ◽  
Law Making

The chapter focuses on the impact of globalization on public international law in times of anti-globalism and populism, where globalization itself has increasingly become contested. It submits that traditional public international law has been dangerously unreceptive in capturing new transnational regulatory actors and normative dynamics, which makes it more vulnerable to anti-globalist and populist attacks. It looks into the corresponding rise and certain features of ‘informal international law-making’ and ‘global governance’, as they may offer some responses to, or at least some defences against, anti-globalist and populist politics. It also addresses the current challenges which traditional forms of international law-making, like treaties and customary international law, are currently going through. It concludes that public international law will have to adapt to both the challenges of globalization and anti-globalism, if it is to remain relevant in regulating international life in the twenty-first century.

The Law of Treaties Beyond the Vienna Convention

2011 ◽  
Keyword(s):  
International Law ◽  
Customary Law ◽  
Actual State ◽  
Vienna Convention ◽  
Customary International Law ◽  
Progressive Development ◽  
The Law ◽  
Jus Cogens ◽  
International Law Commission ◽  
The Impact

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

4 Legal Acts, 4.3 Military and Paramilitary Activities in and Against Nicaragua ( Nicaragua v United States of America ), Merits, Judgment, [1986] ICJ Rep 14

2016 ◽  
Author(s):  
de Chazournes Laurence Boisson ◽  
Gadkowski Andrzej
Keyword(s):  
International Law ◽  
International Organizations ◽  
Customary Law ◽  
Customary International Law ◽  
United Nations General ◽  
Legal Nature ◽  
Treaty Interpretation ◽  
The Military ◽  
The Impact

International organizations can contribute to the formation of international law as can be seen from the Military and Paramilitary Activities in and against Nicaragua case. The legal nature and effects of acts of international organizations, in relation to the principles of non-intervention and the non-use of force, are discussed having reference to the resolutions of the United Nations General Assembly, of the Organization of American States, and to the Helsinki Final Act. The impact and effect of unilateral acts of international organizations are analyzed in a wide context—that of international law-making and the sources of international law. Focus is put on the twofold relationship between acts of international organizations and customary international law, that is as evidence of customary law and with respect to its impact on its creation. Remarks are also made on the role of these acts in treaty interpretation.

THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS

2010 ◽  
Vol 28 (1) ◽  
pp. 115-149
Author(s):  
Fernando R. Tesón
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Foreign Affairs ◽  
Customary Law ◽  
Trade Barriers ◽  
Customary International Law ◽  
Liberal Government ◽  
The Government ◽  
Improved Methods ◽  
The U.S

AbstractScholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.

scholarly journals Diplomatic protection in international law and the United Nations

2013 ◽  
pp. 667-681
Author(s):  
Bojan Milisavljevic
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Diplomatic Protection ◽  
History Of ◽  
The United Nations ◽  
International Law Commission ◽  
The Impact ◽  
Law Commission

The paper deals with the issue of the diplomatic protection in international law and its development through the history of the international community. In this sense, the author investigates the practice of states regarding the application of diplomatic protection and the steps taken by the International Law Commission of the United Nations on the codification of this area. In 2004 International Law Commission adopted at first reading a full set of draft articles. In this paper is presented judicial practice, especially of the International Court of Justice, in the field of diplomatic protection in order to evaluate whether the approach of the Court to diplomatic protection has become more human-rights oriented in the last few years. Author presents the development of customary law rules relating to diplomatic protection and its transition into a whole system of rules through the work of the International Law Commission. In this sense, these are the basic stages in the codification of rules on diplomatic protection and the United Nations contribution to the protection of the rights of foreign nationals. This article points the development of universal and regional mechanisms to protect human rights and highlights the impact of those mechanisms on traditional measures of diplomatic protection.

scholarly journals Revisiting the Case of Customary International Tax Law

2021 ◽  
Vol 23 (1) ◽  
pp. 79-103
Author(s):  
Dirk Broekhuijsen ◽  
Irma Mosquera Valderrama
Keyword(s):  
International Law ◽  
International Taxation ◽  
Customary Law ◽  
Tax Law ◽  
Profit Shifting ◽  
Customary International Law ◽  
The Creation ◽  
International Tax

Abstract Customary international tax law has traditionally not received a lot of acclaim in international tax law literature. However, the infrastructure of international tax law is becoming increasingly multilateral. The recent adoption of the Multilateral Instrument and the creation of the Inclusive Framework, two initiatives related to the OECD/G20 Base Erosion and Profit Shifting Project, have accelerated the width of cooperation on international tax matters. For that reason, the authors (re)consider the existence of customary international law in the area of international tax law. They conclude that, perhaps contrary to the intuition of tax lawyers, the evidence in favour of customary international tax law is building up. The question whether customary law exists within the area of international taxation is therefore not misplaced.

The Function of Opinio Juris in Customary International Law

2012 ◽  
Vol 81 (3) ◽  
pp. 327-339 ◽  
Author(s):  
Christian Dahlman
Keyword(s):  
General Practice ◽  
International Law ◽  
Customary Law ◽  
Customary International Law

This article claims that the requirement of opinio juris in the formation of customary international law means that a general practice must be generally accepted among states to become customary law. The article argues that opinio juris serves an important function. It prevents generally unwanted general practice from becoming customary law.

International Human Rights Law

2012 ◽  
Author(s):  
Aryeh Neier
Keyword(s):  
International Law ◽  
The United States ◽  
Customary Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
The Status ◽  
Civilized Society ◽  
The U.S

This chapter focuses on the two sources of international law: custom and treaties. Customary international law is the term used to describe rules that are so widely accepted and so deeply held that they help to define what it means to belong to a civilized society. The question of whether customary international law is binding on the United States came before the U.S. Supreme Court as long ago as 1900 in a case called Paquete Habana. Whereas treaty law often covers the same ground as customary international law. Torture is forbidden by customary international law, for example, and prohibitions against torture are also set forth in several multilateral treaties. The effect is to reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

Introduction The customary law of human rights is hiding in plain sight

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International Law ◽  
Regional Systems ◽  
Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

International Human Rights Law

2020 ◽  
pp. 94-116
Author(s):  
Aryeh Neier
Keyword(s):  
International Law ◽  
The United States ◽  
Customary Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
The Status ◽  
Civilized Society ◽  
The U.S

This chapter discusses custom and treaties as the two sources of international law. It explains the customary international law as the term used to describe rules that are widely accepted and deeply held and are used to define what it means to belong to a civilized society. It also recounts the case called “Paquete Habana” in the U.S. Supreme Court that addresses the question of whether customary international law is binding on the United States. The chapter talks about the treaty law or conventional law as the source of multilateral conventions that often covers the same ground as customary international law. It analyzes the prohibitions against “torture” that are set forth in several multilateral treaties and reinforce recognition that a particular norm set forth in a treaty has the status of customary law.

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