Customary International Law

2020 ◽  
Author(s):  
Kathleen Barrett
Keyword(s):  
General Practice ◽  
International Law ◽  
Legal Requirements ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Official Statement ◽  
State Practice ◽  
State Consent

Article 38 of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as the second source of law to be used by the Court. In other words, customary international law (CIL) requires state practice and opinio juris, the belief that the practice is legally required. A basic principle of international law is that sovereign states must consent to be bound by international legal requirements. Therefore, for a norm to become CIL, a widespread group of states must consistently follow the norm and indicate, either explicitly or implicitly, that they consent to the norm. Consistent action is important in two ways: consistent state practice following the norm indicates state consent to be bound by the norm and consistent objection to the norm indicates that the state does not consent to the norm. To avoid being bound by a rule of CIL, a state must persistently object to the rule during and after its formation. Changing CIL requires new state practice and evidence that opinio juris supports the new, not the old, state practice. Debates surrounding state practice include the number of states required to demonstrate “widespread” action, whether the states must be representative of the community of states, and how long consistent practice must occur before CIL is formed. Opinio juris is debated because it is subjective unless there is a specific, official statement that there is a belief that the practice is legally required. Once a state consents, implicitly or explicitly, to a CIL rule, it cannot withdraw that consent. States that gain independence after a CIL rule is established are bound by that rule if the former government was not a persistent objector. This is problematic, particularly for former colonies that were not able to object during the formation of existing CIL rules because they were not considered “sovereign states.” Scholars supporting this perspective argue that, prior to decolonization, CIL was used to control the colonies and, since their independence, it is used by the colonizers to maintain their power and perpetuate inequality.

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 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.

scholarly journals The Emergence of “Universal Jurisdiction” in Response to Somali Piracy: An Empirically Informed Critique of International Law’s “Paradigmatic” Universal Jurisdiction Crime

2019 ◽  
Vol 18 (3) ◽  
pp. 551-643
Author(s):  
Matthew Garrod
Keyword(s):  
World War Ii ◽  
International Law ◽  
Universal Jurisdiction ◽  
World War ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Crimes ◽  
Court Of Justice ◽  
International Court ◽  
State Practice

Abstract Since the 1980s, the idea that piracy is the “original” and “paradigmatic” universal jurisdiction crime in customary international law has been increasingly supported by weighty scholarship. In the wake of the unprecedented surge in Somali piracy, this view is gaining ground among various powerful actors in international law. Yet, remarkably little empirically grounded scholarship exists in support of universal jurisdiction. This Article provides the first comprehensive empirical analysis of state practice in response to Somali piracy in a ten-year period since 2006. Additionally, the data on Somali piracy are compared with the empirical findings of state practice regarding international crimes, which are more “heinous” than piracy, since the end of World War II to 2016. In so doing, this Article brings new insight and the first thorough critique of what most scholars, governments, the UN and even the International Court of Justice have said on universal jurisdiction, its purpose and the basis for it in international law. In view of inter-state tensions and conflict caused by universal jurisdiction and a move towards law codification, there is now a pressing need for a paradigm shift in the concept of universal jurisdiction for both piracy and international crimes, a step away from conventional scholarly accounts, and the grand narratives from which they proceed, to a position that has a solid basis in the actual practice of states. Empirically and historically informed, it is proposed that “universal jurisdiction” for both categories of crime provides a basis in international law permitting the exercise of national criminal jurisdiction over offences involving foreign nationals abroad that have a close nexus between the case over which jurisdiction is asserted and the state asserting jurisdiction. Common and traditionally held assumptions that universal jurisdiction is based solely on the grave nature of crimes and is applied by states absent any nexus to offences and in the interest of the international community are unfounded.

The International Court of Justice as a “Shortcut” to Identifying Custom

2021 ◽  
Vol 20 (3) ◽  
pp. 490-518
Author(s):  
Rowan Nicholson
Keyword(s):  
International Law ◽  
Genocide Convention ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Judicial Decisions ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Subject

Abstract A frequently used shortcut to identifying rules of customary international law is to rely on statements by the International Court of Justice instead of conducting a more cumbersome investigation of state practice and opinio iuris. The purpose of this article is to consider when the Court’s statements align or may come to align with customary rules and, consequently, to what extent this shortcut is justified. Its value is in systematically exploring ideas that international lawyers may already have internalised; it may also help students of the subject to understand why reliance is placed on judicial decisions. Often, the Court simply elucidates pre-existing customary rules. But examples such as Factory at Chorzów, Fisheries, and Reservations to the Genocide Convention suggest that an additional or alternative justification for the shortcut may be stronger. This is the tendency of states to endorse or “ratify” statements by the Court through subsequent practice and opinio iuris.

Between ‘Time Immemorial’ and ‘Instant Custom’: The Time Element in Customary International Law

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 229-251
Author(s):  
Omri Sender ◽  
Sir Michael Wood
Keyword(s):  
General Practice ◽  
Life Cycle ◽  
International Law ◽  
Present Article ◽  
Rapid Development ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Time Element

Abstract Article 38.1(b) of the Statute of the International Court of Justice, which refers to customary international law as ‘a general practice accepted as law’, makes no mention of duration. Yet the ‘time element’, as the Court itself called it, has not infrequently been relevant—if not central—to determining whether a rule of customary international law has come into being. The present article seeks to describe how far the passage of time is necessary for the creation of rules of customary international law, and the possible significance of time to the customary process more generally. While noting that no particular duration is required for the formation of customary international law, it suggests that some time must always elapse, and that assertions of a rapid development in customary international law are to be treated with a degree of caution. Light is thrown on particular ways in which time may indeed be of significance for the formation and identification of a rules of customary international law, and on further ways in which time (and timing) may impact the life cycle of such rules, including their possible change and demise.

Plausibility in the Provisional Measures Jurisprudence of the International Court of Justice

2018 ◽  
Vol 31 (3) ◽  
pp. 641-668 ◽  
Author(s):  
MASSIMO LANDO
Keyword(s):  
International Law ◽  
Prima Facie ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court

AbstractIn 2009, the International Court of Justice introduced plausibility as a requirement for indicating provisional measures under Article 41 of its Statute. Upon its introduction, plausibility was conceived as a test to establish that the rights asserted by applicant states might exist under international law. However, the Court subsequently developed the plausibility test into a higher standard, which requires the Court also to assess that the alleged conduct of the respondent state might breach that applicant state's asserted rights. This development has important implications for provisional measures proceedings before the Court. First, one could distinguish two aspects of plausibility, legal and factual. Second, plausibility has different functions in requests for provisional measures depending on whether the applicant state asserts rights arising under a treaty or under customary international law. Third, the Court's enquiry into plausibility could overlap with the enquiry into prima facie jurisdiction ratione materiae, although these two requirements conceivably entail different thresholds. Fourth, plausibility in provisional measures indicated in interpretation proceedings could be seen to be different from plausibility in provisional measures indicated in ordinary contentious proceedings.

scholarly journals Criminal Proceedings Against Albers

2013 ◽  
Vol 107 (3) ◽  
pp. 632-638
Author(s):  
Filippo Fontanelli
Keyword(s):  
World War Ii ◽  
International Law ◽  
World War ◽  
Criminal Proceedings ◽  
Sovereign Immunity ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Court Of Appeal

In August 2012, the First Criminal Division of the Court of Cassation (Supreme Court or Court), the highest Italian domestic court, issued a judgment upholding Germany’s sovereign immunity from civil claims brought by Italian war crime victims against Paul Albers and eight others in the Italian courts (Albers). In so doing, the Court overruled its own earlier decisions and also reversed the judgment of April 20, 2011, by the Italian Military Court of Appeal (Military Court), which had upheld such claims relating to war crimes committed by German forces in Italy during World War II. With this ruling, the Court of Cassation put an end to its decade long effort to find an exception to the well-known rule of customary international law providing for sovereign immunity from foreign civil jurisdiction for actsjure imperii. Thisrevirementresulted from the Court’s decision to give effect to the judgment of the International Court of Justice (ICJ) inGermany v. Italy.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

France—immunity from taxation under ICJ Statute—effect of customary international law in French administrative courts

1998 ◽  
Vol 92 (4) ◽  
pp. 764-765
Author(s):  
Bernard H. Oxman ◽  
Stefan A. Riesenfeld
Keyword(s):  
International Law ◽  
Income Taxes ◽  
International Court Of Justice ◽  
Retirement Pension ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
Droit International ◽  
Council Of State ◽  
Court Of Appeal

In Re Aquarone. 101 Revue Générale de Droit International Public 838 (1997).Conseil d'Etat (Assemblée), June 6, 1997.In this case, the French Council of State, sitting in its most authoritative formation, had to pass on a petition by Stanislav Aquarone for review of a judgment of the administrative court of appeal of Lyon, dismissing his request for annulment of die imposition by France of income taxes on his retirement pension for the years 1981-1986, paid by the United Nations. In a carefully crafted opinion, the highest administrative court of France rejected die petition and die claim of immunity from taxation of his retirement pay by Aquarone, a former Registrar of the International Court of Justice and an Australian national now living in Gordes, France.

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