9 The Residual Receptacle

Human Rights Law ◽

Legal Obligations ◽

The Common ◽

General Principles Of Law ◽

Common Understanding

This chapter explores customary international law that is constantly approached as the residual receptacle for international legal obligations that cannot be grounded in treaty law. It highlights the discursive performance that presupposes a sort of fetishization of the treaty as the first go-to source of international law as well as the idea that customary international law is second-best. It also cites the discursive performance that led some observers to claim that customary international law has become the generic category for practically all binding non-treaty standards. The chapter draws on international human rights law and international criminal law and highlights the discursive performance that is witnessed by customary international law. It formulates some observations on the consequences for general principles of law of the common understanding of customary international law as a residual receptacle for non-treaty international legal obligations.

Protecting the Environment during Multinational Military Operations

The 'Legal Pluriverse' Surrounding Multinational Military Operations ◽

10.1093/oso/9780198842965.003.0017 ◽

2019 ◽

pp. 322-344

Author(s):

Onita Das

Keyword(s):

International Law ◽

Criminal Law ◽

Environmental Law ◽

Armed Conflicts ◽

Human Rights Law ◽

Military Operations ◽

Ongoing Work

The chapter examines issues concerning the protection of the environment during multinational military operations. Taking into consideration the International Law Commission’s (ILC) recent work regarding the protection of the environment in relation to armed conflicts, this contribution devotes particular attention to the preventive and remedial measures suggested in the Special Rapporteur’s reports. The chapter does, however, go beyond the ILC’s ongoing work on environmental protection in the context of armed conflict by extending its focus on exploring how multinational military operations generally—that is whether within or outside of armed conflicts—are influenced by other bodies of international law, namely international criminal law, international environmental law, and international human rights law.

Intersections in Public International Law for Protecting Cultural Heritage LawPast, Present, and Future

Intersections in International Cultural Heritage Law ◽

10.1093/oso/9780198846291.003.0001 ◽

2020 ◽

pp. 1-14

Author(s):

Anne-Marie Carstens ◽

Elizabeth Varner

Keyword(s):

Cultural Heritage ◽

International Law ◽

Criminal Law ◽

Human Rights Law ◽

Public International Law ◽

Law Of Armed Conflict ◽

The Law

In this introductory chapter, the volume editors observe that despite the increasing recognition of international cultural heritage law as an emerging field, this body of law is comprised largely of a collection of rules developed at and within different intersections in public international law. The chapter outlines how rules for protecting tangible and intangible cultural heritage developed, for example, in the law of armed conflict, international criminal law, international human rights law, and the law of the sea, as well as how States, international organizations, international tribunals, and other actors have contributed to this development. The chapter argues that as a result of this evolutionary background, the scope of international law governing the recognition, protection, or return of cultural heritage law can be illuminated by studying cultural heritage regimes within the context of the intersections in which they have developed.

Armed Groups and Customary International Human Rights Law

10.1093/oso/9780198808381.003.0011 ◽

2017 ◽

Author(s):

Katharine Fortin

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Armed Groups ◽

Legal Obligations ◽

International Human

Chapter 11 analyses arguments that armed groups are bound by human rights law by virtue of customary international law. In doing so, the chapter draws together theories that have been explored in Chapters 7 and 9 about the relevance of territory to the acquisition of legal obligations. The chapter starts by examining the debates about how customary international human rights law binding upon armed groups should be constituted, finding that it will be formed through State practice and opinio juris. It ends by examining different articulations of the theory that armed groups are bound by customary international law by accountability mechanisms, evaluating their credence and making suggestions for their improvement.

Protected Groups in Refugee Law and International Law

Laws ◽

10.3390/laws8040025 ◽

2019 ◽

Vol 8 (4) ◽

pp. 25

Author(s):

Joseph Rikhof ◽

Ashley Geerts

Keyword(s):

Human Rights ◽

International Law ◽

Criminal Law ◽

International Criminal ◽

Human Rights Law ◽

Refugee Convention ◽

International Human

The 1951 Convention Relating to the Status of Refugees (“Refugee Convention”) defines ‘persecution’ based on five enumerated grounds: race, religion, nationality, membership of a particular social group, and political opinion. This list of protected groups has not changed in the nearly 70 years since its inception, although the political and social context that gave rise to the Refugee Convention has changed. This article examines how ‘membership in a particular social group’ (“MPSG”) has been interpreted, then surveys international human rights law, transnational criminal law, international humanitarian law, and international criminal law instruments to determine whether MPSG can encompass the broader protections afforded under other international law regimes. It concludes that the enumerated grounds are largely consistent with other instruments and protects, or at least has the potential to protect, many of the other categories through MPSG. However, as this ground is subject to domestic judicial interpretation and various analytical approaches taken in different countries, protection could be enhanced by amending the Refugee Convention to explicitly include additional protected groups from these other areas of international law, specifically international human rights law and international criminal law.

The Idea of International Human Rights Law

10.1093/oso/9780198749844.001.0001 ◽

2019 ◽

Author(s):

Steven Wheatley

Keyword(s):

Human Rights ◽

International Law ◽

Human Rights Law ◽

Moral Concept ◽

Fragmentation Of International Law

Human Rights Treaties ◽

International Human ◽

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

The Year in Review

Yearbook of International Humanitarian Law ◽

10.1017/s1389135900000878 ◽

2001 ◽

Vol 4 ◽

pp. 255-327

Author(s):

Avril McDonald

Keyword(s):

International Law ◽

Turning Point ◽

International Criminal ◽

The United States ◽

International Terrorism ◽

Human Rights Law ◽

Defining Moments ◽

The Usa

The defining moments of 2001, the terrorist attacks of September 11 against the United States of America, marked a turning point in international law and relations. By their scale and audaciousness, overnight they helped to propel the issue of international terrorism to the top of the international security agenda and particularly that of the USA, with consequences for many branches of international law, including thejus ad bellum, thejus in bello, international law relating to terrorism, international human rights law and international criminal law, that were just beginning to be felt as the year closed.

Jurisdictional Immunities of the State for Serious Violations of International Human Rights Law or the Law of Armed Conflict

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800010857 ◽

2013 ◽

Vol 50 ◽

pp. 243-287 ◽

Cited By ~ 2

Author(s):

Paul David Mora

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflict ◽

The State ◽

Human Rights Law ◽

Law Of Armed Conflict ◽

International Human

SummaryIn 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.

International Human Rights Law

The International Human Rights Movement ◽

10.23943/princeton/9780691135151.003.0004 ◽

2012 ◽

Author(s):

Aryeh Neier

Keyword(s):

International Law ◽

The United States ◽

Customary Law ◽

Human Rights 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.