Part II Evolution and Theoretical Bases of the Law of International Watercourses, 5 The Contribution of the Law of Navigation

2019 ◽  
Author(s):  
McCaffrey Stephen C
Keyword(s):  
International Law ◽  
State Practice ◽  
The Law ◽  
Peace Treaties ◽  
Freedom Of Navigation

This chapter examines the law of navigation on international waterways, its development, and the contribution it has made to the law of international watercourses more generally. The rules of international law regarding navigation on international waterways are most highly developed in Europe. The development occurred—to some extent—bilaterally but was consolidated and widely dispersed by the major peace treaties beginning with the Peace of Westphalia in 1648. These rules provided broadly for freedom of navigation, first for riparians then for all nations. In the absence of a contrary treaty regime or inconsistent state practice regarding a particular waterway or area, the principle of freedom of navigation for states riparian to an international waterway should be presumed to be the prevailing standard under general international law. The content of this principle is that which has developed through the consistent practice of states over nearly two centuries.

scholarly journals Historic Rights in African State Practice

2019 ◽  
Vol 7 (2) ◽  
pp. 166-188
Author(s):  
Edwin Egede
Keyword(s):  
International Law ◽  
African State ◽  
Law Of The Sea ◽  
Legal Obligation ◽  
State Party ◽  
Customary International Law ◽  
State Practice ◽  
Dash Line ◽  
United Nations Convention ◽  
The Law

Abstract Historic rights in the law of the sea has been given prominence since the publication by China of the so-called nine-dash line map. Certain States have challenged this claim as inconsistent with the United Nations Convention on the Law of the Sea (UNCLOS) to which China is a State Party. On the other hand, it has been argued that although historic rights claims are not comprehensively regulated by the UNCLOS they are actually governed by the principles of general international law. Consequently, this would require establishing if there is a general and consistent practice of States followed by them from a sense of legal obligation which establish historic rights claims are consistent with Customary International Law. This article explores the State Practice of African States in order to determine whether these States acknowledge and recognize historic rights claims as consistent with contemporary law of the sea.

The Resilience of the Restrictive Rules on Self-Defence

2016 ◽  
Author(s):  
Joerg Kammerhofer
Keyword(s):  
International Law ◽  
Customary Law ◽  
International Court Of Justice ◽  
Institutional Practice ◽  
Jus Ad Bellum ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Law ◽  
Self Defence

This chapter examines the resilience of the treaty, and perhaps also customary, law on self-defence since 2001. It first considers ‘resilience’ in the context of the jus ad bellum and how law can be resilient vis-à-vis changing circumstance, opinions, interpretation, and state practice. It then looks at the indicators for and against resilience by analysing post-2001 developments, paying particular attention to three areas: jurisprudence, scholarly literature in international law, and state and institutional practice. The chapter also explains what ‘resilience’ can and cannot be, and how the law and its perceptions change—or remain the same. Two avenues on the question of what is resilient are evaluated: either the norm or its interpretation (perception) change. Finally, the chapter considers a number of cases in which the International Court of Justice has made pronouncements on and partial clarifications of important aspects of the law on self-defence since 2001.

scholarly journals The Third United Nations Conference on the Law of the Sea: the 1976 New York Sessions

1977 ◽  
Vol 71 (2) ◽  
pp. 247-269 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Customary Law ◽  
Law Of The Sea ◽  
Customary International Law ◽  
The Third ◽  
Geneva Conventions ◽  
State Practice ◽  
The Law

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

Sources in the Modern Tradition

2018 ◽  
Author(s):  
Randall Lesaffer
Keyword(s):  
Early Modern ◽  
International Law ◽  
Roman Law ◽  
Grand Narrative ◽  
Historical Source ◽  
Law Of Nature ◽  
Modern Age ◽  
Law Of Nations ◽  
State Practice ◽  
The Law

This chapter considers how the modern historiography of international law has ascribed pride of place to the jurisprudence of the law of nature and nations of the Early Modern Age. Whereas the writers from this period have had a significant influence on nineteenth-century international law, their utility as a historical source has been far overrated. The development of the law of nations in that period was much more informed by State practice than historians have commonly credited. Moreover, historiography has overestimated the novelty of the contribution of Early Modern jurisprudence and has almost cast its major historical source of inspiration into oblivion: the late medieval jurisprudence of canon and Roman law. It is thus important to restore medieval jurisprudence to its rightful place in the grand narrative of the evolution of international law.

Reflections on the M/V “Norstar” Case Before the International Tribunal for the Law of the Sea

2020 ◽  
pp. 291-316
Author(s):  
Yoshifumi Tanaka
Keyword(s):  
International Law ◽  
Good Faith ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Basic Concepts ◽  
The Law ◽  
Insight Into ◽  
Freedom Of Navigation

The M/V “Norstar” case deserves serious consideration for four reasons. First, the M/V “Norstar” judgment of 2016 is the first judgment on preliminary objections in the jurisprudence of the International Tribunal for the Law of the Sea (ITLOS). The judgment shed some light on procedural issues concerning preliminary objections. Second, ITLOS, in its judgment of 2019, addressed the interpretation and application of Article 87 of the UN Convention on the Law of the Sea. In light of the paramount importance of the freedom of navigation, the Tribunal’s view on this matter merits particular attention. Third, the M/V “Norstar” case provides an insight into basic concepts of international law, such as acquiescence, estoppel, good faith, and abuse of rights. Fourth, the M/V “Norstar” case furnishes a precedent regarding reparation in international law. Thus, this chapter examines the M/V “Norstar” judgments on preliminary objections and the merits, respectively.

Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited

2012 ◽  
Vol 25 (4) ◽  
pp. 909-934 ◽  
Author(s):  
CHRISTINA BINDER
Keyword(s):  
International Law ◽  
International Investment ◽  
State Responsibility ◽  
International Human Rights Law ◽  
International Investment Law ◽  
Force Majeure ◽  
State Practice ◽  
History Of ◽  
The Law ◽  
History Of International Law

AbstractStability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

2021 ◽  
Vol 10 (1) ◽  
pp. 143-164
Author(s):  
Kazuki Hagiwara
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Vienna Convention ◽  
Nuclear Forces ◽  
Customary International Law ◽  
Intermediate Range ◽  
Progressive Development ◽  
State Practice ◽  
The Law

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.

Introduction

2021 ◽  
pp. 1-24
Author(s):  
Camille Goodman
Keyword(s):  
United Nations ◽  
International Law ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Legal Effect ◽  
State Practice ◽  
Balance Of Interests ◽  
United Nations Convention ◽  
The Law ◽  
Unique Context

This Chapter outlines the context, objective, and scope of the book, and examines two foundational issues that anchor its law of the sea enquiry firmly within the doctrinal and methodological context of general international law. First, it considers the international law concept of ‘jurisdiction’ and examines its role and application under the 1982 United Nations Convention on the Law of the Sea in general, and in the exclusive economic zone (EEZ) in particular. It explores the idea of jurisdiction as a ‘continuum’ of prohibitions, rights, and obligations pursuant to which a State may be obliged, authorized but not required, or prohibited from exercising authority in relation to a person or activity, and considers the balance of interests in the sui generis regime that underpins the jurisdictional continuum of the EEZ. Second, it examines the potential legal effects of subsequent State practice in the law of the sea. It describes the conceptual framework that underlies the book’s widespread examination of State practice and explains how the relevant rules of international law apply to evaluate the legal effect of State practice under treaty law and customary international law in the unique context of the law of the sea. The Chapter outlines the parameters used to determine and analyse the State practice examined in the book, and concludes with an overview of the structure and chapter content.

Nationality, State Succession, and the Right of Option: The Case of Québec

1999 ◽  
Vol 36 ◽  
pp. 151-180
Author(s):  
Gibran van Ert
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
Human Right ◽  
State Practice ◽  
State Succession ◽  
The Law ◽  
The Right ◽  
Nationality Law

SummarySome advocates of Québec separatism claim that Quebecers could retain their Canadian nationality following Québec’s secession from Canada. This article examines international nationality law to test the accuracy of that claim. A device known as an option exists in international law as a means of allowing individuals to determine for themselves the effect of state succession upon their nationality. This article considers the place of options in the law of state succession, both as it now stands and as proposed by the International Law Commission’s Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States, 1997. Four possible arguments in favour of a Québécois option are given, the most convincing of which arises by analogy to state practice in the use of plebiscites. This argument suggests that international law would require the state of Québec to grant all Canadians affected by Québec’s secession a right to opt for Canadian nationality instead of Québécois nationality with the caveat that those opting to retain Canadian nationality could face expulsion from Québec. Finally, the article suggests that the development of human rights in international law should extend to recognize a true human right of option in cases of state succession. Regrettably, the ILC Draft hinders, rather than encourages, this desirable development.

Conclusions

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Actual State ◽  
New Paradigm ◽  
State Practice ◽  
The Law

The writing of this book was triggered by a twofold desire: to bridge the unacceptable gap between the positive rules of the international law governing armed hostilities and actual state practice, and to reduce the humanitarian suffering caused by this reality. The current law does not seem to be optimal in balancing the different interests of states’ militaries and the humanitarian agenda. As summarized in this concluding chapter, in response to this challenge, this book offers a new paradigm based on reality that may elevate the humanitarian threshold by replacing the currently problematic imperatives imposed upon militaries with professionally-based, therefore attainable, requirements. The suggested paradigm may have some side benefits, as well. It will clarify the contours of the law and offer criteria for judging the belligerents’ conduct.

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