Part II The International Law Framework of Investment Protection and Political Risk, 5 History and Development of the Customary International Law of Expropriation and Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Historical Development ◽  
Customary International Law ◽  
The Public ◽  
Investment Protection ◽  
Public Purpose ◽  
Current State ◽  
State Practice ◽  
Full Compensation ◽  
Compensation Standard

This chapter discusses the principles of customary international law related to expropriation. It includes an overview of the historical development of the international law of expropriation, as developed in international arbitration decisions, commentators, treaties, and State practice. It also discusses the current state of the customary international law of expropriations, including the various substantive protections established in customary and conventional international law, such as the full compensation standard for expropriation, the public purpose requirement, and the prohibition against discrimination. The chapter concludes that a State may expropriate the property of aliens within its borders, but must compensate the foreigner for full value of the property taken. The primary change in the international law of expropriation since the nineteenth century is that the State may no longer use force against another State to rectify or prevent a taking of property by the host State.

scholarly journals Whither Democratic Legitimism?: Contextualizing Recent Developments in the Recognition and Non-recognition of Governments

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 213-218 ◽  
Author(s):  
Brad R. Roth
Keyword(s):  
International Law ◽  
Legal Order ◽  
Democratic Legitimacy ◽  
Customary International Law ◽  
Balanced Assessment ◽  
Current State ◽  
State Practice ◽  
Recent Developments

Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of ade juregovernment under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.

From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom

2014 ◽  
Vol 3 (2) ◽  
pp. 323-339
Author(s):  
Ole W. Pedersen
Keyword(s):  
International Law ◽  
Precautionary Principle ◽  
The Other ◽  
Customary Law ◽  
Customary International Law ◽  
The Precautionary Principle ◽  
Cross Border ◽  
Current State ◽  
State Practice ◽  
Indus Waters Treaty

AbstractThe question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

The Squire Law Library at Cambridge: the Historical Development and Current Status of the International Law Collections

2017 ◽  
Vol 17 (2) ◽  
pp. 78-91 ◽  
Author(s):  
Lesley Dingle
Keyword(s):  
International Law ◽  
Historical Development ◽  
Detailed Account ◽  
Current Status ◽  
Public International Law ◽  
The Public ◽  
The Subject ◽  
Law Library

AbstractIn this paper Lesley Dingle provides a detailed account of the historical development of the public international law collections at the Squire Law Library in Cambridge. She explains the close involvement of the academic lawyers and the librarians, past and present, in developing an important collection which reflects the significance of the subject at Cambridge's Faculty of Law. Finally, she brings things up-to-date by detailing the extent of the electronic provision which benefits the modern scholar in this discipline.

Do International Organizations Enjoy Immunity Under Customary International Law?

2014 ◽  
Vol 10 (2) ◽  
pp. 287-318 ◽  
Author(s):  
Michael Wood
Keyword(s):  
Nineteenth Century ◽  
General Practice ◽  
International Law ◽  
Present Article ◽  
International Organizations ◽  
Historical Development ◽  
Customary International Law ◽  
Domestic Courts

The present article considers whether there is “a general practice accepted as law” establishing rules of customary international law on the immunity of international organizations from the jurisdiction of domestic courts. Apart from treaties, there does not appear to be a great deal of practice or opinio juris on the immunity of international organizations. And while there are many treaties dealing with the matter, their significance for the generation of a rule of customary international law seems questionable. This article sketches the historical development of the immunity of international organizations since the nineteenth century, describes various approaches that have been suggested to this question, and sets out such practice as there is and academic consideration of that practice. It then considers whether practice has to date generated any rules of customary international law regarding immunities, and finally suggests some conclusions.

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 Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

2017 ◽  
Vol 3 (1) ◽  
pp. 1-38
Author(s):  
Brian Sang YK
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Policy Implications ◽  
Targeted Killing ◽  
Customary International Law ◽  
Lethal Force ◽  
Legal Challenges ◽  
State Practice ◽  
Clear And Present Danger

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano

2009 ◽  
pp. 565-590
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Foreign Affairs ◽  
Customary International Law ◽  
Exclusive Jurisdiction ◽  
Head Of State ◽  
State Practice ◽  
Functional Immunity ◽  
Head Of Government ◽  
Domestic Law

- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

The Arbitral Award in the Enrica Lexie Case and its Questionable Recognition of Functional Immunity to the Italian Marines Under Customary International Law

2021 ◽  
Vol 30 (1) ◽  
pp. 209-225
Author(s):  
Raffaella Nigro
Keyword(s):  
International Law ◽  
Current Practice ◽  
The State ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Criminal Jurisdiction ◽  
State Practice ◽  
Majority Judgment ◽  
Functional Immunity ◽  
The Military

The dispute between Italy and India on the Enrica Lexie incident has finally been decided by the Award handed down on 21 May 2020 by the Arbitral Tribunal to which the Parties had referred the case. After having concluded that it had jurisdiction on the issue of the immunity of the two Italian marines involved in the case at hand, the majority judgment (by three votes to two) affirmed that under customary international law the latter enjoyed functional immunity from the criminal jurisdiction of India. This article will argue that the Arbitral Tribunal’s conclusions are unconvincing, first and foremost, considering that, based on State practice, it is not possible to affirm without reservations that a settled customary rule exists under international law conferring immunity to all State officials, and regardless of the type of functions they perform. In fact, immunity has often been recognized as applying only to certain categories of State officials, and on the basis of the governmental nature of the functions they perform on behalf of the State. Given the doubtful existence under customary international law of a clear rule establishing the functional immunity of all State officials, for all the acts performed in the exercise of their functions, this article argues that the Arbitral Tribunal should have firstly ascertained the existence of a specific customary rule on the immunity of the military abroad, together with the exact content of such rule and, secondly, whether this was applicable in the case of the Enrica Lexie. As current practice stands, military forces abroad are entitled to immunity only under specific circumstances, which do not seem to occur in the present case. In particular, this article maintains that the Italian marines were not entitled to functional immunity. While the acts they performed did indeed fall within their typical functions, they were exercised on behalf of a private subject and not on behalf of the Italian State.

scholarly journals Treaty Bodies

2019 ◽  
Vol 21 (3-4) ◽  
pp. 344-368
Author(s):  
Kasey McCall-Smith
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
Peremptory Norm ◽  
Treaty Body ◽  
State Responses ◽  
Reporting Procedures ◽  
The Way

Abstract This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.

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