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 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 The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

2015 ◽  
Vol 15 (1) ◽  
pp. 7-57 ◽  
Author(s):  
Marija Đorđeska
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Law Commission ◽  
The Relationship ◽  
Law Making ◽  
Law Commission

Abstract Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

Review of the Rôle of the International Court of Justice

1972 ◽  
Vol 66 (3) ◽  
pp. 479-490 ◽  
Author(s):  
Leo Gross
Keyword(s):  
United Nations ◽  
International Law ◽  
International Court Of Justice ◽  
Progressive Development ◽  
Court Of Justice ◽  
International Court ◽  
Substantive Law ◽  
International Law Commission ◽  
Law Commission

The stagnation in the functioning of the International Court of Justice is only one of several indicators of the neglect by Members of the United Nations of the development and modernization of adjective law. There has been gratifying progress in the codification and progressive development of substantive law through the International Law Commission and other bodies, but substantive law without an adequate adjective law is bound to lack in effectiveness and uniform and predictable application.

scholarly journals THE ROHINGYA GENOCIDE CASE (THE GAMBIA V MYANMAR): BREACH OF OBLIGATIONS ERGA OMNES PARTES AND THE ISSUE OF STANDING

2021 ◽  
Vol 29 (1) ◽  
pp. 29-54
Author(s):  
Abdul Ghafur Hamid
Keyword(s):  
International Law ◽  
Case Law ◽  
The Gambia ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Attention ◽  
International Law Commission ◽  
Multilateral Treaty

On 23rd January 2020, the International Court of Justice indicated provisional measures to protect the Rohingya from the alleged genocidal acts committed in Myanmar. Rejecting the argument made by Myanmar, the World Court decided that The Gambia has standing before the court although it was not directly injured by the alleged wrongful act. The court applied the concept of “obligations erga omnes partes” in the context of its ruling on standing. The court, however, did not elaborate more on the concept and did not touch on its details. Since this case had attracted so much international attention, the concept has become a trending topic for legal discourse. This article, therefore, is an attempt to resolve the issues of whether the concept of obligations erga omnes partes has been established as a rule of customary international law and whether such an obligation may arise from any type of multilateral treaty and any provision in a multilateral treaty. To this end, the article analyses the jurisprudence of the International Court of Justice (ICJ), the case law of international human rights courts and the work and the valuable commentary of the International Law Commission on Article 48 of the Articles on the Responsibility of States for Internationally wrongful Act 2001. The article concludes that the concept of obligations erga omnes partes has been established as a rule of customary international law, that it may arise from any type of multilateral treaty and that it is applicable only in relation to the provision of a treaty that is essential to the accomplishment of object and purpose of the treaty.

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.

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.

The History of Article 38 of the Statute of the International Court of Justice

2018 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
International Organizations ◽  
Historical Development ◽  
Current Status ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
History Of ◽  
General Principles Of Law

This chapter analyses the history of Article 38 of the International Court of Justice (ICJ) Statute. It also seeks to reflect on the Article’s current status. The main focus of this chapter is to look at sources of international law through the prism of their historical development, including potential ‘new’ sources (acts of international organizations, unilateral acts of States, soft law) which have emerged long after the twelve ‘wise men’ of the Advisory Committee of Jurists had completed their task of drafting Article 38. The chapter also deals with the ‘classical’ sources of international law, such as customary international law and general principles of law. It takes into account how various courts and tribunals approach these sources.

Necessity

2016 ◽  
Author(s):  
Olivier Corten
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Subsidiary Condition ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
Methodological Problems ◽  
International Law Commission ◽  
Self Defence

This chapter examines the doctrine of necessity as an element of the prohibition of the use of force and as a subsidiary condition of the legality of self-defence. It begins by discussing the thesis of necessity as a general justification of the use of force within the context of the international law of responsibility. It then analyses necessity as a condition enshrined in self-defence and in the United Nations collective security system. The chapter also considers the methodological problems that arise from any interpretation of the concept of necessity, especially with respect to the use of force. It highlights the fact that the International Law Commission, the International Court of Justice, and state practice have never recognized necessity as a general justification to use force.

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.

scholarly journals THE INFLUENCE OF TEACHINGS OF PUBLICISTS ON THE DEVELOPMENT OF INTERNATIONAL LAW

2016 ◽  
Vol 66 (1) ◽  
pp. 1-37 ◽  
Author(s):  
Sandesh Sivakumaran
Keyword(s):  
International Law ◽  
Journal Articles ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Different Types ◽  
Droit International ◽  
International Law Commission ◽  
Law Commission

AbstractThis article considers the influence of teachings of publicists on the development of international law. The category of ‘teachings of publicists’ is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and ‘ordinary’ publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of ‘influence’. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined.

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