This Research Guide is intended as a starting point for research
on Customary International Law.
Comparative public law is particularly useful because traditional methods of treaty interpretation and reliance
on customary international law, while not irrelevant, face significant limits in international investment law.
Not exact matches
It is, at least, apparent that the debates about humanitarian intervention by military force in the last decade, about the creation of
international criminal tribunals in a number of cases, about the idea of a state's «universal jurisdiction» in cases of violations of the Genocide Convention or other «crimes against humanity,» about how far the global war
on terror may proceed without violating the rights of states, and most recently, about the United - States - led use of force against the Saddam Hussein regime in Iraq, have all raised important points of positive and
customary international law, and that in every one of these cases the outcome remains unsettled.
Moreover, it is generally accepted that Congress can set aside
customary international law by statute and thereby make it unenforceable in U.S. courts» thus, there is a powerful democratic «check»
on the UN process.
This is important to have in mind that the U.N. Convention
on the
Law of the Sea (UNCLOS) and customary international law provide that, with a few notable exceptions, the flag state has exclusive jurisdiction over its vessels on the high se
Law of the Sea (UNCLOS) and
customary international law provide that, with a few notable exceptions, the flag state has exclusive jurisdiction over its vessels on the high se
law provide that, with a few notable exceptions, the flag state has exclusive jurisdiction over its vessels
on the high seas.
In short, there is little opinio juris
on which a doctrine of
customary international law might be based.
Functional immunity arises from
customary international law and treaty
law and confers immunities
on those performing acts of state (usually a foreign official).
«Finally, the link which the provisions of Chapter 13 of the envisaged agreement display with trade between the European Union and the Republic of Singapore is also specific in nature because a breach of the provisions concerning social protection of workers and environmental protection, set out in that chapter, authorises the other Party — in accordance with the rule of
customary international law codified in Article 60 (1) of the Convention
on the
law of treaties, -LSB-...]-- to terminate or suspend the liberalisation, provided for in the other provisions of the envisaged agreement, of that trade.»
46 To that end, it should be noted that,
on the basis of
customary rules of general
international law and those of multilateral agreements, the Head of State enjoys a particular status in
international relations which entails, inter alia, privileges and immunities.
Moreover, the prohibition
on torture is universally binding in
customary international law.
In an important passage the Panel took a new perspective
on NVNI with a reference to the «good faith» obligation under
customary international law.
Doing so effectively calls for research skills beyond those that students acquire through working with domestic legal resources.56 Mary Rumsey explains that students must go beyond their dependence
on domestic databases to learn how to access the different resources relevant to
international and comparative
law.57 She describes, as examples, the need to find
customary international law through treaties,
laws of other nations, diplomatic correspondence, and scholarly works, and she points out that civil
law research requires much more emphasis
on statutes and scholarship than
on the case
law that plays such a dominant role in American legal analysis.58 While there have been significant advances in access to foreign and
international legal sources, there are still substantial barriers, 59 and the research methods needed to obtain these resources can be different (in ways either subtle or stark) from those that apply to domestic
law.
Customary international law is seemingly irreconcilably conflicted
on the fundamental issue of whether it recognizes an
international law equivalent to national - domestic statutes of limitations.
Whereas the GC primarily relied
on EU
law to come to the partial annulment, the Court fully based its argumentation
on customary international rules of treaty interpretation, applying these rules to the GC's argumentation.
In Appellant's view, no State can assume jurisdiction to prosecute crimes committed
on the territory of another State, barring a universal interest «justified by a treaty or
customary international law or an opinio juris
on the issue.»
A Court could identify a rule of
customary international law only if enough states follow a consistent practice,
on the footing that it is a legal obligation.
Our public
international law practice finds us advising on claims under the European Convention of Human Rights, disputes involving the application of the Kyoto Protocol to the UN Framework Convention on Climate Change, the rules and principles concerning dealings with the effective government of a State, the customary rules of the Law of the Sea and the effects of termination of and withdrawal from international treati
law practice finds us advising
on claims under the European Convention of Human Rights, disputes involving the application of the Kyoto Protocol to the UN Framework Convention
on Climate Change, the rules and principles concerning dealings with the effective government of a State, the
customary rules of the
Law of the Sea and the effects of termination of and withdrawal from international treati
Law of the Sea and the effects of termination of and withdrawal from
international treaties.
Lord Mance (with Lords Neuberger, Clarke, Wilson and Lady Hale) held that the principle of state immunity (as provided for in both
customary international law and the State Immunity Act 1978) was based
on the sovereign equality of states and
international comity.
Finally, the «unquestionable
customary norm» from Rule 158 of the Customary International Law Study's that «States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspect
customary norm» from Rule 158 of the
Customary International Law Study's that «States must investigate war crimes allegedly by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspect
Customary International Law Study's that «States must investigate war crimes allegedly by their nationals or armed forces, or
on their territory, and, if appropriate, prosecute the suspects.»
I was particularly struck by the Appeals Chamber assertion (para. 43 of the decision) that a rule of
customary international law now exists to the effect that
international courts and tribunals possess an inherent jurisdiction, which confers
on each of them the power to determine the scope of their own jurisdiction (competence de la competence; Kompetenz - Kompetenz).
I read the decision yesterday and thought that while it was legally defensible
on a conservative, narrow reading of the
law of state immunity, I couldn't help feeling disappointed that the court did not take the initiative to push the boundaries of
customary international law.
In R (
on the application of the Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin), [2002] All ER (D) 245 (Dec) the Divisional Court held that it had no jurisdiction to interpret an
international instrument that had not been incorporated into domestic
law even though the claim was founded
on an alleged breach of
customary international law.
In R (
on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, [2002] All ER (D) 70 (Nov) the Court of Appeal accepted that «
customary international law forms part of our common
law».
The decision is based
on a confusion between
customary and conventional
international law.
acting
on behalf of leading NGOs in the challenge,
on the grounds of compliance with
customary international law and
international treaty
law, to the detention of David Miranda when carrying material from the Edward Snowden leaks
Reliance by a State
on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of
customary international law.
While processes for recording traditional knowledge are already developed by Indigenous communities, principles contained in recommendation 81 of the Final Report of the
Law Reform Commission in Western Australia
on Customary Law [38](which are also in accordance with
international standards) provide a good foundation for the protection of this knowledge and will be integral to the development of an appropriate regime.
Customary international law and international instruments, in particular the International Covenant on Economic, Social and Cultural Rights (ICESCR), provide binding legal obligations on Australia in respect of the human rights of Indigenous Australians, including obligations of equality and non-discrimination in relation to economic, social and cul
international law and
international instruments, in particular the International Covenant on Economic, Social and Cultural Rights (ICESCR), provide binding legal obligations on Australia in respect of the human rights of Indigenous Australians, including obligations of equality and non-discrimination in relation to economic, social and cul
international instruments, in particular the
International Covenant on Economic, Social and Cultural Rights (ICESCR), provide binding legal obligations on Australia in respect of the human rights of Indigenous Australians, including obligations of equality and non-discrimination in relation to economic, social and cul
International Covenant
on Economic, Social and Cultural Rights (ICESCR), provide binding legal obligations
on Australia in respect of the human rights of Indigenous Australians, including obligations of equality and non-discrimination in relation to economic, social and cultural rights.
The UDHR is binding
on all members of the UN, through their acceptance of the UN Charter, and is in any event part of
customary international law.»
International proposals for recognition of
customary law also propose that recognition be consistent with human rights: see for example, Article 33 of the Draft Declaration
on the Rights of Indigenous Peoples: «Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards».