The ILC’s Function beyond Codification and Progressive Development: Catalysing Customary International Lawmaking

This chapter discusses the persistent objector rule, according to which a State that has persistently objected to an emerging rule of customary international law, and maintains its objection after the rule has come into existence, is not bound by it. The chapter describes the evolution of the rule in international practice, its endorsement by the International Law Commission (ILC), and its systemic significance in international law. It also looks into the stringent conditions required for its invocation, and its inapplicability as regards peremptory norms of general international law (jus cogens). customary international law

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading “Treaties conflicting with a peremptory norm of general international law (jus cogens)” that: A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

The determination of rules of customary international law has been typically inserted in the methodological dualism between induction and deduction. By induction, interpreters find existing legal rules on the basis of the empirical material – state practice and opinio juris. By deduction, instead, interpreters find legal rules by deducing them from existing principles and rules of international law. Notably, while induction is portrayed as empirically grounded – therefore arguably objective – deduction is presented as a logical exercise, thus disguising the margin of manoeuvre that interpreters enjoy in ascertaining rules of customary international law. The present contribution contends that the methodological dualism informing the discourse on the determination of rules of customary international law shall be revisited to reflect the argumentative nature of such a determination. This twist is conducive to unveil the role that discretion plays in the ascertainment of rules of customary international law, rather than embracing a purely methodological lens which rather mystifies it. Accordingly, interpreters operate within an argumentative framework in that they necessarily select and appreciate evidence of practice and opinio juris, which is far from being incontrovertible, let alone fully representative of the majority of states. Yet, owing to the authority of courts in a legal order, their verbalization of presumably existing rules of customary international law is a necessary endeavour for the materialization of such ‘rules’ and their fruition by the legal practice.

Die Grenzen der Anwendung des Völkerrechts im Deutschen Recht (The Limits of Application of Public International Law in German Domestic Law)

The article focusses on a specific aspect of the International Court of Justice’s (ICJ) 2024 Advisory Opinion on the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, namely the statement that the right to self-determination constitutes a peremptory norm of international law. The article submits that the finding of the ICJ can be at variance with the basic criteria set forth by the International Law Commission in the 2022 Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens). In particular, limiting the peremptory effect of self-determination to cases of foreign occupation that lead to annexation risks undermining the unitary, universal character of peremptory rules. Overall, the case confirms the divisive potential of the concept of jus cogens in the international legal community.

INTRODUCTION Two incontestable features of modern international law--the multiplicity of its law-making processes and the ever-increasing variety of the subject-matter that it seeks to regulate--have one invariable consequence: the increasing likelihood of norm conflict, part of the phenomenon of fragmentation of international law. Much work has been devoted to this topic, and, as is well known, it has already been the object of a comprehensive study by the International Law Commission (ILC). Unlike much of the theoretical work on the subject, this article attempts to deal with the practicalities of norm conflict. Like the ILC Study, it will try to further develop the toolbox that judges and lawyers have at their disposal when dealing with cases involving a collision of norms) It will do so by focusing on situations in which one of the conflicting rules is a rule of human rights law, and, more specifically, on those norm conflicts in which some other international rule, for instance a UN Security Council resolution, attempts to prevail over or is at the very least equal to a human rights norm. Such cases of norm conflict are becoming more and more frequent and deal with matters of great political importance, such as the targeted sanctions against or the preventative detention of suspected terrorists. There are several other reasons for this emphasis on human rights. First, human rights norms operate not only between states, but also between states and individuals. This does not mean that human fights law is not about inter-state obligations, but that it is not reducible to synallagmatic bargains between states. (3) Second, because of the community interest and values that human fights norms enshrine, norm conflict situations involving human rights are, as we shall see, frequently considered to be of constitutional importance, even though human fights norms are per se not hierarchically superior to other norms of international law. These conflicts inspire the use of the language of constitutionalism--very fashionable these days (4)--which can be observed in most of the cases that we will examine. Third, a focus on human rights is useful since, for public international lawyers, human fights (and human rights lawyers) are one of the principal culprits of fragmentation. (5) To the generalist, the human rights lawyer's (6) misguided belief that wishful thinking is a law-making process and tendency toward what Alain Pellet calls droit de l'hommisme lead him to assert that the special nature of human rights somehow warrants deviations from general international law. (7) From a generalist perspective, the human rightist penchant for special solutions is deeply troubling, since it disrupts the systemic quality of general international law. Human rights norm conflicts thus expose not only the various constitutionalist agendas and projects, but also the universalist agenda espoused by general international lawyers. As stated above, this article will examine those normative conflicts where a putatively hierarchically superior norm attempts to override or prevail over a conflicting human fights norm. Both in practice and in the literature, the posture is usually the other way around--it is human rights that (supposedly) override other rules, not vice versa. One concept in particular is often invoked in that regard, especially by scholars--jus cogens, the body of peremptory norms of international law, most of which deal with human rights. (8) However, even a casual survey of the jurisprudence would show that jus cogens is used rarely, if ever, to invalidate supposedly conflicting norms. On the contrary, courts generally exhibit a tendency to do what they can to avoid norm conflicts. To my knowledge there is perhaps only one, rightfully much-maligned case (9) where jus cogens was successfully invoked to resolve a norm conflict, (10) and even in that case it is not entirely clear whether it was decided on norm conflict grounds. …

The 1969 Vienna Convention on the Law of Treaties is a fundamental treaty providing rights and obligations that states assume in the conclusion and implementation of treaties. Some of the provisions of the Convention, however, continue to divide the legal scholarship. One of them concerns the legal definition of jus cogens provided in Article 53 of the Vienna Convention on the Law of Treaties. The international community, particularly the International Law Commission, has exerted strenuous efforts for a long time to reach a consensus on jus cogens. Nevertheless, the legal definition of jus cogens is still open to varying interpretation among different countries and international publicists. In this light, the article analyses the legal definition of jus cogens in three aspects. First, the connotation of the concept ‘peremptory norms of general international law’ is assessed in terms of particular, general and universal international law. Second, it analyses some problems arising in understanding the non-derogability from and modifiability of jus cogens. Finally, the article discusses some issues regarding ‘acceptance and recognition’ of jus cogens by the ‘international community of states as a whole’.

Of particular importance is the description of international crimes committed by state officials in order to enjoy immunity from foreign criminal courts. With the exception of the three state senior officials known as Troika officials, other officials during their term of office and Troika officials after their term of office may be prosecuted for the commission of international crimes under the heading of universal jurisdiction prosecuted by foreign criminal courts. In accordance with the rules of customary international law referred to and stressed by the International Law Commission in the so-called Plan for immunity of officials from foreign criminal jurisdiction, state officials enjoy immunity from legal proceedings. Some courts have described the commission of international crimes as a personal act in order to avoid impunity for these officials, even if they took place officially. The authors of the article start from the hypothesis that, in order to avoid problems related to the flight of states from international responsibility, it is necessary that the commission of international crimes by officials be qualified as a official act and in this respect the exercise of immunity is excluded. This hypothesis that is supported by the International Law Commission and the case law of some courts.

This chapter complements the commentaries on various convention provisions and employs the notion of tdeclaratoryt rather than tcodificatoryt rules. Provisions on customary law in the convention and in international law commission (ILC) drafts. A number of convention provisions refer directly or indirectly to, or have 49 implications for, customary law: the seventh preamble paragraph refers to tcodification and progressive development achieved in the present conventiont (N. 20; see Preamble, N. 14-15); and the eighth preamble paragraph t[affirms] that the rules of customary international law will continue to govern questions not regulated by the provisions of the present conventiont. These provisions, concerning customary law rather than the law of treaties, are actually silent on the prerequisites for the formation and continuing validity of customary law.Keywords: codificatory rules; convention; customary international law; declaratory rules; law of treaties

Scholars of public international law have not paid attention to international tax law in the past. This article seeks to fill this vacuum and to foster cross-field research by studying customary international law in international tax law. It assesses the value of international tax law’s most prominent feature for the identification of custom: the dense network of almost identical, bilateral double tax treaties. The primacy of source-based taxation for business profits serves as a test case for this purpose. The International Law Commission’s conclusions on the identification of customary international law constitute the theoretical reference point that informs the empirical analysis. Thus, this article simultaneously serves as a treadmill test to appraise whether the International Law Commission’s conclusions actually offer practical guidance. The analysis culminates in the conclusion that tax treaties have only little value for the identification of customary international law. First, tax treaties alone do not entail representative state practice. Second, tax treaties give rise to the pitfalls of the Baxter paradox. Third, the tax treaty network yields no evidence that any state practice originates from opinio juris. Judging by the evidence brought into play so far, states likely display uniform treaty practice in international taxation because they believe it is in their best interest, not due to any legal conviction.

The prohibition on torture has attained status as a peremptory norm of general international law. This gives rise to the obligation erga omnes to take action against those who torture. Despite this, most world states routinely conduct torture. Is there really a worldwide prohibition of torture? Argument is framed to demonstrate that the concept of a jus cogens peremptory norm, flowing erga omnes to all nations, is in practice unattainable, preventing any absolute and universal international law prohibition against torture. States cannot declare someone an enemy of all mankind, or bind all other states to that view. Jus cogens is a text writers' municipal communis opinio, but held administratively to be based in customary international law. Any prohibition against torture appears to remain in municipal customary law form, breaches of which are proved as arguments based on fact, eliminating operation of any absolute peremptory governing norm.

Jus cogens as a norm of general international law accepted and recognized by the community as a whole interasional with the main characteristics are non-derogable nature. The right to education is a fundamental human rights, so that its presence can not be reduced under any circumstances based on the benefits and importance of education for children. The national education policy is not fully aligned with the international human rights instruments led to the development of the education sector is not entirely based on human rights. Government is obliged to fulfill the right to education, especially with regard to the budget for building and repairing school buildings and improve the quality of education in Indonesia. The importance of the right to education as the main vehicle for elevating and empowering children from poverty, as a means to actively participate in the construction and total social community and as a powerful path towards human civilization itself. So it can be understood that a peremptory norm, also called jus cogens is a basic principle of international law that is considered to have been accepted in the international community of the country as a whole. Unlike general treaty law that traditionally requires treaties and allows for changes in obligations between countries through treaties, peremptory norms can not be violated by any country.

This article examines the application of teachings by the International Court of Justice between 2016 and 2022. The Court did not cite teachings in its majority opinions during this period. It did cite works from the International Law Commission, which suggests that these are considered different from teachings and possibly have more weight. Judges cited teachings in their individual opinions. Judge Cançado Trindade stands out as a judge with a particularly high citation rate. Teachings played a wide variety of functions in individual opinions, from the classical functions of aiding the interpretation of a treaty and the ascertainment of a rule of customary international law, to a range of other specialized functions such as the interpretation of other texts, in particular judicial decisions, methodological and historical points, and showing the purpose of a rule of instrument, in addition to providing reflections on the role of the international judiciary itself. The article also examines the demographics of the most-cited writers, finding that most of them are men from Western States. The article compares the judges’ practice with findings from prior to 2016 and other international courts and tribunals.

Non Refoulement Principle and Its Relevance in the International Law System

Volodymyr Mikhaylovich Koretsky was an eminent jurist, educator, organizer of academic legal scholarship, diplomat, Judge of the International Court of Justice, and its Vice-President. His entire life and professional activity stand as a testament to unwavering dedication to Ukraine and the advancement of legal science. Having received an outstanding university education in law, he commenced his career by teaching and conducting research on issues of civil law, and, following the Civil War, turned to the study of the methodology of legal science. During the 1920s and the first half of the 1930s, he combined scholarly and pedagogical pursuits with public service in republican state agencies. Concurrently, he engaged in robust research in the field of private international law. In the 1930s, he took an active role in establishing higher legal education in Kharkiv, serving as Vice-Rector and Head of the Law Faculty while concurrently fulfilling professorial responsibilities. He chaired the Department of the History of State and Law at the Kharkiv Juridical Institute and, in 1939, defended his doctoral dissertation on the distinctive features of Anglo-American doctrine and international law. Following the attainment of his doctoral degree, all subsequent research by the scholar remained inextricably tied to the development of theories in private international law, international economic law, and public international law. After V. M. Koretsky was elected an Academician, he entered his Kyiv period. He founded the Institute of State and Law and the Department of International Law and Comparative Jurisprudence. Under his leadership, the institute was transformed from a modest research sector into a leading, advanced academic institution. During the 1950s and 1960s, V. M. Koretsky simultaneously engaged in scientific, organizational, and teaching activities alongside diplomatic service: he participated in three sessions of the United Nations General Assembly, served as an advisor to the representative of the USSR to the UN Security Council, worked on the UN Committee on the Progressive Development and Codification of International Law, the UN Commission on Human Rights, and the UN International Law Commission, and contributed as a co-drafter of the Universal Declaration of Human Rights. He took part in numerous forums held under the auspices of the UN. The pinnacle of Koretsky’s diplomatic endeavors was his election as a member of the International Court of Justice in The Hague (1960–1970) and his tenure as Vice-President of that Court (1968–1970). In the 1960s and 1970s, V. M. Koretsky’s scholarly work focused on the study of sovereignty, the international legal personality of republics, and the establishment of a stable international legal order based on principles of peace, security, and stability. He was actively engaged in public affairs in Ukraine, promoting the achievements of domestic legal scholarship abroad. His academic and diplomatic endeavors were duly recognized both nationally and internationally. He received the highest honors of the union and republican governments, was elected a member of numerous foreign academies and international associations, and his name was memorialized in the institute he founded, as well as through the posthumous publication of selected works. Key words: Koretsky, legal scholarship, researcher and theorist, doctrine, private international law, international civil law, international economic law, public international law, diplomat, Judge of the International Court of Justice.