3. Customary International law, States as Actors of International Law and the Concept of Jurisdiction Flashcards
Session 3
Customary law
Opinio juris and state practice.
Widespread and consistent between states.
Both elements must coexist for a rule to qualify as customary international law.
State practice demonstrates what states do.
Opinio juris explains why states do it (as a legal obligation).
Methods to Identify Customary International Law:
State Practice: Analyze consistent, widespread, and representative actions by states (e.g., laws, diplomatic actions, court rulings).
Opinio Juris: Identify evidence that states believe the practice is legally obligatory (e.g., official statements, legal arguments).
Challenges in Determining the Existence of Customary International Law (CIL):
- Inconsistent State Practice: Variations in actions and regional practices complicate uniformity.
- Proving Opinio Juris: Establishing that states act out of legal obligation, not convenience, is difficult.
- Evolving Norms: Rapid changes in global issues challenge long-term consistency.
- Persistent Objectors: States opposing emerging norms complicate universal applicability.
Is Custom Better or Weaker Than a Treaty?
Better: Custom is universal (binding on all, including non-signatories) and flexible (evolves over time).
Example: The right to self-defense against non-state actors exemplifies how customary law evolves in response to changing global practices and norms.
Weaker: Treaties are clearer, more specific, and have enforcement mechanisms.
How Does Custom Interact with Treaty Law?
Complementarity: Custom fills gaps and binds non-parties to treaties.
Conflict: Treaties override custom for parties (lex specialis).
Coexistence: Treaties often codify and clarify customs (e.g., UNCLOS).
Lex specialis
This essentially means that more specific rules will prevail over more general rules
Why Rely on Custom Over Treaties?
Inclusion: Custom binds all states (e.g., prohibition of genocide).
Flexibility: Adapts to new norms without renegotiation (e.g., cyber warfare).
**Sovereignty: ** Avoids treaty ratification processes.
Practicality: Custom develops naturally through state practice.
Can Customary International Law (CIL) Evolve Over Time?
Yes, CIL evolves as state practices and opinio juris change. Drivers of evolution:
State Practices: Adapt to new realities (e.g., non-state actor threats).
Opinio Juris: Shifting beliefs on legal obligations (e.g., Responsibility to Protect).
Technological Advances: Address emerging challenges (e.g., cyber warfare).
Judicial Influence: Courts shape interpretations (e.g., non-refoulement).
Persistent Objector Rule
Definition: States can opt out of emerging customary norms by consistently objecting during their formation.
Limitations:
Not valid for jus cogens norms (e.g., genocide).
Rights of Statehood
- Sovereignty and territorial integrity.
- Legal personality (can enter treaties, join international organizations).
- Immunities under international law (e.g., diplomatic protection).
Criteria for Statehood (Montevideo Convention, 1933)
The Montevideo Convention outlines four criteria for statehood:
Permanent Population: A stable and identifiable population.
Defined Territory: Clear boundaries, though disputes do not preclude statehood.
Government: Effective control over territory and population.
Capacity for International Relations: Ability to engage independently in foreign affairs.
Declaratory vs. Constitutive Theories of State Recognition
Declaratory Theory: Statehood is based on fulfilling objective criteria (e.g., Montevideo Convention), regardless of recognition by other states.
Constitutive Theory: Statehood depends on recognition by other states or international organizations.
Handling Contested Statehood (e.g., Palestine):
Partial recognition by individual states (e.g., 146 UN members recognize Palestine 2024).
Limited participation in international organizations (e.g., Palestine has non-member observer state status at the UN).
Is Palestine a State?
Arguments for Statehood:
Montevideo Criteria:
Permanent population and defined territory (West Bank, Gaza).
Functional government (Palestinian Authority) in areas of limited control.
Active international relations (e.g., UN observer state, treaties like ICC membership).
Recognition:
Recognized by 138 UN member states and several international organizations.
Arguments Against Statehood:
**Territorial Control: **Limited governance over territory due to Israeli occupation and internal divisions (e.g., Hamas in Gaza).
Lack of Universal Recognition: Key states, including the U.S. and many EU members, do not recognize Palestine as a state.
What is Jurisdiction Under International Law
Definition: Jurisdiction refers to a state’s legal authority to regulate conduct, adjudicate disputes, and enforce laws.
Types: Territorial, personal, and universal jurisdiction.
Three Main Types of Jurisdiction
**Territorial Jurisdiction:
**
Definition: Authority over acts occurring within a state’s territory.
Application: Core principle of state sovereignty.
Personal Jurisdiction:
Definition: Authority based on the nationality of the perpetrator or victim.
Example: A state prosecuting its citizens for crimes committed abroad.
Universal Jurisdiction:
Definition: Authority to prosecute crimes of universal concern (e.g., genocide, piracy), regardless of where they occur.
Application: Supported by customary international law and treaties (e.g., the Geneva Conventions).
Territorial Sovereignty and Extraterritorial Jurisdiction
**Principle: **Territorial sovereignty limits a state’s authority to enforce its laws outside its borders.
Exceptions:
Treaty agreements.
Universal jurisdiction for crimes like war crimes or genocide.
Legal and Ethical Concerns About Extraterritorial Abductions
The U.S. abducted a Mexican doctor accused of murder to stand trial in the U.S.
Legal Issues: Violated Mexico’s territorial sovereignty and sparked controversy over extraterritorial enforcement.
Ethical Concerns: Undermines respect for international borders and the rule of law.
Universal Jurisdiction and Customary International Law
Relation: Universal jurisdiction is rooted in customary law for egregious crimes (e.g., piracy).
Example: Prosecution of Nazi war criminals under universal jurisdiction after WWII.
UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
Jurisdiction Over Indigenous Lands:
Recognizes indigenous peoples’ rights to self-determination and control over their lands and resources.
Article 26: Indigenous peoples have the right to own, use, and develop their traditional territories.
How does international law regulate the exercise of jurisdiction when state practices conflict with indigenous rights
ICJ
How Does Article 38 Establish States as Primary Subjects of International Law?
Article 38(1) identifies treaties, customary international law (CIL), and general principles—all shaped by states—as sources of international law, emphasizing their role as primary actors.
UNDRIP and State Obligations
States must protect indigenous rights, as per UNDRIP provisions:
- Article 26: Recognize indigenous land rights.
- Article 27: Provide fair dispute mechanisms.
- Article 38: Collaborate with indigenous communities
State Obligations Under International Law
Treaty Compliance: Uphold obligations under ratified treaties (e.g., Geneva Conventions).
* Customary Norms: Adhere to universal norms, including jus cogens (e.g., prohibition of genocide).
Balancing Laws: Align domestic actions with both treaty and customary obligations.
