Current Developments

Identifying customary international law from the ivory tower?

Self-defence against non-state actors and why doctrinal precision actually matters

The discussion about the right of self-defence of states against non-state actors is in flux. Among the reasons for that could be new types of terrorism and conflicts which have emerged since the entry into force of the UN Charter. Cross-border impacts and the number of actors involved have increased significantly. These factors, combined with the UN Security Council’s inaction and the increasing threat from terrorist groups, are putting a …

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Current Developments

Controversies in Caracas

Diplomatic asylum: regional customary law or treaty application?

After the failure of the uprising of the Venezuelan opposition, prosecuted politicians and military members are seeking refuge in the diplomatic representations of Brazil, Spain, Argentina and Italy. One might wonder if these incidents give reason to reconsider the existence of a regional customary rule on diplomatic asylum in Latin America. Diplomatic circumstances – controversial interests Diplomatic asylum is not codified, as it was left aside when the International Law …

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Customary International LawSymposium

Religious Freedom and Customary International Law

The struggle for religious freedom is the oldest of all movements for international human rights. Nonetheless, religious freedom remains the most problematic of all human rights. Despite treaty protections for religious rights stretching from the Treaty of Westphalia (1648) to the European Convention on Human Rights (1950) and beyond, the role of customary international law remains considerable. For example, how does one define such rights as the freedom to establish …

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Customary International LawSymposium

The principle of responsibility-sharing in refugee protection

An emerging norm of customary international law

In December 2018, the Global Compact on Refugees was adopted. Especially over the last year, its drafting and negotiations could appear in odd contrast to the surrounding world, in which conditions for seeking asylum continued to harshen. Is the compact a step towards countering these conditions, or mere window-dressing without much effect on refugees’ rights? The compact is non-binding and one widely shared view is that all will depend on …

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Current Developments

Imperialism, International Law and the Chagos Islands

Reflections on Legal Consequences of the Separation of the Chagos Archipelago

The Chagos tragedy (the Advisory Opinion of the ICJ can be found here) represents a story that in one way or the other is fundamentally a story of international law and its complicity in subjugating, oppressing and dominating an ‘inferior’ people. It shows that the erstwhile colonial world order is neither really ‘past’ nor that modern international law, as it is often claimed, is necessarily a harbinger for emancipation and …

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Customary International LawSymposium

Corporate liability under customary international law

Is the tail wagging the dog?

Human rights and business issues are far more complex than is often considered in most scholarly writings on the topic. The following is an example of the complexity, taken from the case of Araya v Nevsun Resources 2017 BCCA 401, which is currently winding its way through the Canadian courts. The company is alleged to have aided and abetted serious human rights abuses, primarily conducted by the government of Eritrea. …

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Customary International LawSymposium

Why Customary International Law Matters in Protecting Human Rights

Does customary international law really matter in protecting human rights, and if so how? This was the theme of a panel at International Law Weekend in New York on October 20, 2018. International Law Weekend is an annual conference organized by the American Branch of the International Law Association. The panel was sponsored by the American Branch’s Committee on the Formation of Customary International Law, of which I serve as chair. …

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DiscussionResponse

Customary international law identification as constrained law-making

A response to David Koppe There has been a resurgence of interest in recent years in how customary international law is identified, and this interest will likely intensify as a result of the International Law Commission’s current work on the subject. Somewhat ironically, this resurgence of interest comes at a time when there are increasing doubts about the continued usefulness of customary international law in addressing the world’s problems, and …

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DiscussionKick-off

Ascertaining Customary International Law – a relatively straightforward matter?

This blog post refers to the recent findings of the International Law Commission’s (ILC) topic now entitled “Identification of Customary International Law” and addresses some issues, which still remain unsettled even in its current third report (A/CN.4/682) and which call for further considerations. Irrespective of the dispute about the proper theory of customary international law a settled methodology for ascertaining the existence of a rule of customary international law is …

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