Revisiting the Role of Non-State Actors and International Courts in the Making of (Customary) International Law: General Considerations and the Case of Indigenous Peoples

2017 ◽  
Author(s):  
Kristin A. M. Henrard
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
International Courts ◽  
Customary International Law ◽  
State Actors

Third World Resistance as a Counter-hegemonic Phenomenon in Customary International Law

2020 ◽  
Vol 9 (2) ◽  
pp. 183-219
Author(s):  
Joycelin Chinwe Okubuiro
Keyword(s):  
International Law ◽  
Third World ◽  
International Affairs ◽  
Customary International Law ◽  
Post Colonial ◽  
Inclusive System ◽  
State Actors ◽  
The Third World ◽  
Western Perspective

The role of non-state actors in custom-making provokes divergent views, skewed by state practice and opinio juris and derived from a Western perspective, which promotes hegemony. This paper shines a new light on this perennial debate by presenting resistance of Third World non-state actors as a counter-hegemonic tool in the development of customary international law. It contributes to scholarship relating to non-state actors in the formation of custom from a Global South perspective by reflecting African reality. This has become relevant in the clamour for increased participation of the Third World in international affairs as post-colonial states are deemed ineffective in representing their interests. It is observed that non-state actors employ diverse mechanisms to assert their position in law-making, thereby expanding the frontiers of custom-making. This paper explores such roles by non-state actors in the development of international custom and recommends an inclusive system that accommodates these stakeholders in custom-making.

scholarly journals Looking Forward Looking Back: Customary International Law, Human Rights and Indigenous Peoples

2020 ◽  
pp. 1-26
Author(s):  
Shea Esterling
Keyword(s):  
Human Rights ◽  
International Law ◽  
Indigenous Peoples ◽  
Legal Status ◽  
Indigenous Rights ◽  
Soft Law ◽  
Customary International Law ◽  
United Nations Declaration ◽  
Shed Light

Abstract Two of the most laudable achievements of human rights are the 1948 Universal Declaration of Human Rights (udhr) and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (undrip). Aside from advancing human rights, both are examples of soft law. For the undrip, this soft law status has generated significant controversy which is evocative of the earlier debate surrounding the legal status of the udhr. Yet unexamined, this article analyses this contemporary controversy surrounding the undrip in light of the historical debate surrounding the legal status of the udhr. Fleshing out points of convergence and divergence, these debates unearth narratives which shed light on the claims and advocacy strategies of Indigenous Peoples and the role of customary international law within human rights. Ultimately, it reveals that these narratives do little to secure the enforcement of indigenous rights.

A Typology of International Judicial Practices

2018 ◽  
Author(s):  
Jeffrey L Dunoff ◽  
Mark A Pollack
Keyword(s):  
International Law ◽  
Practice Theory ◽  
Third Parties ◽  
International Courts ◽  
Everyday Practices ◽  
The Everyday ◽  
Judicial Opinions

This chapter discusses the inner working of ICs, such as the drafting of judicial opinions; practices concerning separate opinions; the role of language and translation; and the roles of third parties. It also presents a preliminary effort to identify and examine the everyday practices of international judges. In undertaking this task, the authors draw selectively upon a large literature on ‘practice theory’ that has only rarely been applied to international law in general or to international courts in particular. A typology and synoptic overview of practices is presented.

Customary International Law

2021 ◽  
Author(s):  
Pierre-Marie Dupuy ◽  
Keyword(s):  
General Practice ◽  
International Law ◽  
Complex Relationship ◽  
Customary International Law ◽  
Progressive Development ◽  
The World ◽  
International Law Commission ◽  
Law Commission

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.

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 Reviewing the National Courts in Creating Orderly International Law and Community

2017 ◽  
Vol 3 (2) ◽  
pp. 148
Author(s):  
Johanis Leatemia
Keyword(s):  
International Law ◽  
National Court ◽  
National Interest ◽  
The Other ◽  
Peaceful Coexistence ◽  
National Sovereignty ◽  
Customary International Law ◽  
National Courts ◽  
The One

Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.

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