Customary International Law at Its Best: An Analysis of the Position of Customary International Law in Kenya and the United States

2020 ◽  
Author(s):  
Kenneth Njiri
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Customary International Law

The World Court and Jus Cogens

1987 ◽  
Vol 81 (1) ◽  
pp. 93-101 ◽  
Author(s):  
Gordon A. Christenson
Keyword(s):  
United States ◽  
United Nations ◽  
International Law ◽  
Use Of Force ◽  
The United States ◽  
Customary International Law ◽  
The World ◽  
The United Nations ◽  
Jus Cogens ◽  
United Nations Charter

In the merits phase of decision in the case brought by Nicaragua against the United States, the World Court briefly mentions references by states or publicists to the concept of jus cogens. These expressions are used to buttress the Court’s conclusion that the principle prohibiting the use of force found in Article 2(4) of the United Nations Charter is also a rule of customary international law.

scholarly journals Acts of genocide and international law

2021 ◽  
pp. 44-54
Author(s):  
Stefan Kirchner ◽  
Doly P. Orozco López
Keyword(s):  
United States ◽  
International Law ◽  
Central America ◽  
United States Of America ◽  
The United States ◽  
International Treaty ◽  
Customary International Law ◽  
Treaty Law ◽  
Women And Children ◽  
Jus Cogens

In addition to the loss of over 200,000 lives due to the COVID-19 pandemic, racist violence, riots, wildfires, storms and political controversies in an election year, the United States of America might now also see acts of genocide. If recent reports are confirmed, multiple acts of genocide have been committed against migrants from Central America, targeting in particular women and children. This text outlines the elements which define the crime of genocide under international law and explains the special, jus cogens, status the prohibition of genocide has under both international treaty law and customary international law. It includes a call for further investigations, pursuant to the obligation of all States to combat genocide.

Toward An Econometric Model of Guzman'S Theory of Customary International Law

2011 ◽  
Vol 56 (2) ◽  
pp. 98-107
Author(s):  
Ryan Luby
Keyword(s):  
United States ◽  
International Law ◽  
Econometric Model ◽  
The United States ◽  
Theoretic Model ◽  
Diverse Group ◽  
Customary International Law ◽  
Game Theoretic ◽  
Game Theoretic Model ◽  
The One

The United States' recent incursions into both Iraq and Afghanistan have resituated debates concerning the validity and effectiveness of customary international law (CIL). On the one hand, scholars such as Goldsmith and Bradley argue that CIL is neither valid nor effective. Recently, Guzman formulated a response to such arguments as those proposed by Goldsmith and Bradley (1997). In a lucid critique of Goldsmith's argument, Guzman categorizes such arguments as “doctrinal” (2006). Instead, Guzman proposes a game theoretic model that seeks to quantify “reputation” in order to ascertain a given norm's status as CIL. The following paper proposes an econometric model in order to operationalize Guzman's theory of CIL. Indeed, looking at a politically and economically diverse group of five countries between the years of 1960 and 2008, the analysis herein suggests a more nuanced conception of CIL than the absolutist position of Goldsmith.

scholarly journals Custom and Treaties as Interchangeable Instruments of National Policy

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 41-45 ◽  
Author(s):  
Bart M. J. Szewczyk
Keyword(s):  
United States ◽  
International Law ◽  
International Cooperation ◽  
National Policy ◽  
The United States ◽  
Medium Term ◽  
Customary International Law ◽  
Rules And Standards ◽  
Multilateral Treaties

As treaties decline, customary international law can be an important mechanism of international cooperation over the medium term. There are increasingly fewer treaties ratified by the United States, with a record-low number of five in 2009–2012, and fewer multilateral treaties adopted worldwide. Yet, the demand for global rules and standards has not abated. Thus, for many international questions where treaties are not available as a source of new rules, customary international law may serve as an interchangeable instrument of national policy.

Evidence, the Court, and the Nicaragua Case

1987 ◽  
Vol 81 (1) ◽  
pp. 1-56 ◽  
Author(s):  
Keith Highet
Keyword(s):  
United States ◽  
International Law ◽  
Use Of Force ◽  
The United States ◽  
Customary International Law ◽  
Counter Measures ◽  
Self Defense ◽  
International Court ◽  
United Nations Charter ◽  
Multilateral Treaty

The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”

Customary International Law and U.S. Judicial Power

2020 ◽  
pp. 251-264
Author(s):  
Thomas H. Lee
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Policy ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Judicial Power ◽  
Customary International Law ◽  
The Third

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

scholarly journals Specially-Affected States and the Formation of Custom

2018 ◽  
Vol 112 (2) ◽  
pp. 191-243 ◽  
Author(s):  
Kevin Jon Heller
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Global South ◽  
Customary International Law ◽  
Significant Power ◽  
The Icj ◽  
Global North

AbstractAlthough the United States has relied on the ICJ's doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has never been systematically developed by the ICJ or by legal scholars. This article fills that lacuna by addressing two questions: (1) what makes a state “specially affected”?; and (2) what is the importance of a state qualifying as “specially affected” for the formation of custom? It concludes that a theoretically coherent understanding of the doctrine would give states in the Global South significant power over custom formation.

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