Reflections of Customary International Law: The Authority of Codification Conventions and Ilc Draft Articles in International Law

Bordin, Fernando Lusa

doi:10.1017/s0020589314000220

Cited by 34 publications

(9 citation statements)

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“…Different factors of authorship, representation, procedure and form are behind the authority that the articles prepared by ILC generally enjoy. 639 The two sets of articles prepared and adopted by ILC are not exceptions in this regard. Without any doubt the codification of ASR and ARIO had many positive consequences for the implementation and application of the secondary rules of general international law on the question of international legal responsibility.…”

Section: Ilc's Working Methodsmentioning

confidence: 99%

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Bayani¹

2022

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I. Terminology 15 theories, especially constructivist and rationalist theories and approaches, will be able to provide a complete explanation of IOs and their roles at the international sphere.As a last remark in the introduction, it should be mentioned that the reason behind choosing a vast pallete of different problems and questions regarding the international responsibility of IOs is to give an outline of a cluster of interrelated challenges with all its aspects possibly besides each other that give rise to a unique problematic. Admittedly, each of these problems has been addressed separately but a complete picture of the whole scenario is still hard to find and is lacking in the existing literature I. TerminologyThe scope of the present research work will be limited to the examination of the question of, and situations where intergovernmental organizations could be encumbered with responsibility, accountability and liability. Unless otherwise specified, whenever in this work the term "international organization (IO)" is used, the aim is to refer to intergovernmental organizations, known also as public international organizations. The two essential and common elements, to almost all the definitions presented for this kind of IOs, are first, the establishment by states by means of a treaty, or other instrument under international law, and the second, independence in legal personality, and actions, from their members. Thus, it is clear that the question of the possibility/or not of international responsibility and liability of non-governmental organizations is beyond the scope of this thesis.Furthermore, the word "responsibility" which refers to a legal relation between two or more subjects of international law, is used in its strict sense to avoid any confusion of this concept with the other close concepts of accountability and liability. This is exactly the approach that the ILC has minutiously followed in drafting the two sets of articles on responsibility:"Being obliged to accept the possible risks arising from the exercise of an activity which is itself lawful, or being obliged to face the consequences -which are not necessarily limited to compensation -of the breach of a legal obligation, are two different matters. It is only because of the relative poverty of legal language that the same term is habitually used to designate both." 76 Everywhere in the text of the thesis the word responsibility is used, thereby international legal responsibility is meant, unless otherwise specified.

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Section: Ilc's Working Methodsmentioning

confidence: 99%

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Bayani¹

2022

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“…16 EternalBlue created a backdoor into all Windows 8 and older Systems, allowing a Null Session that allowed the client to send commands to the infected server (Grossman, 2017). 17 These five countries are part of what is called the Five-Eyes Alliance (Egloff, 2020 various codifications taking different forms of merely restating customary laws in legislatively nonbinding language while others take forms of legislative binding treaties that have a lesser overall adherence (Bordin, 2014).…”

Section: Attribution and Its Normative Functionmentioning

confidence: 99%

Cyberspace: the challenges of norm formation

Nunes

2021

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As regras de conduta apropriadas no ciberespaço sempre foram uma grande discussão ao longo dos anos, especialmente entre os Estados. A rápida expansão do ciberespaço tornou necessária a criação de um regime internacional para a conduta dos Estados, no entanto, as diversas vulnerabilidades existentes, atores e até definições diferentes dificultam o processo de consenso. A questão de atribuição de cyber incidentes, no entanto, era a questão que mais impedia o processo. Com avanços técnicos nesta área juntamente com a utilização de processos investigativos legais, atribuição pública está se tornando mais comum. Este estudo investiga a ligação entre atribuição pública e o que é possivelmente um novo regime no ciberespaço, utilizando um breve estudo de caso do NotPetya e como este é emblemático desta nova tendência.Palavras-Chave: Ciberespaço; Atribuição Pública; Regimes Internacionais.

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“…The existing international legal framework on outer space -the Outer Space Treaty (OST) 4 regimeis silent regarding the placement of conventional weapons (weaponization 5 ). The OST was adopted in 1967, is widely adhered to by states, 6 and was complemented with four adjunct treaties 7 .…”

Section: Weaponization Of Outer Space Law and Negotiationsmentioning

confidence: 99%

“…Article I establishes the basic principle that: "The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind. " Besides other obligations, the OST requires that states act in accordance with international law, including the United Nations 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature on 27 January 1967 in London, Moscow and Washington, D.C.; entered into force on 10 October 1967. 5 There is no universally accepted definition of the term "weaponization".…”

Section: Weaponization Of Outer Space Law and Negotiationsmentioning

confidence: 99%

Prevention of an Arms Race in Outer Space: Multilateral Negotiations’ Effects on International Law

Vestner

2020

Mosc. j. int. law

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INTRODUCTION. Outer space is an increasingly competitive environment. This raises incentives for states to place conventional weapons in outer space. The 1967 Outer Space Treaty (OST), the applicable legal regime, is silent on the legality of the placement of conventional weapons, however. Since the early 1980’s, the multilateral diplomatic process on the Prevention of an Arms Race in Outer Space (PAROS) aims to explicitly prohibit the weaponization of outer space by a new international treaty. Yet states have not agreed on such a weapons ban treaty so far. This article analyses the multilateral negotiations’ effects on the applicable international law, namely the legal gap (lacuna) in the OST regime.MATERIALS AND METHODS. This study analyzes treaty texts, UN General Assembly resolutions, treaty proposals, states’ working papers, states’ statements, and reports from international negotiations and meetings. Th analytical framework is the rules for treaty interpretation according to the Vienna Convention on the Law of Treaties (VCLT). Consistent with explanatory and theory–building research, the methods used are those of historical legal research as well as general scientific methods, such as analysis, synthesis, analogy, description, and deduction.RESEARCH RESULTS. This article identifi s three mechanisms by which the multilateral negotiations on PAROS clarify and inform international law regarding the weaponization of outer space. First, the negotiations led states to communicate their legal positions regarding the issue. This clarifies how states interpret the law. It also allows to assess whether the continuous state practice to not place kinetic weapons in outer space represents subsequent practice of the OST according to Article 31(2)(b) VCLT. Second, the PAROS process produced annual UN General Assembly resolutions that strengthened the principle of peaceful use of outer space and linked it with states’ general understanding that this implies limits to the weaponization of outer space. As such, this is relevant for the interpretation of the gap in light of the OST’s context and object and purpose according to Article 31(1) VCLT. Third, the negotiations have produced precise language on a prohibition of weaponization in the form of the draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects (PPWT), which enables the emergence of a prohibition under customary international law. For the interpretation of the OST’s gap, this would constitute “any relevant rules of international law” according to Article 31(3)(c) VCLT.DISCUSSION AND CONCLUSIONS. This article argues that the multilateral negotiations have broken the legal silence regarding the placement of conventional weapons in outer space. While the three mechanisms help to identify and clarify the law, they also influence the material substance of the law. The PA-ROS negotiations have not led the existing law to clearly prohibit the weaponization of outer space. Yet the negotiations have informed the law such that the existing law hardly authorizes such action. The result is that the issue is unequivocally regulated by international law, i.e. the OST’s gap is undoubtedly a legal gap. Yet the Lotus principle according to which what is not prohibited under international law is authorized falls short of the existing legal situation. This suggests that lex ferenda, the law in the making, has effects on lex lata. Multilateral negotiations – even deadlocked or failed ones – thus may be more than the making of future law but also the shaping of existing law. Accordingly, ongoing multilateral negotiations might be analyzed as supplementary means of treaty interpretation according to Article 32 VCLT. For policymakers, this suggests that negotiations may be used to influence the existing law, even if reaching agreement on a new treaty is not possible.

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Reflections of Customary International Law: The Authority of Codification Conventions and Ilc Draft Articles in International Law

Cited by 34 publications

References 18 publications

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

International Legal Responsibility of International Organizations in the ILC Draft Articles and Beyond

Cyberspace: the challenges of norm formation

Prevention of an Arms Race in Outer Space: Multilateral Negotiations’ Effects on International Law

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