Who is bound by customary international law

Usually it is an additional argument in the reasoning of the Court. After the Court has mentioned a number of arguments in favour of a particular point of view e.

The Special Rapporteur briefly referred to these two notions in his third report , in which he adopted a restrictive interpretation saying that they only concern the internal operation of international organizations.

In this context I refer to a useful and timely German dissertation by Christopher Peters that is devoted to this important topic. My second comment is not about something that is missing in these commentaries, but about the substance of what actually is included in commentaries 3 to 8.

Here, again, the ilc seems to be of two minds. On the one hand, it recognizes the autonomous role played by international organizations in the formation of customary international law. It rightly distinguishes between practice of the organization and that of its members. At the same time, however, the ilc seems to be unnecessarily restrictive, somewhat strained, in describing the role of international organizations.

This is so, for example, where the commentary discusses powers of international organizations. The Commission refers to the European Union in this context. The ilc does not further elaborate this, which is also noteworthy because the ario and the commentary do not refer to it. It is not clear on what basis these distinctions are made and what they really mean. In my understanding, powers are attributed to international organizations because States can no longer fully exercise such powers on their own, or because they can do so more efficiently through an international organization.

Here the ilc seems to find it difficult to simply accept the implications of international organizations as international legal persons, to be distinguished from that of their members. It seems to find it difficult to accept the relevance of the practice of international organizations for the identification of customary international law, where this practice is not in line with that of its members. Finally, draft conclusion 12 and the commentaries to it deal with resolutions of international organizations and intergovernmental conferences.

Within the confines of this editorial I would like to make one general comment on what the ilc has drafted, as it relates to the very nature of resolutions of international organizations. The ilc correctly distinguishes between the organization and its members in this sentence, but it also makes clear it is concentrating on the views of the members rather than those of the organization.

Why does it not matter that resolutions are also acts of organs of international organizations? In my view, the ilc should have been more consistent, more realistic, more open-minded and future-oriented in dealing with the role of international organizations in these draft conclusions and the commentary, no matter whether one considers well-known organizations such as the un , the imf , nato and the eu , or less-well known international organizations such as iter of which Euratom is a member , cern , esa , the Andean Community, asean , the East African Community, the ctbto PrepCom, the International Organization of Vine and Wine and the International Commission on Missing Persons.

Following these comments, I need to flag a related issue. As mentioned in the introduction, it is increasingly recognized that international organizations are bound by customary international law.

Of course, many rules of customary international law simply do not apply to international organizations, as they normally have no territory, no territorial waters, no nationals, etc. But in the areas in which powers have been given to international organizations, it is increasingly recognized that these organizations are bound by the relevant rules of customary international law that are applicable in these areas.

If this is the case, should international organizations predominantly having States as their members not then be in a position to also fully take part in the formation of the relevant customary international law, in the specific fields in which each organization operates?

Why should they fully comply with rules of customary international law without being able to fully participate in its development? Therefore, if international organizations are not to carry out their increasing number of activities in limbo, in a vacuum, unbound by law, then customary law is an important source of law to fill this void. But if we agree these activities of international organizations should be governed by the rule of law, then we must also accept that they can contribute in a serious way to the development of customary international law.

If they are not taken seriously in the identification of customary international law, why should they take customary international law seriously? The set of draft conclusions adopted at first reading in is a considerable achievement. These conclusions may provide much needed guidance in practice, whenever an answer must be given to the question of what is, and what is not a rule of customary international law.

Nowadays such questions often concern international organizations, as was illustrated in the opening lines of this editorial. The examples given demonstrate that rights and duties derived from customary international law may be important for the successful performance of their functions. It is therefore important that their current role is adequately reflected in the ilc conclusions.

International organizations have come of age. This should also be reflected in international law, including customary international law, and in the work of the ilc. In its work on the ario , the ilc has fully recognized international organizations as independent entities, to be distinguished from their members. They may commit their own internationally wrongful acts, for which they are themselves responsible. Does the ilc follow the same approach in its more recent work on customary international law?

Is it consistent? The ilc has certainly paid attention to the role of international organizations, but my conclusion is that it has not yet taken international organizations sufficiently seriously in its draft conclusions, as adopted at first reading in Besson and J.

By contributing to conferences and by organizing informal meetings. See also his Jonathan J. See further E. See further R. See also S. Reference Works. Primary source collections. Open Access Content. Contact us. Sales contacts. Publishing contacts. Social Media Overview. Terms and Conditions. Privacy Statement. Even if the norm is declared in a resolution, states voting in favor of the resolution may view the norm as aspirational, not as existing law, in keeping with the formal status of the resolution as a recommendation.

Nevertheless, states that vote in favor of the resolution may well believe that it is desirable to recognize the norm as law. By the same token, the fact that a state has ratified a treaty and agreed to be bound by human rights norms in it does not necessarily indicate that the state believes there already is a norm binding all states apart from the treaty — the necessary belief under the traditional definition of opinio juris.

Yet that state may very well wish that other states would follow its example in ratifying the treaty and that the norms proclaimed in it ought to bind all states. In essence, this definition looks to opinio juris as the core of customary law and also re-envisions opinio juris as a forward-looking belief regarding what the law ought to be, now or in the near future, not merely what it is. See id.

Despite some of the methodological problems apparent with applying the traditional two-element definition of customary international law to human rights violations, both national and international courts and tribunals are increasingly identifying and applying customary human rights norms. They have applied them not only to the actions of governments, but also the conduct of businesses and non-state actors. For a discussion on this blog of business and international human rights law see here.

In the U. It is true that the U. Royal Dutch Petroleum , decided in , and that foreign corporations as such cannot be sued under the statute in Jesner v. Arab Bank , decided in However, this litigation is likely to persist and simply exemplifies a broader global trend of courts applying customary human rights law to provide some redress for victims.

Accordingly, despite recent claims that customary international law is no longer of great importance in view of the proliferation of treaties, the evidence suggests that customary international law is playing a more vital, rather than waning, role in the protection of human rights. Despite this enhanced role, many important questions abound — some of them alluded to earlier — that are addressed by the authors who will be contributing to this symposium.

For example, can customary international law directly bind corporations? Can corporations be subjects of customary international law? Even if they can, is it appropriate to hold the corporations, as opposed to foreign governments, liable, especially when foreign governments or forces are the actors directly responsible for human rights violations?

Are there risks of expanding direct liability under customary law for corporations? Certainly the U. Supreme Court expressed concerns such as these in the Jesner case, decided in April , in which it questioned whether corporations, rather than individuals, can commit human rights violations.

In part on the basis of such doubts, it held that the ATS can no longer provide a forum for lawsuits against non-U. Importantly, however, the Supreme Court explicitly left the door open to suits against individual corporate officers. This is the principle of states having sovereignty over their natural resources and also their responsibility not to cause trans-national environmental harm. The length of time a rule has been common practice is also relevant in determining its standing.

Some rules of maritime law have been accepted for centuries. However, a short period of time does not necessarily disqualify a rule as potentially being customary. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period, including those States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved'.

In a few sentences the ICJ here enunciated the kind of judicial considerations that determine whether or not a rule can be regarded as customary international law. Apart from the difficulty of determining what is customary international law in practice, there is also the necessity to show that compliance with the practice is based on the view that it is mandated by international law.

This need for a legal basis to state practice is termed opinio juris. These requirements mean that the rule must be part of a continuous state practice that should be the result of other states' belief that they are required by law to apply this rule.