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"CUSTOMARY LAW"
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A MELTING SNOWBALL—DIFFICULTIES IDENTIFYING PARTICULAR CUSTOMARY INTERNATIONAL LAW
This article discusses the relationship between particular and general customary international law, grappling with academic views affirming that, ordinarily, the emergence of the former is a stage in the consolidation of the latter. It is argued that the higher standard of State consent required for the configuration of bilateral or regional custom suggests otherwise. In addition, it is also contended that a distinctive kind of opinio juris must be present for particular custom to arise: a conviction from the States concerned that their conduct is governed by particular (as opposed to general) customary law.
Journal Article
Law and custom in Korea : comparative legal history
\"This book sets forth the evolution of Korea's law and legal system from the Chosen dynasty through the colonial and postcolonial modern periods. This is the first book in English that comprehensively studies Korean legal history in comparison with European legal history, with particular emphasis on customary law. Korea's passage to Romano-German civil law under Japanese rule marked a drastic departure from its indigenous legal tradition. The transplantation of modern civil law in Korea was facilitated by Japanese colonial jurists who created a Korean customary law; this constructed customary law served as an intermediary regime between tradition and the demands of modern law. The transformation of Korean law by the forces of Westernisation points to new interpretations of colonial history and presents an intriguing case for investigating the spread of law on a global level. In-depth discussions of French customary law and Japanese legal history also provide a solid conceptual framework suitable for comparing European and East Asian legal traditions\"-- Provided by publisher.
Book
Climate Change Mitigation as an Obligation Under Human Rights Treaties?
Judges and scholars have interpreted human rights treaties as obligating states to mitigate climate change by limiting their greenhouse gas emissions, an argument instrumental to the development of climate litigation. This Article questions the validity of this interpretation. A state's treaty obligation to protect human rights implies an obligation to cooperate on the mitigation of climate change, the Article argues, only if and inasmuch as climate change mitigation effectively protects the enjoyment of treaty rights by individuals within the state's territory or under its jurisdiction. As such, human rights treaties open only a narrow window on the applicability of general mitigation obligations arising under climate treaties and customary international law.
Journal Article
International Law in National Legal Systems: An Empirical Investigation
International legal scholars have long recognized the importance of the rules and processes by which states adhere to international legal obligations and “translate” them into their domestic legal systems. Research by political scientists on specific issue areas likewise increasingly recognizes that domestic implementation is crucial to international law compliance and effectiveness. Yet the lack of systematic data makes it difficult to assemble an overall picture of the relationship between international law and domestic law around the world, let alone to document its evolution over time. Recent qualitative surveys of state practice have begun to fill that gap, but provide only a snapshot in time and are limited to relatively few countries. Some quantitative projects cover more countries, but address only a limited number of questions based solely on the text of national constitutions.
Journal Article
SECRET CUSTOM or THE IMPACT OF JUDICIAL DELIBERATIONS ON THE IDENTIFICATION OF CUSTOMARY INTERNATIONAL LAW
The literature on the identification of rules of customary international law is extensive. Commentators have focused on isolating the methodologies by which international courts and tribunals identify customary international law, with most of the debate revolving around the use of induction, or deduction and assertion as methods of custom identification. However, the existing literature has overlooked that the choice among custom identification methodologies takes place behind closed doors, during confidential deliberation processes. When all that scholars see may be deduction or assertion, international courts and tribunals may have ascertained the existence of customary rules by induction, but induction may not have made it into the final text of the decision. This article elaborates on the impact of judicial deliberations at the International Court of Justice on the choice among custom identification methodologies. It argues that individual-driven stages of deliberations favour custom identification by induction, while collegial stages promote custom identification by non-inductive methodologies.
Journal Article
\Off the straight path\ : illicit sex, law, and community in Ottoman Aleppo
The legal treatment of sexual behavior is a subject that receives little scholarly attention in the field of Middle East women's studies. Elyse Semerdjian's 'Off the Straight Path' takes a bold step toward filling that gap, offering a fascinating look at the historical progression of Islamic law's treatment of illicit sex.
Book
THE INTERACTION OF TREATY AND CUSTOM IN THE CONCEPT OF OFFSHORE ARCHIPELAGOS
The law of the sea has long been a rich source of examples of the interplay, and occasional entanglement, of treaty and custom. This article discusses whether claims to close off the waters of ‘offshore archipelagos' by non-archipelagic States are consistent with international law against the background of this perennial issue. Analysis of the 1982 Law of the Sea Convention (LOSC) demonstrates quite clearly that there is no basis for such claims. ‘Going beyond the LOSC’ the article examines whether the matter remains subject to customary international law; whether subsequent practice may have established the agreement of the parties that the relevant provisions of the LOSC are to be interpreted as allowing their invocation by non-archipelagic States with offshore archipelagos; and whether there is ‘supervening custom’ that may have emerged since the adoption of the LOSC and that permits such claims by non-archipelagic States. Identifying and critically assessing the current state of international law on these fundamental questions of the relationship between treaty and custom, it is concluded that there is no basis for arguing that non-archipelagic States are able to claim any sort of special status for ‘offshore archipelagos’.
Journal Article