Sources of International Law

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Disobeying the Security Council or a disobedient Security Council? The effects of jus cogens on Security Council resolutions in recent debates of the ILC and in the views of states

At the most recent plenary session of the International Law Commission, which concluded on 5 August 2022, one issue proved particularly controversial. Indeed, it proved so controversial that Prof. Tladi, Special Rapporteur on peremptory norms of general international law (jus cogens), claimed that he was willing to fall on his sword over the issue, whereas Chinese ILC-member Prof. Huang insinuated that the Special Rapporteur’s position would destroy the current collective security system and risk a third world war (statements at the 3597th meeting, 25.07.2022, Prof. Tladi starting at 02:53, Prof. Huang at 03:00). What issue could incite such aggravated language in a forum as august as the ILC? The question at issue was whether Security Council resolutions are binding under international law if they conflict with peremptory norms. The ILC is at the brink of concluding its work on jus cogens. Its Drafting Committee adopted draft conclusions on second reading in May 2022, which were discussed at the recently-concluded plenary session. The question pertaining to Security Council resolutions arises from conclusion 16: “a resolution, decision or other…

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Assessing the Authority of the ICRC Customary IHL Study

If you are desperately in need of some light summer reading, dear readers, I have just the thing for you, inclusive of beach-ready spreadsheets if you want them. Sandy Sivakumaran and I recently posted on SSRN a draft article, ‘Assessing the Authority of the ICRC Customary IHL Study,’ which is forthcoming in the International Review…

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Canada Takes on International Law in Cyberspace

This April, Global Affairs Canada (GAC, the foreign ministry) released Canada’s position on the application of international law in cyberspace. Unfortunately, for two reasons, the statement failed to attract the attention it merited. First, Canada released it on the heels of the 2019-21 U.N. Group of Governmental Experts (GGE) Report on State…

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Ashraf Ghani’s ambitions to divert the Helmand River now serve his enemy, the Taliban: an International Law perspective

One tragedy follows another in Afghanistan. Occurring amid many other dramatic events, the diversion of the Helmand (Hirmand) River, which flows through Afghanistan and Iran, by the Taliban in January 2022 was almost lost in the news. This deliberate act can cause huge economic losses, degrade entire ecosystems, and threaten the lives of those dependent upon its waters.

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General Principles of Law Formed Within the International Legal System?

Article 38(1)(c) of the Statute of the International Court of Justice provides that one of the sources of international law is the general principles of law. This source of international law has given rise to many controversies. However, the issue which is giving rise to the most controversy in the International Law Commission’s ongoing work…

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