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In the most recent few years, state practice and opinio juris are increasingly converging to affirm that states must grant nationality to children born in their territory if they would otherwise be stateless. In prior scholarship, this author has argued that there is a customary international law norm requiring states to grant nationality in such cases. Certainly, UNHCR’s #IBelong campaign is a significant part of this development, placing statelessness back on the international agenda, as well as encouraging states to adhere to the statelessness conventions, adopt birth registration and statelessness determination procedures and revise domestic law. Partly due to this campaign, states are increasingly adopting practice and domestic law that provides for nationality from birth for stateless children but are also increasingly stating their opinion that such an approach is desirable, necessary and morally compelling. In fact, it is effectively impossible to identify any state that claims it has the unfettered right to refuse to grant nationality to a stateless child born in its territory. This article will complete a brief survey of recent practice and expressions of opinion, mostly as documented by UNHCR as a part of the #IBelong Campaign to End Statelessness, to confirm that this norm continues to strengthen under customary international law.

This submission challenges the presumption that uk nationals will lose eu citizenship following Brexit. Until now, the dominant narrative has been drawn from the law on treaties or international organizations, and this article adds the human rights perspective to Brexit. Firstly, eu citizenship can be assimilated to nationality. While eu citizenship is unique, the status protected under international law is a legal bond a person has with a political entity. This protection certainly covers nationality, and this paper argues it can be understood to also protect eu citizenship. Secondly, international law prohibits arbitrary withdrawal of this legal bond with a person. The uk does not have jurisdiction over eu citizenship, so it is doubtful the uk can terminate eu citizenship unilaterally. Even if the eu were to withdraw eu citizenship on its initiative, it would still constitute retroactive law, discrimination, and infringement of sovereignty. It is also disproportionate, because the loss of eu citizenship is not necessary for Brexit. When Greenland withdrew from the eu, its residents retained eu citizenship. For these reasons, the revocation of eu citizenship would be arbitrary. A distinction must be made between the membership of a state in the eu which can be terminated, and the direct legal bond formed between a person and the Union, which is far harder to revoke. On this basis, any uk national who has acquired eu citizenship prior to Brexit, should not be divested of it following Brexit.

Maps are a crucial item of evidence in international law, yet their limitations in terms of constructing reality are not usually considered in depth. Maps are not objective, but rather subjective, and hence political, documents. International courts and tribunals, and international negotiations, often apply maps as if they were unimpeachable. After all, they do appear on their face to be scientific instruments, depicting a photographic and naturalistic representation of reality. However, they are not naturally occurring themselves; they are constructions that function as imperfect models, representing reality for certain purposes. For whatever purposes the map is used, the map must be evaluated, and perhaps deconstructed. This article will examine the various ways in which maps are products of choices, errors and assumptions, and the implications those limitations have for maps when they serve as evidence in international relations.

The international media outlet of Al Jazeera has been dragged into the racial discrimination case between Qatar and the UAE before the International Court of Justice (ICJ), and this paper will examine whether the media company can be protected under human rights law. The treaty that forms the basis of this case is the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and while persons, groups of persons and institutions receive protection under the CERD for their freedom of expression, it is not entirely clear whether a media company does. The ICJ has only just begun to examine the case, and ruled on two initial requests for provisional measures. No preliminary objections, jurisdiction or admissibility issues have been addressed yet, let alone the merits of the case. In those two provisional measures orders, the ICJ has so far been taking an ambiguous approach to the nature of Al Jazeera, with implications for admissibility and the ability to hold rights under the Convention. This paper will analyze the two orders and, with the benefit of the two other ICJ cases on CERD, the jurisprudence of the CERD Committee, and comparative practice under other human rights instruments, reach an initial conclusion on which entities are covered by the CERD and how they can have their rights protected.

During litigation on the international plane, states sometimes will issue assurances either to the other litigant or to the international court directly. This article explores how those assurances interact with applications for provisional measures. The practice of courts varies with regard to how to react to these assurances, though the usual approach is that assurances issued to another state or individual are generally non-binding, while assurances issued to the court directly are binding. At the same time, litigants can apply to the court for provisional measures to prevent actions that would disturb the dispute. When the assurances are considered non-binding, they are treated as questions of fact and can be assessed for credibility and reliability, as a part of the provisional measures analysis. But when the assurances are considered binding, they are treated as questions of law, and the undertaken legal obligation disposes of the request for a provisional measures order. This article will examine the practices of the International Court of Justice and the European Court of Human Rights on this issue, identifying where their practices diverge and converge, and recommending that the dual nature of assurances, as both factual and legal, be considered in assessing their value.

Current US immigration law appears to be in widespread violation of bilateral international agreements on trade and investment. The US is party to a number of treaties for investment or trade that include terms on issuing temporary immigration visas, "treaty trader" visas (E-1 visa) or "treaty investor" visas (E-2 visa). These treaties include the older Friendship, Commerce and Navigation treaties (FCNs); Bilateral Investment Treaties (BITs) and the more modern Free-Trade Agreements (FTAs). Rather than apply the immigration terms under each treaty, US immigration law imposes its own requirements, which in many cases are at odds with the terms under the treaties. This paper compares the various treaties to which the US is party and identifies their differences. It then contrasts the practice that the treaties require with US immigration law, further identifying where US immigration law may not be in compliance with the treaties. This practice is particularly problematic because some of the treaties for investment or trade include complaint mechanisms. Certainly a state would have grounds for complaining that the US is not living up to its treaty obligations, but there may be many reasons why a state party would not want to disturb its bilateral relationship by making such a complaint. However, many of these treaties also include a right for individuals or coporations to bring their own complaints directly against the US under mandatory investment dispute settlement. Thus, current US immigration law on treaty traders and investors is not only in violation of the underlying treaties, but the violations present a real risk of enforcement.

Increasingly some European Union Member States are undertaking practices to revoke or refuse nationality, and thus EU citizenship. The problem is that some of these practices are unlawful, meaning that the refusal of EU citizenship might also be unlawful in turn. This article will question the impact of measures denying nationality on EU citizenship, and conclude that, when an EU Member State unlawfully denies nationality, the person can nonetheless still acquire and assert EU citizenship. As international and European law continues to develop, it increasingly constrains state freedom in adopting domestic nationality law. Regarding the revocation of Member State nationality, EU law demands that the state consider the possibly disproportionate consequential loss of EU citizenship. European human rights law limits revocation for the impact that act has on other human rights, such as freedom from discrimination and the right to one’s identity. International law also restricts revocation of nationality when it results in statelessness or constitutes an arbitrary or discriminatory act. Regarding the refusal of Member State nationality acquisition, the same sources also constrain state freedom. EU law and European human rights law demand that such a refusal not otherwise infringe other human rights, and international law obliges states to protect every person’s right to a nationality. In many ways, both international and European law now make some revocations or refusals of nationality unlawful. If a denial of Member State nationality is indeed unlawful, then the next question is whether such an unlawful act can have consequences for EU citizenship. Under both international law and European law, there are several remedies for an unlawful act. For example, EU Member States must act in line with the duty of sincere cooperation. Also, under international law, unlawful acts cannot create legal rights. This article will argue that, when the denial of Member State nationality is unlawful, other Member States, and the Union itself, may nonetheless recognize and give effect to EU citizenship.

In 1977, the UK pledged to the European Court of Human Rights (ECtHR) that it would discontinue five different interrogation techniques being used in Northern Ireland that amounted to human rights violations. The ECtHR affirmed that the “Five Techniques” violated human rights. However, in the years since 1977, the UK has apparently continued the use of those Five Techniques. As recently as 2018, multiple investigations and public inquiries have uncovered use of the Five Techniques by UK forces in Iraq and Afghanistan. The Committee Against Torture expressed its concern in June 2019, in reaction to the sixth periodic report of the UK, that allegations of torture were well-founded. This article questions whether, in addition to violating human rights of the victims by performing those techniques on them, the UK is additionally responsible to the ECtHR for violating its pledge. Pledges made before international courts and tribunals, in the solemnity of proceedings, can be legally-binding, creating new legal obligations to comply with the content of the pledge. The UK Attorney-General gave the pledge before the ECtHR during the Ireland v UK case. The pledge was preceded by another statement by the Prime Minister before Parliament on the same topic, ending use of the Five Techniques. Jurisprudence before the ECtHR, but also other international courts and tribunals such as the International Court of Justice (ICJ), shows that making such a statement is usually treated as creating a new legal obligation. In addition, the International Law Commission (ILC) has developed guidelines on how to determine if a unilateral statement is merely a political remark, or whether it is legally binding. Following both the jurisprudence of the courts and the ILC guidelines, the pledge by the UK must be regarded as binding.

In considering the application of human rights law to non-state actors, we should not overlook one case where a non-state actor is quite clearly bound to human rights law: the case of the Holy See and its adherence to the Convention on the Rights of the Child (CRC). While many authorities have debated whether non-state actors can be held responsible for human rights obligations, most analyses omit notice of the unique case of the Holy See. Admittedly, it is very unusual for a religious institution to participate in international law, and the Holy See sometimes resists the “normal” application of international law to its activities, citing its unique nature. It does seem strange to subject a church to international law. However, the personality of the Holy See as a legal issue depends on the application of international law. This paper will assess whether human rights law can apply to the Holy See, as a non-state actor, in the same or similar manner as it applies to states. This non-state actor has an almost unimpeachable legal personality, yet it is not a state, and while it does participate in some human rights treaties, it is still rather unclear how those obligations apply.

The statelessness of children is a particularly concerning phenomenon, yet it does have some legal solutions in the wide variety of treaties that touch on the issue. The UNCHR is currently in the middle of an aggressive promotion of the 1954 and 1961 Statelessness Conventions, attempting to convince states to adhere to them. This goal is admirable and will add to the legal protection of a great number of stateless persons. In particular, it should have the result of bringing countless numbers of children into a legal bond with a state. Unfortunately, the Statelessness Conventions as of yet still have far from universal participation. However, there are a large number of other treaties that are relevant for the legal protection of stateless persons, especially for the particular case of children who are stateless. This paper seeks to survey the field of treaties that govern statelessness, in particular child statelessness, and determine whether states have a treaty obligation to grant nationality to stateless children at birth. This survey will include the major international treaties, such as the Statelessness Conventions and the Convention on the Rights of the Child, as well as the applicable regional treaties. Many authorities have concluded that states do not generally have an obligation to grant nationality to stateless children born in their territories, but this paper will counter this conclusion by demonstrating that most states have this obligation from the overlapping collection of treaty obligations.

EU citizenship has essentially become a nationality, albeit an unusual nationality, directly under Union law. The Member States of the EU, and other authorities, have often argued that EU citizenship is not the same as nationality of a state. However, increasingly this status is approaching nationality. Nationality is a status under law, and that status is holding a legal bond with the state. EU citizenship is the equivalent in that it fulfills the fundamental criterion of citizenship being a legal bond with a territorial, political entity. While there were some submissions that EU citizenship was not a nationality, the language in the treaty is somewhat vague. The intention of the parties was not to abandon their state nationalities, but they did not specify what they intended EU citizenship to be, other than to say it was not state nationality. Surely the parties meant to create a legal bond, but then it is not clear whether nationality was understood to also be a legal bond or an ethnicity or some other legal or non-legal status. However, even if we could find some consensus on the meaning of the text, the EU has evolved quickly and subsequent practice under the Treaties on European Union shows that EU citizenship is maturing into a status that millions of people enjoy and rely on in their daily lives. Obviously, due to the terms of the Treaties on European Union, EU citizenship continues to be dependent on EU Member State nationality, but it is increasingly independent of that status in other important ways. For all intents and purposes, this evolution and realization of the terms of the Treaties on European Union means that EU citizenship is the functional equivalent of a nationality.

Much has been written about the Dreamers and their moral claim to a right to remain in the US, but what has not explored is whether their removal from the US might implicate international law, and, specifically, whether it would constitute a crime against humanity. On its face, it seems to be an outrageous claim: that deporting non-citizens from a state would be a criminal act. International law protects a state’s ability to remove unlawfully present aliens. This is not in debate. The argument is, however, far more narrow. Specifically, the forcible, arbitrary deportation of Dreamers with an intent to permanently remove them from their residence that is protected under international law would be criminal. This article will first consider the current law on the crime against humanity of deportation. The crime, which has a considerable pedigree, prohibits individuals from pursuing deportation of persons in certain situations. Among the key considerations is that the crime does not only apply to the forcible removal of citizens, but also to non-citizens in some circumstances. The distinction is whether the person is lawfully present in the state and that the removal is unlawful. As befitting an international crime, both of these standards are measured by international law, not domestic law. The article then considers the case of the Dreamers. While it is true that they do not have US nationality or other authorized status, and thus a right to remain in the US under domestic law, they do have strong enough ties to consider the US their “own country”, a wider concept that nationality. Once an individual has an “own country”, he or she may not be arbitrarily removed from than state under international human rights law, unless the removal can be justified as non-discriminatory, necessary and proportionate to the risk to society. Further, under international human rights law, permissible cases of removal are very few. The removal of a non-criminal minor from the US with a long-standing home there cannot be justified as necessary and proportionate. Provided that the possible future removal was by force, in pursuit of a policy as such, committed with intent, and that the removals were widespread and systematic, then the removal would be a crime against humanity.

Territorial entities in certain statuses might trigger a functional application of statehood. Many areas of the world operate as de facto states, yet for reasons of international law, such as ex injuria jus non oritur, the international community cannot treat the territory as a state. However, this result can lead to an unjust outcome for the inhabitants of the territory, or it may excuse the territory from participating in and complying with important rules of international law. Aside from statehood, there is no other form of international legal personality that would permit the territory to participate in international law in a satisfactory way. The territory must enjoy statehood under law, even if only on an ad hoc basis, in order to act within international law and engage in international relationships. Luckily, international law is quite flexible and states can find a practical solution which is to deny the territory full statehood, yet treat the territory as if it was a state for the issue at hand. However, treating a territory entity as if was a state for some purposes means that the international community is now tolerating a relative statehood regime alongside the objective statehood regime currently in place. Many scholars have argued that it is illogical, insensible or unreasonable to view statehood as a relative phenomenon. Statehood must either be or not be. The problem is that practice on point shows a wide variety of situations where territorial entities are treated as if they were states, but only for limited purposes. This view is supported by other scholars, though admittedly only a minority. Based on the sustained and extensive practice, we must bring quasi-states into the statehood regime and find a place for them in international law. And as of yet, there is no clear rule to determine which status results in treatment as a state. This paper will examine various types of status, and identify the case-by-case functional analysis being applied. The proposal of this paper is to accept that statehood can be applied relatively and that a functional analysis is the method for determining when an entity will be treated as if it was a state. In this way, this paper aims to build a more coherent and predictable test for whether an entity that is not a state will be treated as if it was a state.

Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under customary international law.The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-a-vis other states to grant asylum to aliens and not have that act be viewed as hostile. However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.

The problem of children being born stateless without being able to identify a state that must grant them nationality continues be a problem that begs for legal clarity. Children are some of society’s most vulnerable people, needing care, education, health developmental services and so on. Yet when they are born into situations of statelessness, it is often difficult if not impossible for them to access any of these services and meet their basic developmental needs. The international community has taken many steps to eradicate child statelessness but it still persists. This result stands despite the desperate needs for children and widespread acknowledgment that international law protects every person’s, especially child’s, right to a nationality. This paper will reconsider the question of whether we can point to a state that bears the responsibility for granting nationality to a child born stateless. In examining this question, this paper considers whether customary international law might have evolved to offer an answer to the question of which state is responsible. First, the paper looks at the most contemporary understand of customary international law to develop a methodology. The method for determining the customary international law has been changing and the time is ripe to apply our new understanding to this problem. Second, it applies this methodology to emerging practice on child statelessness. Partly due to the increased focus on the question as a result of the current UNHCR campaign to end child stateless, state practice and opinio juris has been shifting rapidly. In this analysis, the author considers that evolving understanding of customary international law and the changes in practice have shifted so that we can now identify the state that has the obligation to grant nationality to stateless children. Specifically, customary international law requires the state where the child was born to grant nationality to it, if it would be otherwise stateless and no state has granted it nationality.

While maps are used as evidence in international relations, their precise function is much broader than this simple description. Actual use varies for differing objectives, whether those objectives are proving facts, establishing legal relations or creating new law. Ian Brownlie has previously observed that maps serve a variety of functions. Among these functions he identifies are preparatory work, subsequent practice, interpretation and other forms of proof of facts. Notwithstanding his use of the terms “preparatory work”, “subsequent practice”, and “interpretation”, Brownlie classifies maps as only serving the purpose of proving something, be it proving fact or law. This paper proposes to more clearly distinguish between proof of fact and proof of law, and to further distinguish between proof of the binding quality of law and proof of the content of the law. This paper will go beyond the categories that Brownlie introduced, and consider the role of these documents as evidence of facts, evidence of normativity, evidence of normative content, legal facts, elements of legal acts, and self-contained legal acts.

The decision of the Dutch Supreme Court rejecting non-refoulement claims by certain witnesses before the International Criminal Court presents a massive failure to correctly and consistently interpret the jurisprudence of the European Court of Human Rights on jurisdiction. The Supreme Court argued that the Netherlands did not have jurisdiction because the witnesses were in the custody of the ICC. However, the state is bound by the ECHR to provide for non-refoulement in all of its state territory, and the ICC is clearly within Dutch territory. We will presume that the ECHR applies to this case until this presumption is rebutted. Yet, the Netherlands has willingly cooperated with the ICC in the Headquarters Agreement to retain a large degree of control over the operations regarding witnesses, and only agreed to refrain from interfering with the core duties of the ICC. This case is nothing like military control. It is also not like the SOFA or prior ICTY/ICC cases. Moreover, the ICC/ICTY cases seem to violate existing jurisprudence on escaping responsibility for human rights and the real focus of decision control is not on de jure allocation of jurisdiction but actual de facto physical control. And in this case, the Netherlands has a significant degree of de facto control over the witnesses, though it may have certain de jure duties in relation to the ICC. Lastly, the Netherlands still, regardless of the above analysis, retains some residual jurisdiction and obligation to take all diplomatic, economic, judicial or other steps it can to secure non-refoulement. Sadly, in this case, the Netherlands failed to do so.

Over the past few years, states have been entering into international agreements that increasingly displace their non-refoulement obligations. Non-refoulement is a legal norm that protects vulnerable people from people expelled and returned to a state where they might face serious mistreatement. This rule has been a cornerstone of the law on international migration and forced movement for a considerable period, even being viewed as a human right by some. However, recently states have adopted agreements that avoid the non-refoulement obligation through a number of arrangements. This study will proceed by looking at three forms of contracting out of non-refoulement: agreements that establish facts, agreements that establish jurisdiction or agreements creating competing norms.

In short, the paper makes the argument that EU citizenship, as prescribed in the EU treaties, should be taken seriously as a citizenship. Initially, it was unclear what significance this new status had. Over time, the EU institutions, primarily the Court of Justice of the EU, have been interpreting the meaning of citizenship. Through this process, EU citizenship has been gradually evolving into a proper “fundamental” legal status that brings the EU citizen into a direct legal relationship with the Union. Brexit, and the threat of UK nationals losing their residence rights in the EU, forces the issue of the current meaning of EU citizenship. Under international law, acquisition of nationality is largely within the discretion of the state, with limited exceptions. However, the loss of nationality is more tightly restricted. The discretion to revoke or terminate nationality is additionally limited by EU controls over loss of EU citizenship. This article concludes that, perhaps counter-intuitively, UK nationals who have validly acquired EU citizenship should not necessarily lose their EU citizenship when the UK leaves the Union because these persons now have a direct legal bond with the Union that Brexit may not be able to disturb. In turn, these UK nationals should retain EU citizenship and the resulting residence rights in the EU.

Child statelessness continues to be a global problem that evades easy solutions and demands better legal solutions. Although UNCHR and other bodies have had some success in increasing participation to the 1954 and 1961 Statelessness Conventions during the current multi-year project to eradicate child statelessness, many states still refuse to adhere to those conventions. For this reason, it would also be helpful to know if there are any rules of customary international law on child statelessness. Historically, most authorities were reluctant to find that norms existed under customary international law governing child statelessness. However, as practice on child statelessness has developed, so too has practice on customary international law. As a first step in studying whether there are any norms of customary international law on this topic, we will first examine whether there are any presumptions in establishing norms, that can be helpful in assessing the developing practice. Proving when certain norms have emerged in customary international law is controverisal to say the least. One stumbling block is agreeing on how to assess evidence of customary international law, to determine when the threshold of practice has been met. This author has attempted to identify tools for determining thresholds in the past, but one device for analyzing a threshold question is whether there are any relevant presumptions. This paper will undertake a preliminary case study on customary international law rules governing child statelessness, specifically considering whether there is a presumption in favor of rules on point. Firstly, it will examine the literature and practice applying a presumption in the customary international law methodology. This question will consider several different factors that might trigger a presumption. Secondly, having concluded that a presumption arises in certain situations, the paper will conduct a case study on applying the presumption by gathering and assessing evidence of relevant situations that would result in a presumption in favor of norms governing child statelessness.

Maps are a crucial item of evidence in international law, yet their limitations in terms of constructing reality are not usually considered in depth. Maps are not objective, but rather subjective, and hence political, documents. International courts and tribunals, and international negotiations, often apply maps as if they were unimpeachable. After all, they do appear on their face to be scientific instruments, depicting a photographic and naturalistic representation of reality. However, they are not naturally occurring themselves; they are constructions that function as imperfect models, representing reality for certain purposes. For whatever purposes the map is used, the map must be evaluated, and perhaps deconstructed. This article will examine the various ways in which maps are products of choices, errors and assumptions, and the implications those limitations have for maps when they serve as evidence in international relations.

A very few states in the world, including the US, impose a strange obligation on persons who renounce their nationality by expatriating themselves to pay a special tax. While one might think that a person who gives us his nationality would no longer have any tax obligations to his former state of nationality, this expatriation tax, or “exit tax”, imposes a special tax event and potentially continuing tax obligations for years to follow. It might even chill the practice of renunciation as a tax avoidance scheme. However, international human rights law provides that every person has a right to leave any country, including his own, and to renounce and change his nationality. This paper will examine whether the US exit tax regime violates the international human right of expatriation.

Functional state-like entities are contributing to the shift of international legal personality from an objective to a subjective regime. What we find are numerous situations where there is an entity that, for one reason or another, cannot be or will not be considered a state. However, the international community needs to engage with those same entities in various functional ways for pragmatic reasons. For lack of a different paradigm, the entity is therefore treated as if it were a state on a functional basis, while all the while continuing to refuse it formal statehood. The difficulty is that this treatment exposes a relativity in perceptions of statehood and may bring the objective statehood regime into doubt. Subjective statehood is increasingly the norm and suggests that objective statehood is not (or no longer) correct.

This paper will discuss the possibility for a state to provide diplomatic assurances in expulsion cases as an alternative to receiving a court order for provisional measures against it. In particular, it will draw on the emerging practice before the European Court of Human Rights (ECtHR) and International Court of Justice (ICJ) on the general use of assurances (or “promises”, “undertakings”, or “unilateral declarations”) and their interaction with applications for provisional measures. Both the ECtHR and ICJ will entertain these kinds of pledges, but they consider them differently when the declaration is made between states or made directly to the court. In addition, there are slightly different considerations when the declaration seeks to settle the case in its entirety, or to merely serve as an alternative to provisional measures. One emerging difficulty is that assurances that an expelled individual will not be mistreated tend to be assessed as questions of fact when issued between states, but on the other hand assurances to a court generally treated as issues of law when given directly to the court. In turn, this different treatment means that assurances made to the court tend not to be examined for credibility and reliability, so that, if states were to adopt a practice of issuing assurances in an expulsion case to the court instead of to another state, the expelling state might be able to overcome any non-refoulement provisional measures without credibility and reliability assessments. This practice would then erode some of the important protection of the non-refoulement obligation.

Functionalist analysis is now the controlling approach for assessing which non-state actors enjoy limited, relative international legal personality in the sense of having capacity for international rights and obligations. While on the one hand, conservative authorities might still insist that the only true subjects of international law are states, on the other hand, there is considerable pedigree for engaging non-state actors as international legal persons. The difficult for legal clarity and certainty has been to distinguish those entities that are legal persons from those that are not, which rights, duties and obligations they hold on the international plane, and which entities are objective persons erga omnes. Although some schools of thought suggest that once an entity is identified as a legal person, it enjoys that personality as an objective, erga omnes nature, actual practice is more equivocal, and a great many non-state actors exist as quasi-persons or hybrid entities that blur the distinctions. These entities are considered international legal persons for some purposes but not others, or only in relation to certain actors, but not others. This article will examine the variable and disaggregated international legal personality of non-state actor quasi-persons, with a view to learn some lessons about how personality for these entities is currently understood.

By the end of 2014, the Arms Trade Treaty (ATT) will enter into force, creating new treaty organs that will further develop international institutional law as it applies to these quasi-international organizations. The states parties to the ATT did not create a new international organization to support the treaty regime, but instead created treaty organs to do the same task, specifically the Conference of States Parties (CSP) and the Secretariat. While the creation of international organizations was once seen as the best solution, states are increasingly attracted to the creation of treaty organs instead. The emergence of yet more treaty organs into the already crowded field shows that this approach may now be the dominant method for giving effect to bureaucratic regimes, displacing the older preference for formal international organizations. In creating these organs, the states parties to the ATT are drawing on several decades’ worth of experience with these bodies and the initial steps taken already show that the ATT organs will continue and buttress crystallizing international practice on treaty organs. This article will review the text of the ATT pertinent to the treaty organs and place the new regime into a comparative study of similar treaty organs. It will also contribute to the scholarship on treaty organs by functionally applying international institutional law to these entities. This approach is not merely a wish; rather, it represents the current practice regarding these organs, as evidenced through the wide-ranging comparative study of the application of international institutional law.

This paper will criticize the current characterization of customary international law analysis as falling into two competing analytical methods, specifically, the “traditional” and “modern” methods. Following Koskennieni, Roberts, Wouters, Ryngaert, and others, contemporary customary international legal analysis is said to have divided into two schools: the traditional and modern. These schools are supposed to reflect the use of the inductive and deductive methods, respectively, and, in turn, to either apologize for the freedom of state action or establish a utopia where the freedom of the state is limited. This image of struggle between competing methods, however, does not fully capture the ways in which the inductive and deductive methods are actually intertwined in customary international law analysis. The methods are not two opposing monolithic techniques. Instead, in practice, the methods are intermixed, combining a variety of choices. Deductive steps are taken regarding the use of induction, inductive steps are taken in reaching patterns from practice, deductive steps are taken in identifying sample pools, and so on. This paper concludes that induction and deduction are both used in parallel in most analyses of customary international law in a delicate, yet valuable, balance of corrective tension. Furthermore, this situation is neither traditional, nor modern – in a chronological sense – but is consistent throughout the history of customary international law analysis. Following an introductory section reviewing the background to the debate over approaches, the paper will consider deduction and induction in more detail, attempting to understand these two methods of logical reasoning. Then the author will examine the way customary international law is analyzed by international tribunals by deconstructing the analytical process into smaller logical steps. For each step, an analysis will be undertaken of whether the conclusion is reached through induction or deduction, and whether this approach is consistent across tribunals and historical eras. Through this approach, the paper will take a first step to suggest the complex ways inductive and deductive analyses are layered in the assessment of customary international law.

Clearly a state has a right to expel aliens generally, and a state has a right to grant asylum to aliens, but the question is whether an individual has a right to asylum opposable to the state’s right to expel. In the literature, it is commonly understood that no such right exists. Treaty obligations discussing a “right to asylum” are understood in various ways, generally not to provide for a right to receive asylum but apply for it. However, the past few decades have shown a growth in conventions addressing asylum, especially, but not limited to, the European context. With refugee flows being an inherently international concern with a need for durable solutions, increasingly refugees are being assimilated to refugee-seekers. States are reacting or anticipating these issues by adopting domestic rights to asylum, at least for individuals qualifying as refugees. These trends suggest an evolving international consensus on opinio juris and state practice that refugees must receive asylum. Thus, it appears that the right to asylum for refugees exists under customary international law.The paper will proceed broadly in two sections viewing the issue from different perspectives. In the first section, the paper will begin by examining the “right to asylum” from the perspective of the states, the authors of the Refugee Convention and similar agreements. The paper will conclude that the “right to asylum” in those agreements is directed at states, not individuals. In essence, states have a right vis-a-vis other states to grant asylum to aliens and not have that act be viewed as hostile. However, this right of the state does not necessarily exclude a right of individuals to receive asylum if convention or customary international law also demand it. Accordingly, the second section examines the right of the individual to receive asylum. In the first sub-section, the author looks at conventional law and in the following sub-sections he looks at customary international law, specifically state practice and opinio juris. In the conclusion, the author argues that, although there is a state right to grant asylum, there is also an individual right to receive it in certain circumstances. This conclusion is based on widespread and consistent practice granting asylum as an obligatory consequence of refuge.

International law, and international lawyers generally, tend to take a somewhat conservative approach to the formation of rules, so when confronted with the growing availability of leaked information naturally we might be cautious in considering how the leaks are affecting international law. This paper will assess the growing influence of leaked information on the rules of international law and argue in favor of their use. This paper is not especially focused on WikiLeaks, though it is representative of the phenomenon and is the source used primarily for this paper. Due to the presence of it and similar actors, the availability of leaked information is growing and leaked information is now becoming significant in international affairs.This paper will walk through the various sources of law, generally following the structure of article 38(1) of the Statute of the International Court of Justice, although with some additions as may be relevant, and examine each source to see whether and how leaked information might contribute. As threshold matters, ex turpi causa non oritur actio, “the fruit of the poisonous tree”, and similar principles are examined, however, those principles can be dismissed for a number of reasons.The first source of law to be discussed is treaties for two purposes. Firstly, the paper assesses the definition of a treaty and considers whether leaked information might amount to a secret treaty, and secondly, it assesses the evidentiary function of leaked information in interpreting treaties.After treaties, the paper considers the ways in which leaked information might contribute to the formation of customary international law, primarily the ways in which leaked information might evidence practice and opinio juris.Lastly, the author also considers the potential for leaked information to contain binding unilateral statements and the role that leaked information might play in the law-making function of international organizations.Following the examination of the sources of law, the paper takes a brief detour to examine the ways in which leaked information might impact the international legal personality some entities enjoy. Leaked information might have a bearing on both the law to be applied and the facts to be established. In particular, the Holy See and Kosovo will be discussed.We appear to be moving into an era of increased access and transparency of information, and inability to prevent the viral spread of leaks. Law, and international law in particular, must take cognizance of this change and absorb it. It is possible, although the growth in leaked information might have a greater effect in the future. It might even inspire changes in some of the more fundamental notions that underpin the law.