The issue of corporate responsibility under customary international law raises another fascinating number of questions relating to the role of customary international law in national legal systems. Most countries integrate customary international law into the national legal order in one way or another. For example, the U.S. Supreme Court has stated that customary international law is “part of our law” (see Le Paquete Habana, ruled in 1900) and is generally understood as part of federal common law. Other Blackstone-inspired common law jurisdictions generally treat the common law as part of their common law. Civil law countries have their own mechanisms for incorporating customary law, often through constitutional provisions. All of these approaches raise important questions about how customary human rights norms are or should be applied within the framework of national law – and whether the application of domestic law can be an alternative to the direct responsibility of actors (including businesses) under customary international law. Alan Franklin will explore these and other questions in his contribution to the symposium. However, a peculiarity of international humanitarian law is that some of its rules govern armed conflicts between a State and an armed opposition group or between such groups. The rules governing such conflicts apply to all parties, whether a State or an armed opposition group.

Analysis of State practice shows that many rules of customary humanitarian law applicable in non-international armed conflicts are binding on both States and armed opposition groups. There are different types of customary international rights that are recognized by States. Some customary international laws reach the level of ius cogens due to acceptance by the international community as undepreciable rights, while other customary international rights may simply be followed by a small group of States. States are generally bound by customary international law, whether States have codified these laws at the national level or by treaties. In the United States, the Aliens Tort (“ATS”) Act has been invoked by federal courts to hold individuals and companies accountable for violations of common human rights standards, including torture, often on the grounds that they cooperated with foreign governments to commit these atrocities. It is true that the U.S. Supreme Court has recently limited the scope of these measures, including the finding that a claim under the ATS must somehow “touch and concern” the United States (in Kiobel v. Royal Dutch Petroleum, passed in 2013), and that foreign companies as such cannot be prosecuted under the law (in Jesner v.

Arab Bank, adopted in 2018). However, this dispute is likely to continue, merely illustrating a broader global trend in which courts apply customary human rights law to provide some reparation to victims. In addition to the difficulty of determining what international law is in practice, it must also be demonstrated that compliance with that practice is based on the idea that it is prescribed by international law. This need for a legal basis for state practice is called opinio juris. These requirements mean that the rule must be part of a continuing State practice that should be the result of the conviction of other States that they are legally bound to apply this rule. Because of these gaps in the traditional two-element definition of customary international law, I proposed a new definition according to which a new customary norm emerges when “States generally believe that it is desirable now or in the near future to have an authoritative legal principle or rule that prescribes, authorizes or prohibits certain conduct”. See Brian D. Lepard, Customary International Law: A New Theory with Practical Applications 8 (2010). Essentially, this definition considers opinio juris to be the core of customary law and also envisions opinio juris as a forward-looking belief in what the law should be now or in the near future, not just what it is.

And I suggested that basic ethical principles that relate to a basic principle of “unity in diversity” should play a crucial substantive role in identifying customary norms where state beliefs are ambiguous. See id. at 78-81. In general, sovereign nations must agree to be bound by a particular treaty or legal norm. However, international customary laws are norms that are so widespread internationally that countries do not have to accept to be bound. In such cases, it is sufficient that the State has not raised any objection to the law. However, States that oppose customary international law cannot be bound by it unless such laws are considered ius cogens. [11] However, in a dispute with a nation that has not affirmed the principle of “silence implies consent,” any invocation of the principle of “silence implies consent” implies an appeal to habit, so that if that nation does not represent the broader premise of recognition of the existence of customary international law, such an appeal depends on circular reasoning (“customary international law is binding, because silence implies consent, and silence implies consent, because the fact that silence implies consent is an aspect of customary international law”).

[This quote requires a quote] Despite this increased role, there are many important issues – some of which have already been mentioned – that will be addressed by the authors who will contribute to this symposium. .