Example of Customs

International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN),
has required that practices amount to a “constant and uniform usage” or be “extensive and
virtually uniform” to be considered binding. Although all states may contribute to the
development of a new or modified custom, they are not all equal in the process. The major
states generally possess a greater significance in the establishment of customs.
For example, during the 1960s the United States and the Soviet Union played a far more
crucial role in the development of customs relating to space law than did the states that had
little or no practice in this area.

SPACE LAW
space law, the body of regulations in international law that governs conduct in and related
to areas of space above Earth’s lower atmosphere.
The evolution of space law began with U.S. President Eisenhower’s introduction of the
concept into the United Nations in 1957, in connection with disarmament negotiations.
Since then, both the United States and the U.S.S.R. took an active interest in the
development of international space policy.
USSR launched the Soviet satellite Sputnik 1 in 1957 and sent the first human to space with
the orbital flight of Yuri Gagarin on April 12, 1961. The USSR demonstrated an early lead in
the “space race” with these and other firsts over the next few years reaching the Moon for
the first time with the Luna programme by employing robotic missions.
US raised the stakes by setting a goal of "landing a man on the Moon and returning him
safely to the Earth", both countries worked on developing super heavy-lift launch vehicles,
with the US successfully deploying the Saturn V, which was large enough to send a three-
person orbiter and two-person lander to the Moon.
Because of the space race, it was established that traditional laws of sovereignty that allow
any nation to claim for itself uninhabited and uncivilized lands are not viable in space
territories and that countries cannot extend the boundaries of their dominion indefinitely
into the space regions above them.
In 1959 a permanent Outer Space Committee was formed for the purpose of maintaining
the United Nations Charter and other international law in space, which opened the way for
peaceful exploration.
In 1963 the Nuclear Test Ban Treaty was signed, followed by an Outer Space Committee
resolution to prohibit nuclear weapons testing in space. Later that same year a UN General
Assembly declaration acknowledged a free international interest in space development and
outlined rules assigning each nation individual responsibility for dealing with
transgressions of international law and for any resulting destruction. International
cooperation was recommended for the safeguarding of all astronauts in crisis situations.
Ten years and six days after man first reached outer space, the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies (the Space Treaty) entered into force on 10 October 1967
The Outer Space Treaty was ratified by 63 participants in the United Nations. This
agreement reasserted all earlier guidelines for international space conduct. It banned
certain military activities, such as the deployment of weapons of mass destruction in space
and on celestial bodies; established each state’s ownership of and responsibility for its
space projectiles and components; urged common participation in the protection of space
and terrestrial environments; and provided for the open observation and inspection of
each state’s activities and installations by others.
This document has been noted as a landmark in the development of international space
law; like most subsequent space-law agreements generated by the United Nations, it
remains in effect today among participating countries.
This treaty was followed in 1968 by an Agreement on the Rescue and Return of Astronauts
and the Return of Objects Launched into Space, which reinforced international
commitment to the safety of humans in space, assigned economic responsibility to each
country for the recovery of its equipment, and confirmed the control of each space power
over the vehicles that it launches. Another important treaty, the 1972 Convention on
International Liability for Damage Caused by Space Objects, set out detailed rules regarding
the recovery of damages for losses caused by space objects.
Convention on Registration of Objects Launched into Outer Space. Building upon the
desire expressed by States in the Outer Space Treaty, the Rescue Agreement and the
Liability Convention to make provision for a mechanism that provided States with a means
to assist in the identification of space objects, the Registration Convention expanded the
scope of the United Nations Register of Objects Launched into Outer Space and addressed
issues relating to States Parties responsibilities concerning their space objects.
Later The Moon Agreement was established. he Agreement reaffirms and elaborates on
many of the provisions of the Outer Space Treaty as applied to the Moon and other celestial
bodies, providing that those bodies should be used exclusively for peaceful purposes, that
their environments should not be disrupted, that the United Nations should be informed of
the location and purpose of any station established on those bodies. In addition, the
Agreement provides that the Moon and its natural resources are the common heritage of
mankind and that an international regime should be established to govern the exploitation
of such resources when such exploitation is about to become feasible.

SOVEREIGN IMMUNITY GRANTS

The immunities from criminal and civil liability of heads of state and senior government
officials (such as the minister of foreign affairs) are set out in customary international law,
not treaties or conventions; the exception is the UN Convention on Special Missions of 1969
which mentions, in Article 21, that heads of state enjoy ‘privileges and immunities accorded
by international law to Heads of State on an official visit’, but it does not elaborate further.
By contrast, immunities of diplomats and consular officers are clearly set out in the Vienna
Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.
Recent actions taken by Western states, particularly the USA, suggest that they see no
validity to immunity of government officials when they act contrary to certain international
norms, such as engaging in corruption or human rights abuses.
The Section 353 Corrupt and Undemocratic Actors Report to Congress of July 2021 listed
55 government officials from El Salvador, Guatemala, and Honduras as ineligible to enter
the USA, and revoked any existing visas they have to the USA, because of credible
allegations of corruption by these officials. The list includes current ministers of the
governments, former ministers, and other high-level officials of the countries.
The USA has also proposed a new international initiative to stop corruption (primarily
from the demand side – i.e. demands by government officials for bribes).
The White House Memorandum on Establishing the Fight Against Corruption as a Core
United States National Security Interest states, at para. 2 (f): ‘Work with international
partners to counteract strategic corruption by foreign leaders.’
The US Foreign Extortion Prevention Act, not yet passed, would criminalise the demand for
bribes by any foreign official of an American company. The wording would include a head
of state.
The USA has enacted the Magnitsky Act (formally known as the ‘Russia and Moldova
Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012’)
intending to punish Russian officials responsible for the death of Russian tax lawyer Sergei
Magnitsky in a Moscow prison in 2009 and also to grant permanent normal trade relations
status to Russia. Since 2016, the Act, which applies globally, authorises the US government
to sanction those it sees as human rights offenders, freeze their assets, and ban them from
entering the USA.
Representative Susan Wild (PA-07) led a a bipartisan group of her colleagues in sending a
letter to Secretary of State Anthony Blinken and Secretery of Treasury Janet Yellen, urging
them to seek targeted sanctions against members of the Duterte regime with documented
records of grave human rights violations in the Philippines. Reports of widespread
harassment and assassinations have been observed by human rights groups, and the
International Criminal Court (ICC) has now begun a probe into possible crimes against
humanity during Philippine President Rodrigo Duterte’s infamous so-called “war on
drugs”—a pretext for an estimated 30,000 killings by security forces during the Duterte
presidency.
"Those behind these corrosive violations should no longer operate with impunity. In our
stand for democracy, the United States cannot overlook the crisis in the Philippines, and we
must take tangible action if we are to truly stand for human rights and the flourishing of
freedom around the world," the lawmakers wrote. "To this end, we urge the imposition of
sanctions on individuals who are behind these major human rights violations, particularly
via the use of the Global Magnitsky Act."
Doctrine of non-refoulement
What is the principle of non-refoulement? The principle of non-refoulement forms an
essential protection under international human rights, refugee, humanitarian and
customary law.
It prohibits States from transferring or removing individuals from their jurisdiction or
effective control when there are substantial grounds for believing that the person would be
at risk of irreparable harm upon return, including persecution, torture, illtreatment or
other serious human rights violations.
History:
The principle of non-refoulement arises out of an international collective memory of the
failure of nations during World War II to provide a haven to refugees fleeing certain
genocide at the hands of the Nazi regime. Following World War II, the need for
international checks on state sovereignty over refugees became apparent to the
international community. During the war, several states had forcibly returned or denied
admission to German and French Jews fleeing the Holocaust.
After WW2, under Operation Keelhaul, millions of refugees and prisoners from former
Russia and the contemporary Soviet Union were forcibly returned despite evidence they
would face persecution from the Soviet government. The action is considered a human
rights violation and a war crime for its indiscriminate targeting of civilians, many of whom
had never been Soviet citizens, fleeing Russia before the end of the civil war.

Non-refoulement presents an inherent conflict with state sovereignty, as it infringes on a

state's right to exercise control over its own borders and those who reside within them. In
legal proceedings immediately following World War II, non-refoulement was viewed as a
distinct right, which could be abridged under certain circumstances, such as those spelled
out in Article 33, Section 2 of the 1951 Convention.
Under international human rights law the prohibition of refoulement is explicitly included
in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) and the International Convention for the Protection of All Persons from
Enforced Disappearance (ICPPED). In regional instruments the principle is explicitly found
in the Inter-American Convention on the Prevention of Torture, the American Convention
on Human Rights, and the Charter of Fundamental Rights of the European Union.
International human rights bodies, regional human rights courts, as well as national courts
have guided that this principle is an implicit guarantee flowing from the obligations to
respect, protect and fulfil human rights. Human rights treaty bodies regularly receive
individual petitions concerning non-refoulement, including the Committee Against Torture,
the Human Rights Committee, the Committee on the Elimination of Discrimination Against
Women and the Committee on the Rights of the Child.