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Abstract
Fully revised and updated to December 2002, Malcolm Shaw's bestselling textbook on international law is a clear, authoritative and comprehensive introduction to the subject. The fifth edition includes new material on Inter-state Courts and Tribunals, arbitration tribunals and the role of international institutions such as the WTO. It will remain an invaluable resource for students and practitioners alike. While essential reading for students of international relations and the political sciences, the scope of the text also makes it of interest to lawyers and government and international employees. Previous Edition Hb (1997): 0-521-59384-0 Previous Edition Pb (1997): 0-521-57667-9
... In the course of its legal practice, the ICJ has argued on a general basis that the conditions, principles, and rules that apply to the delimitation of territorial waters are determined by the method of equidistance under the effect of special circumstances, while for other maritime areas, that of the principle of justice and equity 27 . According to 22 the ICJ in Cameroon v. Nigeria judgment, these principles and criteria are considered similar and provide for the application of the equidistant principle by proceeding further with the geographical consideration or historical factors, which may impose the modification or adjustment of the boundary line 28 . ...
... As a result, the Albanian-Greek border in the specific maritime region is determined through a multilateral international legal treaty 43 . Annex III of the Florence Protocol (January 27,1925) defines the maritime boundary line as follows: In its maritime extension in the bay of Ftelia, the border continues to be directed through a normal line (perpendicular) to the general direction of the coastline up to the limit of territorial waters, leaving the small island of Tongo to Albania 44 . Based on the document approved by the representatives of France, Great Britain, and Italy and in the presence of the Albanian and Greek representatives, the border pyramid No. III/79 is described, as well as for its implementation, the contents of Annex III emphasized: "Starting from the border mark No. III/79, the border line runs South-Southwest, descends very steep rocks, and after about 10 meters, meets the sea coast. ...
... Maritime Boundaries in the Mediterranean: Aspects of Cooperation and Dispute, in Maritime Boundaries and Ocean Resources, ed., Gerald Blake, (Coorm Helm, London Sydney. 210.25 Ioannou, "The Grek Territorial Sea," 137.26 Alibali, "Marrëveshja Detare dhe Gjykata Kushtetuese," 6.27 UN, United Nations Convention of the Law of the Sea, Article 15, 57 & 76. ...
The Albanian-Greek maritime border in the Straits of Corfu region and the Ionian Sea reflects a complicated geographical, historical, and political reality, which constitutes a special characteristic of the Balkan Peninsula coastal region as a whole. For many centuries, the navigational routes of the Strait of Otranto and the Corfu Channel were characterized as important strategic, military, and commercial seaways for the ancient peoples of the region. In this respect, even though the Albanian-Greek southern border region has been at the center of conflicts and disagreements between these countries for many years, the problem is not thought to be completely related to the specific delimitation of the maritime borderline. The interstate maritime boundary is official and internationally recognized and is shown on all official political maps as an international borderline. The Albanian-Greek borderline is a product that came as a result of the Balkan Wars and the First World War, in which there was a great involvement and influence of the Great Powers’ diplomacy. Nowadays, the possibility of Albania-Greece interstate conflicts over the southern border area and maritime borders exists. In this context, ethnographic complexity is considered problematic due to the existence of the Greek minority in Albania, as well as Albanian immigrants living in Greece. On the other hand, the natural resources that possess the maritime regions of the Corfu Channel and the Ionian Sea are another reason for the dispute over the maritime border. However, according to US security institutions, these cross-border disputes between these states may only remain at the political level and not degrade further.
... In the past, the issue was viewed through the prism of the right of defence, the right of conservation and the right of jurisdiction. 31 In the 1930s, specialists of that time were discussing whether or not it was possible for one state to impose on another state to change its laws. 32 At that time, there were two opinions: 1) one which held that the sovereign state could not allow others to interfere in its affairs and that foreign states were not entitled to ask another state to change its laws; and 2) another opinion according to which states, being in a state of increasing interdependence, could be asked to change the laws of a state which no longer corresponded to modern ideas. ...
... These differences were considered restrictions on state independence and that is how they were treated at the time, i.e., they were substantial exceptions to the rule of state immunity. Meitani remarked that it was permissible, however, that for real property actions, foreign courts were competent to judge these actions since the jurisdiction of the state extended over the whole territory, but the question was how these 31 See judgments could be enforced. Could the foreign state intervene in the territory of the other state and execute that state, seize its property or put it up for sale? ...
Abstract
Background: State immunity, a subject rarely encountered in the East, is being brought to light more and more often lately. In the process of being detached from customary law, it has been subject to several attempts at codification. These attempts appear to have been overtaken by developments in doctrine, which demonstrates the existence of potentially delicate situations of public international law. In this context, we recall the United Nations Convention on Jurisdictional Immunities of States and their Property (New York, December 2004), which has not yet entered into force.1 In this context, we also note the initiatives for the establishment of the European Court of State Immunity contained in the European Convention on State Immunity of 1972 and its Additional Protocol, which has never been operational.2
Methods: This article aims to take stock of the status quo of the doctrine of state immunity in international law as a whole by highlighting the existing normative aspects in relation to the problems of implementation.
Results and Conclusions: The arguments and conclusions are intended to underline the importance of understanding the reality, in particular, of how this doctrine works together with its exceptions. The method of scientific introspection based on primary and secondary data from scientific journals, books, documents, expert opinions, and other publications has been used to develop this article.
... Dalam konteks negara, terdapat dua teori terkait bilamana negara melakukan perbuatan melawan hukum atau melakukan pembiaran terhadap suatu kesalahan atau niatan yang telah dilakukan pejabatnya, yang pertama ialah pertanggung jawaban mutlak atau pertanggung jawaban obyektif (disebut juga teori risiko) kemudian yang kedua ialah teori subyektif atau juga disebut teori kesalahan (Shaw, 2008). Teori pertanggungjawaban obyektif menyatakan bahwa sekali perbuatan melawan hukum terjadi yang menyebabkan kerugian yang dilakukan oleh aparat negara, maka negara tersebut akan bertanggung jawab dalam hukum internasional kepada negara yang mengalami kerugian, terlepas dari adanya itikad baik atau tidak. ...
Terorisme merupakan kejahatan yang kini banyak dibahas di media cetak dan elektronik, terutama di Indonesia, yang terdampak serius sejak Bom Bali I tahun 2002. Hingga kini, aksi terorisme terus terjadi dalam berbagai bentuk, melibatkan individu dan kelompok. Penelitian ini bertujuan untuk menganalisis penerapan konsep pentahelix dalam upaya pencegahan dan penanggulangan terorisme di Desa Kananga, Kabupaten Bima, serta mengidentifikasi tantangan yang dihadapi. Penelitian ini menggunakan metode kualitatif dengan pendekatan studi kasus, melibatkan informan yang mewakili lima elemen pentahelix: pemerintah (Danramil, Kapolsek, Kepala Desa), akademisi (tokoh pendidikan), bisnis (pengelola bisnis lokal), komunitas (tokoh masyarakat), dan media (pengelola media lokal). Informan dipilih dengan purposive sampling, dan data dikumpulkan melalui wawancara, observasi, serta dokumentasi. Hasil penelitian menunjukkan bahwa penerapan konsep pentahelix melalui pendekatan berbasis budaya, pendidikan, dan kebersamaan efektif dalam menjaga harmoni sosial serta mencegah masyarakat terpapar radikalisme. Namun, kendala utama yang dihadapi meliputi kurangnya koordinasi antar-lembaga, terbatasnya akses ke komunitas yang rentan, serta persepsi negatif sebagian masyarakat terhadap upaya ini. Penelitian menyimpulkan bahwa konsep pentahelix mampu menciptakan sinergi positif antara pemerintah, akademisi, bisnis, komunitas, dan media, namun tantangan dalam koordinasi dan persepsi perlu diatasi untuk memaksimalkan efektivitas dalam pencegahan terorisme
... (Gündüz, 2003, s. 43.) Ancak Misak, savaşı bir bütün olarak yasaklamamış, sadece meşru ve meşru olmayan savaş arasındaki ayrımı ortaya koymuş, kuvvet kullanılmasını geciktirici tedbirleri sıralamıştır. (Shaw, 2008(Shaw, , s. 1122Brownlie, 2008, s. 729;Tütüncü, 2006, s. 14.) Bu çerçevede Misak'ta "savaşa başvurma" teriminin kullanılmış olması Misak hükümlerinin etkinliğini zayıflatan önemli bir unsur olmuştur. (Keskin, 1998, s. 30.) ...
This thesis is about the new approaches to the concept of use force in international law and humanitarian intervention in the context of comparison of Kosovo and Cyprus issues
... Based on this principle of differentiation, children are classified into the civilian population who must be protected, but in fact, as happened in countries where there are still disputes and conflicts that children are recruited into child soldiers and ordered to carry weapons, what is the legal status of these children? whether they were classified as civilians or combatants, given the fact that these children were holding guns (Shaw, 2008). ...
In an armed dispute, the protected persons include combatants and the civilian population. Combatants who have horse de combat status must be protected and respected in all circumstances. Combatants who fell into enemy hands gained the status of prisoners of war. Protection and rights as prisoners of war are regulated in Geneva Convention III of 1949. Meanwhile, civilians are entitled to protection as regulated in Geneva Convention IV of 1949. The legal protection given to children is more focused on the consequences of armed disputes that will affect or affect children. As part of the civilian population, children who do not participate in hostilities receive general protection without any adverse distinction based on ethnicity, nationality, religion, or political opinion, and are intended to alleviate the suffering caused by war
... Despite the incorporation of space debris mitigation guidelines into national regimes, State practice by itself is insufficient to create opinio juris (Li, 2015). The existence of opinio juris being challenging to prove, references are often made to General Assembly resolutions, major codification conventions and the work of the International Law Commission (ILC) by the International Court of Justice (ICJ) for this matter (Shaw, 2008). ILC also adopted its recommendations for the identification of customary international law, which stipulates that while resolutions of international organizations do not generate customary international law in themselves, they, '' in certain circumstances, provide evidence for determining the existence and content of a rule of customary international law, or contribute to its development" (ILC, 2018). ...
Uluslararası ilişkilerde odaklanılan temel konulardan biri de barış ve güvenliği tesis edilmesidir. Buna yönelik en büyük sorun ise saldırı eyleminin yani askeri güç kullanımının oluşturduğu sorundur. Bu nedenle Birleşmiş Milletler (BM) sözleşmesinde evrensel çaplı bir kuvvet kullanma yasağına net bir şekilde yer verilmiştir. BM adına yada BM kararıyla kuvvet kullanımı ve meşru müdafaa halinde kuvvet kullanımı bu yasağın istisnai durumları olarak meşru kabul edilmiştir. Ancak zaman içinde ortaya çıkan yeni durumlarda yeni argümanlar üretilerek kuvvet kullanmanın alanı genişletilmiştir. Bu argümanlardan sıklıkla kullanılanı ise davetle müdahale doktrini olmuştur. 2014 yılında Rusya da Ukrayna’da gerçekleştirdiği müdahaleyi bu doktrinle savunmuş ve müdahalenin meşruluğu öne sürmüştür. Ancak uluslararası toplum bu müdahaleyi meşru görmemiş ve Rusya’yı işgalci olarak nitelendirmiştir. Çalışmada Rusya’nın 2014 yılında Ukrayna’da topraklarında gerçekleştirdiği askeri güç kullanımının davetle müdahale doktrini açısından meşru olup olmadığı incelenmiştir. “Uluslararası toplumun Rusya’yı işgalci olarak nitelendirmesinin somut bir gerekçesi var mı?” sorusuna cevap aranmıştır. Bu doğrultuda varsa doktrin açısından ihlal edilen kriterleri ortaya koymak hedeflenmiştir. Çalışmanın sonunda Rusya’nın askeri güç kullanımının davetle müdahale doktrininin şartlarını taşımadığı ve müdahalesinin meşru olmadığı sonucuna ulaşılmıştır.
This study examines the ways in which Kosovo strategically uses multilateral diplomacy to navigate challenges and improve its international standing, despite the significant geopolitical constraints facing it. Regardless of opposition from influential states such as Serbia and Russia, Kosovo has been able to make incremental progress in gaining international recognition and legitimacy through its proactive participation in multilateral forums. Kosovo participates in different International and Regional Organisations, Treaties, and Conventions where it has a member/observer/participant/beneficiary and contracting party status. Using these platforms, Kosovo has effectively constructed a narrative of responsible statehood, positioning itself as a credible and constructive participant in global diplomacy. This approach yielded immediate diplomatic gains and has also contributed to a sustained trajectory towards broader acceptance and recognition. The study concludes that Kosovo’s strategic use of multilateral diplomacy has led to both short-term diplomatic successes and long-term progress towards achieving broader international integration and acceptance. This illustrates the continued relevance of multilateralism for small states seeking to assert their sovereignty in the international arena.
Históricamente, la zona del Indo-Pacífico ha sido una región donde los conflictos y choques entre actores regionales, además de estar condicionados por los intereses de estos mismos actores, han estado influenciados por los países del entorno y por los intereses de las grandes potencias. Entre la diversidad de escenarios de confrontación que se desarrollan en la zona y más concretamente en la región de Asia-Pacífico, podemos encontrar uno de los principales focos de conflicto en el entorno, el contencioso que envuelve a la soberanía de Taiwán. Las diferentes dimensiones que envuelven el contencioso de Taiwán y principalmente su constitución como estado soberano reconocido internacionalmente, están atravesadas por las políticas exteriores de los principales actores en la zona. En primer lugar, la soberanía y el desarrollo de las actividades del gobierno de Taipéi están limitadas por los intentos de anexión de la isla por parte de la República Popular de China. Estas aspiraciones dan como resultado un tensionamiento militar permanente en el estrecho de Taiwán y que terceros no reconozcan oficialmente a Taiwán como estado soberano por miedo al empeoramiento de relaciones diplomáticas y comerciales con Beijing. Junto a las demandas chinas sobre Taiwán, el reconocimiento de este territorio como estado soberano está condicionado por la política exterior y de seguridad de Estados Unidos en la zona. Esta política está basada en la asunción de la defensa territorial de Taiwán ante una posible agresión militar china, pero manteniendo una postura ambivalente en el reconocimiento internacional de Taiwán como estado soberano. Si bien Estados Unidos mantiene relaciones propias de los estados soberanos con el gobierno de Taipéi, desde 1979 no reconoce oficialmente a Taiwán debido a las implicaciones que un reconocimiento del territorio tendría en sus relaciones con Beijing. El objetivo de este artículo es analizar y comprender cómo las disputas entre Estados Unidos y China condicionan las distintas dimensiones de la soberanía y medir el impacto que estas disputas tienen en la actualidad en el desarrollo normalizado de la soberanía de Taiwán. A través del estudio de Taiwán analizaremos el impacto que los choques de intereses entre grandes potencias tienen en el desarrollo normalizado de la soberanía estatal de Taiwán y los países del Indo-Pacífico. El artículo partirá de un análisis complejo del concepto de soberanía ligada a los estados y al territorio. En segundo lugar, analizaremos la evolución de las distintas dimensiones de la soberanía de Taiwán desde la constitución de su gobierno en 1949 hasta la actualidad. En este apartado mediremos también la influencia que las disputas entre Estados Unidos y China han tenido en estas dimensiones. Por último, a modo de conclusión, estudiaremos los elementos que determinan y condicionan el desarrollo de la soberanía de Taiwán en la actualidad. Este análisis busca entender cómo las disputas entre grandes poderes condicionan el desarrollo normalizado de la soberanía de los países del Indo-Pacífico.
This contribution is a critical review of fundamental safeguards against torture and other ill-treatment. It focuses on the concept of prevention as developed through the work of the CPT and the OPCAT mechanisms and explores its meaning at the international and at the domestic level. The preventive approach, based on visits to places of detention and followed up by constructive dialogue with authorities, translated into norms of international law the work of the ICRC. This works well and effectively at the level of international visiting mechanisms. However, the adoption of a purely preventive approach at the national level into the work of the national preventive mechanisms may create problems with the synchronisation of this approach with other positive obligations of the states. While the existing mechanisms for punishment and prevention of torture and other ill-treatment contributed to the reduction of their incidence, they are still widespread in many parts of the world, including in states which availed themselves of international scrutiny in all its different forms. There is therefore a need to do more. It is suggested that civil society involvement in monitoring and legal assistance to victims of torture and other ill-treatment may contribute further to their eradication. The contribution reviews the current state of international standards in that regard and proposes the establishment of a firm legal basis for NGO access to all places of detention.
Regionalism and trade can have an important influence on growth and development of member states; consequently, the role of trade as an engine of growth and development is well acknowledged by every regional organization worldwide. The ECOWAS Trade Liberalization Scheme (ETLS), a regional trade mechanism designed to boost intra-ECOWAS trade is struggling to adequately respond to the economic development of member states. This chapter, therefore, aims to respond to two main questions: how successfully has the ETLS performed in relation to the development of member state? What factors are standing in the way of a successful implementation of ETLS in Nigeria; and how to solve the problem? Using post-neo-functionalism theory to understand the level of success, the study reveals that the existence of several non-tariff barriers that provides a significant explanation and serves as impediments to the implementation of the ETLS in Nigeria.
Buku referensi ini merupakan hasil dari beberapa penelitian Punulis yang fokus pada satu bidang ilmu yakni hukum laut internasional. Buku referensi ini berjudul “Hukum Laut Internasional : Suatu Pengantar dan Sejarah Perkembangannya (Buku I)”. Buku referensi yang ke I ini akan dilanjutkan dengan buku ke II dengan pembahasan yang melengkapi Buku I. Buku I ini telah selesai kami buat secara semaksimal dan sebaik mungkin agar menjadi manfaat bagi pembaca yang membutuhkan informasi dan pengetahuan mengenai Hukum Laut Internasional dan Sejarah Perkembangannya.
With the evolution and development of jus in bello, conflicts of both internal and international character have given due consideration to limit human casualties and minimize suffering. Post-World War trials in Nuremberg and Tokyo played a crucial role in influencing modern International Criminal Law. The international community soon realized the necessity to draft various international legal documents and establish the International Criminal Court to prosecute individuals for various categories of crimes including War Crimes. Article 8 of the Rome Statute has classified acts of destruction of the natural environment and cultural property within the ambit of the definition of War Crime. However, with a higher threshold required to prove the crime of destruction of the natural environment and a human rights approach taken in cases of destruction of cultural property, both areas seem to need much exploration and research. This paper scrutinizes the development of laws of war and dives deep into the jurisprudence laid down in various decisions of the ICC to protect these civilian objects during armed conflict. It further elucidates the lacunas in the law and explains how they may lose their protection guaranteed by humanitarian law and can be the target of attack if these civilian objects are used to achieve a military advantage. Based on the elucidation of various primary sources like legislations and case laws along with secondary sources like legal textbooks and commentaries, law review articles, and legal encyclopedias, the paper generated is descriptive with a slight element of critical analysis of the international legal framework.
This article summarizes the concept and origin of privacy law as it is applied in various jurisdictions around the world. It is providing examples of governmental intervention affecting the privacy rights of individuals and critically examines their suitability and proportionality in light of the environment in which they operate. During the article, varying approaches in setting boundaries for privacy laws are analyzed and improvements suggested. Moreover, the privacy challenges formed in the online world are addressed and current developments highlighted.
Chapter 3 analyses whether States acting extraterritorially must ensure the prosecution of persons within their jurisdiction. For this purpose, it is examined whether the duty to cooperate in the ICC Statute and the prosecution obligations arising from international humanitarian and human rights law apply extraterritorially. This analysis results in the following findings: The obligations to investigate in most of the treaties that are analysed in this chapter apply extraterritorially, the strongest cases being the Torture Convention, the Convention against Enforced Disappearance and the grave-breaches-regime of the Geneva Conventions. Such provisions on investigation and prosecution apply extraterritorially when a State exercises effective (overall) control over a territory. The duties deriving from such treaties are obligations of conduct that require States to take all reasonable steps to bring alleged perpetrators to justice, also by surrendering them to the ICC.
La posmodernidad no se circunscribe únicamente a las profundas transformaciones de las estructuras sociales o culturales originadas en el último siglo, sino también a las de ciertas estructuras políticas tradicionales como el Estado y sus elementos constitutivos. A través de un enfoque normativo, el presente ensayo analiza los cambios del territorio ocasionados por la hegemonía de las fuerzas posmodernas representadas en el capitalismo posindustrializado, la globalización, y la revolución informática y comunicativa. Los resultados preliminares explican dichas dinámicas transformativas a partir de tres procesos interrelacionados: la producción, la organización y la orientación del espacio. En cada uno de esos niveles, el territorio deja de ser un objeto político por naturaleza, capaz de cumplir sus funciones congregacionales en torno a un ideal político comunitario para convertirse, en cambio, en una unidad política que privilegia otro tipo de intereses, ante todo, de índole económica.
This research is a study of international law principle, namely the nationality principle. This principle is generally used to support obligation of state to provide protection to its citizens wherever they may be. As international relations have evolved, the interactions of citizens with other countries have also increased, often resulting in citizens facing legal issues in foreign countries. In line with this, a review of references related to the protection of human dignity as a fundamental aspect of international law through the enforcement of the nationality principle was carried out. The research method used in this study is qualitative, involving an approach to regulations in the form of multilateral, regional, and even bilateral international agreements. This approach is further supported by conceptual interpretations of general legal principles and the resolution of cases related to the application of these principles. The study results show that the enforcement of the nationality principle is one form of human rights protection in international relations. This is based on respect for human dignity and is only applied to specific crimes, different legal systems among countries, and global peace and security within the context of healthy state relations as well. Therefore, this article provides recommendations for improving cooperation among states, including a review of extradition agreements between countries, where its implementation is incapacitated. Abstrak Penelitian ini berupa kajian terhadap salah satu asas dalam hukum internasional yakni nationality principle atau asas kebangsaan. Prinsip ini pada umumnya digunakan untuk mendukung kewajiban negara dalam memberikan perlindungan terhadap warga negara nya dimanapun mereka berada. Seiring berkembangnya hubungan antar negara sehingga interaksi warga negara pun semakin berkembang, seringkali berdampak pada warga negara berhadapan dengan hukum di negara lain. Maka sejalan dengan hal tersebut, dilakukan penelusuran referensi terkait perlindungan martabat manusia sebagai hal yang fundamental bagi setiap individu dalam persepktif hukum internasional melalui penegakan prinsip nationality. Metode yang digunakan adalah metode penelitian kualitatif, dengan melakukan pendekatan terhadap aturan berupa perjanjian internasional bersifat multilateral, regional bahkan bilateral, kemudian didukung dengan penafsiran secara konseptual terhadap prinsip hukum umum serta penyelesaian kasus-kasus yang berkaitan dengan penerapan prinsip-prinsip tersebut. Hasil study menunjukan bahwa penegakan terhadap prinsip kebangsaan menjadi salah satu bentuk perlindungan HAM dalam pergaulan internasional, hal ini didasari pada penghormatan terhadap martabat manusia, hanya diberlakukan pada kejahatan-kejahatan tertentu, system hukum yang berbeda antar negara, dan perdamaian dan kemanan dunia dalam konteks relasi yang sehat antar negara. Maka, artikel ini memberikan rekomendasi pada peningkatan Kerjasama antar negara salah satunya peninjauan Kerjasama perjanjian ekstradisi antar negara yang pada faktanya masih lemah dalam aspek implementasi.
The article examines the phenomenon of the international legal policy of state, which has been conceptually developed in the French legal doctrine. According to the classical concept of the present phenomenon, each state seeks to contribute to the content of international legal norms by participating in the coordination of wills of states in different ways. To promote and assert its position on existing and nascent international legal norms, the state constructs a policy, which guides its international legal practice. However, the conduct of an individual international legal policy raises questions, including critical ones. Interpretation of the role of international legal policy as a simple legal justification for politically motivated decisions leads to the "instrumental" concept of international legal policy. However, in the classical concept, the consideration of international law as an instrument of the state's foreign policy is not acceptable and, moreover, contradicts the very objective of international legal policy – legitimation. The achievement of this purpose is subject to the principle of the rule of international law in international relations. In its turn the instrumental understanding of the international legal policy allows for departures from the existing international law and thereby contributes to international legal destabilization. In this context, the article shows that being flexible the international law develops with the changing interests of states on the international arena on the background of various interstate relations, while the international law’s flexibility is considered as an essential prerequisite for its development. and tasks of states in the international arena. During the development of new norms of international law, the conduct by the state of a competent, active international legal policy, even if its partners do not agree with it, does not per se prejudice the foundations of international law. On the contrary, the policy aimed at its adjustment is a conditio sine qua non for the maintenance of international legal order, its evolutionary adaptation to changing international relations, other challenges of our time. Thuswise the concept of international legal policy allows us to reconsider the competition of multi-vector international legal «manoeuvers" of states.
Peacekeeping operations have become an integral component of the United Nations in promoting global peace and security. Yet, as demands increase to hold peacekeepers accountable for their misdeeds, the legal principle of attribution within the framework of the law of responsibility remains ambiguous and difficult to define. Hence, this study aims to contribute to the discourse on the attribution of the Peacekeepers' conduct, especially on the presumptive v. preventive interpretation of Article 7 Draft Articles on Responsibility of International Organizations. Under the presumptive interpretation, the peacekeeper’s action is presumed to be attributed to the UN; however, attribution can be rebutted if Troop Contributing States (TCS) exercise control over the peacekeepers. In contrast, preventive interpretation argues that attribution must be determined by which entity, TCS or the UN, has the power to prevent the alleged conduct. This study analyzed how the Dutch Supreme Court’s rulings in 2019 approached the question of attribution toward the Dutch Battalion during the mission of UNPROFOR. The Supreme Court found that the action of the Dutch Battalion was attributable to the Netherlands since the Netherlands fulfills the elements of effective control as governed under Article 8 ARSIWA. Moreover, the Supreme Court rejected the preventive interpretation earlier endorsed in the Nuhanovic case. This study employed a normative juridical approach. This study argues that the Court’s rulings on presumptive interpretation are aligned with the practices of the UN’s peacekeepers and the intended purpose of Article 7 DARIO, which emphasizes attribution on factual consideration.
The legal concept of the territorial waters’ regime was developed for the first time during the 16th and 17th centuries, a period of time that coincided with the formation of the system of independent states with defined territories, which were generally characterized by the ability to possess certain rights to regulate according to national interests the maritime activities developed in the maritime zones near their coastline. During this period Grotius, who is considered among the founders of international law, despite emphasizing that states should not possess sovereign rights over maritime zones, generally accepted the existence of the exercise of jurisdiction over coastal waters by states that could control effectively from the continent these specific maritime zones. At the end of the 18th century, the distinguished author Bynkershoek, while preparing the work De Dominio Maris Dissertation, published in 1702, relied extensively on the basic legal concepts of freedom of the seas and state sovereignty over coastal waters. Vattel, another well-known scholar, in Le Droit des Gens (1758), reflected his reliance on the writings of Grotius, Gentile, and Bynkershoek, underlining that coastal states enjoy sovereign rights over their coastal waters, but must allow the ships of other states to navigate peacefully through these waters. Nowadays, the territorial waters’ regime is considered a crucial concept for the national interest of coastal states. In this regard, due to the importance it represents for coastal states and the international system in general, the legal regime of territorial waters should be analyzed more extensively in order to better comprehend this paramount legal notion. Hence, the main purpose of this article is to analyze the legal concept of the regime of territorial waters within the framework of international law.
Although international law forbids states to use force against each other, every state has an obligation to stop the ongoing violation of international humanitarian law. Consequently, the relevance of the traditional law of neutrality is questionable and often considered obsolete in contemporary armed conflict. The United States of America introduced the doctrine of qualified neutrality. The doctrine allows other states to do something when there is a threat or ongoing violations of the peace and security of humankind. The United States has commonly justified its military assistance to one of the warring parties using the doctrine as in the current Russia-Ukraine War. The United States provides vast military assistance to Ukraine, consisting of weapons and specialized military training to stop Russian aggression. This study aims to assess the qualified neutrality doctrine from an international law perspective and whether the United States can still preserve its neutral status or become a co-belligerent of Ukraine. This study argues that qualified neutrality will not change the status of a neutral state into co-belligerent if it does not involve any use of force measures or, otherwise, these measures shall fall within the framework of the UN Charter and require authorization from the UN.
This chapter examines two cases against Syrian asylum seekers—the Ahmad al.-Y Judgment of 21 April 2021 and the Ahmad al-Khedr Judgment of 16 July 2021—in which the District Court of the Hague asserted universal jurisdiction to convict the accused of terrorist offences and war crimes committed in the Syrian conflict. The Court made remarkable findings on questions that concern the fields of international jurisdictional and humanitarian law. Specifically, it relied on the aut dedere aut judicare obligation under the UN Terrorist Bombings Convention, to which Syria is notably not a State Party, to claim universal jurisdiction over the crime defined in it. It thus produced very rare judicial practice on a matter of international jurisdictional law that is subject to much controversy and scholarly disagreement. In addition, the judges entered certain findings on the war crime of outrages upon personal dignity, as defined under Common Article 3 of the Geneva Conventions, which addressed two questions that have not been litigated at the international criminal tribunals: (i) can outrages upon personal dignity be committed against a dead person; and (ii) does exposing a captured fighter to public curiosity (by distributing online videos in which he is recognizably portrayed) amount to a war crime in non-international armed conflicts?Keywordsuniversal jurisdiction
aut dedere aut judicare
Geneva Conventionsoutrages upon personal dignityparticipation in a terrorist organizationUN Terrorist Bombings Convention
Establishing individual criminal responsibility for mass atrocities is the foundational principle of international criminal justice, but this process is highly complex, and is accompanied by political and legal dilemmas about its operation. The book examines the drafting, interpretation, and application of the rules for assessing individual criminal responsibility as those rules emerge from the intense contestations among judges, lawyers, and academics within the legal field. Focusing on the International Criminal Court (ICC), the book provides a rich analysis of the international debates around questions of criminal responsibility by interrogating formal legal documents and legal scholarship alongside more candid accounts (interviews, memoirs, minutes). These debates are of key importance for international criminal law and global justice because how criminal responsibility laws are construed in practice determines which conduct merits punishment and, ultimately, demarcates the boundaries of what are considered the 'gravest' acts that 'shock' humanity.
The subject of the article is international legal aspects of economic responsibility of states. The aim of the article is to find an answer to the problematic issues of economic responsibility of states and its international legal aspects. Different concepts of economic responsibility are analyzed due to the lack of a unified approach to it both in economics and in related branches of law. It is noted that the institution of economic responsibility is designed to stabilize the relations of socio-economic development, the interests of participants in social exchange and to achieve the goals of sustainable development. From the international legal point of view of understanding economic responsibility, the state bears two types of responsibility – material (economic) and non-material (political). And international legal responsibility of the state is considered as an institution of the law of international responsibility. It is from this point of view the economic responsibility of the state is considered by international lawyers and specialists in the field of international relations. The methodology of the article is based on the fact that there are three basic mechanisms of liability – derivative of property rights, contracts, and torts. Contract law deals with breaches of duty, tort law deals with accidental or intentional injury to persons or property, and property law deals with misappropriation or interference with property rights. It is concluded that the state is the same economic entity in terms of economics as all equal economic entities. However, the applicability of the means of economic responsibility in the international legal aspect is complicated by the immunity of the state with regard to its property. Therefore, there are signs of liability not for all property, but only for that which has certain signs of applicability – use for commercial purposes, connection with the subject matter of the claim. In the aspect of economic responsibility, there is a distinction between immunity from jurisdiction and immunity from enforcement. The problem of differentiation of commercial and state property is outlined, attention is focused on the existence of certain categories of state property, the public nature of which is not in doubt and which are not considered possible for economic (property) responsibility for the conduct of diplomatic and consular activities of their missions, consulates, special missions, etc., whose immunity is enshrined in the Vienna Convention on Diplomatic Relations of 1961; military property, as well as property used for military purposes; property that is part of the cultural heritage of a foreign state or part of its archives, as well as property that is part of an exhibition of items of scientific, cultural or historical significance. It is also concluded that economic responsibility in international law is not always associated with the negative consequences of unlawful behavior, because it can also be applied as a result of lawful behavior, leading to the infliction of harm to other subjects. Thus, the economic responsibility of the state is on the verge of regulation of public and private law. This is its peculiarity and complexity of its application to the state.
Bribery case at PT. Garuda Indonesia is a cross-jurisdictional corruption case involving several countries. The purpose of this research is to analyze the international cooperation carried out by the Corruption Eradication Commission (KPK) in the investigation of bribery cases at PT. Garuda Indonesia. The research method used is a qualitative approach with a case study method. The data analysis used is the theory of international cooperation in dealing with corruption, jurisdictional theory, and the concept of transnational crime. The results of his research show that the bribery case at PT. Garuda involves multiple jurisdictions, namely: Indonesia, United Kingdom, Singapore, Hong Kong, France, and Canada. KPK-SFO-CPIB international cooperation process shows a new format of cooperation because it is carried out by the anti-corruption agency with a parallel investigations format. KPK cooperates with the agency through the MoU and MLA mechanisms referring to international instruments, namely the United Nations Convention Against Corruption (UNCAC). Even though the platform has been created, there are still many challenges and obstacles due to differences in the legal system, language and time. KPK encountered problems when it wanted to cooperate with Hong Kong's ICAC, Canada's RCMP, and France's PNF. The keys to the success of KPK in this collaboration are the diplomatic approach, speed of coordination, accuracy in strategies of communication, and commitment, as well as trust and adjustment of cooperation mechanisms according to the standards of each country.
The studies in the base of international relations and security have revealed a different research subject with the developments of technology. Cybersecurity that is in the focus of the technical area has also been argued in the political base. The cyber dimension of security with discussing concepts like cyber politics, cyber deterrence or cyberwar has succeeded to remain on the agenda of states. As a central actor of the international system, states’ interest in cybersecurity has carried this subject to the international law research area. In this study, the historical process and theoretical approach have been evaluated in the base of international relations discipline and it is practised to detail problems about international law. Different data have also supported the approach to the core of this study.
Justice for conflict-related sexual violence remains a critical problem for global society today. This ground-breaking book addresses pressing questions for 'international justice': what do existing approaches to international justice offer to victims of war and societies in conflict? And what possibilities do they provide for feminist social transformation? The Justice of Humans develops a new feminist approach to 'international justice'. Adopting a socio-legal perspective, it studies two major contemporary examples of legal and feminist approaches to justice, the International Criminal Tribunal for the former Yugoslavia and the Women's Court (former Yugoslavia), focusing on their treatment of sexual violence as a gender-based crime. Drawing on feminist social theory, legal analysis, and empirical research, the book offers an innovative feminist framework for understanding 'international justice' and offers new theoretical and practical strategies for building feminist justice.
Acts of repetition abound in international law. Security Council Resolutions typically start by recalling, recollecting, recognising or reaffirming previous resolutions. Expert committees present restatements of international law. Students and staff extensively rehearse fictitious cases in presentations for moot court competitions. Customary law exists by virtue of repeated behaviour and restatements about the existence of rules. When sources of international law are deployed, historically contingent events are turned into manifestations of pre-given and repeatable categories. This book studies the workings of repetition across six discourses and practices in international law. It links acts of repetition to similar practices in religion, theatre, film and commerce. Building on the dialectics of repetition as set out by Søren Kierkegaard, it examines how repetition in international law is used to connect concrete practices to something that is bound to remain absent, unspeakable or unimaginable.
Human dignity plays an important role in the international legal order, and references to the principle can be found in various international human rights instruments. Its meaning, however, remains an object of avid discussion due to the impossibility of finding a precise and timeless way of defining the concept. In this article, we argue that acknowledging inherence as an element of human dignity gives extrinsic legal recognition to an intrinsic human condition and tends to expand human dignity’s influence. Vagueness — or openness — in defining the concept provides for a dynamic and evolutionary understanding of human dignity, and, coupled with the idea of inherence, these characteristics represent tools for universalization and adaptation of the concept to new circumstances. These findings are based on a review of philosophical discussions of the idea of human dignity, followed by an analysis of how it is addressed in international legal instruments and international jurisprudence and identification of its recurrent elements. We defend the view that the vagueness of its definition does not mean that its content is impossible to identify in particular circumstances. Scholars and institutions can have a concrete sense of the meaning of human dignity even though its substance may admit new elements as new social demands emerge. In our view, the essential meaning of human dignity is founded on the influence of the whole body of human rights as well as on its particular connection to the rights of social minorities, in which human dignity is emphasized because of the material precariousness of such groups under social systems that subject them to discriminatory treatment.
The development of International relations have rapidly since the signing of Westphalia Treaty in 1648. The relationship are not only between States but also by public international organizations (Inter Governmental Organizations). After the Second World War, the establishment of the United Nations and its Specialized Agencies and Other Organs has encouraged the intensive of international cooperation and the making of treaties as a source of international law. The United Nations and its Special Agencies and Other Organs is often called as an international organization of a universal character. Both States members and non-States members establish cooperation with this universal international organization. The existence of State representation in a universal international organization with a universal character is very important for strengthening the cooperation between States and international organizations.
The rise of globalization and the persistence of global poverty are straining the territorial paradigm of human rights. This book asks if states possess extraterritorial obligations under existing international human rights law to respect and ensure economic, social and cultural rights and how far those duties extend. Taking a departure point in theory and practice, the book is the first of its kind to analyze the principal cross-cutting legal issues at stake: the legal status of obligations, jurisdiction, causation, division of responsibility, and remedies and accountability. The book focuses specifically on the role of states but also addresses their duties to regulate powerful nonstate actors. The authors demonstrate that many key issues have been resolved or clarified in international law while others remain controversial or await the development of further practice, particularly the scope of jurisdiction and the quantitative dimension of extraterritorial obligations to fulfil.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Security is a vital subject of study in the twenty-first century and a central theme in many social science disciplines. This volume provides a comparative analysis of the ways in which the concept of security is theorized and studied across different disciplines. The book has two objectives: first, to explore the growing diversity of theories, paradigms, and methods developed to study security; and, second, to initiate a multidisciplinary dialogue about the ontological, epistemological, paradigmatic, and normative aspects of security studies in social sciences. Readers across nine fields are invited to reflect on their conceptualizations of security and to consider how an interdisciplinary dialogue can stimulate and enrich the understanding of security in our contemporary world. Analytically sharp yet easy to read, this is a cutting-edge volume exploring what security is and what it means in today's world.
Significant challenges to core international norms have prompted debate over whether or not norms decay, decline, or die. We argue that claims of norm death are empirically incorrect and theoretically misleading. Norms rarely die, and the processes that happen instead are far more complex. The idea of norm death embodies two misconceptions borne out of methodological incentives in empirical constructivism; that norms are single entities that exist separately from larger structures, and that compliance is the most effective way to measure if a norm is under challenge. We argue that the literature on “norm death” epitomizes the pitfalls of this approach, and as a result neither empirically or theoretically captures what happens when norms are under challenge. Norms are fundamentally resilient and can withstand even high levels of non-compliance. We examine four cases of alleged norm death—the norms against mercenary use, unrestricted submarine warfare, and torture, and the norm requiring declarations of war—and demonstrate that in these cases norms are not disappearing, but are rather subject to processes of obsolescence, replacement, and modification. We further argue that once we recognize that norms are embedded in wider structures, and move away from the notion that compliance indicates norm strength, it is possible to see why norms are generally resilient.
This book observes a growing humanisation of global politics relating to the appearance of individual human beings in discourses of global politics. It identifies a mismatch concerning International Relations theory and International Law and the study of the humanisation of global politics. To overcome this mismatch, Sassan Gholiagha proposes a novel theoretical framework based on feminist and constructivist International Relations theory and non-statist theories of International Law scholarship. The book applies this interdisciplinary framework together with an interpretative analytical framework to three cases: the discourse on prosecution, studying international criminal law and the work of the International Criminal Court; the discourse on protection, focusing on the Responsibility to Protect; and the use of drones in targeted killing operations. Drawing on these case studies and the frameworks, the book identifies how individual human beings as participants in global politics position themselves and are positioned by others in these various discourses.
The 1982 Law of the Sea Convention is very important because in addition to reflecting the results of the international community's efforts to codify existing international law provisions, it also describes a progressive development in international law. This 1982 Law of the Sea Convention has an effect on economic life, especially for countries that get additional sea areas. This can happen because the potential sources of marine wealth that exist can be utilized from an economic point of view by the countries that are around them. To be able to secure and control its sea, and prevent other countries from exploiting or destroying it, that country can use sea power. The concept of sea power was introduced by Mahan, where Mahan stated the need for six basic elements to build a great sea power, namely namely a government area that has a population, population characteristics, area, physical form and geographical area. A country conducts security and control of the sea because whoever controls the sea will rule the world
Hukum internasional selalu menarik untuk dibahas. Mulai dari perkembangannya hingga saat ini dikenal oleh masyarakat internasional, menjadikannya sebagai salah satu disiplin ilmu hukum yang selalu berkembang mengikuti perkembangan zaman. Pada resume kuliah edisi kali ini, akan dibahas mengenai sejarah perkembangan hukum internasional dari masa ke masa.
The use of the concept of an exclusive Economie zone has increased since the adoption of the United Nations Convention on the Law of the Sea. However, the characterization of this zone varies greatly between States. This article presents an exhaustive survey of the concept of an exclusive Economie zone. The author discusses the types of jurisdiction exercised by States in their uses of an exclusive Economie zone. Disparity exists between the provisions of the Convention and State practice in some specific areas: for example, the provisions on the environment and on scientific research. Despite these exceptions, the author maintains that the basic tenets of the Convention are respected in State practice. State declarations as well as arbitral and judicial decisions show that the Convention and State practice are together evolving to reinforce the basic principles of the concept of an exclusive Economie zone. Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1998.
A review of the current state of legal regulation in the field of human rights is likely to give the disappointing impression that international legislation is unequal to the task of checking widespread disregard for human dignity. Despite the vast proliferation of instruments setting standards on human rights, imposing obligations as regards the observance of those standards and establishing procedures to deal with breaches of those obligations, violations of human rights continue, their perpetrators apparently undeterred.
The negotiations at the Third United Nations Conference on the Law of the Sea have been the most important catalyst of this century for a new legal and political order for the oceans. The conference, together with its preparatory work within the “Seabeds Committee,” has indelibly stamped ocean perspectives. Even without a widely acceptable, comprehensive treaty the influence of these perspectives on state practice will be profound—indeed, it already has been, for example, in legitimizing 200-mile coastal fisheries jurisdiction. If the conference is able to clear the remaining hurdles, particularly that of deep seabed mining, the new treaty is likely to govern oceans law for the foreseeable future.
Much has been written about the legal relationship between China and Taiwan. The discussion often focuses on whether the People's Republic of China (PRC) or the Republic of China (ROC) is die government of China or what entity has territorial sovereignty over Taiwan.(1) It is hard to find definitive answers to these questions. This article seeks to reexamine aspects of the issues in the light of the relevant historical facts and contemporary international law. Although no conclusive answers are possible, this study attempts to open new perspectives that could facilitate the development of a solution acceptable to all interested parties.
The United States military potential may be viewed in two interlocking dimensions. The first is nuclear deterrence: the maintenance of a posture designed to deter other states with nuclear military potential from nuclear adventures. The second is comprised of nuclear and more conventional capabilities, designed to communicate to the widest spectrum of adversaries a capacity and willingness to exercise coercion in different settings in order to protect vital national interests.
The Charter of the United Nations forbids discrimination on the basis of "race sex language or religion." Some of the delegations involved in drafting the 1948 Universal Declaration of Human Rights felt that this short list of four nondiscrimination items was enough and should be repeated in the Declaration. Others wanted to be more exhaustive. The matter was referred to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. This commission recommended that the article in the Declaration state that "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration without distinction of any kind such as race sex language religion political or other opinion property status or national or social origin." Everything after "religion" was added to the Charter list. A few objections were raised but nothing was deleted from the list. Instead the two items of "color" and "birth" were added to the Sub-Commissions recommendation. Article 2 of the Declaration is thus an expansion of the Charters mandate that the new world organization promote human rights for all without discrimination. This theme of nondiscrimination runs through all the deliberations about the Declaration and whatever disagreements there were about the various items on the list were minor. There was complete agreement that the article on nondiscrimination was a keystone of the Declaration and a gateway to its universality. If we take away someones race sex and opinions on various subjects all information about his or her background about birth and present economic status what we have left is just a human being one without frills. And the Declaration says that the human rights it proclaims belong to these kinds of stripped-down people that is to everyone without exception. As Mr. Heywood the Australian representative said "logically discrimination was prohibited by the use in each article of the phrase every person or everyone." That is why the prohibition against discrimination is not repeated- -as it well might have been--with each article but is stated at the beginning and made applicable to "all the rights and freedoms set forth in this Declaration." Given this opening prohibition against discrimination there is strictly speaking no need for repetition. But that does not mean that the temptation was not there especially in the case of sex-based discrimination. Nor does it mean that the final product--a litany of the words "everyone" and "no one"--was arrived at without struggle. For there was a struggle especially in the case of womens rights. (excerpt)
The purpose of this essay is twofold. First, it proposes to undertake, in introductory form, one of the many tasks a historical sociology of international relations could perform: the comparative study of one of those relations which appear in almost any international system, i.e., international law. Secondly, this essay will try to present the rudimentary outlines of a theory of international law which might be called sociological or functional.
International law is one of the aspects of international politics which reflect most sharply the essential differences between domestic and world affairs. Many traditional distinctions tend to disappear, owing to an “international civil war” which projects what are primarily domestic institutions (such as parliaments and pressure groups) into world politics, and injects world-wide ideological clashes into domestic affairs. International law, like its Siamese twin and enemy, war, remains a crystallization of all that keeps world politics sui generis . If theory is to be primarily concerned with the distinctive features of systems rather than wim the search for regularities, international law becomes a most useful approach to international politics.
In recent years the international community has been developing various international codes of conduct, many of which will contain rules governing the behavior of transnational corporations (TNCs). Most of these rules are being developed with little or no direct TNC participation. Professor Charney argues that because TNCs represent major, independent centers of influence, failure to include them in the codes of conduct negotiations may result in rules that do not accurately reflect the realities of TNC interests and power. If the international community later seeks to convert these rules into legal norms, TNC resistance will probably place costly strains on both the rules and the entire international legal system. Professor Charney concludes that the international community should permit TNCs and other interested power groups to participate directly in the development of international norms applicable to their interests. But he cautions that it would be unwise to give TNCs complete international legal personality because this, too, might place undue strains on the international legal system.
As exhibited in ongoing environmental fora, world attention is being focused on the marine environment with particular attention to the sustainable development of ocean resources. In this context it is equally important to ensure that emerging principles of environmental protection continue to reflect the deliberate balance between the preservation of navigational freedoms and protection of the marine environment as reflected in the 1982 United Nations Law of the Sea Convention. This article reviews how Part XII of the Convention provides a modern framework for environmental norms that are appropriate in light of the competing interests affecting ocean uses. The author concludes that strict adherence to the Part XII framework is in the best interests of the security, economic, and environmental interests of all nations.
This article presents a global overview of the efforts undertaken by coastal states, distant water fishing nations, and regional organizations to manage high seas fisheries following extension of jurisdiction and the 1982 United Nations Convention on the Law of the Sea. In particular, the article examines the management and conservation of those stocks defined under Article 63 of the convention as “straddling”; fish stocks, occurring both within areas of national jurisdiction and in the high seas area beyond and adjacent to the exclusive economic zone; and “highly migratory species,”; defined to include tuna and tuna‐like species, whose migration patterns cover vast expanses of ocean space. The inability of coastal and distant water fishing states to cooperate in the management and conservation of these resources has led to unsustainable fishing and collapse of many stocks. As a result the United Nations has convened an international Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks.
On 4 August 1995 the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, at its sixth session, adopted without a vote the text of the Agreement for the Implementation of the provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. ¹ The title is often shortened to “the Straddling Stocks Agreement”. To date, the Agreement has been signed by 29 States. ² It marks a significant clarification and development in the rules of international law relating to fishing on the high seas, within the framework of the UN Convention on the Law of the Sea.
A growing number of coastal states believe the 1982 Convention on the Law of the Sea did not adequately provide for straddling stocks, those stocks in and adjacent to the EEZ. Important conflicts concerning such stocks are described in the Northwest Atlantic, Southwest Atlantic, the East Central and Southeast Pacific, and in the Northeast Pacific (Bering Sea). After considering applicable international law, a proposed approach to resolution of this problem is discussed, drawing on the 1982 Convention, prior treaty provisions, and earlier proposals concerning fisheries. The problem of new entrants and other third parties is mentioned as especially difficult.
This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.
When the Statute of the Permanent Court of International Justice was drafted by an Advisory Committee of Jurists in 1920, a paramount question was, should a judge of the nationality of a State party to the case sit?
The sensitivity of the issue was encapsulated by a report of a committee of the Court in 1927 on the occasion of a revision of the Rules of Court. It observed that: “In the attempt to establish international courts of justice, the fundamental problem always has been, and probably always will be, that of the representation of the litigants in the constitution of the tribunal. Of all influences to which men are subject, none is more powerful, more pervasive, or more subtle, than the tie of allegiance that binds them to the land of their homes and kindred and to the great sources of the honours and preferments for which they are so ready to spend their fortunes and to risk their lives. This fact, known to all the world, the [Court's] Statute frankly recognises and deals with.”
1
The genius of the century is also changing the conditions of our action overseas, leading us to bring an end to colonization. It is entirely natural that one should feel nostalgia for what was the Empire, just as one may regret the gentle light of oil lamps, the splendour of the navy under sail. But there is no valid politics outside realities.
Law is a social institution designed to help society operate in a harmonious and efficient manner. It fosters orderly relations among individuals and groups by formulating and enforcing some basic rules of conduct, providing mechanisms for the resolution of some major disagreements, and defining the structure and mode of government. The precise shape, content and manner of operation of this institution are determined by the resources, needs, problems, historical development and general conditions of the society in which it functions. As these factors differ from society to society, so also differ the attitudes towards law, the forms of legal systems and the specific legal norms and rules.
International & Comparative Law Quarterly (ICLQ) is the journal of the British Institute of International and Comparative Law. It publishes papers on public and private international law and also comparative law. It has maintained its pre-eminence as one of the earliest and most important journals of its kind, encompassing human rights and European law. The journal encourages innovative and original articles that explore the interconnectedness between the legal subject areas, moving across the boundaries that divide the law in a way that provides vital analysis at a time when formal distinctions, in scholarship and between jurisdictions, are becoming less relevant. The ICLQ attracts scholarship of the highest standard from around the world, which contributes to the maintenance of its truly international frame of reference. The 'Shorter Articles and Notes' section particularly enables the discussion of highly topical legal issues. For full instructions about how to submit an article to the ICLQ click here
It is not generally appreciated that Francis Mann was not an international lawyer at all by training. His thesis at Berlin University was in company law. It was only after he had been in England for some time that he began to write about private international law, ¹ and his interest in public international law was developed as a result of his friendship with Sir Hersch Lauterpacht. It was not until 1943 that he published anything about public international law, and in that year he published a substantial article in two parts on the relationship between national law and international law, in which he built on the previous work on Judicial Aspects of Foreign Relations by Louis Jaffe ² and on acts of state by Sir William Holdsworth. ³ Subsequently he came to make this subject his own, at least in England, ⁴ where the subject has never attracted the attention which it has attracted in the United States.
On 2 November 2001, the General Assembly of the United Nations Scientific, Economic and Cultural Organisation (UNESCO) adopted the convention on the Protection of the Underwater Cultural Heritage. Among the many complex issues addressed in the convention is the legal status of sunken state-owned vessels, including warships. Prior to the adoption of this convention, no conventional or customary international law existed with regards to the question of abandonment of state-owned vessels or the application of the principle of sovereign immunity to sunken state vessels. While difficulties between coastal states and maritime and former colonial powers resulted in a regime that does not comprehensively address the issues, the convention does provide some guidance in this regard and may provide a basis for further development.