Body Of International Law Research Articles

Competition among purposes: The Chinese Experience in the Governance of Climate Change and Energy Transition

ABSTRACT Energy governance at the international level is fraught with difficulties due to the ‘competition among purposes’ between different bodies of international law. In this paper, we extend this thesis to argue that the same tension may be found in domestic energy governance. Drawing from China’s experience in the governance of climate change and energy transition, we analyse how the misalignment of incentives between different actors and the incomplete market reform led to a drastic shift in policy in 2021. We also compare the different approaches in China’s energy governance and trade governance and draw some general lessons on how developing countries might overcome such governance problems.

The intertemporal guarantee of freedom – a concept for international human rights to address states’ failure to combat climate change and its threats?

This paper analyses, if the Intertemporal Guarantee of Freedom, that was developed by the German Federal Constitutional Court (GFCC), can be used to expand the protection of human rights against the harms of climate change. The case of the Swiss Senior Women shows that there are jurisdictions, where the Intertemporal Guarantee of Freedom could be applied to improve standing and the control standard of states’ climate change action. Within international law bodies with jurisdiction over human rights treaties there are distinctive standards of protection against the harms of climate change. A major deficit within the international human rights protection against climate change lies within the focus on the positive obligations and the corresponding wide margin of appreciation granted to the states. The Intertemporal Guarantee of Freedom could provide a protection expansion in this regard, especially in the case of the European Court of Human Rights. It could also enable and legitimise present human rights concerns focused on the future actions of states following their past inaction. One considerable hurdle that is not addressed by it are procedural hurdles like the Plaumann formula applied by the European Court of Justice. The Intertemporal Guarantee of Freedom cannot solve major problems for climate change litigation like procedural hurdles. Yet, it can provide a new approach for complaints to address unambitious mitigation legislation which will lead to future human rights infringements.

Building a fossil fuel non-proliferation treaty: Key elements

Amid growing recognition of the need for supply-side policies which set limits on the further expansion of fossil fuel extraction and use, in this article we consider possible elements of a Fossil Fuel Non-Proliferation Treaty (FF NPT), behind which there is growing momentum. We elaborate on the possible institutional mechanisms, principles, procedures, and other elements of an FF NPT, by drawing on relevant precedents and parallels with other treaties and bodies of international law on the environment and other policy arenas, and proposals circulating in academic and grey literatures. We address in turn: the scope, objectives, and principles of an FF NPT; the three pillars of commitments under the treaty of (i) ending expansion, (ii) phasing out fossil fuels, and (iii) a global just transition; and options for implementation, including the review of implementation, compliance and effectiveness, a financial mechanism, institutional arrangements, and the role of non-state actors.

The International Court of Justice and the development of international humanitarian law

AbstractBoth in its advisory and contentious jurisdiction, the International Court of Justice has made considerable contributions to the evolution and interpretation of international humanitarian law (IHL). The judgments and advisory opinions of the Court in various cases have also developed the regulation of armed conflicts by showing the interplay of other bodies of international law and have shaped the development of non-binding IHL norms. The purpose of this short article is to consider the role of the International Court of Justice in the development of IHL.

International Protection of Foreign Investments in Offshore Energy Production and Marine Environmental Protection: Birds of a Feather or Frenemies Forever?

Initially, international investment law and international law on the protection of the marine environment were two branches that developed separately. As these international regimes mature, they often speak to the same facts, bringing about their ever-increasing normative interaction, way before any disputes arise. The regulation of investments in offshore energy production is chosen as a case study because it exemplifies how these two bodies of international law can interact. The article does not conceptualize these two international regimes as inherently antagonistic but instead highlights their potential complementarity. Yet, it is primarily the issue of normative conflicts between those two regimes which has generated heated scholarly debates. Against the backdrop of sweeping critiques about the potential ‘regulatory chill’ of international investment agreements and their investor-State dispute settlement mechanism, this contribution examines whether arbitral tribunals have interpreted and applied investment rules in a fashion that can unduly restrict the discretion of host States to honour their marine environmental obligations. First, it explores why and how international investment law and marine environmental law interact and influence each other’s implementation. In a second step, the article investigates the impact (if any) of investment obligations on the discretion of host States to comply with their marine environmental protection obligations. Adopting a forward-looking perspective, it finally enquires into the potential impact of the reformed provisions under new generation IIAs on the right and duty of States to take all necessary measures to protect the marine environment against pollution from offshore energy production activities.

What Might (Finally) Kill the Jus ad Bellum?

Abstract There is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have misdiagnosed the main threat to the jus ad bellum, or at least, they have myopically focused on and grossly overstated the seriousness of a particular kind of threat. And in doing so, they have diverted attention away from other challenges that might actually push the contemporary jus ad bellum to the breaking point—and that we might now confront.

The silence of Africa in the international humanitarian law debate

International humanitarian law (IHL), as a component of international law, specifically seeks to limit the effects of warfare. The law of wars aims to limit suffering by regulating how war is fought. Despite the universal nature of most rules of IHL, Africa has been largely left behind, especially in the development of these laws and also in understanding and applying such laws on the continent. Notably, Africa has had its fair share of armed conflicts over the years, the effects of which have been devastating. However, there has been a disconnect between the development and the application of the rules of IHL in Africa. The history of Africa has led to the continent being disconnected from the development of IHL over the years. This article, therefore, aims to illustrate the gaps that exist in regard to Africa in the development of IHL as well as the exclusion of Africa’s concerns from the global IHL debate. The article considers why there is regional disengagement when it comes to IHL debates on the continent. This is done by first examining the reality of wars in Africa, which are similar to those that have occurred in other parts of the world. The article then considers the development of IHL as a body of international law that regulates armed conflicts and the gaps that exist in its application to and development in Africa. Finally, this article reflects on some of the ways of ensuring that Africa does not remain passive when engaging in the global IHL debate.

What Might (Finally) Kill the Jus ad Bellum?

There is a long tradition of international relations and legal scholars warning of the demise of the jus ad bellum—the body of international law that governs when states may use force across national borders. I argue in this Lecture, presented at The University College London Faculty of Laws in October 2020, that these warnings have mostly been wrong. The reason they have been wrong is that they have misdiagnosed the main threat to the jus ad bellum, or at least, they have myopically focused on and grossly overstated the seriousness of a particular kind of threat. And in doing so, they have diverted attention away from other challenges that might actually push the contemporary jus ad bellum to the breaking point—and that we might now confront.

The Rohingya Refugees in Bangladesh: Non-refoulement and Legal Obligation under National and International Law

Bangladesh is now the largest Rohingya refugee-hosting country in the world. 2017 saw the largest and fastest Rohingya refugee influx from Myanmar to Bangladesh. The very first influx took place in 1978 after just seven years of its independence. Despite being a non-signatory to the 1951 Refugee Status Convention, Bangladesh has an obligation to protect refugees under national and international laws. The legal basis of international protection comes from the different bodies of international law including customary international law. The basic customary international law applicable to the refugees found in the core international human rights instruments. The aims of this research are to find out the legal obligations and challenges of Bangladesh in the protection of refugees under the constitutional and statutory laws of Bangladesh. This research also aims to focus on the role of protecting refugees under different bodies of regional and international law including the principle of non-refoulement.

Dawn of a New Day?: The Evolving Relationship Between the Convention on Biological Diversity and International Human Rights Law

This Article assesses the contributions of the Convention on Biological Diversity (CBD) to international human rights law. In particular, it evaluates the degree to which the relationship between the CBD and international human rights law has been clarified since 2014 and why this relationship matters. It also analyzes the legal arguments advanced by those CBD parties that wish to keep some distance between these two bodies of international law and identifies the opportunities that can be missed in ongoing work under the CBD.

The International Court of Justice in an Age of Inter-Legality: A Survey of its Case Law in the New Millennium

The International Court of Justice (ICJ) occupies a special position amongst international courts. With its quasi-universal membership and ability to apply in principle the whole body of international law, it should be well-placed to adjudicate its cases with a holistic view on international law. This article examines whether the ICJ has lived up to this expectation. It analyses the Court’s case load in the 21st century through the lens of inter-legality as the current condition of international law. With regard to institutional inter-legality, the authors observe an increase of inter-State proceedings based on largely the same facts that are initiated both before the ICJ and other courts and identify an increasing need to address such parallel proceedings. With regard to substantive inter-legality, the article provides analyses of ICJ cases in the fields of consular relations and human rights, as well as international environmental law. The authors find that the ICJ is rather reluctant in situating norms within their broader normative environment and restrictively applies only those rules its jurisdiction is based on. The Court does not make use of its abilities to adjudicate cases holistically and thus falls short of expectations raised by its own members 20 years ago.

Hegemonía periférica en la búsqueda para asegurar la responsabilidad del Consejo de Seguridad en el régimen de sanciones individuales de Naciones Unidas

Este articulo trata de acercarse a una problemática global que se da en el campo del Derecho, a la responsabilidad que tienen distintos organismos internacionales sobre el mismo asunto. En este caso específico se analiza la responsabilidad del Consejo de Seguridad en sanciones individuales que la ONU emite, esto desde la perspectiva de las sentencias Kadi I y II.

Leyes que rigen la libertad de expresión del historiador: una visión comparativa en el mundo contemporáneo

This article provides a comparative approach to laws that interfere directly with the free expression of historians, that is, with respect to what they say and write. This body of international law is gathered together into four groups: memory laws, blasphemy laws, hate speech laws, and laws against genocide denial. To examine each group, the article provides a definition and identifies how standards overlap. Finally, the most relevant debates are summarized with respect to their consequences for practicing history.

Ecocide, genocide, capitalism and colonialism: Consequences for indigenous peoples and glocal ecosystems environments

Continuing injustices and denial of rights of indigenous peoples are part of the long legacy of colonialism. Parallel processes of exploitation and injustice can be identified in relation to non-human species and/or aspects of the natural environment. International law can address some extreme examples of the crimes and harms of colonialism through the idea and legal definition of genocide, but the intimately related notion of ecocide that applies to nature and the environment is not yet formally accepted within the body of international law. In the context of this special issue reflecting on the development of green criminology, the article argues that the concept of ecocide provides a powerful tool. To illustrate this, the article explores connections between ecocide, genocide, capitalism and colonialism and discusses impacts on indigenous peoples and on local and global (glocal) ecosystems.

The Great War and International Law on War

Abstract While much writing on the Great War centers on its destructiveness, less attention has been given to the steps taken over the half-century before that war to limit the destructiveness of warfare by positive international agreement, the early steps in the creation of a body of international law on warfare and armed conflict. Though some, if not all, of these early efforts failed during the Great War, that failure gave rise to renewed efforts in the 1920s and 1930s (before the beginning of World War II) to redefine, expand, and strengthen international agreements both on the resort to war and on the conduct of war. This article examines the story of the first eighty years in the creation of positive international law on war, dividing this story into three periods: before, during, and after the Great War. It concludes by reflecting on the historical and contemporary influences of religion on thinking about armed conflict.

Traditional knowledge and climate change: a new legal frontier?

The Paris Agreement is the first climate treaty to include a reference to traditional knowledge, opening up a new legal frontier to address this complex subject in international law. Traditional knowledge has already been the subject of considerable regulatory developments in international environmental and human rights instruments. This paper reflects on how these bodies of law treat traditional knowledge, with the objective of understanding what are the gaps that could and should be addressed in the context of the climate regime. The paper is divided into four parts. The introduction outlines the paper’s structure and methodology. Section two provides a definition of traditional knowledge and identifies the international law questions it raises. Section three analyses existing international obligations on traditional knowledge in environmental and human rights law. Section four considers the interplay between these bodies of international law and the climate regime. The conclusion offers some recommendations on the treatment of traditional knowledge in the climate regime.

Teoria rozumu publicznego a godność człowieka

In this paper I intend to point at an ambiguous interconnection between the theory of public reason (exemplified by John Rawls and Gerald Gaus), and the idea of human dignity understood as a universally binding, distinguished moral status and inherent value of every human person. The public reason theorist do not examine human dignity at length, whereas, as I am trying to show in the paper, it constitutes a necessary component of the theory. The argument for the necessity of human dignity within public reason boils down to the two main theses: (1) courts, international law bodies, as well as constitutional state authorities constantly refer to human dignity as a crucial commitment present in the law; and (2) public reason theory which sets human dignity aside suffers from an explanatory gap. As a way of providing a solution to this, I propose to examine the neo-thomist ethics developed by Tadeusz Styczeń. As I will show in the paper, combining an attempt the two theories is an interesting research program, and allows to reconcile both human dignity and public justifiability of legal rules.

The World Most Unwanted People: Crime Against Humanity in Arakan

Since the Rohingyas are subjected to gross human rights violations, international human rights law is of great importance in the determination of accountability for these violations. However, holding the Myanmar government accountable on the grounds of international human rights treaties does not have an impressive record. It is not even a state-party to ICCPR or ICESR, let alone any other major human rights treaties. While we shall see whether a human rights instrument will be applied internationally to the Myanmar regime for its violation of the most fundamental of human rights, thankfully, there is another body of international law that can pose a significant cost for the perpetrators, according to customary international law (CIL). The practices of Myanmar to the Rohingyas do not comply with some of the fundamental rules of customary international law and international human rights law. This post discusses the unjustified discrimination on the grounds, of race, ethnicity, religion and gender provides sufficient bases to claims at least crime against humanity has been committed against the Muslim minority in Rakhine states by Myanmar government.

Article 10(1) of the International Covenant on Civil and Political Rights (ICCPR) and Australian prisons

ABSTRACTArticle 10(1) of the International Covenant on Civil and Political Rights requires that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. There is a body of international law that elaborates on its requirements. Article 10(1) and domestic legislation that incorporates this requirement have direct implications for how managers and staff within prisons behave towards those in their custody. In general, Australian prisons do not comply well with these requirements. This article first reviews the intent of Article 10(1) and guidance from the United Nations Human Rights Committee about its operation. Secondly, it reviews relevant Australian legislation and documents a number of ways in which Australian prison practice fails to live up to these standards. Thirdly, it identifies two important barriers to be overcome to address this situation. It concludes that a justice reinvestment approach has the potential to assist Australia towards compliance with Article 10(1).

Protecting vulnerable populations from genocide

When the atrocities committed by Nazi Germany became apparent after the Second World War, the consensus within the world community was that the United Nations Charter did not go far enough in defining the rights to which it referred, and that those rights should be defined and enshrined in a new body of international law. The United Nations was determined to ensure that the terrible crimes of the Second World War would never be repeated. It was in fulfilment of this commitment that, one day before the adoption of the Universal Declaration of Human Rights on 9 December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The adoption of the Convention was full of symbolism and reaffirmed the gravity of the crime it addressed. But it went beyond that. It demonstrated the commitment of the international community to ensure both the prevention of genocide and the punishment of its perpetrators when the crime could not be prevented. The Convention defined genocide as any particular offense committed with “intent to destroy, in whole or part, a national, ethnical, racial or religious group.”