International Law Conflict Research Articles

Reconceptualizing Norm Conflict in International Law

Abstract This article reconceptualizes norm conflict in international law by uncovering the experiential dimension of its definition and the intentional dimension of its resolution that has been missing from traditional accounts. The article locates the basis of recognizing norm conflict in the experienced sense of incompatibility between norms in view of their contexts rather than in the predesignated constellation of norms with contrary or contradictory functions according to their texts. Concomitantly, it argues that the justification for using certain legal techniques to resolve norm conflicts lies in the intended relationship deducible only between those norms that share the same regulatory purpose rather than between norms merely applying to the same factual situation. This reconceptualization generates a new typology of norm conflicts in light of the norms’ end goals and the means they provide to achieve them: “Ends Conflict”, “Means Conflict”, and “Unexperienced Conflict”, and suggests apposite ways to tackle them.

The Need for a New Paradigm in International Law to Provide International Protection

Abstract Too little is provided, not only in international law, but also by the United Nations, for victims around the world. This article therefore argues that a new paradigm is needed. It uses the conflict in Syria since 2011, specifically focusing on how enforced disappearances and arbitrary detentions have been used, to examine these questions. It has been reported that at least 150,000 people have been affected by these practices, but the number may be as high as a million. Because the state has used these practices methodically, they amount to a widespread and systemic attack on the civilian population and, therefore, to crimes against humanity. While the Syrian regime is primarily responsible, non-state actors have also been committing these types of crimes. The article discusses the general processes that have been set up to deal with the conflict in international law and by the United Nations in places like Syria. It finds that very little has been done to end the conflict in Syria, other than mediation. The article then reviews the international processes dealing with disappearances and detentions in Syria that families can report to, and the role these institutions have played so far. It again finds that very little has been achieved. The article also examines other countries where processes have been set up to deal with missing and disappeared persons, such as Armenia, Azerbaijan, Bosnia-Herzegovina, Cyprus, and Georgia, to learn the lessons from these past processes for the Syrian situation. It is argued that, generally when mass atrocities occur, the UN on rare occasions will create an accountability process, but never creates a process that focuses on the needs of victims: finding their loved ones, getting them released from custody if they are alive, or finding the truth about what happened to them and where their remains are. The article therefore argues that a new mechanism is needed for Syria (but also for other places) to get people released, and to find information on others whose whereabouts are unknown due to the conflict and/or the mass human rights abuses. It contends that the mechanism could be set up by the UN, and if not, by a regional actor such as the European Union, or by several states. It is reasoned that the mechanism ought to have a Board made up of a representative each from the International Committee of the Red Cross (icrc), the International Commission on Missing Persons (icmp), the UN Working Group on Enforced or Involuntary Disappearances (wgeid), the UN Working Group on Arbitrary Detentions (wgad) and a Syrian organisation, elected each year.

Aliens Intervention in the State Conflict in International Law (Study of the Engagement of America, Saudi Arabia, Russia, and Iran in the Arab Spring Conflict)

Various conflicts experienced by the state are denied or there are no interventions from other countries both on a large and small scale, either directly or indirectly. Interventions have the meaning of dictatorial interference by a country against other countries’ internal affairs. This has caused controversy because it is contrary to the principle of state sovereignty and the principle of non-intervention in international law. The practice of intervention that is happening now is one of the conversations by the community. The validity of the intervention of other countries is one of them sticking out in the Arab Spring conflict, where Saudi Arabia and Iran make Syria an arena for proxy war where opponents of strength use third parties instead of fighting directly with each other. Saudi Arabia openly supports the opposition in the form of finance, a tool of war. On the other hand, Iran totally supports Bashar al-Assad with financial assistance, weapons of war and sends military forces. This paper analyzes how the position of foreign country intervention in a country's conflict in the study of international law. This paper focuses on the Syrian conflict, the Arab Spring where in the study of international law, intervention is seen as a state effort, and this paper analyzes the legitimacy of the state to carry out such interventions.

Russian Emigration of the First Wave in Germany: Humanitarian and Legal aspects of Adaptation, 1917-1920s

The article discusses the activities of Russian humanitarian, professional and public organizations in determining the legal status of Russian migrants in Europe and providing legal assistance to refugees and Russian legal entities in exile in 1917 - 1920s, as well as the trade unions of Russian lawyers in exile and their activities of legal assistance to their compatriots. The author examines the foreign policy of different states concerning the legal discrimination of Russian refugees and the geopolitical context in which the legal integration of Russian emigration took place in the societies of host countries. The study views the Russian humanitarian and legal activity as a factor in preserving the civic identity of these emigrants. The methodological basis on which this research is based is the principles of historicism and systematicity, which imply the application of the chronological method in the research process, as well as the methods of retrospection, periodization and actualization. The article explores for the first time in historiography the little-studied page in the history of Russian emigration: the creation in Germany in the 1920s of an effective system of humanitarian and legal assistance to Russian refugees aimed at clarifying their legal status and restoring the legal existence of Russian commercial enterprises in exile. For the first time in historiography, the author examines the ability of the emigrant community to self-organize in order to assert its rights in a foreign language and foreign culture society.The factors that significantly complicated the Russian emigrants' humanitarian and legal status, thereby also hindering their integration into European society, included: the long irresolution of their legal status; the significant number of legal obstacles; the ineffectiveness of officials with respect to the refugees' actual lack of rights; the legal conflict in international law that arose with the emergence of the Russian emigration phenomenon; and the unprecedented humanitarian and legal crisis of the post First World War period in Europe. Under these conditions, the Russian emigrant community nonetheless managed to develop effective mechanisms to help its compatriots in the legal sphere.

Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court

Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellin and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values.

Non-International Armed Conflict in International Law. By Yoram Dinstein.

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Navigating Complex Identities of Victim-Perpetrators in Reparation Mechanisms

Reparations over the past few decades have become integral in responding to mass victimisation and conflict in international law and transitional justice. Although the development of reparations in transitional justice has been framed around abusive authoritarian regimes and repairing the harm suffered by civilians, such as in Latin America, there has been contentious reparation rulings by regional human rights courts in situations of internal armed conflict by recognising perpetrators and 'terrorists' as victims and awarding them reparations. Complex identities are particularly acute in situations of internal armed conflict, where protracted internal violence between the state and organised non-state groups, due to the political narratives in legitimatising the violence and victimisation of each 'side'. This paper examines the construction of complex identities in reparation mechanisms and the context of recognising victims and perpetrators in transitional justice processes. This paper explores the approach to these issues in a number of contexts to discern a way forward in traversing the complex landscape of reparations for victim-perpetrators. The paper tries to reconcile the more subjective state perspective and political limits of transitional justice, to the objective stance of international fora and obligations on states to provide to reparations to a wider class of victims.

Patents and Public Health in the WTO, FTAs and Beyond: Tension and Conflict in International Law

By mandating patent protection for pharmaceutical products, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) creates difficulties for developing countries seeking to import medicines to deal with serious public health concerns. In 2001, WTO Members began working towards a solution to this problem. Their work led to a temporary waiver of certain TRIPS obligations and a proposal for a formal amendment of the TRIPS Agreement. However, the waiver remains underutilized and the amendment still lacks the necessary support of WTO Members for it to come into effect, suggesting that Members need to re-evaluate their commitment to affordable medicines while testing the workability of the waiver before making it permanent. Moreover, the potential of bilateral approaches to the problem of access to medicines for developing countries in the context of international trade is not being realized. On the contrary, preferential trade agreements concluded with the United States (US), in particular, are extending patent protection and diminishing flexibilities available under the TRIPS Agreement to address public health concerns. A pattern of contradictions exists between the WTO rhetoric on the one hand and Members’ domestic frameworks, bilateral agreements, and unilateral actions on the other. When it comes to attaining a coherent approach under international law towards reconciling patents and public health, the outlook is bleak.

The ethics and law of returns

While both international law and national laws are relevant in settling disputes about cultural heritage items, what happens if the law is uncertain or non‐existent, or if the relevant national laws conflict? National laws are relevant because they control institutions such as museums and determine whether an item has been stolen or illegally exported. International law is binding on all states members of the international community. Moreover, there is a need for reciprocity and comity between nations in efforts to preserve their respective national heritages. Where national and international law conflict, a nation cannot excuse non‐compliance with international law on the grounds that its own law is not in order. Ethical principles alter with changing attitudes in a community. Since the law formalizes these principles and turns them into rules, changing attitudes often foreshadow changes in law. Such changes are demonstrated by the ‘Plea for the Return of an Irreplaceable Cultural Heritage to Those Who Created It’, issued by the Director‐General of UNESCO in 1978, and the adoption of the Declaration of the Rights of Indigenous Peoples by the United Nations General Assembly. Cultural principles respect the special importance of culture in communities.

Defining Armed Conflict

Within hours of the 9/11 attacks in the United States, President George W. Bush declared “a global war on terrorism”. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

Patent Rights and Human Rights: Exploring their Relationships

The assessment of the relationship between patent rights and human rights has resulted in several tentative findings, such as by the UN Sub‐Commission on the Promotion and Protection of Human Rights, that there are “apparent” or “actual or potential” conflicts. Also the World Intellectual Property Organization says that “conflicts may exist” between the two. This article, which is based on a Ph.D. dissertation on the right to food and the Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS Agreement), analyzes the relationship between the two, based on an established understanding of conflict in international law, namely incompatible obligations. Also another level of conflict is introduced, namely conflict on the level of prescribed measures in one treaty which impedes the taking of measures prescribed by another treaty. Finally, the article assesses conflict on the level of impact. The findings are that strict legal conflict between the two is difficult to establish, but that there are serious concerns regarding their implementation. Developing states should make use of all the flexibilities that the TRIPS Agreement provides.

The Conflicting International Trade Law Governing Products of Biotechnology: The Case of Biofuels

AbstractThe regulation of the international movements of products created using modern biotechnology has become a very contentious issue. International law, including trade law, is struggling to accommodate these new and novel products with unknown risk factors. The World Trade Organization rules state that there must be acceptable evidence of risk if imports of a product are to be restricted. This is to ensure that safety regulations are not used as an illegitimate barrier to trade to provide protection to domestic producers. However, opponents of the existing WTO structure argue that it does not allow governments to respond adequately to potential but unknown risks and to consumer requests for protection. As a result, a new multilateral environmental agreement was negotiated, the Cartagena Protocol on Biosafety (BSP), to govern trade in products of biotechnology. This Protocol is designed to protect biodiversity, human health and the environment. It allows countries to assume products of biotechnology present a risk to human health and the environment and to put restrictions in place on their production and trade. Opponents of the BSP approach argue that it allows countries to make decisions arbitrarily and not take modern science into account. It is unclear which set of regulations will be used to govern international trade in products of biotechnology. One industry that will be affected by this conflict in international law is the biofuel industry, which has significant potential to utilize biotechnology. The effects of using biotechnology in this developing industry are examined within the context of international trade law.

Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom

Questions relating to the disintegration and destruction of legal systems or what H.L.A. Hart called the 'pathology of legal systems' are extremely difficult to confront as questions of law. When political allegiance to one legal system begins to erode, the natural tendency of judges may be to struggle to save the system from collapse, thereby putting at risk the chance of orderly transition to succeeding nascent legal systems. However, just as it is best for a natural person to order his or her affairs and write a will while of sound mind, perhaps a legal system even one with promise and potential remaining should likewise plan for its orderly, and lawful, demise. Indeed, by confronting the unthinkable, perhaps it can (unlike a natural person contemplating eventual death) achieve partial survival, so that in the aftermath of its dismemberment a remnant of the system remains worthy of allegiance from at least some of its citizens. This was, in essence, the task that the Supreme Court of Canada accepted in Reference re the Secession of Quebec from Canada.2 In what the Chief Justice of Canada, Antonio Lamer, described as the most important judgment in the Court's history,3 the nine Supreme Court justices ruled unanimously that the Dominion of Canada is divisible and (by implication) destructible, and that there are legal rules governing such division and destruction. The case arose when the federal government of Canada invoked the advisory jurisdiction of the Court by referring to it three questions, namely: (1) Can the government or legislature of the province of Quebec effect the secession of Quebec from Canada unilaterally under Canadian law? (2) Can the government or legislature of Quebec effect secession unilaterally under international law? (3) If Canadian and international law conflict on this point, which prevails?4 Thus, the Court confronted the same basic legal issue as did the Judicial Committee of the Privy Council in the famous case of Madzimbamuto v LardnerBurke5 with the critical difference that, in that case, the Rhodesian government had

The Hierarchy of Violence in Twelfth- and Thirteenth-Century Canonists

sources and modern scholarly discussions of the large-scale military attacks upon religious enemies mounted by medieval Christian authorities describe these attacks by terms such as 'just war', 'holy war', 'crusade', and 'sacred violence'. Twentieth-century writers still use these categories to describe modern conflicts that they wish to justify by invoking idealistic motives that purport to legitimize hostilities. When General Eisenhower entitled his memoir of the Second World War Crusade in Europe, he doubtless meant to use 'crusade' as a metaphor in this way.1 When the Franco government entitled its account of the Spanish Civil War A History of the Spanish Crusade, however, the work was predicated on the belief that the struggle had been quite literally a crusade, because it was authorized by ecclesiastical authorities and fought in the name of religion.2 This essay, therefore, addresses a recurring problem in legal and historical taxonomy. On a different level, international public law continues to distinguish between just (or legitimate) wars and what are now called 'wars of aggression',3 and that distinction can entail significant legal consequences.4 The status of a conflict in international law may substantially affect such concrete matters as, for example, the public property of hostile states, the assets and other property rights of enemy aliens,5

International Conflict of Laws and International Business

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Interest-oriented Analysis in International Conflict of Laws: the American Experience

The current transformation process of the American conflict of laws system from a traditional “hard-and-fast” body of jurisdiction-selecting rules to a modern method of functional analysis has raised a widespread wave of interested, diverse and, more often than not, critical reactions. Criticism to the new approach is particularly strong outside the United States and especially in the civil law countries where a certain number of established scholars tend to reject the functional methods as a rudely disguised way of always applying the forum law. Be that as it may –and a closer first hand examination of its doctrinal and jurisprudential sources may discover that the functional analysis is indeed an intelligent and sophisticated method of dealing with choice of laws problems—the fact is that American courts are increasingly applying the language and the substance of the new approach to solve both interstate and international conflicts. The following selective examination of some of these latter cases permits us to illustrate how the functional analysis actually works in practice and to evaluate to what extent this new approach might also be operative as a method of solving international conflict of laws.

Law, Technology and the Sea

R ECENT DEVELOPMENTS IN TECHNOLOGY have been matched by sweeping changes in the world community. Diverse techniques of social and political organization seek to cope with the revolution of rising expectations. Racial fears and suspicions are exacerbated by technological advances which seem to mock the efforts of have-not states to lessen the gap which separates them from the technological powers. New forms of cooperation, such as regional associations, are appearing while at the same time the forces of nationalism and especially the preoccupation with military security remain strong. International law attempts to serve as an impartial framework of reference for the processes of claim and decision. It seeks to limit the choice of alternative policies and methods of implementation to those most likely to enhance values shared by most members of the world community and therefore least likely to disrupt public order. From a sociological viewpoint, international law is, in our present age of machine technology, a form of technique. The strains on this technique are especially clear with respect to the allocation and management of resources and unoccupied space. Here, international law must reconcile diverse national interests by means of equitable and rational solutions. To be fully rational these solutions must also accommodate themselves to the overriding value of efficiency inherent in modern technology. As problems of allocation and management become more technical in nature, the logic of efficiency will be applied more rigorously. As traditionally structured, international law conflicts with this emerging hypertechnical logic.' This article will explore one aspect of this conflict by examining the significant changes taking place now and in prospect in the law of the sea.

International Conflict of Laws: Limitations Imposed on Effect American Courts May Give to Foreign Confiscations

International Conflict of Laws: Limitations Imposed on Effect American Courts May Give to Foreign Confiscations

International Conflict of Laws: Title to Chattels: "Act of State" Doctrine

International Conflict of Laws: Title to Chattels: "Act of State" Doctrine