Contemporary International Law Research Articles

“When you have to shoot, shoot!” Rethinking the right to life of combatants during armed conflicts

Abstract Does targeting combatants really provide a military advantage during an armed conflict? The limitations on the use of force against civilians and means and methods of warfare are well developed under contemporary international humanitarian law (IHL), but the issue of targetability of adversary combatants remains underdeveloped. This paper builds on contemporary developments in international human rights law and moral just war theory to offer a revised lex ferenda look at the basic principles of IHL through the internalization of the value of the lives of combatants. It is argued that such a reading of IHL would allow for a rejection of the automatic necessity of targeting combatants, and hence give due consideration to the value of life of combatants (both adversary combatants and own combatants) in the evaluation of the use of force during armed conflicts, including through reduced military advantage, force protection, and adjusted proportionality analysis.

The Alabama Revisited: Some Observations on the Evolution of Rights and Duties of Neutral States in Armed Conflicts under International Law

The paper discusses the concept of neutrality in contemporary international law. The traditional notion of neutrality, stemmed from states’ practice since the 17th century, means the particular status, defined by international law, of a state that is not party to an armed conflict. The basic premise of this notion is, in short, quite straightforward: on the one hand, the neutral state has the right to remain apart from, and not to be adversely affected by, the conflict. On the other hand, the neutral state is under the obligation of non-participation and impartiality. In the 20th and 21st centuries, however, following several treaties and modifications of states’ practice on that matter, the law of neutrality underwent changes and introduced new concepts, e.g. qualified neutrality or non-belligerency. This change, however, has produced only modifications of specific rules of the law of neutrality, not a general abolition of this whole body of law.

SPECIFIC ASPECTS OF THE LEGAL AND REGULATORY FRAMEWORK FOR CYBERSECURITY IN DIFFERENT COUNTRIES OF THE WORLD IN THE CONTEXT OF THE INTERNATIONAL SECURITY SYSTEM

Cybersecurity is emerging as a critical issue in contemporary international law, with significant implications for the security of nations. The use of information and communication technologies poses potential threats to various aspects of societal and state functioning, prompting the international community to explore the establishment of a comprehensive legal framework for cooperative efforts in the area of cybersecurity. 
 The article describes the evolution of regulatory and legal mechanisms dedicated to securing cyberspace. The narrative emphasises that the establishment of rules governing activities in cyberspace requires careful consideration of cybersecurity, the protection of personal data, and the fight against cybercrime and cyberterrorism.
 Looking to the future, the analysis of international legislation identifies areas for improvement in the area of cyberspace security under current conditions.

Contemporary International Law and global environmental problems: towards global environmental citizenship

Desde la perspectiva de las ciencias jurídicas y, en particular, del derecho internacional ambiental, la presente intervención aborda la emergencia de un Derecho internacional contemporáneo y acude a las ideas del cosmopolitismo blando y la vertiente normativa del constitucionalismo global, como debates filosóficos-jurídicos que podrían cimentar un terreno fértil, un sustrato material, para incidir en las fuentes formales de creación de normas internacionales para enfrentar los problemas globales ambientales. En ese sentido, hace mención a la emergencia y reconocimiento del derecho humano al ambiente sano y saludable como un derecho humano autónomo y exigible, desde su vertiente sustantiva y procesal, y a recientes desarrollos de la Corte Interamericana de Derechos Humanos, que pueden vislumbrase como el embrión de una ciudadanía global ambiental

The Significance of the UN Declaration on the Rights of Indigenous Peoples

Rabiat Akande's article, “An Imperial History of Race-Religion in International Law,” persuasively demonstrates the interplay of racial and religious discrimination both historically and today, and argues that this race-religious nexus is not now adequately addressed by international law.1 Featured in the article is a historical account of the early colonial-era practices and patterns of thought that regarded people indigenous to the Americas and Africa as inferior in significant part due to their non-Christian religious practices and identities. The article's assessment of contemporary international law as it relates to the “race-religious othering” provides important insights into the shortcomings of formal international legal sources and their application. That assessment, however, sidelines or even downplays relevant developments that can provide hope for the victims of that othering, developments that include the adoption of the UN Declaration on the Rights of Indigenous Peoples (“the Declaration” or “the UN Indigenous Rights Declaration”).2 Akande's article summarily dismisses the significance of the Declaration with cursory questioning of its impact and legal character. This essay responds to Akande's treatment of the Declaration and overall sidelining of relevant developments internationally concerning Indigenous peoples.

The Question of Diplomatic Immunity and Privileges in International Law: The D.S.P Alamieyeseigh Experience

The complex nature of the international system prompted states to adopt treaties, laws and conventions to facilitates peaceful international relations and mutual co-existence hence, this paper examined the relevance of these treaties, laws, rules and conventions especially as it relates to diplomatic immunity and who is qualified to enjoy such diplomatic immunity in contemporary international law. The study observed that elected state governors in Nigeria are entitled to diplomatic immunity as reflected in section 308 of the constitution of the federal republic of Nigeria 1999 as amended. Further findings also revealed that the arrest, detention and trial of D.S.P. Alamieyeseigha in London by the British government violated the provisions of the 1961 Vienna Convention on Diplomatic Relations, 1963 Vienna Convention on Consular Relations and the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including diplomatic agents. Data for the study were drawn from secondary sources while analysis was done descriptively through the qualitative method. In other to strengthen international law and regulate the actions of states and leaders at the global level, state legislatures, national parliaments and agencies of government including the judiciary should be empowered to moderate and check the actions of state governors, president's and other category of political leaders. This will ensure that personal actions and acts are not misrepresented as acts of state/government at all levels.

THE INFLUENCE AND CONTRIBUTIONS OF CONFUCIANISM TO THE DEVELOPMENT OF INTERNATIONAL LAW

Confucianism requires individuals to take into account the fairness, justice, harmony and peaceful development of others and the whole society while developing themselves. Contemporary international law lacks this requirement of Confucianism. International law, dominated by western civilization, has neither proper regulation nor necessary condemnation toward some countries’ behaviors of neglecting morality and sacrificing the common interests of mankind when pursuing their own interests. In this regard, Confucianism can play a positive theoretical role in the proper development of contemporary international law for it to return to the direction of justice and morality. Besides, Confucianism itself has a theoretical and historical connection with international law and its natural law thoughts. It also has already made positive contributions to the sustainable development of international law, world peace and the development of international human rights. Thus, it is feasible for Confucianism to contribute to the improvement of contemporary international law. The idea of building a human community with a shared future is the modern interpretation of Confucianism, which can be more systematically used as the theoretical basis for improving contemporary international law, so as to ensure the unity of powers and responsibilities of all countries and to take into account the interests of other countries in their own development.

Fine Balance: Empire, Neoliberalism, and the Fair and Equitable Treatment Standard in International Investment Law

Abstract In this article, I show how the framework of empire remains central for analyzing contemporary international investment law. Moving beyond criticisms about the domination of global South polities by the West, or by a transnational capitalist class, I suggest instead that ‘empire’ can help us analyze the protocols of reasoning in investor-State arbitrations. Through a close reading of scholarship on the fair and equitable (FET) clause, and a recent arbitral award arising out an FET claim, I show that the field is characterized by an imperial mode of legal reasoning. This mode was reason was produced by a foundational distrust of postcolonial developmental States. It involves judging concrete State action against a fictional universal baseline that represents the ordoliberal utopia of an austere rule of law bound State. Crucially, in investor-State dispute settlement, this form of reasoning remains discernible even when foreign investors do not succeed.

The importance of a doctrine in the contemporary international law codification

The article analyzes the key methods of legal acts systematization from the general law theory perspective and describes the peculiarities of the procedure for the arrangement, improvement and the update of normative legal acts in international law.It is noted that codification is the most important law-making method in the contemporary international law, and the UN International Law Commission is one of the key institutions that successfully carries out this work.It is pointed out that the Commission has invested a considerable amount of effort into clarification and systematization of main sources of international law such as an international treaty, an international custom, and general principles of law.
 It is emphasized that the interaction and linkage between the main sources of international law and the subsidiary means for the determination of international law rules, i.e. court decisions and the doctrines of the most qualified international lawyers, have largely remained vague, complicated and unregulated to date.It is indicated that a scientific doctrine is ambiguously applied in the practice of international courts which justify their rulings with regard to the judicial decisions and works of the UN International Law Commission. Similarly, the Special Rapporteurs of the Commission refer to the practice of international and national courts and the scientific doctrine.A special model of international legal norms codification during the third UN Conference on the Law of the Sea involving the application of innovative and unprecedented negotiation methods and procedures is also highlighted. It is underlined that the successful preparation of the 1982 UN Convention on the Law of the Sea is attributed to the fact that the text of the future treaty was gradually drafted during the conference itself, the proposals were submitted by individual states or the groups of states, legal experts and lawyers had a special influence on the formation of the treaty provisions.It is emphasized that a detailed study of the doctrine’s influence on the codification of international law will enable its subjects to better understand the main practical and theoretical approaches adopted by international courts and international organizations in the decision-making procedure.

Wars of Recovery

Abstract Aggressor state A occupies territory belonging to victim state V. After decades, V decides to go to war to recover its territory, although hostilities have long subsided. Are such ‘wars of recovery’ lawful under international law? Should they be? Recent conflicts have generated a heated scholarly debate on this question, which has ended in stark disagreement. A permissive approach argues that wars of recovery are lawful instances of self-defence, while a restrictive view claims that situations of prolonged occupation are territorial disputes that should be settled peacefully. This article uncovers the theoretical premises that underlie both approaches. As it shows, the dilemma reflects a larger tension within the contemporary international law on the use of force – mainly, between its traditional focus on state rights such as territory and sovereignty and a competing view that seeks to place individual rights at the core of the legal regime. As the article shows, deciding on the question of wars of recovery requires making commitments in four normative spheres: instrumentally, it requires considering questions of international stability, and, non-instrumentally, it requires considering questions of justice as well as possible justifications for killing and sacrifice. These considerations, however, result in instability owing, among other factors, to the fluctuating effects of the passage of time, which follow our normative assumptions about the legal order. Ultimately, the article suggests that those engaging in debate on wars of recovery make explicit their normative assumptions on the ends of jus ad bellum and that, in any case, even if wars of recovery would be deemed legal, they would still remain heavily contestable owing to strong competing reasons against them.

Beyond Binary Oppositions? The Elusive Identity of the International Organization in Contemporary International Law

Abstract Much of the conceptual work on international organizations situates the identity, nature or legal form of the institution between binary oppositions: ‘open’ vs ‘closed’, ‘agora’ vs ‘actor’, ‘contract’ vs ‘constitution’, etc. These oppositions are informative and revealing of tensions underpinning different aspects of international institutions: the extent to which they are vehicles for their member states versus autonomous actors in their own right; that they have limited, derivative and defined powers, but are also able to evolve and adapt to take on new competences and unforeseen powers, and so on. At the same time, insofar as many of the core doctrines of international institutional law, on e.g. personality, powers, responsibility, etc., rely most heavily on the European Union and the United Nations – arguably two of the most unique institutional structures – as evidence for these doctrinal developments, it is clear that there is something more special, unique, indeed sui generis that needs to be thrown into the conceptual mix in order to fully understand the nature and importance of international institutions in contemporary international law. In this way, I will argue, international institutions have a more complex identity and relationship with international law in which they not only exist within (closed) and as part of (open) contemporary international law, but also aim to overcome its limitations, to transform it in some way. For this reason, rather than being competing understandings of international institutions, the interplay between these kinds of binary oppositions actually only reflect back broader theoretical tensions ingrained within international law as a decentralised legal system – a condition which makes it impossible to definitely ‘pin down’ the seemingly elusive identity of the international organization. However, it is also a condition which allows for the construction of tentative hierarchies and forms of more centralised governance within international law, whilst always leaving scope (through legal form) to challenge any such pretentions to authority. This article is part of the iolr Special Forum on ‘Contested Fundamentals of the Law of International Organizations’.

INTERNATIONAL LEGAL RECOGNITION OF THE KINGDOM OF SERBS, CROATS AND SLOVENES

The paper studies international legal recognition of a state using the example of the recognition of the Kingdom of Serbs, Croats and Slovenes in 1919-1920. One aspect of the paper is based on historiographical literature, presenting and analysing the factual situation, which forms the basis for the legal analysis. The legal analysis is based on the nature of state recognition, as perceived at the beginning of the 20th century. The backbone of the paper is the actual course of recognition of the Kingdom of SCS. Nevertheless, the paper also touches on the topic of the origin of the Kingdom of SCS and problematizes the issue of whether that state was new or old. The main emphasis for the topic is the exploration of whether the Kingdom of SCS, at the time when it was striving to obtain recognition from the allies in the Great War, satisfied the conditions of statehood from the point of view of the then relevant norms of International Public Law. The paper follows a dual theoretical understanding of the international legal concept of recognition through both declarative and constitutive theories, reflecting different understanding of recognition both in the period following the end of the First World War and today in the 21st century. To that extent, consideration of the historical concept of legal recognition contributes to a more complete understanding of this issue in contemporary international law as well.

Qui tacet consentire videtur si loqui debuisset ac potuisset v. quo tacet neque negat neque utique fatetur (he who remains silent is considered to consent, if he must and can speak v. he who remains silent neither rejects nor accepts-affirms)

The present work aims to analyze silence/acquiescence as a legal fact that constitutes a passive conduct and produces legal effects. The paper is divided into three parts. The first analyzes silence as a legal act in international law, translates the phenomenon of acquiescence and elaborates the relative doctrine and jurisprudence as well as the limits that this term presents. We continue with the acquisitive prescription and the silence in the formation of the treaties. It compares acquiescence in dispute resolution as well as the establishment of jurisdiction of international courts and tribunals. The waiver applies to the area of international responsibility of a State and the decision-making mechanisms within the opting-out procedure. Silence as a legal fact in stricto sensu integrates a qualified conduct to which the production of legal effects compose an institution of international law. The production of their legal effects contemplate the existence of an involuntary silence such as l'estoppel by silence and the extinguishing prescription. The jurisprudence from the ICJ and from arbitral awards is extensive and helps to better know and understand the institution of acquiescence and the importance that the silence of States has in contemporary international law.

Sustainable Development Clauses in the International Law of the Sea

INTRODUCTION. The international legal content of the concept of sustainable development, so common in international treaties and sometimes expressed in different terms, undoubtedly requires modern clarification, as well as its place in the system of international law. Firstly, it is interesting to answer the question of how ideas of sustainable development have resulted in their crystallization as a concept of international law. Secondly, using treaty sources of the international law of the sea, where this notion is particularly common, it is meaningful to identify the intentions of States parties to such treaties to consider sustainable development clauses as legal obligations. Thirdly, it is important to determine whether these clauses now constitute a principle of the international law of the sea or whether they retain the status of separate treaty obligations that are not interrelated. MATERIALS AND METHODS. The article is based on the analysis primarily of the norms of the international law of the sea, in which the term «sustainable development» is applied, with reference to the scientific and legal literature and judicial decisions relevant to the topic. The research involves methods of legal construction, legal modeling, analysis and synthesis, systematic, struc­tural-functional, formal-logical, formal-legal, histori­cal and chronological methods. RESEARCH RESULTS. The analysis of international treaties and other international legal instruments applicable to the issue has shown that the long-standing ideas of «sustainable development» are now normatively well-established; that the provisions of international treaties on sustainable development have already developed as an inter-branch (cross-cutting) principle of international law at the intersection, primarily, of the international law of the sea and international environmental law; that States undertake in practice explicit obligations and exercise relevant rights in the framework of upholding this cross-cutting principle. The authors’ vision of the content of this principle is offered and its various manifestations in the international law of the sea are shown. DISCUSSION AND CONCLUSIONS. The study critically evaluates the prevailing view in the Western international legal literature that the idea of sustainable development was suggested by the 1987 Report «Our Common Future» (the Brundtland Report). It has been shown that the idea predates this report, and that the initial mechanisms for sustainable development had already been reflected in existing interna­tional treaties by 1987. The suggestion is made that the international legal concept of sustainable development has several cumulative components that together define its content. Among these there are elements that are part of this concept primarily because they are means of achieving sustainable development goals, having a much narrower scope if interpreted in isolation. The international legal principle of sustainable development seeks to resolve the tensions primarily between the States’ right to development and their duty to protect the environment, serving as a nexus that ensures that neither the one nor the other is neglected. Its social dimension is undoubtedly significant, although it has been interpreted very differently in the interna­tional legal literature. In the context of contemporary international law, it is expedient to assert an inter-branch (cross-cutting) nature of the sustainable development principle: its legal content extends beyond the scope of specific branches of international law, including international law of the sea, international environmental and economic law. However, most international treaties of a universal and especially regional character that contain some form of sustainable development clauses currently refer to sources of the international law of the sea, which may certainly change in the future.

A single maritime boundary: From UNCLOS III to present-day developments

After the creation of the exclusive economic zone (EEZ) notion during the third United Nations Conference on the Law of the Sea (1973–1982), the exact relationship between this novel notion and already well-established concepts under international law of the sea, such as the high seas or the continental shelf, proved to be particularly intricate issues. This article investigates the latter aspect, and more particularly how the interplay between the identical, yet separate delimitation provisions contained in articles 74 and 83 of the United Nations Convention on the Law of the Sea affects the nature of the delimitation line. If a single maritime boundary, i.e. a maritime boundary delimiting the EEZ and the continental shelf by means of a single line, appears by far to be the preferred option in State practice, the question nevertheless remains whether this option has developed into a legal obligation that States as well as courts and tribunals are obligated to apply under contemporary international law. This article also analyses how other maritime zones such as the territorial sea and the contiguous zone relate to this concept of single maritime boundary.

The advisory role of international courts in the evolution of human rights law

Human rights have the pedigree of a distinguished struggle against oppression: everyone shall be treated with respect for their inherent dignity and human worth.3 The horrors of the Second World War provided the legal basis for the modern human rights law. The establishment of the United Nations (UN) signalled the beginning of an international concern for the protection of human rights. Human rights transnational institutions have developed human rights principles, some recognized as jus cogens norms. Nonetheless the application of human rights law in courts is almost always contested. The functions of international courts such as the International Court of Justice (ICJ) are dependant on the States volition and the settlement of disputes between them. Whenever asked by the UN organs and specialized agencies, international courts also give advisory opinions on contentious legal questions. The impact of international jurisprudence on contemporary international law is significant, assessing key areas of international law, such as law of the sea, international environment law and international human rights law. Note that, in this paper we focus on the particular impact of the advisory opinions on the human rights law.

Subjects of the right to self-determination in contemporary international law

The issue of subjects of the right to self-determination is one of the most controversial issues in the theory of international law. The author, researching etymology, as well as cases of application of concepts “people” and “nation”, pays attention to their interchangeability and sometimes identification. The author proposes to view people (in a narrow sense) as a spatial, related to a particular socio-economic, linguistic, cultural and spiritual way of life, of individuals. Broadly speaking, a people is characterized as a social community that acquires a political identity and thereby becomes a nation, under certain circumstances, a State. The article proposed criteria for the self-determination of peoples and nations in accordance with the current international order and architecture. The research focuses on institutions such as uti possidetis juris and remedial secession. The author’s analysis of the advisory opinion of the International Court of Justice on Kosovo is of some interest. In considering the problem of indigenous and small-numbered peoples and national minorities, the author proceeds from the possibility that they may exercise their right to self-determination in the form of territorial autonomy or self-organization (self-government), depending on their number, characteristics of resettlement and other circumstances. Both models (territorial and extraterritorial) are designed to give indigenous peoples their identity, based, inter alia, on established traditions and customs, Development in accordance with the fundamental laws of the State and the norms of international law, while preserving the stability and territorial integrity of the State. On the basis of the jurisprudence of the Human Rights Committee, various aspects of the legal personality of individuals in the exercise of the right to self-determination have been examined.

JURISDIÇÃO JUDICIAL INTERNACIONAL NO DIREITO INTERNACIONAL CONTEMPORÂNEO

The article aims to explore the meaning of international judicial jurisdiction in contemporary international law, specially in contrast with the concept’s traditional meaning. To that effect, first the meaning of jurisdiction will be established and its relation with the judicial function exercised in a legal system. With that framework, it is possible to contextualize the discussions surrounding the international law design of jurisdiction in its judicial form and the institutional template built at the beginning of the XXth Century, materialized at first with the Permanent Court of International Justice. The template is not static and unaffected by development. Currently, beyond the International Court of Justice, there are various bodies concieved for the exercise of the judicial function in international law. From the analysis of such developments, the study aims to map the contrast between traditional international judicial jurisdiction with that currently existant, pointing possible new practical and theorical trends.

Succession of Multijurisdictional Estates: Conflict of Laws, Conflict of Jurisdictions and Substantive International Regulatory Treatment

An essential part of contemporary international civil law practice consists of matters concerning succession of multijurisdictional estates, which in turn accounts for the practical significance and relevance of the scientific study of the regulatory treatment of the respective matters. An understanding of the subject matter of conflict of laws and international civil procedure is essential to effective succession of international estates for clients who own assets in or otherwise have significant contacts with more than one jurisdiction. The primary focus of this article is to describe the approaches to resolving the most typical problems in the practice of succession of multijurisdictional estates on the basis of analysis of the legal doctrine, legislative enactments and case law of foreign jurisdictions. The author considers the approaches to solving the most typical problems of succession of multinational estates, in particular: the practical importance of the location of a testator's assets, the formal validity of testamentary dispositions, establishment of the true domicile of a person, the advantages and disadvantages of a single multijurisdictional will disposing of international property, etc. In the context of these problems the author analyses Regulation EU № 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession; Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions; Convention of 25 November 1973 providing a Uniform Law on the Form of an International Will.

For a Definition of the Normative Structure of Contemporary International Law

For a Definition of the Normative Structure of Contemporary International Law