Conventional International Law Research Articles

History of the diplomatic negotiation in the International court of justice narrative, a review of the ICJ jurisprudence

Diplomatic negotiation serves as a fundamental prerequisite to both arbitration and judicial settlement, a dynamic that unfolds alongside the evolution of conventional international law. Negotiation stands as an essential and integral precursor to the arbitral resolution. In this comprehensive review, we delve into the jurisprudence of the Permanent Court of International Justice (P.C.I.J.) and the International Court of Justice (I.C.J.), shedding light on the critical role of negotiation in achieving agreements and peaceful dispute resolutions. The prevailing customary foundation mirrors an era in international law marked by the "quasi-legislative role" of traditional sources. The obligation to negotiate may seemingly encroach on State sovereignty while endeavoring to establish a framework for nonviolent conflict resolution. Thus, it becomes imperative to initially address the juxtaposition between the sovereignty principle and the obligation to negotiate. Considering these realities, sovereignties are compelled to find common ground, underscoring the pivotal role of diplomatic negotiation in binding what is commonly referred to as the community of nations, evolving towards a higher level of political awareness ensure sustainable commitments between Nations and international stakeholders.

THE INTERNATIONAL LEGAL RESPONSIBILITY OF A HOST STATE FOR THE DESTRUCTION OF FOREIGN INVESTMENT LOCATED IN ITS TERRITORY ICSID: Award, Individual Opinion and Declaration in American Manufacturing & Trading Incorporated v Republic of Zaire 36 ILM 1531 (19

In recent years on the international stage, it has become very common practice for developing countries, eager to attract the flow of private foreign direct investment capital into their economies, to conclude Bilateral Investment Treaties (BITs) with the developed capital-exporting countries. Recent studies have estimated that, since the 1980s, well in excess of 900 such treaties have been concluded. This note examines the international rights and duties of the contracting parties to one such treaty which was concluded between the United States of America and the then Republic of Zaire, now known as the Democratic Republic of Zaire. It discusses the nature of the international legal responsibility which Zaire as a host state owes foreign nationals and their corporations which invest in her territory under both customary and conventional international law. It is firmly concluded that host states such as the Republic of Zaire clearly act in breach of their international legal responsibilities when they fail to put in place the necessary measures and environment for the protection and security of foreign nationals, their investments, and properties located in the territory of the host state. The note further states that in this area of public inter-national law, it is generally agreed that there is an international minimum standard which applies and a host state cannot rely on its own municipal law and practice which falls below the standard of international law.

PREVENTION OF DISPLACEMENT DURING ARMED CONFLICT UNDER THE ISLAMIC LAW

The spate at which armed conflicts occur in different parts of the world is worrisome. It is so disturbing that many of these conflicts are purportedly carried out by extremists to perpetrate criminality in the disguise of jihād thereby giving a negative imputation to Islam. One obvious effect of these conflicts is displacement at its alarming rate. It has thus brought about confusion in the eyes of many advocates of human rights and many experts in the field of humanitarian law on the position of Islamic Law on the prevention of displacement. Upon sampling opinions on the position of Islamic law with respect of the humanitarian affairs of people, this study discovered that many people in the field of humanitarian law do not appreciate that there exists humanitarian law under Islamic law even before the development of humanitarian law under conventional international law. In view of that, this paper sets to clear many of the misconceptions accorded to jihād under Islamic law regarding displacement. This discourse shall demonstrate how displacement is controlled and managed under Islamic law. This will exhibit the approach of Islamic law to humanitarian affairs of people and clear misconceptions that it has no provision for humanitarian affairs because of the existence of jihād that purportedly leads to humanitarian problems across the world.

Russia’s Military Invasion of Ukraine in 2022: Aim, Reasons, and Implications

The publication examines the legal nature of wars, looks into the law of war genesis, reviews its conventions, as well as identifies the aim, objectives, causes together with the consequences of Russia’s military aggression on February 24, 2022; it provides a testimony on the war of aggression against Ukraine and identifies its threats to post-war international law and order. The aim of the article is to determine the background, nature, fundamentals and nature of the war the Russian Federation launched on February 24, 2022 against Ukraine within the context of confrontation with the values of Western democracy. Historical-legal dialectical, comparative-legal and system-structural methods, as well as methods of formal logic (induction and deduction, analysis and synthesis, abstraction and concretization, etc.) were used to study the issues. The application of these research methods entails a cross-sectoral scientific nature. Wars have accompanied the entire history of mankind. Since the 17th century the theoretical foundations of the law of war have been laid, which enshrined in international laws and customs of warfare (Geneva Conventions, Hague Convention, etc.) since the 19th century, thus forming the international humanitarian law. After World War II, violations of the latter by the belligerent party are viewed by the world community no less harshly than the mere war. The paper questions the purpose, reasons, conditions and intermediate consequences of the war of the Russian Federation against Ukraine. Obviously, the military aggression and the Russian invasion on February 24, 2022 marked the beginning of the de facto war, under a specific formal definition by a Russian official as a “special military operation” instead of naming it an attempt to avoid legal responsibility for war crimes committed in Ukraine. The article analyses the aggressive nature of this war on the part of the Russian Federation, demonstrates numerous violations of international law conventions by the Russian armed forces during the military invasion and temporary occupied territories in Ukraine. It emphasizes that the law of war has always been replaced by signing a peace treaty and relevant international agreements, which entails the obligation to severe the political, economic, and legal responsibility of the state violating international humanitarian law. The paper reviews the key institutions and legal tools for bringing the Russian Federation authorities to justice for the war crimes committed in Ukraine. So far, the President of Ukraine, the Supreme Council of Ukraine, and the Cabinet of Ministers of Ukraine have managed to apply legitimate international legal mechanisms, primarily the International Criminal Court and the UN Security Council, to prosecute Russia for violating the international humanitarian law and committing war crimes in Ukraine. At the same time, on the Ukrainian territories currently liberated from the Russian army’s occupation (Bucha, Gostomel, Irpin, etc.), it is already possible to implement a special mechanism of justice, which consists in the collaboration between national and international experts: specialists, investigators, prosecutors, and judges to collect objective and impartial evidence of gross violations of international law and war conventions in Ukraine. It is obvious that for Ukraine today both the victory and just punishment for the committed and continuing committed war crimes on its territory are important. The aftermath of World War II’s “Never Again” now requires, as never before, its effective guarantee and protection

Islamic Injunctions on Prisoner’s Immunity and Termination of captivity in War: The Case Study of Afghanistan

Afghanistan remained an arena for international powers for the last two centuries. The climax period of the militant activities in this soil was from September 2001 to August 2021. Millions of human entities took part in this escalation and a large number of human fabric became captive by the detaining powers during this period. At the end of the armed climax, the emerging political & military coalition on this soil declared its stance about the method of governance after 15 August 2021 which would be based upon Islamic resources. In the perspective of this armed conflict, the question of prisoner’s immunity and termination of captivity in war attracted the attention of global powers. What options be available to prisoners of war about termination of war captivity under Islamic International Humanitarian Law (IIHL) and Conventional International Humanitarian Law (CIHL), is the mainstay of this paper. To answer the question, Islamic jurisprudence provides five methods to dissolve the detention and captivity in war. These methods are respectively freedom gratis, ransom, exchange of prisoners of war, execution, and enslavement. According to Islamic military guidance, freedom gratis remains the general practice in entire Islamic military history. Contrary to it, Ransom and exchange of prisoners of war were occasionally utilized and not the general practice in the entire military history of Islam. The execution and enslavement were pre-Islamic methods and practices. A set of Islamic injunctions were revealed to reform them (Execution & Enslavement) and hence they have been invoked as the source of reference in Islamic prudential literature. Along with, principles of conventional international humanitarian law are also associated with this discourse. Under these facts, this paper is a strenuous effort to embark on the solution of the matter which would be acceptable to all stakeholders regarding Afghanistan.

Limits to Measures of Confiscation of Property Linked to Serious Criminal Offences in the Case Law of the European Court of Human Rights

In the past thirty years, a growing number of international agreements and acts of international institutions has resorted to different kinds of confiscation (“direct confiscation”, “value confiscation”, “enlarged confiscation” or “nonconviction based confiscation”) to contrast and suppress international and transnational crimes. It can be considered that the flexibility – in terms of variety of measures and functions – of confiscation, together with the forced and permanent deprivation of property to which it always leads, significantly affect the favor towards this measure by States and international organisations. The European Court of Human Rights (ECtHR), taking into account the aforementioned proliferation of international acts and agreements concerning the fight to criminal activities, maintains that common “European and even universal legal standards” can be said to exist which encourage the confiscation of property linked to serious criminal offences. Moreover, the Court has gone so far as to maintain that, in accordance with such “universal legal standards”, States Parties to the European Convention of Human Rights must be given “a wide margin of appreciation with regard to what constitutes the appropriate means of applying measures to control the use of property such as the confiscation of all types of proceeds of crime”. However, the implementation of such measures by States authorities must conform with human rights guarantees – inter alia the principle of legality in criminal matters, due process rights and property rights – provided for in customary and conventional international law. This essay seeks to examine the relevant case law of the ECtHR and to focus on the possibility of reconciling, on the one hand, international obligations on the protection of human rights and, on the other hand, international agreements and acts – concerning the fight against criminal activities – that provide for the various types of confiscation measures.

Deinstitutionalization, Family Reunification, and the "Best Interests of the Child": An Examination of Armenia's Child Protection Obligations Under Conventional International Law

For nearly a century, the global community has sought to afford children legal protections, abandoning widely held views that children were pecuniary assets. In the United States and globally, a nascent children’s rights movement culminated in broad child welfare reform. Whether adoption, armed conflict, child labor, education, human trafficking, or deinstitutionalization, the post-war 20th century witnessed an evolution of international child protections. The prevailing standard of “best interests of the child” (BIC) has been incorporated into domestic and international law doctrine and, not surprisingly, has been operationalized in a variety of ways. In recent years, the standard has been explored in the context of residential care institutions. Some advocates of deinstitutionalization assert that children should be reunified with biological relatives under all circumstances. Absolutes, however, are legally precarious and may be practically inconsistent with the BIC standard that practitioners and policymakers are required to acquiesce. In the current essay, the history of international child protection legislation is explored, and the BIC standard is assessed in the context of Armenia’s social system. I evaluate Armenia’s child protection obligations and conclude that the BIC standard may not always trigger deinstitutionalization and family reunification. Implications for international human rights law and the global child protection movement are assessed.

Applying Humanitarian Law: A Review of the Legal Status of the Turkey–Kurdistan Workers’ Party (pkk) Conflict

Abstract This article assesses the applicability of the criteria for non-international armed conflict to the situation in South-Eastern Turkey. It demonstrates that the Kurdistan Workers’ Party (also known as the pkk), as a party to the conflict, fulfils the three main criteria laid down in conventional international humanitarian law and developed by indicative factors in international jurisprudence for assessing the existence of a non-international armed conflict in the context of Common Article 3 to the 1949 Geneva Conventions: being an organised armed group, having the ability to engage in ‘protracted violence’, and complying with law of armed conflict. It establishes that the pkk qualifies as an organised armed group under responsible command and has the operational ability, structure and capacity to carry out ‘protracted violence’, to respect fundamental humanitarian norms of international humanitarian law and to control territory. The article also ascertains that Turkey is clearly bound by the provisions of the four Geneva Conventions of 1949, including Common Article 3, and customary international humanitarian law. Accordingly, it concludes that the conflict between the pkk and the Turkish security forces qualifies as a non-international armed conflict within the meaning of both Common Article 3 and customary international humanitarian law.

Secondary Sanctions: A Weapon out of Control? The International Legality of, and European Responses to, US Secondary Sanctions

Abstract The US is increasingly weaponizing economic sanctions to push through its foreign policy agenda. Making use of the centrality of the US in the global economy, it has imposed ‘secondary sanctions’ on foreign firms, which are forced to choose between trading with US sanctions targets or forfeiting access to the lucrative US market. In addition, the US has penalized foreign firms for breaching US sanctions legislation. In this contribution, it is argued that the international lawfulness of at least some secondary sanctions is doubtful in light of the customary international law of jurisdiction, as well as conventional international law (eg, WTO law). The lawfulness of these sanctions could be contested before various domestic and international judicial mechanisms, although each mechanism comes with its own limitations. To counter the adverse effects of secondary sanctions, third states and the EU can also make use of, and have already made use of, various non-judicial mechanisms, such as blocking statutes, special purpose vehicles to circumvent the reach of sanctions, or even countermeasures. The effectiveness of such mechanisms is, however, uncertain.

Domestic courts, transnational law, and international order

This article revisits the relationship between law and international order. Building on legal research concerned with transnational law, we argue that domestic courts are endogenous sites of international political change. National courts are constitutive of international order by generating new rules, adjudicating transnational disputes, and bounding state sovereignty. We illustrate the ways in which national courts create new political opportunities by updating three core international relations theory debates. Recognizing the role of domestic courts as global adjudicators enhances our understanding of regime complexity and international forum shopping. By re-interpreting aspects of conventional international law, and engaging in cross-border dialogue, domestic courts challenge our understanding of international diffusion and judicialization. By redefining the boundaries of state authority and sovereignty, national courts create potential for conflict and cooperation. A transnational law perspective illustrates the porous nature between domestic and international spheres, highlighting how domestic courts have become adjudicators for state and non-state actors that operate across mainstream levels of analysis. Our approach calls on scholars to move beyond analyzing national legal systems as mechanisms of compliance to instead consider domestic courts as co-creators of international order.

Amnesty Limits in International Criminal Law

This article examine the problems raised by amnesty in the domestic and international legal order in the context of national reconciliation. It examines the scope and limits of the amnesty law, justifying it by the exceptions made for international crimes and violations as far as international humanitarian law is concerned. Indeed, this paper deals with the domestic and international legal aspects of non-amnesty crimes that are recognized under conventional and customary international law as imprescriptible, through the experience of specialized international courts on the subject such as those of Rwanda, Sierra Leone, and the ICC.

International Law within the Palestinian Legal System: A Call to Grant Human Rights Treaties a Special Constitutional Status (القانون الدولي في النظام القانوني الفلسطيني: دعوة لمنح معاهدات حقوق الإنسان وضع دستوري خاص [بالإنجليزية)

The hierarchy of international treaties in each state’s domestic system has to be deduced from its case law, constitution or other indicators. Some constitutions accord international treaties the same constitutional power as ordinary laws, and others give international treaties an infra-constitutional but supra-national status; more progressive constitutions, meanwhile, distinguish HRT from other international treaties, and give the former primacy by elevating them over ordinary law and giving them a constitutional status. Very few constitutions however make conventional international law superior to the constitution. Finally some constitutions, such as Palestine’s, may not address the position of international law within their domestic system at all. This article proposes that Palestinian political and legal decision-makers should grant IHR treaties a special constitutional status. It first determines the hierarchical status that general international treaties have within the current Palestinian legal system and then outlines the comparative experiences of states that do and do not accord IHR treaties a constitutional status. It concludes by presenting political and legal arguments that have been advanced in support of its initial proposal.

The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations

This article addresses the issue of the uniform and autonomous interpretation of private law conventions, including of private international law conventions, from the perspective of their Contracting States, particularly their judiciaries, and of the international organizations. Firstly, the author analyses the use of standard uniform interpretation clauses, and the origin of such clauses, in the context of the Hague Conference on Private International Law. The following part the article addresses negative and positive obligations imposed on States and their judiciaries under international law regarding the uniform and autonomous interpretation of international treaties. It is argued that States are not only obliged to refrain from referring to concepts from national laws for the purpose of the interpretation of international law instruments, but also that they face certain positive obligations in the process of applying the conventions. Those include referring to foreign case law, international scholarship, and under certain circumstances, also to travaux preparatoires. Thirdly, the author discusses the role of international organizations—e.g. HCCH, UNCITRAL, UNIDROIT, in safeguarding and facilitating the uniform and autonomous interpretation of private law conventions. It does so by describing various related tools and approaches, with examples and comments on their practical use (e.g. advisory opinions, information sharing, access to supplementary material, judicial exchanges and legislative action).

The War Crime of Starvation in Non-International Armed Conflict

Abstract The starvation of civilians is an all too frequent feature of armed conflict. While starvation may occur as an unintended consequence of military activities, it is also sometimes intentionally used by conflicting parties as a method of warfare. There is a broad consensus that the employment of starvation tactics during armed conflict is morally repugnant. This condemnation is reflected in many instruments of international law, which prohibit the use of starvation as a method of warfare in all armed conflicts. Despite this apparent consensus, the Rome Statute of the International Criminal Court only includes the starvation of civilians as a war crime when it is committed during an international armed conflict. In the face of this anomaly, Switzerland has proposed an amendment to the Rome Statute, whereby the crime of starving civilians would also apply to non-international armed conflicts. The following analysis addresses the key issues arising from the Swiss proposal, including the legal basis for the prohibition under customary and conventional international law, the elements of the proposed formulation, and the policy implications of adopting such an amendment to the Rome Statute.

The OECD Guidelines on Multinational Enterprises: Strengths and Weaknesses

Multinational enterprises (MNEs) are both the propellant and outcome of globalization. In 2017, the top 100 global MNEs’ foreign operations represented 9 percent of world foreign assets, 17 percent of world foreign sales and 13 percent of foreign employment. Despite their significant importance and power over both international economy and well-being of people of present and future generations, there is not any conventional international law that regulates rights and obligations of the MNEs. The very first initiative to produce such a rule is the OECD Declaration on International Investment and Multinational Enterprises. The OECD Guidelines, with all of its strengths and weaknesses, is the only government-backed international instrument for responsible business conduct with a built-in non-judicial grievance mechanism. Therefore, despite all its weaknesses, the OECD Guidelines and its implementation is quite valuable for sustainable development, well-being of people of present and future generations, environmental and social progress worldwide, human and workers’ rights and so on. However, it is also clear that it needs to be improved with a prompt and broad reform. In this paper, the researcher examines the OECD Guidelines from a human rights perspective, introducing the existing legal framework, discussing its strengths and weaknesses, and concluding with certain recommendations.

La Constitution tunisienne du 27 janvier 2014 et le droit international conventionnel : les controverses alimentées

The Tunisian Constitution of January 27, 2014 is promulgated in a specific internal and international context. In this context, the new Constitution supposed to embody, through its regulation of the question of conventional international law, the scope of Tunisia openness to international life and should tackled the weakness of the Constitution of June 01, 1959. In some respects, the Constitution clarified subjects already regulated by the 1959 Constitution and on others the Constitution innovated. Nevertheless, the new Constitution has actually only powered debate over many matters relating to the conditions of applicability and primacy of conventional international law. Consequently, the expected contribution of the new Constitution is reduced and the effort of the establishers seems uncompleted.

Soft and Hard Strategies: The Role of Business in the Crafting of International Commercial Law

What motivates the choice between hard and soft law in the drafting of international commercial law, and what role does business play in the preference between the two? Broad disagreement exists in international law (IL) commentary as to motivations for reliance on soft international law. Traditionally, this commentary cast a wide gaze across both international public and private law, but debate about the use of hard or soft law is sharpened by focusing exclusively on international commercial lawmaking. Traditionally, IL commentary considered only on states' interests in crafting international law and ignored business interests. But recent scholarship has begun to question the primacy of nation-states in the making of IL. Some of this criticism is the result of empirical work – such as in the recent book Global Lawmakers, co-authored by Terence Halliday and me – which demonstrates that the state-centric focus of conventional IL theory is incomplete. These empirical studies, in turn, stand on the shoulders of theory questioning whether states alone are involved in international lawmaking. Looking specifically at international commercial lawmaking invites examination of the involvement of both public and private actors, and in particular businesses, financial institutions, and the international associations that represent their interests, in this process. States and businesses hold potentially divergent interests in the production of international commercial law, depending on the sort of law reform proposed, whether regulatory or otherwise. Soft law aids in bridging these differences in various ways – through its gap filling, advocacy, and socializing functions.

Human rights implications of the NonRefoulement & Development

States are obliged for protection of refugees under international law on account of their membership of United Nations and signature or accession to International Refugee Instruments as well as International Human Rights Instruments. The legal basis for this international protection may either be customary international law or conventional international law. The basic customary international laws applicable to them are those pertinent fundamental human rights found in the International Bill of Human Rights. Hence, it is submitted that all states should protect the fundamental human rights of refugees under customary international law. Principle of non-refoulement is one of them. The refugee regime has generated a serious body of law that elaborates basic human rights norms and has important implications in and beyond the refugee context. There are a number of universal, regional and domestic human rights instruments and mechanisms which can be employed to enhance the protection of refugees and asylum seekers. This research aims at finding out the role of principle of non-refoulement in protecting refugees and asylum seekers under international human rights law.

Is the ‘Living Instrument’ Approach of the European Court of Human Rights Compatible with the ECHR and International Law?

The article offers a rebuttal of prominent criticisms directed against the ‘living instrument’ interpretative approach of the European Court of Human Rights. The article initially introduces the basic application of the interpretative approach as adopted by the Court and then considers whether it is compatible with the Convention and broader International Law. The article argues that the Preamble, subsequent State practice and preparatory work offer inconclusive evidence to both critics and supporters of the ‘living instrument’. However, the interpretative approach can claim democratic endorsement through States, while arguments based on the necessity to consider domestic interpretations of the European Convention on Human Rights (ECHR) cannot support a restrictive interpretation as a matter of International Law. The ‘living instrument’ further appears compatible in the context of state sovereignty in International Law, and broader institutional concerns with the role of judges in the adjudication of rights. Ultimately, the ‘living instrument’ interpretative approach therefore appears legal under the Convention and relevant International Law.

Limits of Targeted Killing in Counterterrorism Operations: An International Law Perspective

Despite criticism of targeted killing of suspected terrorists, states continue to justify extensive bases for lethal-force responses to terrorism by arguing that rigid adherence to prescriptive law cannot always be observed in the context of clear and present danger. But, while seemingly cogent, this view wrongly presumes the mutual exclusivity of security considerations and the imperatives of law. It risks exceeding the limits of permissible use of lethal force prescribed in conventional and customary international law. A contrary and more balanced view is advanced in this article. It argues that current international law protecting individuals against intentional killing offers sufficient and practicable guidance for states confronting terrorism. Systematic legal criteria are thus expounded to clarify the legality and admissible limits of targeted killing of suspected terrorists in three contexts: law enforcement, self-defence and armed conflict. With reference to treaties, policy documents and state practice, the article critically examines the preconditions for lawful state-sanctioned killings in counter-terrorist operations. It also identifies the legal challenges and policy implications of resorting to targeted killing. Using comparative case law and operational practice, a legal basis is offered on which Kenya and other nations can effectively tackle the spectre of terrorism within the fair strictures of the law. Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law. There is always law which the state must comply with.