Drafting History Research Articles

The Revocability of Instruments of Withdrawal from Mulitlateral Treaties with Particular Emphasis on the United Kingdom's Article 50 TEU Notification

This paper considers whether the United Kingdom’s notification under Article 50 TEU on 29 March 2017 can be unilaterally revoked. The article also considers the right of states to revoke of unilateral notifications of withdrawal from multilateral treaties more generally due to the fact that the United Kingdom’s right to withdraw its Article 50 TEU notification is (at least in part) dependent on an applicable right of withdrawal in customary international law. The paper addresses the applicability of Article 68 the Vienna Convention of the Law of Treaties (VCLT) to the Article 50 TEU unilateral revocation debate paying particular attention to the drafting history of the article as well as the arguments for and against the customary status of any right of unilateral revocation of instruments of withdrawal from multilateral treaties. The article also examines whether Article 50 TEU, by express words or necessary implication, excludes the operation of any alleged customary right to unilaterally revoke an instrument of withdrawal before it takes effect.

A Contextual and Historical Analysis of the International Law Commission’s 2017 Draft Articles for a New Global Treaty on Crimes Against Humanity

In 2017 the International Law Commission (ILC) adopted 15 draft Articles, a draft Preamble, and a draft Annex on Mutual Legal Assistance, comprising the nucleus of what might someday become a new global treaty on crimes against humanity. This essay examines the history of the ILC draft and analyses several of its major provisions in light of the existing corpus of international criminal law as well as the work of the Crimes Against Humanity Initiative that preceded it. The essay concludes that the ILC draft provides an excellent point of departure for the negotiation of a new treaty on crimes against humanity. It incorporates many elements of the Rome Statute, such as the definition of crimes against humanity, and solidifies the obligations of states to prevent and punish crimes against humanity. It also builds upon modern United Nations conventions on corruption and transnational organized crime to construct a robust model for interstate cooperation, and has other progressive and positive elements. At the same time, the Commission’s work could be enhanced and the new treaty made more robust by addressing certain deficiencies in the draft, many of which would either reinforce the jus cogens nature of the crime or enhance the preventive regime the draft seeks to bring into existence.

Claus Kreß and Stefan Barriga (eds), The Crime of Aggression: A Commentary

A definition of the crime of aggression was reached at the Review Conference of the Rome Statute of the International Criminal Court (ICC) in Uganda in 2010.1 The ICC Statute has been the subject of many commentaries,2 the crime of aggression, which was left undefined during discussions in Rome,3 certainly deserved its own commentary. This book is written to fill this gap. Its uniqueness is, therefore, unquestionable since considered alone, the crime of aggression has been the subject of countless international law textbooks,4 many of which were authored by many of the contributors to this book. The editors, Claus Kreß and Stefan Barriga, in collaboration with leading scholars, produced what they describe as a ‘landmark’ commentary, ‘which will be the authoritative guide for all practitioners, scholars and simply those who wish to get the bottom of the provisions’ legal complexities’.5 This authority does not only lie in the fact that over 50 scholars contributed, the book has succeeded in bringing together those same experts who played an influential role in the drafting history of the crime of aggression. These experts were either members of the Special Working Group on the Crime of Aggression, which drafted the resolution amending the ICC Statute, or active negotiators and participants to the Review Conference. More than guidelines to interpreting the crime of aggression, this book provides a living account of the legislative history of one of the most challenging issues of international criminal law.

Anti-Zionism, Jus Cogens, and International Law: The case of the Banjul Charter and Arab Charter

ABSTRACTThis article examines the legal and political implications of the anti-Zionism provisions in the 1981 African Charter on Human and Peoples’ Rights (Banjul Charter) and 2004 Arab Charter on Human Rights (Arab Charter), considering the International Law Commission’s current work on peremptory norms of general international law (jus cogens). The Banjul Charter and Arab Charter present what appear to be rare test cases of treaties that conflict with a jus cogens norm, which self-determination—in the case of the Banjul Charter and Arab Charter, this would be Zionism, which this article understands as Jewish self-determination—at least arguably is. This article has three parts. First, it sets forth the nature and parameters of jus cogens under international law, paying attention to the operation of these norms under international treaty law. It then examines the anti-Zionism provisions in the Banjul Charter and Arab Charter and explores their drafting history. Finally, on the assumption that self-determination qualifies as a jus cogens norm, this article applies the black letter law of jus cogens to the Banjul Charter and Arab Charter and looks at the political implications of the two treaties’ anti-Zionism provisions, whether or not self-determination qualifies as a jus cogens norm.

The Shadowy Existence of the Weapons Review and Its Impact on Disarmament*

The laws of armed conflict and disarmament and arms control law are often treated as two distinct fields of international law. Nevertheless, the laws of armed conflict impact disarmament as well. In particular, the weapons review links the laws of armed conflict with disarmament and arms control law and goes even beyond by including other fields of international law. This note intends to explore the weapons review and its impact on disarmament by investigated the drafting history of Art. 36 of Additional Protocol I to the Geneva Conventions as well as the legal background against which the review is to be conducted.

Made in Luxembourg: The fabrication of the law on jurisdiction of the court of justice of the European Union in the field of the Common Foreign and Security Policy

The article provides an analysis of the case law of the Court of Justice of the European Union on the interpretation of Articles 24 TEU, first paragraph, second subparagraph, and 275 TFEU governing the question of the Court’s jurisdiction in the field of the Common Foreign and Security Policy (CFSP). The article first describes the background of those provisions as they resulted from the Convention on the Future of Europe and the 2003-4 and 2007 Intergovernmental Conferences and then compares the Court’s understanding of its jurisdiction to the drafting history of the provisions concerned. The main conclusion of the study of the case law suggests that the Court views its jurisdiction over the CFSP more broadly than the jurisdiction envisaged by the drafters of the Treaties. In particular, the Court both interprets the exclusion from its jurisdiction of acts based on the Treaty’s CFSP provisions in a narrow fashion and is prepared to review the legality of CFSP acts not only through direct actions but also through references for a preliminary ruling. However, the article argues that the provision of adequate legal protection in the field of the CFSP necessarily requires both the Court of Justice and domestic courts of the Member States to play their respective roles.

Article 297 of the United Nations Convention on the Law of the Sea and the Scope of Mandatory Jurisdiction

ABSTRACTThis article assesses the scope and content of the automatic exceptions contained in Article 297 of the UN Convention on the Law of the Sea to the compulsory procedures established in Section 2 of Part XV. The Convention's drafting history is examined with a view to determining the validity of the diametrically opposed readings of Article 297(1) endorsed by Annex VII Tribunals in the Southern Bluefin Tuna Award and the Chagos Marine Protected Area (MPA) Award. The interpretation favoured in the Chagos MPA Award—that mandatory jurisdiction is not restricted to the three cases expressly enumerated in Article 297(1)—is consistent with the textual evolution of Part XV. The article situates the approach adopted by the Chagos Tribunal within a wider normative tradition, which holds that adjudicative jurisdiction arises in default of positive textual authorzsation (unless it has been explicitly excluded). It is argued that this approach should be embraced by courts and tribunals when interpreting the Convention's provisions, as it accords with the drafters' aspirations and it serves to strengthen the international Rule of Law.

JUDICIAL UNCERTAINTIES CONCERNING TERRITORIAL SEA DELIMITATION UNDER ARTICLE 15 OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

AbstractRecent international jurisprudence has shown considerable uncertainty with regard to the delimitation of the territorial sea. While international tribunals endorse a two-stage approach to territorial sea delimitation, there is a lack of judicial consensus on the practical implementation of such an approach. This article argues that the rule-exception relationship between equidistance and special circumstances, as reflected in the drafting history of LOSC Article 15 and in jurisprudence prior to 2007, should inform the delimitation of the territorial sea. Cases since 2007 which have strayed from the earlier jurisprudence on LOSC Article 15, should be seen as a misconstruction of the law applicable to territorial sea delimitation.

On Meng Sen’s teaching and lecture notes of Ming and Qing history at Peking University during the 1930s

ABSTRACTWhile teaching the histories of the Ming and Qing dynasties, Meng Sen (1869–1937), developed three textbooks in the 1930s: Lecture Notes on the Ming History (明史讲义 Mingshi jiangyi), Lecture Notes on the Qing History (清史讲义 Qingshi jiangyi), and Lecture Notes on the History of the Founding of the Manchu State (满洲开国史讲义 Manzhou kaiguo shi jiangyi). In these book titles, the term “history” refers specifically to “standard history.” In tracing Meng Sen’s original intention in producing these textbooks, all three works suggest the author’s desire to write history. He wrote Lecture Notes on the Ming History to prepare a future revision of the History of the Ming (明史 Mingshi); similarly he wrote Lecture Notes on the Qing History and Lecture Notes on the History of the Founding of the Manchu State with the intention to revise the Draft History of the Qing (清史稿 Qingshi gao). Meng Sen summarized Sima Guang’s (司马光, 1019–86) view of history as “imitating the good and avoiding the bad,” which he believed represented the “essential meaning of history.” Meng followed Sima Guang’s model in compiling the Lecture Notes on the Ming History and Lecture Notes on the Qing History, as shown in their style and format. By comparison, his writing of the Lecture Notes on the History of the Founding of the Manchu State attempted to merge the traditional annals–biographic style with narrative history from the West, or to pour old wine into a new bottle. Meng Sen presented his innovative efforts at Peking University, introducing young scholars to standards for history writing, and doing his utmost to guide and encourage his students; some of whom became noted scholars in the study of Ming and Qing histories.

Barnard v Minister of Justice: the minister’s verdict - Deciding on parole for offenders serving life sentences

Parole for offenders serving life sentences has ignited questions in media reports and political circles. This complexity becomes a touchy issue when it leaves more questions than answers after the grant or decline to place offenders on parole. This article evaluates the discretion of the minister to decline to grant parole under section 78(2) of the Correctional Services Act 25 of 2008 (CSA). This contribution argues that a minister’s discretion to refuse parole needs to be re- examined in the wake of the decision in Barnard v Minister of Justice, Constitutional Development & Correctional Services and another with regard to its content and context. The paper examines the drafting history to section 78(2) of the Correctional Services Act; evaluates the bounds of the Ministerial powers, and examines its recent application in Barnard. The final step involves recommending a working framework that may reconcile the position.

Barnard v Minister of Justice: the minister’s verdict - Deciding on parole for offenders serving life sentences

Parole for offenders serving life sentences has ignited questions in media reports and political circles. This complexity becomes a touchy issue when it leaves more questions than answers after the grant or decline to place offenders on parole. This article evaluates the discretion of the minister to decline to grant parole under section 78(2) of the Correctional Services Act 25 of 2008 (CSA). This contribution argues that a minister’s discretion to refuse parole needs to be re- examined in the wake of the decision in Barnard v Minister of Justice, Constitutional Development & Correctional Services and another with regard to its content and context. The paper examines the drafting history to section 78(2) of the Correctional Services Act; evaluates the bounds of the Ministerial powers, and examines its recent application in Barnard. The final step involves recommending a working framework that may reconcile the position.

Self-referral of Situations to the International Criminal Court: Complementarity in Practice – Complementarity in Crisis

Self-referral practice has been the main source of cases before the International Criminal Court (icc) to date. This practice provokes significant questions as to its roots, legality and implications on the jurisdiction of the Court in general and the principle of complementarity in particular. Thus, the article, after considering the legal, factual and political considerations attached to self-referral, argues that self-referral, as utilized and encouraged by the icc since its inception, signals a departure of the purposive rationale of the principle of complementarity as the drafting history and the current wording of the Statute reveals, and this could have a detrimental effect on the credibility and impartiality of the Court.

The historical evolution of the right of conscientious objection to military service in the UN human rights system: 1950-2017

This paper discusses the emergence and historic development of the right to conscientious objection to military service within the United Nations framework for the protection of human rights, through the drafting history of the International Covenant on Civil and Political Rights 1966. It further explores conscientious objection as a fundamental aspect of the right to manifest one's thought, conscience and religion and it outlines the jurisprudence of the UN Human Rights Committee in relation to conscientious objection to military service from 1981 to 2017 to illustrate the Committee's changing approach to the matter and its steps to ensure compliance with international human rights standards. This paper contributes to academic knowledge by exploring the semantic restraints of the International Covenant on Civil and Political Rights and casting light on the delayed response of the UN human rights system in adopting a more liberal approach to the interpretation of the Covenant, which finally recognised - through its monitoring bodies - that conscientious objection to military service is an integral part of the right to freedom of thought, conscience and religion.

РЕАЛИЗАЦИЯ МЯГКОГО ПРАВА В КОНТЕКСТЕ «ПРИНЦИПОВ, КАСАЮЩИХСЯ ИСПОЛЬЗОВАНИЯ ЯДЕРНЫХ ИСТОЧНИКОВ ЭНЕРГИИ В КОСМИЧЕСКОМ ПРОСТРАНСТВЕ»: ПРАКТИКА РОССИЙСКОЙ ФЕДЕРАЦИИ, США И ГОСУДАРСТВ ЕВРОПЕЙСКОГО СОЮЗА

Nowadays one of the most significant discussions in the international public law relates to the concept and the role of “soft law”. Some researchers assert the point of view of existence of such law, others consider that it is a new source of public international law However, different approaches don’t exclude the basic char-acteristics of soft law that is a non-binding nature and a streamlines process of drafting. Because of this situation, Member-States of public international organizations tend to use soft law as a pragmatic way of organizing interactions among sovereign states the in case of difficulties to pass unified international treaty. This article argues that similar practices also exist in international space law. Since the entry in force of the Moon Agreement in 1979, the Member States of UN COPUOS have not passed any additional international space treaties. Instead, they have found a solution for new chal-lenges: drafting and accepting soft law acts like UN General Assembly Resolutions (hereinafter GA Resolutions) and others. While GA Resolutions are not legally binding, States can transform them into national legislations and doing so they will have to be responsible for certain space activities which have not been regulated internationally yet. The purpose of this article is to provide an overview on the establishment of soft law as a new source of international space law by analyzing and comparing state practice in Russia, the USA and in several Member States of the European Union (EU). The emphasis will be made on the transformation of provisions of the UN General Assembly Resolution “Principles Relevant to the Use of Nuclear Pow-er Sources in Outer Space” (hereinafter the NPS Principles) as nuclear power sources in outer space should be based on a thorough safety assessment. The article starts by a short overview of the concept of “soft law” and the resolutions produced by UN COPUOS. Then it will go on to the main three parts besides conclusion. The first chapter gives a brief overview of the drafting history of the NPS Principles and the second deals with activities of UN COPUOS and IAEA on the matter of nuclear power sources use in outer space. The last chapter pre-sents several case studies focusing on the following questions which provisions of NPS Principles have been implemented into national legislative system, what is the novel and what are the differences among the various national law instruments in these countries.

The Drafting History of the Uganda Penal Code (Amendment) Act and Challenges to Its Implementation

The Drafting History of the Uganda Penal Code (Amendment) Act and Challenges to Its Implementation

The Crisis of European Refugee Law: Lessons from Lake Success

In this paper, we address three connected central issues in refugee law. Firstly, who is entitled to protection? Secondly, what should that protection entail – merely allowing the presence of refugees in the territory, or allowing access to the labour market and health and welfare systems? Thirdly, where should refugees receive protection – in the first country in which they arrive after fleeing their home country, or elsewhere? We analyze the current crisis of European refugee law by looking back at the drafting history of the 1951 Refugee Convention. European policy makers can learn from the way in which the drafters partially solved these issues in 1950/1951.

Re-Shaping Treaties While Balancing Interests of Stability and Change: Critical Issues in the Amendment/Modification/Revision of Treaties

The present article aims to examine the trends in amendment/modification/revision (A/M/R) practices in international law, and how these reflect the constant tug-of-war between the competing interests of stability of international relations and the necessity to change in order to avoid stagnation. However, any study on trends, whether viewed as linear or circular concepts, requires a study of the drafting history of any existing generally applicable set of rules on A/M/R. For this reason, in Section II the drafting history of the relevant articles of the Vienna Convention on the Law of Treaties (VCLT) will be examined in order to draw some initial conclusions as to the trends at that time regarding A/M/R. In Section III, interesting forms of A/M/R will be examined, which either emerged post-VCLT, or existed pre-VCLT but have shown a remarkable surge in application in the last few decades. Finally, in Section IV the A/M/R clauses of treaties will be statistically examined to reveal whether any conclusions arrived at the previous Sections can be confirmed or whether any additional trends can be identified. It goes without saying that when dealing with such a broad topic certain concessions, by necessity, have to be made. In Sections III and IV, the focus has been mainly on multilateral environmental agreements (MEAs). This is not because A/M/R practice in other fields of international law is devoid of interest, far from it. However, for the purposes of this Article it was considered better to adopt a ‘narrow and deep’ approach rather than a ‘broad and shallow’ one. MEAs were selected as the ideal focal point for several reasons. Firstly, because an examination of the A/M/R of all treaties would be impossible within the confines of this Article. Second, because MEAs due to their technical nature and their particular object and purpose seem to best reflect the constant battle between stability and change and finally, because there is a great number of MEAs from which useful statistical data can be drawn.

The Drafting History of UCC Article 5

This is a source for persons seeking to understand the law of letters of credit under UCC Article 5. The book’s purpose is to bring together material from four hard-to-access source materials, set them out by subject matter, and allow comparative analysis that will add meaning to the spare language of the 1995 version of UCC Article 5, the current legislation. Article 5 acknowledges that it is a basic platform for law that governs letters of credit. The statute assumes that case law and case law history continue to play critical roles in fashioning the superstructure for that platform. Researchers can access current case law in treatises, but the law on which the first version of Article 5 (the 1952 version) relied is absent from most of the literature. Happily, in 1953 the New York Law Revision Commission asked Professor Rudolph Schlesinger to evaluate the 1952 version in light of then current case law. Schlesinger’s Report, first published in 1955, is not readily accessible. It is a superb restatement of letter of credit law at the time the drafters were first fashioning the letter of credit statute. Also largely inaccessible are the comments Henry Harfield, a leading letter of credit lawyer and commentator, prepared for New York’s now repealed 1962 version of Article 5. This resource/history makes those comments available as well as the Schlesinger Report. Finally, the chapters dealing with each section of the current version of Article 5 contain “Dolan Commentary” by the author, an academic who writes frequently on the subject and has been recognized by courts and commentators as an authority on letter of credit law. This book makes the Harfield comments accessible by setting them out after the 1962 version of Article 5, and the Schlesinger Report accessible by presenting relevant portions of it out after each section of the 1952 version of Article 5. Appendix A is the introduction and the conclusion of the Report, which are not set out in the chapters. The effect of presenting this section-by-section chronology is to give the researcher entree to the legislative and common law history of the entire letter of credit article from its earliest version to its current version with commentary by recognized letter of credit commentators.

Realizing the Right to Vote: The Story of Thornburg v. Gingles

Justice William Brennan’s opinion in Thornburg v. Gingles is among the most consequential and enduring in the election law canon. Gingles established a three-part test that plaintiffs must satisfy to prevail on a racial vote dilution claim under Section 2 of the Voting Rights Act. The Gingles doctrine led to the transformation of representation at every level of government, compelling the creation of districts from which racial minorities could elect their preferred candidates. It remains a cornerstone of our voting rights law and a centerpiece of Justice Brennan’s legacy. This chapter tells the story of Gingles. It begins by travelling back over two centuries of North Carolina history, including the patently unconstitutional disfranchisement of African Americans engineered by Charles Brantley Aycock, elected the state’s governor in 1900. After reviewing the history of the Voting Rights Act of 1965 and its 1982 amendments, the chapter delves into the backstory of the Gingles litigation, most notably the previously untold drafting history of Justice Brennan’s opinion. The chapter concludes with a discussion of the consequences of Gingles and disagreements over the right to vote that still rage today, in North Carolina and across the country. Several of the players in the Gingles drama would become renowned for their subsequent accomplishments as lawyers, judges, and scholars. But the most surprising aspect of Gingles’s history is how little discussion there was of the law as it was being litigated. In the district court, through oral argument in Supreme Court, and even up to the first draft of the opinion, the focus was almost entirely on the facts. The now-canonical Gingles preconditions did not emerge until the second draft of the opinion. This doctrine would not have become law, but for the unrelenting efforts of Justice Brennan to keep a majority for the core of his opinion, which included switching his vote on one of the challenged districts to hold on to the all-important fifth vote on the Court. The story of Gingles is thus a revealing example of how law gets made and how that law can change the world.

The drafting of Article 33 of the Convention on the Rights of Persons with Disabilities: the creation of a novel mechanism

Article 33 of the Convention on the Rights of Persons with Disabilities is a novel mechanism, as it is the first time a human rights treaty has given state's direction in how the treaty is to be implemented. The purpose of this article is to look at the process that resulted in the creation of Article 33. First, the article will provide a brief description of the events and legal precedents that made the creation of Article 33 possible. Second, it will detail the drafting process that produced Article 33, looking at how the ideas, concerns and desires of both state parties and civil society came together to shape the article. Article 33 is the latest innovation in human rights law, designed to improve the implementation process. To fully understand Article 33, and how it may be successful, it is important to understand where it came from, and why it took that shape that it did. A detailed look at the drafting history of Article 33 is therefore both helpful and necessary.