Exercise Of Jurisdiction Research Articles

Sustainability in the prosecution of the crime of aggression: reflections in the wake of Russia’s initiation of a war of aggression against Ukraine*

The long period of sidelining the crime of aggression in the international legal policy discourse is over. On the contrary, in the wake of Russia’s initiation of a war of aggression against Ukraine, there is strong and widespread rhetoric in international politics suggesting that a critical moment in history has been reached with respect to the prosecution of the crime of aggression. However, to ensure the sustainability of such prosecutions, powerful rhetoric is not enough. As regard the resolve to match words with deeds, the odds are still out. At the time of writing, it remains an open question whether a critical number of State leaders will be prepared to rise to the historical challenge before them and eventually pave the way for sustainable prosecution of the crime of aggression. The crucial test is whether States Parties to the ICC Statute are ready, within the immediate future, to overcome the debilitating jurisdictional restraints that govern the Court’s exercise of jurisdiction over the crime of aggression.

Sustainability in the prosecution of the crime of aggression: reflections in the wake of Russia’s initiation of a war of aggression against Ukraine

The long period of sidelining the crime of aggression in the international legal policy discourse is over. On the contrary, in the wake of Russia’s initiation of a war of aggression against Ukraine, there is strong and widespread rhetoric in international politics suggesting that a critical moment in history has been reached with respect to the prosecution of the crime of aggression. However, to ensure the sustainability of such prosecutions, powerful rhetoric is not enough. As regard the resolve to match words with deeds, the odds are still out. At the time of writing, it remains an open question whether a critical number of State leaders will be prepared to rise to the historical challenge before them and eventually pave the way for sustainable prosecution of the crime of aggression. The crucial test is whether States Parties to the ICC Statute are ready, within the immediate future, to overcome the debilitating jurisdictional restraints that govern the Court’s exercise of jurisdiction over the crime of aggression.

Comparing universal jurisdiction in Europe and in Latin America: a vehicle for international justice or for colonial reckoning?

ABSTRACT A particular concern in recent years has been the limited options for prosecutions of persons responsible for atrocities in States not amenable to ICC jurisdiction. The need for accountability for atrocities builds on long histories of human rights and humanitarian law practice, both treaty-based and customary in nature, which has been driven also by the work of the ECtHR and the IACtHR mechanisms. At the domestic level, ever since the Pinochet decision, universal jurisdiction (UJ) has been considered a promising way to fill the lacuna. Indeed, some commentators have observed a resurgence in the use of UJ in recent years based on a number of trials of ex-ISIS and Syrian regime members in European courts. Yet UJ as it has been practised has serious limitations. While there are exceptions, many European states are steadily turning the exercise of UJ into the application of extraterritorial jurisdiction based on active or passive personality, especially in relation to their former colonies. In Latin America too, there have been some recent examples of investigations and prosecutions on the basis of ‘pure’ UJ, but the vast majority of exercises of jurisdiction are in furtherance of extraditions, particularly at the behest of former colonial powers. This article compares the recent uptick in European and Latin American usages of UJ, concluding that to date both regions still exhibit little appetite for pursuing ‘pure’ UJ. It warns that significant colonialist pressures in both regions threaten to limit this crucial mechanism for international justice.

Potential Contributions of IMO Area-Based Shipping Management and Port State Jurisdiction to the Regulation of Ship-Borne Tourism in Antarctica

Given the rapid growth of ship-borne tourism in Antarctica, the International Maritime Organization (IMO) area-based management tools (ABMTs) could be a timely and effective contribution to mitigate some of the associated risks. Utilization of IMO ABMTs in Antarctic waters, which constitute high seas, raises several legal and practical issues. The central challenge is how to ensure compliance with IMO measures on the high seas, given the lack of generally accepted coastal state jurisdiction in Antarctica and shortcomings in flag state control. This article addresses these questions and analyzes port state jurisdiction as a potential mechanism to enforce IMO ABMTs in the Antarctic. The article concludes that Antarctic port states have sufficient legal arguments to justify the exercise of jurisdiction in relation to IMO ABMTs, and that significant constraints lie in the economic and political dimensions of regulation rather than in regulation itself.

THE SOVEREIGNTY OF STATES OVER NATURAL RESOURCES AND THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION FROM THE INTERNATIONAL HUMAN RIGHTS LAW

This paper focuses on the analysis of the principle of State sovereignty over natural resources (PSNR) from the perspective of International Human Rights Law. The United Nations Declaration and the American Declaration on the Rights of Indigenous Peoples, which recognize their right to self-determination and the right to collective property, raise the hypothesis about the extension of the PSNR towards the recognition of the rights of indigenous peoples to exercise jurisdiction over their ancestral lands and territories. A documentary study of the origin and development of the PSNR has been carried out in relation to the right of self-determination of peoples and it is concluded that in a non-colonial context, indigenous peoples are holders of that right and that the right to their territories, to Land and natural resources are elements of the PSNR, which is the basis of its political and economic autonomy. The failure of States to respect and guarantee these rights promotes the risk of secession.

Multinational Enterprises and Human Rights Protection

Multinational enterprises are playing an important role in economic globalisation. Meanwhile, it is common for multinational enterprises to violate human rights overseas while it is difficult for victims to seek remedies. The international law which can regulate human rights violations by multinational corporations are mostly soft laws, but there is a lack of guarantees for the implementation of soft law. In domestic law, most host countries are developing countries that cannot regulate multinational enterprises effectively. And home states lack the will to regulate multinational enterprises because their interests are so closely linked. There are also obstacles like the exercise of jurisdiction and the corporate veil which prevent the multinational enterprises responsible for human rights overseas. Therefore, this essay clarifies the extraterritorial jurisdiction, the non-harm principle and the human rights due diligence to support the responsibility of multinational enterprises. Eventually, this essay clarifies that it is necessary to narrow the gap between the ideal of hard law and the reality of soft law in international law. In the meantime, host states and home states should both strengthen the legislation of human rights due diligence and protection for high-risk industries. Harmonious interaction and co-development of international and domestic law should also be considered and the non-governmental organisation should issue guidelines, and strengthen the regulatory role.

The Role of the International Criminal Court (ICC) in Resolving Israeli War Crimes Against Palestinian Civilians

The Israeli-Palestinian conflict, especially in the context of war crimes that harm Palestinian civilians, has become the focus of world attention. The International Criminal Court (ICC), based on the 1998 Rome Statute, has jurisdiction over crimes of genocide, crimes against humanity, war crimes and crimes of aggression. This research analyzes the role of the ICC in dealing with Israeli war crimes against Palestinian civilians. The ICC, as a permanent international tribunal, can try perpetrators of war crimes regardless of their official capacity in their country of origin. The ICC has the potential to provide justice for Palestinian victims of war crimes, although the challenge is to exercise jurisdiction over non-party states and ensure its decisions comply with international expectations for justice and peace

Fishing Rights Procedure at the European Court of Human Rights: Spasov v Romania

In recent years, it has increasingly been recognized that work at sea often raises questions concerning the protection of human rights. This is also the case in the context of fishing. While human rights issues on commercial fishing vessels are gaining attention, fishing activities of individuals and small crews are also connected to human rights—for example, regarding the implementation of fisheries policies. In December 2022, the European Court of Human Rights (ECtHR) ruled in the case of a fisherman from Bulgaria who had worked in Romania’s Exclusive Economic Zone (EEZ) in the Black Sea. Bulgaria and Romania are both members of the European Union (EU), and the EU’s Common Fisheries Policy (CFP) applied to the applicant’s work. He alleged that Romania implemented the CFP incorrectly and, in doing so, violated his human rights. This article analyzes the case of Spasov v Romania, which, as of late 2023, is available on the ECtHR’s website in French. The core issues of the case are placed in the context of the CFP and the relationship between the EU and the ECHR. It will be shown that the ECHR remains a potent tool for the protection of human rights at sea as well, including in the EEZ, where the coastal State exercises jurisdiction within the meaning of Article 1 ECHR.

Legal challenges of additive manufacturing on the Moon

Additive manufacturing (AM) is promising for supporting sustainable human presence on the Moon as it reduces costs and dependency on the Earth. It has been incorporated into several lunar programs. Nonetheless, AM on the Moon is legally challenging. First, the legal field most challenged by AM is intellectual property (IP) law, and the peculiar location of AM on the Moon complicates the issue. Deciding the State to exercise jurisdiction and extend its IP protection to the Moon encounters difficulties. Second, AM on the Moon is most valuable when it uses lunar regolith as a source of printing material, which may face similar legal problems to in situ resource utilization, including determining the legality of the activity, deciding the State to exercise the jurisdiction and control over it, the protection of the lunar environment, and so forth. Lunar in situ AM using lunar regolith (LISAMUR), meaning using lunar regolith as raw materials to manufacture objects on the Moon through AM technologies, renders these problems more imminent and substantial. The article delves into the two categories of legal issues ignited by AM on the Moon and reveals that three reasons lead to the legal dilemma: the ambiguous terminology of the space treaties, the abstract principles, and the lacunae in space law. It suggests that as international legislation is slow, temporary approaches of coordinating the understanding of critical notions and relevant principles in space law and updating the registration regime through international cooperation on multilateral platforms would be more viable for coping with the legal challenges of AM on the Moon.

Account of events, by definition, involves an understanding of the actors

What could justify the paper on evidence in international commercial arbitration? What is so peculiar about this instance of the realisation of the law that it explains the autonomy of the subject of evidence when it takes place in international commercial arbitration? Isn't the general theory of evidence applicable to the demonstration of reality in a certain type of proceedings – arbitral proceedings – whenever they concern commercial and plurilocalised disputes? These are the central questions around which the text will gravitate. We will emphasise what we believe to be the determining factor in the development of a praxis that does not cause a break between the general theory of evidence developed for civil cases tried in state courts and the central vectors of evidence as known in international commercial arbitration: the context of the exercise of jurisdiction.

عدالتى خلع كى حقيقت اورحكم

This paper discusses the issue of Khul‘a through Courts. Termination of marriage by way of Talaq or Khula is the unanimously recognized way of the dissolution of marriage and continuously being practiced since the early days of Islam till date. Normally, extra judicial divorce is preferred in Islam to save the spouses from unnecessary litigations. Section 10(4) of the Family Court Act, 1964 empowers a Family Courts for dissolution of marriage, if reconciliation fails. This paper discusses opinion of various Schools of thought whether Court, according to Shariah, is empowered to grant such decree and if granted, what will be its ampacts. Federal Shariat Court examined the impugned provision of law and found it not repugnant to the injunctions of Islam and considered it as one Talaq Bain. The Court observed that there is no specific verse or authentic Hadith that provides a bar to the exercise of jurisdiction by a competent court to decree the case of Khul‘a agitated before him by wife, after reconciliation fails. The August Supreme Court of Pakistan considerd separation by way of Khul‘a as Fasakh not Talaq. At present the situation is that the last Judgment delivered by the august Supreme Court of Pakistan holds the field and the lower courts decide the cases following the precedent set by the Supreme Court in similar cases.

Eradicating the exceptional: The role of territory in structuring international legal thought

AbstractThis article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

The Analysis of Article 184(3) of the Constitution of the Islamic Republic of Pakistan regarding Cases is Pending or Decided by High Courts

The legal analysis investigated the scope of Pakistan's Supreme Court's original jurisdiction under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. It delves into precedents to establish the extraordinary and discretionary nature of this jurisdiction. The study discussed the principles guiding the exercise of jurisdiction when concurrent jurisdiction exists with the High Courts under Article 199. Additionally, it introduces the principle of forum non-conveniens, emphasising the court's discretion in selecting the most suitable venue for a case. This study, which was conducted using the doctrinal legal research method, examined legal precedents in which the Supreme Court declined jurisdiction due to a pending petition in the High Court. The article concludes by asserting the court's inability to challenge or circumvent judgments of high courts under Article 199.

Prosecuting Corruption Crimes before an International Court: Whither Immunity Rules?

This article argues that an international anti-corruption court has to respect the functional and personal immunity of officials of states that are not a party to it. If an exception applies to immunity before international courts that prosecute international crimes, this exception does not extend to a court that would prosecute transnational crimes. Since personal immunity rules stand in the way of prosecution of (certain, high-level) kleptocrats in foreign national courts, these rules will also hamper the exercise of jurisdiction by an international court. The article further takes issue with the oftheard proposition that corruption is a purely private act that escapes the reach of the functional immunity rule, concluding that functional immunity considerations require closer study in the context of the plans to prosecute corruption crimes at the international level.

The (Non-)Use of African Law by the International Criminal Court

Abstract All defendants before the International Criminal Court (ICC) to date have been African, with their alleged crimes having been committed, at least partly, on African soil. When turning to national laws to resolve issues of interpretation in these cases, should the ICC see whether it can use laws of the African state in which the crime occurred? This article argues that it should, but observes – from a dataset of 16,192 citations containing over 200 citations to national laws – that it rarely does. Instead, it turns much more often to Western European and US laws. This phenomenon, the article suggests, troublingly reflects and perpetuates the marginalization of African and other global South laws from what constitutes international law. The article also argues that the Rome Statute requires the ICC to at least examine for appropriateness the laws of a subset of these neglected systems (‘the national laws of States that would normally exercise jurisdiction over the crime’) when identifying general principles of law. There are several compelling reasons to extend this examination requirement to African and other global South country laws more broadly, and even when not dealing with general principles of law, and few reasons not to.

The Appeals Chamber’s Jurisdictional Judgment in Abd-Al-Rahman and the Issue of Applicable Law at the International Criminal Court

Abstract On 1 November 2021, the Appeals Chamber of the ICC upheld the notion that, depending on the type of case over which the court exercises jurisdiction, it must use two different bodies of substantive law to evaluate whether certain conduct is criminal and, hence, whether the court has the power to prosecute and convict individuals for such conduct. This contribution argues that this bifurcation in the substantive law applicable at the ICC leads to disconcerting results, no sound normative principle supports it, and it does not correspond to the design of the creators of the court.

AI-Based Autonomous Weapons and Individual Criminal Responsibility Under the Rome Statute

Objective: international law obligates states to prosecute those who have violated laws in armed conflicts, particularly when the international community now has International Criminal Court (ICC).That is why the aim of the paper is to discover the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC.Methods: doctrinal analysis allowed to research the positions of experts on the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC. Results: this paper argues that the ICC can only exercise jurisdiction over natural persons who allegedly have committed the crimes under its jurisdiction, as compared to autonomous weapons. This paper argues that the persons who facilitate the commission of the alleged crimes are highly likely to be criminally responsible for providing means for the alleged crimes to be committed by AI-based autonomous weapons under Article 25(3)(c) of the Rome Statute and concludes that the Rome Statute provides a solution even to AI-based autonomous weapons.Scientific novelty: this paper addresses to the highly relevant issues of the responsibility for the crimes made with the use of AI-based autonomous vehicles in accordance with the provisions of the Rome Statute of the ICC.Practical significance: the results achieved in the paper can be used in regulation design for AI-based autonomous weapons. It can also be used as a basis for the future research in the sphere of liability of AI-based autonomous weapons and AI in general

Kings, Treasures, and Looting: The Evolution of Sovereign Immunity and the Foreign Sovereign Immunities Act

Last year witnessed the conclusion of a long-fought dispute between a private party and a foreign government over an art collection with significant cultural value. It involved a treasure of ecclesiastical objects dating back to Medieval Germany that had once belonged to the royal House of Guelph and housed in the muralled medieval Brunswick Cathedral in Braunschweig, Germany. Ultimately, after over a decade of fighting, the controversy’s resolution did not involve an ownership determination by a U.S. court. Rather, the high court abstained from making a determination and instead declined to exercise jurisdiction over Germany. The lack of decision was not surprising, particularly in light of delicate foreign policy issues at play and the importance of keeping the judiciary out of international political disputes. The court’s unanimous decision was consistent with prior holdings, and so perhaps it was foreseeable that the court did not examine the merits of the ownership claims. However, a line of cases against Greece, Switzerland, and Italy did come as a shock, because they involved claims against foreign countries for asserting ownership interests in antiquities that were suspected of having been looted. Never before had governments been sued for their actions regulating the antiquities market and working to protect cultural artifacts.

The Mutual Legal Assistance Treaty for Core Crimes

Abstract The Mutual Legal Assistance Initiative (mlai) was established to fill the widely acknowledged gap that currently exists within the international legal framework on inter-state cooperation in the prosecution of international crimes. Recent drafts of the mla Convention are concerned not only with mutual legal assistance and extradition, but a series of wider obligations for states on criminalisation in domestic law, exercise of jurisdiction and protection and reparations regimes for victims. It has become much more than a judicial cooperation treaty. This article analyses the developments and directional changes in the mlai, questioning whether the current draft Convention aligns with the Initiative’s original objectives and enables it to fulfil its aims.

Territorial Waters as Ambiguous Legal Concept in International Law

The legal concept of the territorial waters’ regime was developed for the first time during the 16th and 17th centuries, a period of time that coincided with the formation of the system of independent states with defined territories, which were generally characterized by the ability to possess certain rights to regulate according to national interests the maritime activities developed in the maritime zones near their coastline. During this period Grotius, who is considered among the founders of international law, despite emphasizing that states should not possess sovereign rights over maritime zones, generally accepted the existence of the exercise of jurisdiction over coastal waters by states that could control effectively from the continent these specific maritime zones. At the end of the 18th century, the distinguished author Bynkershoek, while preparing the work De Dominio Maris Dissertation, published in 1702, relied extensively on the basic legal concepts of freedom of the seas and state sovereignty over coastal waters. Vattel, another well-known scholar, in Le Droit des Gens (1758), reflected his reliance on the writings of Grotius, Gentile, and Bynkershoek, underlining that coastal states enjoy sovereign rights over their coastal waters, but must allow the ships of other states to navigate peacefully through these waters. Nowadays, the territorial waters’ regime is considered a crucial concept for the national interest of coastal states. In this regard, due to the importance it represents for coastal states and the international system in general, the legal regime of ​​territorial waters should be analyzed more extensively in order to better comprehend this paramount legal notion. Hence, the main purpose of this article is to analyze the legal concept of the regime of territorial waters within the framework of international law.