General Principles Of International Law Research Articles

PELANGGARAN PRINSIP-PRINSIP PIAGAM PBB 1945 DALAM SERANGAN MILITER RUSIA KE WILAYAH UKRAINA

In international law, an independent and sovereign state has an obligation to respect another state such as not intervening, respecting territorial integrity, and resolving international disputes peacefully. The conflict between Russia and Ukraine attracted world attention since 2014 when Russia annexed the territory of Crimea, Ukraine which made a referendum and resulted in Crimea joining Russia. In 2022, the relations between Russia and Ukraine had problem because Russia did military operations by detonating bombs on several cities in Ukraine. The action raised questions about how the general principles of international law works that every independent state should respect. This paper examines the conflict relations between Russia and Ukraine against the general principles of international law based on the 1945 UN Charter. This paper used qualitative research with normative juridical research methods. The result of this paper is that the military operation by Russia does not reflect the implementation and respect of Article 2 paragraph (4) and Article 2 paragraph (7) of the UN Charter regarding the prohibition of using armed violence and acting to intervene in other countries. Also, Russia's actions unfulfilled the self-defense criteria specified by Article 51 of the UN Charter.

International Legal Issues in the Conservation of Marine Genetic Resources

INTRODUCTION. Nowadays the issues concerning conservation of marine biological diversity become important for the community of States in the light of the expansion of the scale of economic activity in marine spaces and of the opportunities of using such resources. At the universal contractual level an answer was proposed to a number of questions that have arisen in this area: on March 4, 2023, the text of the Agreement (under the 1982 United Nations Convention on the Law of the Sea) with a long title: “on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction” was finalized. It is predicted that the entry into force of this Agreement in the future will create a multilateral legal basis for conservation of biological diversity on the high seas, with the orderly use of its biological resources, to protect such diversity based on the principle of cooperation between States.The purpose of the article is to analyze the legal regime of marine genetic resources conservation based on the text of this Agreement.MATERIALS AND METHODS. The subject of this study comprises international treaties, international customs, general principles of international law and other sources of international law related to conservation of marine biodiversity in general. The methodological basis of the research is represented by a wide range of research methods, namely: formal-legal, comparative-legal, historical-legal and system-structural methods. In addition, the author applied the methods of analysis and generalization.RESEARCH RESULTS. The article presents a comprehensive analysis of the international legal regime of marine genetic resources based on the provisions of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The author considers the history of the development of the draſt Agreement, analyzes its main provisions, and pays special attention to its innovative legal mechanisms.The author proposes their assessment of the content of the draſt Agreement as a universal legal basis for the conservation of marine biological diversity, and suggests some options for strengthening international cooperation in this area.DISCUSSION AND CONCLUSIONS. As a result of the study, it can be stated that the draſt Agreement, prepared over many years of negotiations and published in March 2023, is a significant political and legal achievement of a universal level in the field of marine biodiversity conservation. At the same time, one can not fail to note the rather general nature of this document, as well as the fact that the entry into force of the Agreement may also require considerable time: objectively, the interests of developed and developing countries in this area are not always close; moreover, each State party to the Agreement accepts the obligation, among other things, that the use of marine natural resources should be linked to the obligation to protect marine environment, and this is always sensitive: a number of developed countries, as is known, under the pretext of economic concern, impose on developing States “green” products of their enterprises, which exacerbates the gap between developed and developing States.That is why the author comes to the conclusion that the international community, along with the development of a universal international treaty, could take the path of developing regional agreements to clarify such a legal regime, which would also contribute to the strengthening of the legal regime for biodiversity conservation at the universal level.

Irreversibility in nuclear arms control and disarmament law?

Abstract While irreversibility of nuclear arms control and disarmament measures can be supported by compliance with applicable legal norms, the existing treaty regulation has serious gaps: pertinent treaties are not universally applicable; limitations on missiles as important carriers of nuclear warheads have been abrogated; the strategic doctrines of nuclear weapons powers are not fully transparent, and while the latter may strengthen the effectiveness of nuclear deterrence, it also raises questions as to compliance with fundamental obligations to refrain from a threat or use of force and to settle international disputes by peaceful means. There are certain principles of general international law that can and should be used in international cooperation to overcome nuclear crisis situations and strengthen international security: fundamental norms regarding the non-proliferation of nuclear weapons and nuclear disarmament under strict and effective international control have an erga omnes character and are accepted and recognized by the international community of States as a whole. Furthermore, general rules of international responsibility are fully applicable in the law of nuclear arms control and disarmament. It is in this sense that irreversibility in nuclear arms control and disarmament is served by legal principles and rules, which require States to comply with existing obligations and to cooperate for the maintenance of peace and security.

The application of the precautionary principle in the decision of releasing Fukushima radioactive contaminated water into the sea

The “precautionary principle” is an important and forward-looking principle. Its advancement lies in surmount any time lag in scientific knowledge. As the importance of protecting against unknown hazards has increased, the precautionary principle has been widely accepted by international and domestic legal instruments. By examining international legal documents and judicial practices, it can be found that the legal effect and legal connotation of the precautionary principle have been constantly improved in international law. At the same time, the Precautionary principle in international judicial practice has also changed from initial hesitation and caution to acceptance, even promotion. Japan's decision to release radioactive contaminated water clearly violates the precautionary principle. However, due to normative deficiencies in the precautionary principle itself, it remains unclear which acts should be performed byobligatory parties to be regarded as fulfilling their precautionary obligation. These deficiencies may cause the precautionary principle cannot be truly implemented in international judicial practice. Despite some vagueness, it is still possible to extract the two most basic responsibilities from international judicial practice, and their legal connotations in fulfillment of the precautionary principle: first, to consult with other stakeholders and second, to stop potentially dangerous behaviors that may cause serious and irreversible damage to the environment. At a legal level, to address Japan’s decision, the precautionary principle can regulate pollution discharge in two forms: customary international law and the general principle of international law. From the perspective of people’s survival, safety, and development sustainability, it is imperative to apply the precautionary principle to this incident. The decision of the Japanese government to discharge nuclear-polluted water into the Pacific Ocean is a serious breach of international law, because it was only considered in terms of technical feasibility and not in terms of international legal implications.

The Right of Ownership and Legal Protection in Kosovo’

Background: The Republic of Kosovo is a country located in Southeast Europe with partial diplomatic recognition. Kosovo declared its independence on 17 February 2008, and has since gained diplomatic recognition from 116 member states of the United Nations. On 22 July 2010, the International Court of Justice rendered an advisory opinion on the legality of Kosovo’s declaration of independence, which was not in violation of neither general principles of international law, nor specific international law. In 2022, Kosovo filed a formal application to become a member of the European Union. In the Republic of Kosovo, the Constitution is the highest legal act. Laws and other legal acts shall be in accordance with this Constitution. Civil law is not codified but divided into separate laws. The property right is regulated by the Law on Property and Other Real Rights Law No. 03/ L-154. Property rights and other real rights in the Republic of Kosovo originate from this law. Keeping this in mind, in our article, we are going to highlight the range of problems related to property rights’ regulation and protection, including gaps in primary and secondary legislation, analysing case law, courts, state attorneys, and administrative authorities’ activities. Methods: In this paper, we analyse the institution of property rights. We used comparative and analytical methods based on the current legislation in Kosovo, utilising resources from the former Yugoslavia. Additionally, we used some historical methods to derive concrete results. Kosovo has inherited the relics of the former Yugoslav legal system; building a new system is a challenge in and of itself. In the context of property law in general, its legal protection is crucial for the owner to use and dispose of his property. Results and Conclusions: With the knowledge that the institution of property law is one of the main institutions of civil law, and is the fundamental institution of real law, we have analysed this law institution as a constitutional principle, regulated by special laws in Kosovo. Additionally, given the importance of the property institution, Kosovo has adopted laws that protect property rights, enjoying civil legal protection, criminal legal protection, and international protection. These laws should be in accordance with the country’s Constitution, with international human rights instruments, as well as with EU legislation.

Exiting from the Obligations of a Tax Treaty: An International Framework with Diverse Practices

This article focuses on the intention of states to withdraw from tax treaty obligations, starting with the pre-ratification period and ending with post-treaty obligations. Intentions are reviewed in the light of the general principles of international law, the Vienna Convention (1969), the OECD and UN Models, and in relation to jurisprudence.

Book Review of Victor Stoica, Remedies before the International Court of Justice: A Systemic Analysis

1. The book under review is Victor Stoica, Remedies before the International Court of Justice: A Systemic Analysis, Cambridge University Press, 2021, 288 pp. The ICJ’s analysis of remedies has always remained on the fringes. The author through this work attempts to study comprehensively the remedies before the ICJ and the consequences. The author has divided the book into nine chapters, highlighting the various dimensions of remedies and the ICJ’s approach to them. 2. Chapter 1 highlights the jurisdictional competence of the ICJ to grant compensation; accordingly, States have challenged the jurisdiction of the ICJ to grant remedies, especially if no legal instruments confer this power. 3. Chapter 2 studies the availability of remedies at the provisional measures phase; as the author opines, “the availability of provisional measures or protective measures is a general principle of international law and national law” (p.13). Although in the Permanent Court of International Justice (PCIJ), the remedies sought were not granted during provisional measures, in the Chorzow factory case, the PCIJ couldn’t provide remedy as it would amount to an “interim judgment” (p.14). However, the ICJ granted restitution in kind through its provisional measures; in the Tehran Hostage case, it was observed in the said case that “Iran should ensure that the premise of the embassy of the United States is restored to its possession” (p.17). Also, cessation was granted in the “Nicaragua case” for the breaches of international obligations and specific performance in the Avena Judgment. Further, for the “breach of provisional measures” (p.19), States are provided “satisfaction”, i.e., “declaratory relief rather than coercive remedies such as compensation” (p.20). The author concludes by stating that remedies are available for non-compliance with provisional measures. However, it is argued through S.S. Wimbledon, Chorzow Factory and subsequent cases that the ICJ is competent to grant remedies even though the treaty did not contain an express provision; in the Corfu channel case, it was underscored that the ICJ is competent to decide the quantum of compensation, this position was maintained in the subsequent cases.

The impact of the monetary gold principle on the determination of jurisdiction in the mixed maritime disputes.

Mixed maritime disputes are maritime disputes that involve the concurrent consideration of any dispute concerning sovereignty or other rights over continental or insular land territory, which according to Article 298(1)(a)(i) of United Nations Convention on the Law of the Sea, should be excluded from the jurisdiction of a court or tribunal referred to in Article 287. However, by means of treaty interpretation or consensus of two parties, International Tribunal for the Law of the Sea and other Annex VII tribunals have increasingly broken through the limits to actively exercise jurisdiction. Judgements under the influence of this tendency will be firmly resisted by states whose sovereign interests are damaged. Moreover, these judgements will not only fail to resolve disputes, but will create more serious international law and international political disputes, such as the judgement on preliminary objections of Mauritius v. Maldives delimitation case. In this judgement, the Special Chamber of International Tribunal for the Law of the Sea circumvented the Monetary Gold principle by citing the International Court of Justice advisory opinion and United Nations General Assembly resolution, which had no legally binding force. It is proposed that this judgement could open Pandora's box of challenges to general principles of international law and jurisdiction over sovereignty disputes. For States with mixed maritime disputes to resolve the issues mentioned above, it is necessary to respond to lawsuits actively, avoid adverse consequences caused by default judgements and reach regional consensus, and avoid unfavourable International Court of Justice advisory opinions and United Nations General Assembly resolutions.

General Principles of Law at the Turn of Civilisations

This review of general principles of law at the process of great changes observed in reality shows not only the past that have been (diversity of the view; contentious issues) and the present (impulse to merge; impetus for thinking) but also the future. The aim of this synthesis was to reconstruct the system of general principles of international law (the need to take into account the general principles of private law and the general principles of law constructed in the process of regional integration of states) as well as the vision of future work on this issue aimed at muted understanding and cooperation for mutual benefit.

Contemporary international Law:Regulating the upcoming fukushima radioactive wastewater discharge

In April 2021, the Japanese government decided to release tonnes of radioactive wastewater from the wrecked Fukushima nuclear power plant into the ocean, a decision that will likely to pose a direct threat to the marine environment of not only Japan, but also the jurisdictional waters of neighboring countries. Legal measures such as litigation against Japan has been an option for the neighboring countries, although they require more time than available, unless interim measure are ordered. Based on a multidisciplinary research approach that integrates open-source research data, authoritative data and conclusions, this paper shows that since the ocean is a complex and changeable system and radionuclides could be redistributed by the ocean currents and eddies, the radioactive wastewater discharge will cause or likely to cause contamination in fish products and fishing grounds and have negative impact on marine life and humans. In response to the widely known skepticism regarding the application and efficiency of international law concerning the 2011 Fukushima Daichii accident, this paper argues that the nuclear law, ocean law and general principles of international law do provide sufficient constraints on the forthcoming radioactive wastewater discharge. Among the IAEA's legal documents, the Convention on Nuclear Safety (CNS) and the Convention on Early Notification are the most applicable conventions to the Fukushima radioactive wastewater discharge. Treaty interpretation of the “at sea” element in the London Dumping Convention and its Protocol is crucial to determine the legitimacy of the planned oceanic discharge activity of Japan. In addition, legal characterization of sources of pollution, the place in which the oceanic discharge activity occurred and Japan's substantive and procedural obligation under the United Nations Convention on the Law of the Sea (UNCLOS) will also affect the treaty application in the forthcoming oceanic discharge. This paper proposes that for the international community as a whole, long term (regional and global cooperation) and short-term measures (inter-State cooperation) need to be taken into consideration in order to tackle Japan's decision as well as laying the framework for any similar discharges that could follow Japan's example.

Практика міжнародних військових трибуналів щодо застосування загальних принципів міжнародного права

Практика міжнародних військових трибуналів щодо застосування загальних принципів міжнародного права

Harm to the global commons on trial: The role of the prevention principle in international climate adjudication

AbstractAlthough the climate crisis is the result of a failure to prevent environmental harm, the principle of prevention has thus far remained discrete in domestic climate litigation. Similarly, in the context of international climate adjudication, reliance on the prevention principle could seem limited by two main obstacles: its anchor in bilateralism and its normative indeterminacy. This article argues that, on the contrary, the prevention principle could serve important functions in international climate adjudication. First, it shows that climate change falls within the reach of the prevention principle, which aims to protect the environment per se as a community interest. Then it explores two argumentative scenarios that are based on different constructions of the prevention principle, conceived either as a customary duty or as a general principle of international law. In both cases, recourse to the prevention principle can offer numerous advantages, which vary depending on the objectives strategically pursued.

The relationship between general principles of international law and Article 38(1) of the ICJ statute: A law of the sea perspective

A central controversy relating to the UN International Law Commission’s ongoing project “General Principles of Law” is whether general principles of law “formed within the international legal system” could be regarded as part of Article 38(1)(c) of the Statute of the International Court of Justice (ICJ), which provides that the ICJ shall apply “the general principles of law recognized by civilized nations” in its decisions. This article examines the matter from a law of the sea perspective. Based on a comprehensive review of international judicial practice relating to law of the sea issues as well as the travaux préparatoires of the ICJ Statute, it is found that there is insufficient support for the inclusion of general principles of international law into the category of ‘general principles of law’ under Article 38(1)(c). From a lex ferenda perspective, however, instead of insisting on the two elements for the formation of customs which are rarely followed in judicial practice, it seems better to recognize that general principles of international law are part of general principles of law and endeavor to find consensus on the meaning of “recognition” under Article 38(1)(c).

국제법상 요청에 의한 무력개입의 적법성

As “the threat or use of force” is generally prohibited under Article 2(4) of the United Nations Charter, the principle prohibiting the use of force has been firmly established as a general principle of international law. In addition, as an exception to the principle prohibiting the use of force, it is generally recognized that the exercise of the right of self-defence against prior armed attack or the use of force under the approval of the United Nations Security Council is exceptionally permitted. Nevertheless, in order to justify the use of force in the international community, States have used various international legal justifications, including anticipatory or preemptive self-defence, humanitarian intervention, protection of overseas nationals, protection of democracy, and self-determination. The so-called “intervention by invitation” is one of the main justifications that States claim to intervene in foreign civil war. However, if consent is granted by the requesting state, there would be no “use of force” prohibited from the beginning, so the intervention cannot be regarded exception to Article 2(4) of the United Nations Charter. Despite the relevant principles of international law related to foreign forcible intervention, especially the principle prohibiting the use of force, non-intervention, and self-determination, intervention by invitation is clearly permitted under international law. Nevertheless, if a State intervenes in another state's civil war and uses “intervention by invitation” as a legal justification, the question arises as to who has the authority to request forcible intervention, that is, what is the criterion for judging a legitimate government under international law. For this reason, most of the controversies related to “intervention by request” arise due to the question of who can give valid consent. In this paper, we first theoretically review the legality of intervention by invitation under international law, and then comprehensively review the controversy raised when intervention by invitation is invoked, especially in the context of civil war.

The legal regulation of the construction of dams on international rivers in accordance with the principles of general international law

Water nowadays has been of great importance internationally for its scarcity, water is now of great importance at the international level because of its scarcity, and the growing demand for it resulting from the increasing population at the international level, which portends inter-State conflicts over the sharing of the available water resources. Therefore, the construction of dams has been increasing recently, especially in countries from which rivers flow which may have negative impacts on economic, social, health, and environmental aspects. Dams are one of the most important water facilities that humanity has ever known in his history. Scientific reality has shown that several factors can mainly participate in the increasing water crises. But dam construction and water storage by basin countries are the biggest problems for countries that depend on international rivers, which resulted in shortages of productive capacities in these countries. Despite many historical ties and coherent international relations between the basin and the riparian countries, however, due to the technological development, increasing uses of water for various purposes, and decreasing freshwater levels; construction of large dams for the storage and utilization of international water has been started. This leads to the deprivation of the riparian countries of quantities of river water according to the principles of the general international law, which is the main problem for riparian States, despite the other problems they face like water pollution due to the untreated wastes in international rivers as well as industrial waste disposal by basin countries  

Lethal Autonomous Weapons Systems and International Law

INTRODUCTION. This research paper presents the authors view on the essence of the problems of modern international law regulation of lethal autonomous weapons systems (LAWS) and international arms circulation. The authors dwell upon various aspects of new technologies in the field of creating LAWS, outline the prospects for the solution of the current challenges, as well as give a legal assessment of the legality of new types of weapons, methods and means of warfare from the perspective of contemporary international law. The system and mechanisms of international law regulation of the military purpose products circulation are also analyzed in this scientific work.MATERIALS AND METHODS. The subject of this study comprises international treaties, international customs, general principles of international law and national legislation of states. The study also includes the analysis of international acts of different nature, reports and other documents of international organizations, national authorities, scientific and educationalliterature. The methodological basis of this study is a wide range of research methods, namely: formal-legal, formal-logical, comparative-legal and historical-legal. In addition, the researchers apply system, structural and functional methods, as well as methods of analysis and generalization.RESEARCH RESULTS. The result of the study is the conclusion about the perspectives of developing auniversal definition of LAWS, as well as a common approach to understanding their characteristics and parameters of human control, and also about the advantages of LAWS in the course of military operations and solving national security problems of states, primarily in terms of compliance with IHL rules, which all military personnel are required to strictly observe. It is also necessary to take into account the crucial role of the issues of secrecy and national security, while Article 36 of Additional Protocol I does not contain criteria for distinguishing new types of weapons from other types of weapons, for example, from those that have undergone multi-stage modernization. It can be stated that at present there are only separate and insuffi ently effective mechanisms of international law regulation due to their voluntary basis. Therefore, national export control mechanisms are of paramount importance for the process of regulating the circulation of military purpose products, which is an essential element of national sovereignty.DISCUSSION AND CONCLUSIONS. The authors come to the following conclusions: the existing provisions of IHL are fully applicable to LAWS; responsibility for the use of LAWS should be borne by the person who manages the robotic complex or «programs» and gives the order to use LAWS, but the specific forms and methods of human control should remain at the discretion of states; Article 36 of Additional Protocol I provides extremely limited opportunities to prevent the creation of new weapons systems, does not require any reporting and control format; research and development of new types ofweapons are secret, and the acquisition or adoption of obviously or presumably indiscriminate weapons systems are not a violation, but rather a preparation for a violation or an activity of a controversial nature; further improvement of the international law regulation of arms circulation should be developed by creating mandatory universal mechanisms of international law regulation that would prevent the uncontrolled circulation and illegal distribution of weapons, including their sale to terrorists.

Rohingya Boat Refugees at Bay of Bengal and Obligations of the South East Asian States Under Soft Law.

The 1951 Refugee Convention and the 1967 Protocol are the only binding international instruments under which the parties of the instruments agree to protect refugees. However, there are gaps in the existing protection mechanisms for refugees at sea. Moreover, the South East Asian States are non-parties to the 1951 Refugee Convention; the States argue that they have no treaty obligation to accept Rohingya boat refugees. In this context, this article revisits the traditional view of ‘soft laws’, suggesting a fresh look at ‘soft laws’ regarding boat refugees. This article argues that even though the States are non-parties to international refugee law, the South East Asian States are members of the UN General Assembly, IMO, and ExCom. These international bodies have adopted numerous resolutions, guidelines and conclusions on refugee protection at sea; therefore, the States have international obligations to boat refugees according to Article 38(1)(C) of the Statute of the International Court of Justice 1945, the general principle of international law.

‘Cyber Due Diligence’: A Patchwork of Protective Obligations in International Law

Abstract With a long history in international law, the concept of due diligence has recently gained traction in the cyber context, as a promising avenue to hold states accountable for harmful cyber operations originating from, or transiting through, their territory, in the absence of attribution. Nonetheless, confusion surrounds the nature, content and scope of due diligence. It remains unclear whether it is a general principle of international law, a self-standing obligation or a standard of conduct, and whether there is a specific rule requiring diligent behaviour in cyberspace. This has created an ‘all-or-nothing’ discourse: either states have agreed to a rule or principle of ‘cyber due diligence’, or no obligation to behave diligently would exist in cyberspace. We propose to shift the debate from label to substance, asking whether states have duties to protect other states and individuals from cyber harms. By revisiting traditional cases, as well as surveying recent state practice, we contend that – whether or not there is consensus on ‘cyber due diligence’ – a patchwork of different protective obligations already applies, by default, in cyberspace. At their core is a flexible standard of diligent behaviour requiring states to take reasonable steps to prevent, halt and/or redress a range of online harms.

State Responsibility for Climate Change Damages

The state’s liability for damages in the field of climate change remains one of those areas of international law that has not yet been comprehensively regulated. At present, the Warsaw International Mechanism for Loss and Damage, specific to the norms of international climate law, is not an alternative to the general principles of international law regulating responsibility and compensation issues of the states in the sphere of international climate law. The application of customary international legal mechanisms of responsibility of states in relation to climate damage can be a kind of challenge. Both the damage itself and elements such as causation or the possibility of attributing responsibility to the state pose a significant challenge in the sphere of climate protection. On the other hand, it is impossible not to notice that properly applied norms of general international law make it possible to overcome the difficulties arising from the specificity of the responsibility of countries for climate change. The latest jurisprudence of the International Court of Justice in environmental matters creates a framework for the settlement and implementation of possible liability for damages in the area of ​​climate change.

Mary Ellen O'Connell, The Art of Law in the International Community, Cambridge University Press, May 2019

Professor Mary-Ellen O’Connell, in her new book, The Art of Law in the International Community, packs the tale of an extra-positive approach to law-making back at the centre of the stage. The book attempts to consider the of the community to explain the rise of two pillars of contemporary international law, namely the legal regulation of the use of force and the rules (or more precisely the meta-rules) on jus cogens. The book shifts steadily towards the intersection between natural law, jus cogens, and the ban of unilateral use of force. Methodologically speaking, the two regimes intersect since both are off springs of the UN Charter and the 1969 Vienna Convention. Perhaps not in the same trend of state practice, both principles formulate the general principle of international law. In sum, they add a small group of rules which feature the new world order in the aftermath of World War II.