General Rules Of International Law Research Articles

Systemic Interpretation of the European Convention on Human Rights and its Protocols: Creeping Fragmentation of State Responsibility

The article discusses how the European Court of Human Rights (hereinafter — ECtHR, the Court) influences the way the European Convention on Human Rights (hereinafter — ECHR, the Convention) is systematically interpreted in the context of state responsibility. The article highlights that interpretation of the Convention and general principles of state responsibility is crucial for holding states accountable, ensuring justice for victims, and upholding the credibility and coherence of international law. For this reason, it is essential for the Court to carefully interpret the ECHR within the broader context of international law. The authors believe that one of the most practical strategies to analyse this issue is through determining the consistency of the European Court of Human Rights’ approach to state responsibility issues, elaborated through its case-law, with general customary rules of international law. It can be effectively performed through the lens of three fundamental problems: jurisdiction and attribution interaction problem; issues of state responsibility for the acts of international organisations, paying special attention to peace-keeping operations; and third-state responsibility problem. The analysis shows that the Court creates its own criteria, often conflicting with each other, by ignoring established general rules of international law on state responsibility. Lastly, the authors show that while the Court often acts as a lawmaker, it should create the law in a unified way to apply it fair and equally for the purposes of human rights protection. It is not the states and their particular interests that should govern the application of law by the Court. In the end, the authors come to the conclusion that the policy behind the Court’s decisions is not only predominantly inconsistent with the general customary rules of international law and the object and purpose of the Convention, but also results in the creeping fragmentation of the international law on state responsibility.

Weapon against Civil Aircraft

The use of weapons against civilian aircraft, in view of the ethical and legal dilemmas, endangers human life, society and its stability, and has legal and economic consequences; it is one of the most serious legal cases of our time. Even if the problem is analysed and interpreted in the light of the available legal concepts and instruments, and the legality or otherwise of the use of weapons is not established, the problem cannot be dealt with in a way that is beyond doubt and reassuring, since it certainly involves a violation of the right to life of the passengers on board the aircraft and of the international obligations of the State such as general rules of international law or humanitarian law. The purpose of this paper is to present the international legal liability regime for the use of weapons against civil aircraft in peacetime and in armed conflict, as well as its human rights and ethical responsibilities.

Issues in Intra-African Migration: Juxtaposing Natural Law Theory with Xenophobia in Africa

Central to the discourses on xenophobia in Africa is inter-state migration of both skilled and unskilled citizens. Within the African continent, this scenario of movements translates to intra- African migration. This has been an age long experience in Africa and is inevitable because no nation is absolutely self-sufficient. Furthermore, it has been a general rule of international law that states reserve the right to admit or not to admit aliens into their territory. This presupposes that international law does not impose any limit on the right to admit or not to admit aliens, subject to obligations expressly undertaken by states. All the same, in contemporary Africa, intra-continental migrants have become very vulnerable to human rights’ violations in the trajectories of xenophobic attacks. The omens of such confrontations in intra-African relations are frightening and highlight issues that seem to contradict natural law. Therefore, this article aims at placing the natural law theory side by side with xenophobia on the African soil in order to squarely interrogate the embedded issues and proffer germane solutions.

Out of sight, out of mind? The proliferation of space debris and international law

AbstractThe quantity of man-made space objects, ranging from abandoned launch vehicle stages to fragmentation debris, is remarkable. At the time, the drafters of the Outer Space Treaty did not (and perhaps could not) anticipate how great the problem of debris in outer space would one day become. As a result, they only drafted general provisions for the protection of the space environment which are generally deemed insufficient. This article aims to demonstrate that both general rules of international law and the UNCOPUOS Debris Mitigation Guidelines come to the rescue in addressing the space debris issue as they complement and complete the general obligations contained in the Outer Space Treaty. Particular attention is paid to anti-satellite weapon tests, which have catastrophic consequences in terms of creating debris but nonetheless continue to be carried out. Finally, it ascertains whether an obligation on states to actively remove their space debris exists.

Istorijska pobeda ili kula u vazduhu? - značaj arbitražne odluke u predmetu Green Power v. Spain u sukobu Evropske unije i međunarodnog sistema rešavanja investicionih sporova

The EU and ISDS have been embroiled in an exhausting feud over intra-EU investment disputes which may still not reach its climax despite several dramatic and radical moves by the European Union and its Member States against the nearly unfettered resistance of the ISDS. Green Power v. Spain is the first international investment case in which the tribunal denied jurisdiction due to an incompatibility of the arbitration clause in the Energy Charter Treaty with EU law in light of the Achmea case, but also the first case where the rule of lex superior was employed to tip the scale in favour of EU law. The overview of the award will be presented against different backgrounds: massive investment case law uniformly denying intra-EU preliminary objections on one hand, and concerted actions of the EU and its Member States to construct a dam against intra-EU investment cases, on the other. The aim of this case note is to review the possible relevance of the Green Power v. Spain arbitral award and the argument that EU law is lex superior as a matter of international law, in pending and future intra-EU investment disputes, and to assess to what extent different factors, such as the seat and rules of arbitration and general rules of international law, molded the reasoning of the tribunal. The arbitral award is a meticulous decision with instructive arguments on how to situate supremacy of EU law within the law of treaties while navigating the rough waters of enduring conflicts amid different international agreements and between various levels of governance. Given that the tribunal offered a variety of reasons to uphold the applicability of EU law to determine jurisdiction, there is the distinct possibility that the award might have an impact on other investment tribunals.

Judgment on Foreign Soldiers' Immunity for War Crimes Committed Abroad (BGH)

On January 28, 2021, the German Federal Court of Justice, or Bundesgerichtshof (BGH), Germany's highest court of ordinary jurisdiction, delivered its judgment in Case 3 StR 564/19 pertaining to questions of universal jurisdiction over international crimes and the extent to which foreign soldiers would be barred from prosecution in Germany based on claims of (functional) immunity for war crimes committed abroad. The decision strikes at the heart of a debate where such exceptions to immunity (ratione materiae) are yet to be uniformly agreed upon at an international level; it also comes on the verge of a number of related judgments that are pending both in German and other European courts. In the present case, the BGH held that according to the general rules of international law, criminal prosecution in Germany for war crimes committed abroad would not be precluded based on the notion of functional immunity, “when the acts have been committed by a foreign, lower-ranking defendant in the exercise of foreign sovereign activity.” Neither the BGH nor Germany's supreme guardian of the “Basic Law,” the Federal Constitutional Court, or Bundesverfassungsgericht (BVerfG), has previously pronounced itself on questions of functional immunity in criminal proceedings.

The integration paradox: an ILC view on the EU contribution to the codification and development of rules of general international law

The contribution of international organisations (IOs) to the process of identification, codification or development of rules of general international law is one still enveloped in a measure of mystery. While the United Nations (UN) International Law Commission (ILC) has long relied on IOs’ practice, and the practice of States within IOs, in carrying out its work, it has only recently begun to address the role that IOs might play in the formation or expression of rules of customary international law, jus cogens or general principles of law. In this process, the European Union (EU) has long been seen as an ‘odd’ fit. From the point of view of general international law, EU integration forms an apparent paradox: on the one hand, the degree of transfer of powers to the organisation renders it particularly well suited to be a ‘jus generative’ force and a useful source of practice for the ILC’s work; on the other, its ‘exceptionalism’ often militates against the reliance on EU-related practice as evidence of existing or emerging rules of general application. This article looks at the effects of this ‘integration paradox’ in the ILC’s work by reviewing the references to, and the use of, EU practice in eight distinct codification projects, combined with interviews with ILC members and EU officials. It provides an ILC (outside) view on the relevance of EU practice for the identification, codification, and development of rules of general international law. This view, in turn, has implications for the operation of an EU (inside) foreign policy objective: its ambition to contribute to the development of international law, as expressed in Article 3(5) of the Treaty on European Union (TEU).

The Role of Active Diplomacy in Achieving the Supreme National Interest of the State

Most countries have their own strategy in making their foreign policy goals, and in part the tools to achieve those goals, and here comes effective diplomacy as the most important foreign policy tool in today's era to achieve those goals, especially the higher goals that touch the essence of the state's supreme national interest, such as those goals that It is linked to the existence of the state, and its national security. Consequently, the more the state relies on a successful strategy in employing effective diplomacy, the more it will succeed in achieving its supreme goals, including the supreme national interest of the state.  The supreme national interest of states has also undergone a radical change, so it is not in the interest of states to occupy or annex other lands in today's world governed by the rules of general international law. Rather, political crises and problems are solved by legal, political and diplomatic methods between countries in today's world, and diplomats play leading roles in them. In solving it by dismantling and containing it, all of this is due to the existence of an effective diplomatic apparatus, and to the diplomatic qualifications that these diplomats enjoy, both technically and cognitively.  Accordingly, diplomatic qualifications are among the necessities of diplomatic work in our world today. It is not sufficient for the state to possess capabilities and capabilities without the presence of distinguished diplomatic figures capable of employing these capabilities and capabilities to achieve the interests of nation states and their higher goals.

Unblurring the lines: military cyber operations and international law

ABSTRACT The bright lines between certain fundamental legal categories may appear to have dimmed in the cyber environment, especially in relation to military cyber operations. This article thus unblurs the lines between five such pairs of categories, proceeding from the general to the specific: Firstly, what separates international law from international norms as the two principal regulatory frameworks governing the conduct of military cyber operations? Secondly, what is the distinction between domain-specific and general rules of international law as they apply to military cyber operations? Thirdly, is it possible to distinguish between peacetime and armed conflict with respect to the regulation of such operations? Fourthly, once an armed conflict is underway, how do we distinguish combatants from non-combatants in cyberspace? And fifthly, what is the distinction between objects and non-objects in cyberspace, particularly with respect to computer data affected by military cyber operations during armed conflicts? Overall, the article's goal is to reduce the opacity surrounding the relationship between military cyber operations and international law. In doing so, it aims to contribute to the long-term goal of making cyberspace a more open, secure, stable, accessible and peaceful environment.

Polexit – Is the Exit of Poland from the EU a Viable Option?

States must respect the interests of the international community since they must exercise their powers in a manner consistent with the general rules of international law; the territorial competence of the State is in this case limited, not only to foreigners, but also to their own residents, this means that the role of the state is to protect its own citizens, but also foreign citizens. The State must also exercise its competence in a manner that maintains the freedom of international communications. From the outset, the European Communities have sought to achieve forceful cooperation between Member States than that resulting from co-oping organizations. To this end, the states put themselves in a more similar perspective to the federal aspirations, which were, conceived at the Hague Congress in May 1948, and were then struck by the conceptions of proponents of institutionalized cooperation. Initially, in the West, the European construction took the form of co-operation organizations conceived in the late 40 years, some of which were due to American-inspired initiatives. After years of sustained efforts to recover and rebuild Europe, it faces the creation of a actually broader Community than that of industrialized countries, made up of multiple organizations operating on a solidarity basis and finding a balance in their development. The cooperation organizations set up in the West come to add new, restricted organizations in the early 50 years, not other than the European Communities, which contribute to a new federal vision.

Navigating the Backlash: Re-Integrating WTO and Public International Law?

The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?

Short Analysis of Klaus Barbie and Jean-Pierre Bemba Gombo in Pointing out of the Responsability of Natural Persons for International Crimes

In international law doctrine carried on extensive talking and still it is a actual subject, if the individual is liable of responsability and, implied, of sanction for international crimes. Before to reveal some aspects of natural persons responsability for international crimes a couple of clarifications is required. Thus, we recall that the first author which use the term international criminal law was Jeremy Bentham, who distinguished between the criminal law of the community of states and the criminal law of a state. Over time, legal doctrine has extrapolated the concept of legal relationships with an international element, making the distinction between public international law and private international law. If criminal law is a branch of public law, then international criminal law becomes a sub-branch of international law, regulating criminal legal relationships with an international element. In other words, referring to private international law, we specify that it represents the totality of legal norms that resolve conflicts of laws or conflicts of jurisdiction and those regarding the legal status of the foreign national. In this context, the international element appears as a factual circumstance related to a legal relationship due to which this relationship is related to several legal systems (or laws belonging to different countries). With regard to international criminal law, we specify that this is a branch of public international law and designates the set of legal norms stipulated in various conventions and treaties by which states, in their capacity as subjects of law, order the repression of illicit acts that infringe fundamental rights of the international community. In other words, international criminal law consists of rules of general international law that govern the criminal liability of natural persons, individuals, for acts that harm international public order and constitute crimes against humanity.

Identification Criteria of Jus Cogens Norms in International Law

The article examines the positions of leading scholars on the identification of imperative norms of international law, discusses critical remarks that focus primarily on the difficulties connected with such identification. Trying to codify the concept of jus cogens in international law, the Commission itself acknowledged that the wording of the article was not so straightforward as there was no simple criterion by which a general rule of international law could be defined as having the character of jus cogens. Moreover, most of the general rules of international law are not of this nature, and therefore States can evade them by concluding treaties. Having considered the general definition of jus cogens in the Vienna Convention, it can be argued that the rule of international law can be ‘raised’ to the status of the rule of jus cogens – the imperative rule of international law – if the latter meets all the criteria. An important criterion worth noting is that imperative rules protect the interests of the whole international community: all imperative rules protect the interests of community, but not all public interests will be protected by the rules of jus cogens. The next criterion, closely related to the previous one, is that jus cogens rules protect the most fundamental ethical values of the international community, and one more – the absolute nature of the norm. But, in fact, the jus cogens category itself has more authority than its specific content. Despite the fact that none of the documents contains a comprehensive list of rules that should be considered imperative, the article provides a preliminary classification of non-derogation rules in order to illustrate some of the most obvious and applicable jus cogens norms for indicating in these examples the general nature and scope of the rule contained in Article 53. Key words: jus cogens norms; imperative norms; international law.

The autonomy of the EU legal order

The European Union (EU) cannot make a plausible claim to sovereignty under international law. However, what the EU can do and what it also does is, is to act as if it were sovereign and claim certain rights that are considered core elements of state sovereignty. This article argues that the Court of Justice’s (ECJ) conception of the EU legal order as autonomous provides the EU with a core element of state sovereignty: jurisdictional sovereignty. Autonomy construed by the ECJ is best understood in conceptual legal and absolute terms. It is meant to shield the ECJ’s conceptual legal claims from interference. Legal autonomy as construed by the ECJ is not relative as many authors have claimed. It cannot come about in an incremental or relative manner. It cannot be based on arguments relating to the status of a self-contained regime of international law that gradually distances itself from the general rules of international law. It is a conceptual claim giving birth to the assumption of apriority that can only be made in categorical terms. In this way it is similar to sovereignty. The article first sets out how the autonomy of the EU legal order is best understood. It examines the ECJ’s case law in light of legal theoretical considerations and relates it to the separation thesis of Kelsen’s Pure Theory of Law. It then explains that autonomy is of such relevance to the EU legal order because the aprioristic character of EU law remains essentially contested. This relevance indirectly explains why the Court so cautiously protects the autonomy of the EU legal order. Finally, the article examines the Court’s reasoning in Opinion 1/17 in light of the identified absolute conception of autonomy.

Global Pandemics and International Law: An Evaluation of State Responsibility and States’ Human Rights Obligations arising from Covid-19

The outbreak of the Covid-19 pandemic, its damaging impacts and the corresponding measures that states have enacted implicate two important questions: (a) whether or to what extent a state bears responsibility under international law for its complicity in the outbreak of a pandemic; and (b) whether any human rights obligations or liabilities arise for states relative to the measures they enact to combat a pandemic. This paper addresses these two questions. The discussions on state responsibility are situated within the context of the Articles on State Responsibility, the Law of the World Health Organization and other rules of general international law. And drawing from the ICCPR and the African Charter on Human and People’s Rights, the second part of the discussions focus on the human rights obligations of states arising from the Covid-19 pandemic.

Navigating the Backlash: Re-integrating WTO and Public International Law?

The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?

The Uses of the Work of the International Law Commission on State Responsibility in International Investment Arbitration

The Articles on State Responsibility for Internationally Wrongful Acts (‘ARSIWA’) constitute an experiment in international law-making. Unlike other successful projects of the International Law Commission (‘ILC’), such as its work on the law of treaties and diplomatic and consular relations, the ARSIWA have not yet led to the adoption of a multilateral treaty. Yet, their text is cited commonly as the authoritative statement of the law on state responsibility with investment tribunals being by far their most frequent users. This well-recorded paradox calls for a reflection on the ways in which investment tribunals make use of the ARSIWA. This paper examines the methods which investment tribunals explicitly or implicitly employ when using the ARSIWA in order to determine the content of rules of general international law on state responsibility. Specifically, it identifies common patterns in the ways in which investment tribunals justify their reliance on the ARSIWA and deal with their ambiguities. The paper then proceeds to critically assess these findings from two perspectives: the overarching aims of the law of state responsibility and the doctrine of sources of international law. The paper synthesises these empirical and doctrinal insights into a proposal for a common framework for the use of ARSIWA. Such framework is based on a distinction between the ascertainment of the legal status of a normative proposition and the determination of the content of a normative proposition whose status is undisputed.

General international law in the relations between international organizations and their members

AbstractTo what extent do rules of general international law apply between international organizations and their members? The article tackles this question by distinguishing between two categories of relations: those that take place on the international plane and those that are, rather, situated on the institutional plane constituted by the organization’s internal law. I argue that general international law applies by default to relations belonging to the first category, only being displaced when the internal law of an organization contains applicable lex specialis, but that it cannot claim a similar role at the level of internal institutional relations. The question there becomes one concerning the dialogue between relatively autonomous international legal orders, so that it is the internal law of each organization that defines the terms on which rules of international law are allowed in. At the same time, a normative argument can be made for a ‘monistic presumption’ for the application of general international law in cases where the rules of the organization are silent. By delving into such questions of applicable law and identifying the relevant analytical frameworks, the article aims to help international lawyers dealing with complex disputes opposing international organizations and their members to structure the legal analysis.

Images and Customary International Law, or the Destruction/Construction of International Norms through Images

Abstract This paper explores the power of images vis-à-vis the practice and theory of international law, with a focus on rules of customary international law, i. e. the unwritten general rules of international law, that apply to all states (as well as to non-state actors falling within their scope of application), irrespective of specific acceptance. As Sherwin writes: “We are awash in images.” States, international organizations (IOs), non-governmental organizations (NGOs), insurgents, terrorists and other groups of individuals of all sort, are in the news and our movies, on our TV screens, newspapers, internet and social media. Modern technologies, visual digital technologies, in particular, have a profound impact on the means and speed of communications across the globe and immensely facilitate the task of seeking information of all sort. In international law, images are a means for spreading knowledge about the practice of states and other actors. As with law in general, images are also found to be a valuable resource in explicating the rules of international law. They aid and clarify the analysis of international law and the determination of the existence and content of rules of customary international law. In contemporary international settings, however, modern technologies of visual representation are also a means for influencing the development of international law, i. e. the existence and content of international norms. Moreover, looking at implementation, at no time in history has there been more information available to governments and the public about violations of international norms (particularly, but not exclusively human rights violations): more and more these violations are documented through images. Yet, international law doctrines have failed so far to comprehensively assess the power of images, beyond that of a toolkit for thick cultural description – the power of narrative – and analysis. The present essay offers a contribution in this direction.

Odgovornost države zbog korporativnih kršenja ljudskih prava u svjetlu prakse suda u Strazburu

On the one hand, business entities have a huge potential to contribute to economic and social progress and consequently to the advancement of human rights. On the other, violations of human rights connected with business are very common. Although the Universal Declaration of Human Rights (UDHR) calls upon every organ of society, and thus business entities, to promote respect of human rights, the subsequent international human rights treaties, including the European Convention of Human Rights (the Convention), only oblige States to respect, protect and fulfill human rights. Against this backdrop, an attempt has been made to analyse the case-law of the European Court of Human Rights (the Court) with respect to the State's responsibility for business-related human rights violations. The analysis reveals that the State will bear responsibility for business-related human rights violations if acts or omissions of a business entity, amounting to a violation of a particular right guaranteed under the Convention, can be directly attributed to that State. This would occur, for instance, in case a company is considered a governmental organisation or where the State empowers a business entity to perform public authority functions. In this situation, the State would be responsible for violating its negative obligations under the Convention, namely its obligation to refrain from conduct that breach human rights through its own action or those of its agents. Furthermore, the State will bear responsibility for business-related human rights violations if it fails: (a) to regulate business activities in order to prevent business-related human rights violations; (b) to investigate business-related human rights violations; and (c) to establish effective remedies for this kind of human rights violations. In these situations, the State would be responsible for violating its positive obligations under the Convention. This paper describes the State responsibility for violations of its negative obligations in business and human rights context as a direct responsibility for business-related human rights violations while its responsibility for violation of positive obligations describes as indirect State responsibility for business-related human rights violations. The analysis also reveals that despite the Court's intention to interpret the Convention in accordance with general rules of international law, including rules on the State's responsibility for internationally wrongful acts, it has its own specific approach. In determining whether the State can be held directly responsible for acts or omissions of business entity the Court combines several criteria. It takes into account: (a) the company's legal status (under public or private law); (b) the nature of its activity (a public function or an ordinary commercial business); (c) the context of its operation (such as a monopoly); (d) its institutional independence (the extent of State ownership); and (e) its operational independence (the extent of State supervision and control). Through the dynamic interpretation of the Convention and the elaboration of the concept of positive obligations, the Court has, to a certain extent, succeeded in providing individual protection at international level for business-related human rights violations.