International Law Instruments Research Articles

The Antarctic Treaty at Sixty Years: Past, Present and Future

The Antarctic Treaty, which celebrates its 60th anniversary in 2019, remains as a unique example of an international law instrument that seeks to provide a governance mechanism for a single continent. Both Japan and Australia were original parties to the Antarctic Treaty and have been strong supporters of the Treaty throughout its lifetime. However, in 2019 questions are starting to be raised as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica. These questions relate to the role of the seven Antarctic claimant States, the role of historically prominent non-claimant States such as the United States and the Russian Federation, and the interests of powerful ‘new’ States that are beginning to express a strong interest in polar affairs such as China. This paper assesses whether the Antarctic Treaty is sufficiently robust to address the challenges that confront Antarctic governance in 2019 and into the future. Particular attention will be given to whether it remains possible for Treaty parties to request an Article XII ‘Review Conference’, and also the 1991 Madrid Protocol Article 25 review mechanisms.

IL PRINCIPIO DI NON-REFOULEMENT: CRITICITA' APPLICATIVE

Il principio di non respingimento è uno degli strumenti più rilevanti del diritto internazionale per la protezione dei migranti. Per comprendere l'ampiezza della sua applicazione e i problemi legati al principio di non respingimento, è tuttavia opportuno analizzare le varie categorie di migranti per capire chi può ricevere questa protezione. Questo processo di analisi delle categorie, inoltre, evidenzia la presenza di altre difficoltà nell'attuazione generalizzata delle garanzie per i migranti. Infatti, non tutti i trattati si applicano a tutti i tipi di migranti. Anche la Convenzione di Ginevra sullo status di rifugiato, come dice il nome, si riferisce solo ai rifugiati. In particolare, l'articolo 1 della Convenzione definisce "rifugiato" la persona che "per fondato timore di essere perseguitata per motivi di razza, religione, nazionalità, appartenenza a un determinato gruppo sociale o opinione politica, si trova al di fuori del Paese di cui è cittadino e non può o, a causa di tale timore, non vuole avvalersi della protezione di quel Paese"; Pertanto, le sue protezioni - compresa quella data dal principio di non respingimento, stabilito dall'articolo 33 - garantiscono solo questa specifica categoria di migranti; categoria legata - come già detto - ad una lista chiusa di possibili cause di persecuzione. Altri ostacoli ad un'attuazione armonizzata del principio di non respingimento si trovano anche nelle differenze tra i trattati che lo definiscono. Nella sua prima definizione, nella Convenzione di Ginevra allo status di rifugiato del 1951, il principio vieta agli Stati membri di "espellere o rimpatriare ("refouler") un rifugiato in qualsiasi modo alle frontiere di territori in cui la sua vita o la sua libertà sarebbero minacciate a causa della razza, della religione, della nazionalità, dell'appartenenza a un determinato gruppo sociale o delle opinioni politiche" (Convenzione di Ginevra allo status di rifugiato, art. 33). L'esistenza di varie definizioni e la loro inadeguatezza a modelli migratori reali creano difficoltà nell'attuazione del principio stesso. In questo senso, uno dei maggiori problemi nello scenario attuale è quello dato dall'applicazione del principio agli afflussi massicci. Questo termine si riferisce a quelle migrazioni caratterizzate dall'arrivo su una frontiera internazionale di un gran numero di persone con un ritmo rapido e dall'incapacità dello Stato di accoglienza di rispondere adeguatamente all'arrivo dei migranti (in particolare, le procedure individuali di asilo non sono sufficienti per far fronte all'elevato numero di migranti). Diversi strumenti internazionali forniscono un'ampiezza diversa del campo di applicazione del principio; gli organi di controllo che controllano l'attuazione del principio hanno livelli di efficacia diversi. L'incertezza è ancora più ampia in considerazione dei nuovi movimenti migratori, come gli afflussi massicci; gli Stati approfittano quindi di questa situazione per non applicare il principio di non respingimento e l'altra protezione per i migranti. Detto questo, è impellente raggiungere una visione dottrinale più condivisa su questo tema, al fine di cooperare con la giurisprudenza per stimolare gli Stati verso una maggiore protezione dei migranti.

The Global Compact for Migration: Lessons for the Unity of EU Representation

Abstract In December 2018, the Global Compact for Migration was first adopted at the Marrakesh intergovernmental conference to be later endorsed as an UN General Assembly Resolution in New York. From an EU perspective, what started out as a common project to manage migration globally, not to say externally, became a fiasco for the unity of EU representation on the international scene. Unlike the negotiations of international agreements which are framed by the procedure set out in Article 218 TFEU, the negotiations of international soft law do not benefit from a clear legal framework. The Court of Justice has given some indications on the procedural and institutional aspects relevant for the negotiations of international soft law instruments in the Council v. Commission (C-660/13) case but many uncertainties remain. The purpose of this article is to draw lessons from the negotiation process of the Global Compact for the unity of EU representation.

Language Rights in the Light of International Law

This paper examines language rights in the light of international law instruments. The paper contends that although international law provides for a number of language rights only very few of them can be regarded as universal human rights. First, the paper describes the purpose of language rights protection. Second, it analyses the scope of language rights protection and distinguishes between individual and collective language rights. Third, three basic categories of individual rights addressing language questions are analysed, i.e. procedural linguistic human rights, freedom of expression and nondiscrimination on the grounds of language. Next, language rights of persons belonging to minorities are examined. Finally, the paper concludes that under international law language rights which are universal human rights include linguistic aspects of the right to a fair trial and the right to liberty and security as well as the right of non-discrimination on the grounds of language use in private sphere. The language rights protected otherwise do not fall within the category of human rights and their protection is not universal.

Key Legal Issues in ICAO: A Commentary and Review

The Agenda of items in the Work Programme of the Legal Committee of ICAO for its thirtyseventh session comprised: Study of legal issues relating to remotely piloted aircraft; Consideration of guidance on conflicts of interest; Acts or offences of concern to the international aviation community and not covered by existing air law instruments; Consideration, with regard to CNS/ATM systems including global navigation satellite systems (GNSS), and the regional multinational organisms, of the establishment of a legal framework; Determination of the status of an aircraft – civil/State; Promotion of the ratification of international air law instruments; Safety aspects of economic liberalization and Article 83 bis; and Implementation of Article 21 of the Chicago Convention. These items reflect issues that have been discussed by the Legal Committee for some time and are repetitive and tired. Worthy as they are of continuing discussion, focus on them has seemingly precluded both the Secretariat and the Council of ICAO from looking at current and future legal challenges that the evolving aviation industry presents. Some of these challenges come from the megatrend of information technology which has artificial intelligence and internet technology as sub-sets that would affect many emergent applications which the aviation industry would be compelled to use. This article contains a commentary on the issues discussed at the Legal Committee as well as a review of issues that have a profound legal effect on current and future trends in aviation which the ICAO Assembly should hear about.

The Investigation of the Jurisprudential Review of the Principle of Acquittance and Its Effects in International Law

One of the arguments is the "Principle of Atonement". If, after referring to the evidence, a doubt arises in the religious duty, the principle of acquittance says that the duty is forbidden. The subject of the principle of acquittance (doubt in the assignment is not obligatory), that is, in cases where we doubt it, we believe that we are not obliged to do so in practice and that the assignment is void. The present paper deals with the methodology of librarianship and documents on the basis of the principle of acquittance, the stage of crime detection, the stage of prosecution, the stage of the trial and the issuance of the sentence and discussed them. The principle of acquittance is one of the most important and effective rules in international law and human rights instruments, since the heavy burden of claiming the cause of the claim and the claim is put forward by the defendant, in other words, the presentation of the cause lies with the claimant and the oath. It is inconceivable that global and regional human rights declarations have repeatedly stated that no one can be arbitrarily detained, imprisoned or exiled, and that the principle is based on acquittance. Keywords: principle of acquittance, regulations, human rights DOI : 10.7176/RHSS/9-3-08

Regional Human Rights Bodies as Instruments of International Law

I will try to cover three different examples on issues in which the Inter-American and the European Courts have had different approaches, some substantive, some methodological, regarding the following issues: 1.A substantive and radical difference in the approach of the right to appeal a criminal conviction;2.A substantive but slight difference in the approach of cases of involuntary or forced sterilization;3.An example of evolution from divergence to convergence in the subject of access to information; and4.A radical difference in the approach with respect to reparations.

Legal Definition of Torture in an International Context, & States’ Obligations under the United Nations Convention Against Torture

The prohibition of torture is considered as a general principle of international law; States are obliged to respect this right and prevent infringing it. Throughout this paper, the concept of torture in an international context will be highlighted, stressing the main branches and instruments of international law that deals with torture, to at the end conclude a common definition. In the Introduction, a brief history of torture with different definitions and how it changed from being ordered by courts to being subject to an absolute prohibition will be provided. In Chapter 2, the concept of torture as a jus cogens will be outlined, going through the absolute non-derogable right of not being subject to torture; under human rights instruments such as the UDHR and the ICCPR. In addition, presenting torture under International Humanitarian Law, specifically under the Geneva Conventions and their Additional Protocols as a war crime. While also discussing the crime of torture under international criminal law as a crime against humanity and how the case law of the Nuremberg Trials, ICTY, and the ICTR contributed in shaping the legal framework of the prohibition. Chapter 3 will be dedicated to the United Nations Convention Against Torture as it is the specialized convention on torture. A thorough discussion will be presented on Article 1 that outlines the elements of the crime of torture and Article 2, that serves as the “Umbrella Clause” to the obligations of State parties of the Convention, in addition to setting the absolute non-derogable prohibition of torture. Chapter 4 will present the conclusions of this paper, and how the concept of torture differs under the UNCAT from other branches of international law. To at the end, present a concluded definition of torture that avoids ambiguity and arguments that try to derogate from this right. Going through these subjects, landmark judgments from international tribunals that helped ensuring the right not to be subject to torture will be highlighted, in addition to other international legal instruments. The travaux preparatoires of the UNCAT is very important to go through, it will help the reader stand at the position the drafters wanted from the Convention, and to avoid any misinterpretation of its provisions. Next to going through the General Comments issued by UN specialized bodies on relevant provisions when available, case law, and literature of specialized scholars in the field.

The Use of Soft Law in the Creation of Legal Norms in International Commercial Law: How Successful Has It Been?

In this Article, I examine several interrelated points. After defining soft law in Part II, I briefly set out some of the assumed advantages soft law instruments may have over legislation and regulations in Part III. In Part IV, I examine why some soft law instruments in international commercial law have been successful in creating international legal norms. In this Part, I specifically examine the UNIDROIT Principles of International Commercial Contracts to show how one might gauge success by looking beyond the express purpose of the instrument. I also compare the UNIDROIT Principles of Commercial Contracts with the American Law Institute’s Restatements of Law to show different ways in which soft law instruments might be successful. In Part V, I examine the role international commercial trade usage may play in soft law. Finally, in Part VI, I suggest that the benefits of soft law in international commercial law might only be fully realized over a long timeframe.

A joghatóság egyes kérdései a nemzetközi magánjogban

The occasion of this essay is the establishment of the Codification Committee on Private International Law in 2015, aiming at the replacement of the slightly anachronistic Legislative Decree No. 13 of 1979 by a new Code on Private International Law. One of the most important legal instruments of private international law is the regulation of jurisdiction. In order to find the correct technique of regulating this area, it is expedient to review European acts and any other legislation, which have recently been introduced in the area of jurisdiction. It is also necessary to pay attention to the rules of EU law affecting this area. The essay focuses on the public lawrelated topics of the possible legislation. Therefore, apart from the presentation of the correct legislative method, the essay intends to show the issues of the immunity of state and the proposed institutional model.

Legal Aspects of e-Health and the Reality of the Polish Society

This paper discusses issues relating to the possibility of implementing telemedicine solutions within the framework of the Polish healthcare system financed from public funds. Firstly, as part of introductory remarks, an outline of technical, technological and civilizational progress, as well as its correlation with the law and social behaviours is made. Secondly, due to the lack of a legal definition of e-health, the definitions proposed in literature and created by selected international and non-governmental organizations are recalled. In this way the essence of this concept is revealed. Thirdly, based on relevant international documents, the overall potential of e-health is presented. This shows the various benefits that the use of avant-garde solutions within the healthcare system can bring. Fourthly, a catalogue of the possible barriers to the deployment of e-health solutions is presented. From the presentation, it becomes clear that such processes will not run seamlessly. Fifthly, an outline of the right to healthcare is provided on the basis of instruments of national and international law, indicating the most important elements of the right. Sixthly, a forecast of the demand for telemedicine services in Poland is presented. Seventhly, the sociological concept of the so-called digital exclusion is introduced and the occurrence of this phenomenon in the Polish society is discussed. The paper ends with a brief summary, in which the author considers all the arguments presented and offers his own position and de lege ferenda proposals for the Polish legislator.

Policy to Prevent and Combat Cyber-crime in Africa

The global nature of the Internet has enabled extremely fast communication and transfer of most forms of human activity to the network, including those negatively received. Cyberspace is increasingly being spoken of as a new social space in which the same problems are reflected in the real world. Cybercrime is therefore a modern form of crime, exploiting the possibilities of digital techniques and the environment of computer networks. The research subject of this article is the policy of combating and preventing the phenomenon of cybercrime, while the research subject is Africa. At the beginning, the following research hypotheses were adopted: the slow pace of economic development of African countries is conditioned by the lack of appropriate legal regulations in the field of policy against cybercrime. This favors the development of economic cybercrime, which in turn testifies to the lack of measurement and control tools to limit and counter the very phenomenon of cybercrime in this area. Secondly, more importantly, the slow pace of ratification of international agreements also indicates that it will probably take longer than originally assumed that appropriate instruments of public international law could be legally binding within the African Union. Thirdly, the assumption was made that Africa is a potential for future economic development. In turn, the increase in the absorption and use of the Internet will contribute to its economic growth over time, which will continue to lead to the growth of cybercrime. The author, within the framework of this, publication, tries to show institutional and legal deficiencies on selected examples and indicate scenarios for preventing this phenomenon.

The Constitutional Price for International Unilateralism in the European Banking Union

Abstract In order to enter the Banking Union, non-euro EU Member States must ‘step outside’ the EU legal order and the Union’s institutional framework, and resort to unilateral instruments of public international law. If the intergovernmental method has advanced the alternative project of integration based on voluntary policy, international unilateralism is seen as a similar integration technique based on the voluntary action of non-euro Member States, ie a tool for deeper integration that appears as a variation of intergovernmentalism. This article focuses on the constitutional deficiencies caused by the choice of unilateral instruments in the institutional set-up of a close cooperation arrangement in the Single Supervisory Mechanism. At first sight, leaving the EU legal order and entering the world of international law opens entirely new perspectives for the participating Member States. The possible attraction is escaping the constraining institutional framework of EU law. However, the international law route poses significant constitutional challenges vis-à-vis compatibility with the EU law.

International Law Instruments To Address The Plastic Soup

The problem of the plastic pollution of the oceans is increasingly evident after 1997, when the great concentrations of plastics in the oceans was widely publicized. Still, there is a substantial lack of scientific data and research about the plastic pollution sources, destinations and consequences to nature and human life. The only certainty is that the amount of plastic that ends up in the ocean is alarming and does not tend to decrease any time soon, because of its durability and large range of use. Estimates show that, each year, at least 8 million tons of plastics leak into the ocean and, if no action is taken, this is expected to double by 2030 and to be multiplied by four by 2050. As a result, until 2050 there would be more plastic than fish in the ocean. This paper focuses on international legal pathways to face such a problem. It constitutes the basis for further research that aims at constructing a legal framework to adequately face the problem of the plastic pollution of the oceans. In order to do so, the first step is to unveil the already existing international instruments – both hard and soft law. It is indispensable to accomplish this intermediate step because a great part of such pollution is in international waters, where the only legal regulations and remedies applicable are those from Public International Law. Solely by knowing the state-of-the-art of this approach is it possible to critically analyze its possibilities and limitations, as well as to suggest how to proceed. Therefore, this paper aims at first analyzing whether the international instruments deal with the plastic soup issue, both from the ex ante and from the ex post perspectives. After showing that the current efforts are not compatible with the current harms and threats of the plastic pollution of the oceans, we raise suggestions on possible pathways and approaches to surpass the obstacles and to start facing the problem of the plastic pollution of the oceans.

Bioenergy with Carbon Capture and Storage: Existing and Emerging Legal Principles

The Paris Agreement was largely understood as an implicit recognition of the need for a large-scale deployment of negative emissions technologies, in particular bioenergy with carbon capture and storage (BECCS), as part of an enhanced action on climate change mitigation. Yet, a large-scale deployment of BECCS, if feasible at all, would raise serious concerns relating to the social and environmental impacts of bioenergy, the safety of the transportation and the durability of the storage, as well as more general matters of cost-sharing, burden-sharing and responsibilities on the international plane. Although no international law instrument addresses these concerns specifically, some principles of general international law are relevant. Accordingly, this article identifies existing and emerging principles of general international law of relevance to BECCS and discusses the need for and opportunity of further developments.

ZAKAZ SEGREGACJI – BRAKUJĄCA NORMA W MIĘDZYNARODOWYM PRAWIE PRAW CZŁOWIEKA?

The aim of this paper is to answer whether and how international human rights law protects from segregationist policies – a still present phenomenon including such practices as prohibition of interfaith marriages, physical separation of men and women in everyday activities or segregation of Roma children in education. I firstly turn to conceptual problems regarding the term “segregation” by proposing its definition and categorizing its diverse displays. I draw a conclusion that segregation and discrimination are separate, although often intertwining, concepts. Subsequent parts of the paper contain an analysis of various international human rights law instruments conducted in search of a norm prohibiting segregation. I conclude that there is no explicit and general prohibition of segregation in international law, however some fragmentary and dispersed norms concerning segregation can be found through analysis of treaties, customary rules as well as doctrinal and judicial interpretations.

DINAMIKA KOMITMEN INTERNASIONAL DALAM KERANGKA PENGENDALIAN GLOBAL WARMING

Dynamic of commitment of International Community in the issue of control upon global warming has been developed since 1919 up to present. From list of international treaties, it can be seen how strong the commitment of global community in the issues of environment, global warming as well as climate change. Unfortunately, it can be concluded, that those international treaties is so fragmented and therefore, is difficult to be implemented comparing with instrument of international environmental law in general. However, political will of national state is the essence to create international agenda.

Indigenous Persons with Disabilities and the Convention on the Rights of Persons with Disabilities

This article analyses how disability human rights protections and processes under the United Nations Convention on the Rights of Persons with Disabilities (crpd) have responded to the heightened vulnerability created when disability intersects with indigeneity. It considers the evolution of international human rights law instruments for indigenous persons with disabilities. It further examines the drafting history of the crpd related to indigenous-specific content and examines the crpd Committee’s engagement with the human rights protections and violations of indigenous persons with disabilities. It demonstrates that the crpd Committee has advanced these rights by acknowledging the rights of indigenous persons in the general course of its work, but has fallen short of adequately recognising the special vulnerabilities that are created when disability and indigeneity intersect. This evaluation is illustrated by expounding on the crpd Committee’s recommendation in Noble v Australia, a communication brought by an indigenous person with a ‘mental and intellectual disability’ whose indigenous status was not engaged.

A critique of the Global Pact for the environment: a stillborn initiative or the foundation for Lex Anthropocenae?

In May 2018, the process which may ultimately lead to the negotiation of a legally binding Global Pact for the environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: (a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance, and (b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact’s primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broad-sweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.

Ochrona zabytkowego dziedzictwa kulturowego przed zagrożeniami wynikającymi z działalności terrorystycznej (część II)

Either in information transmitted by the mass media or discussions concerning the phenomenon of terrorism which take place in many countries (including Poland), in the mainstream of reflections on the activity of organized terrorist groups or so-called ‘lone-wolf’ terrorists, there are no expressly exposed dangers to the cultural heritage, including historical monuments. But cases in which exceptionally valuable historical heritage goods are intentionally and cynically annihilated in military conflicts or in consequence of acts of terrorism took place in the past, exist nowadays, and, unfortunately, will appear in the future. As far as in military conflicts – in the meaning present in public international law – there is a hope that such conflicts are civilized and their subjects respect different international law regulations and customs. Such hope in the case of fanatical, incalculable, and unpredictable terrorist activity is rather vain. It is worth looking at solutions concerning the protection of cultural heritage goods and the counteracting of terrorism, to get to know better the quality and effectiveness of mechanisms created in order to protect the historical cultural heritage in the context of the challenge which is contemporary terrorism. The paper is divided into two parts. In the first one there is contained the characteristics of the contemporary confrontation of states with terrorism in the context of dangers stemming from this phenomenon and threatening to historical cultural goods. In this part of the paper there are presented, among other matters, instruments of public international law as well as European Union law which could be applied in the mentioned confrontation. The second part of the paper contains considerations relating to the motivational basis for terrorist acts against historical cultural goods and their consequences, the effectiveness of legal solutions protecting the cultural heritage, and practical actions of state agencies responsible for ensuring safety and public order, as well as other subjects having a duty to care for the cultural heritage (including historical monuments) and responsible for the preservation of this heritage for future generations.