International Law Instruments Research Articles

CREATIVITY AND TRANSNATIONAL COMMERCIAL LAW: FROM CARCHEMISH TO CAPE TOWN

AbstractThis article examines the creative aspects of a range of international commercial law instruments which have in common that they seek to bypass traditional doctrine in order to increase commercial efficiency and ease of transacting. In short, the purpose of the harmonising measure is functional in that it seeks to overcome a serious obstacle to cross-border trade by providing commercially sensible solutions to typical problems regardless whether this disturbs established legal theory, which should always the servant of the law, not its master. Creativity applies not only to the formulation of an instrument but also to its interpretation. Those entrusted with preparing a commentary on the detail of such an instrument are likely to face difficult issues of interpretation which may take years to surface and may only be resolved by a willingness to risk error in order to provide the reader with clear guidance rather than sheltering behind the presentation of alternative interpretations, while at the same time resisting the temptation to ascribe to words in a convention the meaning they would have under one's own national law.At least one of the instruments examined was conceptually flawed; it is mentioned to highlight the danger of over-ambition in delineating the sphere of application of the convention concerned. Undisciplined creativity comes at a cost. Another convention, and a highly successful one, is referred to only to demonstrate the value of creative ambiguity.

OECD acts as instruments of soft international law

A characteristic feature of the modern system of international relations is that the not only the international legal norms, but alsothe rules of soft international law are the regulators, with the constantly growing share of the latter. There is a great variety of conceptsregarding the nature of soft international law in modern doctrine of international law. However, it is indisputable fact that internationalorganizations play significant role in its development. One of such international organizations is the Organization for Economic Cooperationand Development, whose rule-making activities are largely implemented through the adoption of legally non-binding documentsbut at the same time they have a significant impact on the behavior of the international law subjects. The organization unites 36 industrializedcountries. Thus, of the total number of regulations of various legal force adopted or developed under the auspices of the OECDduring the entire period of existence of this international organization, acts of soft international law account for approximately 78 percent. In total, the OECD adopted 454 regulations, including 13 international treaties, 87 decisions, 300 recommendations, 36 declarationsand 18 other legally non-binding international instruments. Recommendations are adopted in accordance with Art. 5, 6 and 7 ofthe OECD Convention and paragraph 18B of the Rules of Procedure of the Organization and are transferred to the Member States forconsideration. So the Member States may, if they deem it appropriate, implement them in their national law. OECD Declarations arelegally optional framework documents establishing the general principles and long-term goals of cooperation between states within theframework of this international organization. In general, declarations are not acts of the OECD within the meaning of Art. 5 of theOECD Convention, but in practice their implementation is monitored by OECD bodies. Apart from recommendations and declarationsOECD also practices the following types of legal non-binding regulations: Arrangement and Understanding which can be described asgentleman’s agreements and also the recommendations of the Development Assistance Committee (DAC) OECD. With all these do -cuments, the OECD regulates international cooperation on a wide range of socio-economic issues, including the fight against corruption,taxation, regional development, environmental protection, finance and investment, trade, industry, social policy, consumer protection,science and education, shipbuilding and transport, energy, etc.

OECD acts as instruments of soft international law

A characteristic feature of the modern system of international relations is that the not only the international legal norms, but alsothe rules of soft international law are the regulators, with the constantly growing share of the latter. There is a great variety of conceptsregarding the nature of soft international law in modern doctrine of international law. However, it is indisputable fact that internationalorganizations play significant role in its development. One of such international organizations is the Organization for Economic Cooperationand Development, whose rule-making activities are largely implemented through the adoption of legally non-binding documentsbut at the same time they have a significant impact on the behavior of the international law subjects. The organization unites 36 industrializedcountries. Thus, of the total number of regulations of various legal force adopted or developed under the auspices of the OECDduring the entire period of existence of this international organization, acts of soft international law account for approximately 78 percent. In total, the OECD adopted 454 regulations, including 13 international treaties, 87 decisions, 300 recommendations, 36 declarationsand 18 other legally non-binding international instruments. Recommendations are adopted in accordance with Art. 5, 6 and 7 ofthe OECD Convention and paragraph 18B of the Rules of Procedure of the Organization and are transferred to the Member States forconsideration. So the Member States may, if they deem it appropriate, implement them in their national law. OECD Declarations arelegally optional framework documents establishing the general principles and long-term goals of cooperation between states within theframework of this international organization. In general, declarations are not acts of the OECD within the meaning of Art. 5 of theOECD Convention, but in practice their implementation is monitored by OECD bodies. Apart from recommendations and declarationsOECD also practices the following types of legal non-binding regulations: Arrangement and Understanding which can be described asgentleman’s agreements and also the recommendations of the Development Assistance Committee (DAC) OECD. With all these do -cuments, the OECD regulates international cooperation on a wide range of socio-economic issues, including the fight against corruption,taxation, regional development, environmental protection, finance and investment, trade, industry, social policy, consumer protection,science and education, shipbuilding and transport, energy, etc.

COVID-19 Salgını ve Bulaşıcı Hastalıkların Yarattığı Küresel Krizlerle Mücadelede Uluslararası Hukuk

The COVID-19 pandemic, which emerged in late 2019, continues to unsettle the entire world. Along with the losses of many lives, the pandemic caused maybe one of the most devastating damage in the last century on many fields such as healthcare, economy, trade, and tourism. The rapid contagion of the pandemic has brought into question the roles of the international institutions, primarily the World Health Organization (WHO), which are expected to build a ground for the global cooperation and coordination. The purpose of this article is to provide an assessment of the institutional mechanisms and instruments in international law for combatting the global crises caused by the COVID-19 pandemic and infectious diseases. In the first chapter, WHO’s structure and regulations are explained, and particularly the International Health Regulations (2005) are examined in detail. In the second chapter, the functionality of the WHO system during the COVID-19 pandemic is evaluated, and some solutions for the current deficiencies of the system are proposed. In the final chapter, the direct relation between the global crises caused by the COVID-19 pandemic and infectious diseases and the roles played by global governance systems in the fields of international human rights law, international trade law, and international collective security system are examined. In conclusion of this article, the significance of international law for effectively solving global problems such as pandemics is emphasized.

Penegakan Hukum Pidana Internasional dalam Kejahatan Perang terhadap Kemanusiaan

War is a condition in which one party subdues its opponent to fulfill his will, a physical or non-physical act between two or more human groups to dominate. The formulation of the problem of this research is how the role of International Criminal Law on law enforcement in war crimes against humanity and how the state responsibility in war crimes against humanity in International Criminal Law. This research method uses the type of normative legal research by doing the assessment based on legal materials of the literature and is a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced. War crimes and crimes against humanity are two types of international crimes that exist in twenty international criminal types designed by ILC (International Law Commission) to design the establishment of an international criminal tribunal. The conclusion of this study is the role of International Criminal Law in war crimes against humanity can be concluded that is contained in conventions contained in International Humanitarian Law contains only command or prohibition only but international criminal law have role in giving criminal sanction against violation of command or prohibition that and the state's responsibility in international criminal law can be an obligation to prosecute international criminal offenders encountered in various instruments of International Law. The form of state responsibility under the Rome Statute is that States Parties shall have two main obligations: States Parties shall bring each perpetrator of genocide, crimes against humanity, criminal acts of war and criminal acts of aggression before the courts and the participating States in imposing their jurisdiction in enforcement of International Criminal Law must cooperate fully in the enforcement of International Criminal Law.

A review of the Iran-United States Claims Tribunal

This article is intended to analyse the Iran-United States Claims Tribunal by considering its origins and decisions in order to find out to what extend it has been successful in the settlement of international commercial and inter-state disputes between Iran and the United States. The Tribunal work is evaluated to determine whether it has been a workable pattern of Western-style legal institution for further instances of politically changed circumstances. In its arguments and expositions, I will discuss whether the Tribunal is an international arbitral tribunal created to resolve private law disputes or an interstate arbitration body typically established by treaty. I will argue that the Tribunal should be considered as an instrument of public international law, because it is based on an international treaty between sovereign states. Through this study I will examine the question of the Tribunal’s jurisdiction and its application of international law as compared with the decisions of other international tribunals. It also considers an internal question to the theory of the governing law to the resolution of disputes.

Maintaining Freedom of Navigation and Overflight in the Exclusive Economic Zone and on the High Seas

Efforts to expand coastal State jurisdiction to include security jurisdiction in the EEZ were soundly rejected by a majority of the nations that participated in the UNCLOS negotiations The delegates present achieved consensus on provisions that accommodate the resource interests of the coastal State in the EEZ without diminishing user State interests in freedom of navigation and other internationally lawful uses of the sea in the zone. Continued efforts by some States to reinterpret the Convention to unilaterally and unlawfully advance their national interests in the EEZ impinge on traditional uses of the oceans by all States and are inconsistent with international law, long-standing state practice and the intent and negotiating history of UNCLOS. If these efforts succeed, the Convention will unravel over time and the international community will once again be plagued by a new wave of excessive maritime claims. Coastal State competency in the EEZ is strictly limited to resource rights, jurisdiction over resource-related offshore installations and structures, marine scientific research, and protection of the marine environment. Coastal States do not retain security jurisdiction in the EEZ, and may not regulate lawful military activities in the EEZ that are consistent with the UN Charter, UNCLOS, the Chicago Convention, and other relevant international law instruments. The creation of the EEZ was a package deal—coastal States were granted exclusive resource rights and user States retained the high seas freedoms of navigation and overflight, and other lawful uses of the seas associated with those freedoms, which have always applied beyond the territorial sea.

Inter-state Climate Change Litigation: ‘Neither a Chimera nor a Panacea’

In the face of the difficulties of international climate diplomacy, ‘the invisible college of international lawyers’ has recently been called upon to devote more efforts ‘towards reviving the blunt edge of climate change-based national, regional, or international litigation, adjudication, and arbitration towards reaching sufficiency of climate pledges’ (Desierto 2019). This paper therefore reviews the use of international law arguments and remedies in climate change litigation, with a view to ascertain the related opportunities and constraints. In order to achieve this objective, this paper considers international legal practice in light of the typologies of climate change litigation identified in the literature (Peel and Osofsky 2015; Setzer and Vanhala 2019). This literature typically distinguishes between so-called ‘proactive’ litigation — initiated in order to engender policy change, for example, asking for the adoption or reform of legislation; and ‘reactive’ litigation — initiated to resist such change, for example, challenging the adoption of new or reformed legislation. Reactive litigation has long been common at the international level, whereby investors have instigated international investment disputes to resist reforms of renewable energy subsidies, with alternate fortunes (Baetens 2019). Proactive litigation at the international level, instead, has been rarer and more recent. It has largely focused on the use of international human rights remedies for complaining over states’ failure to mitigate climate change, and/or over states’ failure to address the impacts of climate change (Savaresi and Auz 2019). The possibility to make greater use of other international law instruments and remedies to address both issues has been at the centre of much scholarly speculation. Already in 2007, Faure and Nollkaemper suggested that, even though they faced ‘significant hurdles’, international liability suits could help to put pressure on states to reduce emissions (Faure and Nollkaemper 2007, 172). Much literature has considered the role of the law on state responsibility in this connection (Tol and Verheyen 2004; Verheyen 2005; Voigt 2008; Wewerinke 2019). No inter-state legal suits have however been lodged so far. Similarly, international judicial bodies, such as the International Court of Justice (Stephens 2019) or the International Tribunal on the Law of the Sea (McCreath 2020), could be asked to adjudicate over matters of compliance with international climate obligations on the basis of customary international law (Bodansky, Brunnee, Rajamani 2017). Again no inter-state legal suits have been lodged on this basis to date. This paper reviews these international litigation scenarios and ascertains opportunities and constraints, in light of developments occurred in recent years. Paraphrasing Bierly (Bierly, 1928), the paper concludes that, given the present state of international climate diplomacy, international litigation is neither a chimera nor a panacea, but represents one means at our disposal for delivering better climate protection.

Solar energy as a sustainable development factor

This article examines the possibility of using solar energy as a viable alternative, necessary to diversify the country’s energy matrix under the potential the Northeast presents. The approach is made with a view to highlighting clean and renewable energy and a global effort to preserve the environment, embodied in treaties and legal instruments of International Law. The central core is the idea of sustainability. The methodology approach is qualitative, in which legal and doctrinal surveys will be used in the legal literature. The text is divided into an introduction that gives an overview of the subject studied, then subdivided into 3 (three) specific topics that discuss the search for alternatives to the Brazilian energy matrix, considering about solar energy and, finally, the regulation of that energy. In the research, the economic viability is verified when the installation expands through this energy matrix, as well as the incremental benefits generated to the environment, in addition to the cost savings in the productive sector.

Combating COVID-19: The Role of Space Law and Technology

This article looks at the relevance of space law and technology, especially the use of satellites for Earth observation, navigation and communication, in the fight against Coronavirus Disease- 2019 (COVID-19). After an indication of what various international space law instruments say about the use of outer space in this context, it provides an overview of developments and initiatives in the context of the United Nations and other relevant international, regional and national organizations and institutions, as well as the private space sector. It will demonstrate that space law and technology can greatly contribute to the fight against a pandemic such as COVID-19, by applying the advanced technological capabilities of space applications in the spirit of the concepts prescribed by international space law, such as mutual assistance, international cooperation and the benefit of all countries. history of outer space and pandemics, outer space and COVID-19, UNCOPUOS, UNSPIDER, Space4Health

Theoretical Approaches of the European Commission for Democracy Through Law (the Venice Commission) to the Assessment of Anti-Terrorism Legislation: international Legal Discourse and Implementation Problems

The topic of the article is highly relevant due to the importance of basing the legislative regulation of counter-terrorism activities on international treaties in this sphere. Besides, the legislative regulation of counteracting terrorism should be developed in accordance with the current international law acts and should take into account international obligations that they entail. The authors believe that the improvement of counter-terrorism legislation is facilitated by the work of the European Commission for Democracy through Law (the Venice Commission), which conducts an expert evaluation of the national legislations of member states. The goal of this research is to analyze the current international law regulation in the sphere of counteracting terrorism and in identifying the specifics of its application by the Venice Commission in its assessment of national counter-terrorism legislations. The authors examine some issues connected with the work of the Venice Commission on preparing conclusions and recommendations that contain its assessment of the counter-terrorism legislation of a number of countries (the Republic of Moldova, the French Republic). They note the specifics of the work of the Venice Commission as a special auxiliary body of the Council of Europe that analyzes and assesses the legislative acts of member states based on the poly-functional guidelines of the Council of Europe. While assessing national legislations, the Venice Commission uses international law acts that contain, among other things, universally recognized principles and norms of international law, so the authors of the article show the significance of the international law regulation of counteracting terrorism through international treaties both between different countries and under the aegis of international organizations and integration unions; they also identify the problems connected with their implementation in national legislations. Based on the conducted research, the authors come to the following conclusions: the legislative regulation of counteracting terrorism should be amended with strict observance of the universally recognized principles and norms of international law incorporated, among other things, in international treaties; it is necessary to develop the international law regulation in the sphere of counteracting terrorism while taking into account new challenges and threats brought about by globalization and use the potential of international law instruments; international bodies play an important part in improving national counter-terrorism legislations, specifically, the Venice Commission, which, through its expert work, contributes to the development of legislation based on international legal acts.

What Can the World Health Organization (WHO), and the 1979 Geneva Convention (CLRTAP) Do, under the Rules of Public International Law (PIL), to Curb Air Pollution Which Has Amplified the Death Toll Rate of the Coronavirus-19 in the World?

The most important natural resource on the planet earth is air because people, animals and plants (vegetation) need to breathe in clean air that is not polluted in order to be alive. Breathing is a vital natural process which is called respiration. In the process of respiration, also known as “cellular respiration”, a living subject or thing takes in oxygen from the air and expels carbon dioxide (CO2) as a waste product. Therefore, if the respiration of ambient air is intoxicated by the gaseous or chemical substances produced by air pollution (PM 10, 2.5, or 0.5), the lives of people, animals and plants, will be in serious danger. The environment, structures and the ecosystem will also suffer destruction and depletion of the ozone layer (effects of the ozone hole). This Article strives to scientifically investigate, analyse and demonstrate that the actual public international law rules put in place have not substantively provisioned the remedies and constitutional or treaty mechanisms which should tackle air pollution effectively. Legal Scholar will draw on the public international law instruments of this research question in order to make a preliminary proposed reform that should remedy the devastating effects of air pollution in the World. The Article envisages to substantiate on how air pollution has contributed in increasing the number of deaths on the coronavirus-19 patients around the globe. The study moves on to advice COVID-19 victims on the tortious liability actions they could engage against their national Governments, if they can substantiate that, air pollution aggravated their COVID-19 situations, which injuriously caused them any substantiated loss or harm. Researcher will move on with his conclusion by inciting Nation-States and the United Nations Organizations, to study the reform he has proposed in this introductory Article and make use of such. The continuation of the greater part of the project will comparatively analyse and investigate on how the national and public international law rules of air pollution countries like France, Britain, the USA, China and India regulate air pollution? The complete project of which this Article is the first part, will be concluded through the presentation of a proposed public international law instrument that should effectively regulate air pollution. Such an instrument will be in the form of a model drafted international treaty of a jus cogens character. It will aim at drastically curbing air pollution and imposing compliance on all Members and non-Members of the United Nations Organization (UNO), who have ratified or not the proposed reform, if adopted by the United Nation Organization (UNO).

Disability, Reasonable Accommodation and the Employer's Obligations: Nano Nagle School v Daly

AbstractThe duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job. The case also addressed the question of what procedures should be followed by an employer when considering the provision of reasonable accommodation, as well as the need for courts to justify awards of compensation. The issues in Irish law were intertwined with obligations arising from EU and international law instruments. Therefore, the decision is pertinent for other jurisdictions confronting similar challenges.

The international regulation for the protection of the environment in the development of marine renewable energy in the EU

AbstractMarine renewable energy (MRE) technologies have been fostered in the European Union (EU) due to their potential contribution to achieving the EU’s climate objectives and the decarbonization of the energy system. However, their development can pose severe environmental risks to marine ecosystems. Hence, the EU requires environmental protection and sustainable growth for the development of MRE in maritime spaces under the sovereignty or jurisdiction of EU Member States. This article analyses the main international law instruments for the protection of the environment against the impacts associated with the deployment of MRE in the EU. It argues that the international legal framework is theoretically capable of protecting the environment against the impacts of MRE, but that it needs to be further developed and specified to ensure exhaustive protection. However, it also highlights the important role of this framework to provide a basis for developing the framework at the EU secondary law level.

Groups Defined by Gender and the Genocide Convention

This article explores the crime of genocide in connectivity to groups defined by gender. Its aim is to investigate whether including groups defined by gender as a protected group in the Genocide Convention appears legally plausible. It begins by probing the historical origins of the concept of genocide. This exposition emanates into an analytical examination of the rationale of protecting human groups in international criminal law. Against this background, the article advocates an understanding of the crime of genocide as a rights-implementing institute. Subsequently, it employs an ejusdem generis analysis to assess whether groups defined by gender are coherent with the current canon of the protected groups, and if similar treatment thereby can be warranted. It then turns to examine other international law instruments, to expose that none of these are suitable proxies in dealing with gender-specific genocides. From this perspective, the article suggests that the content of the crime of genocide is not determinate, but rather emerges as a battlefield for hegemonic interests. Hence, it is easily discernible that the way in which the current construction of the protected groups in the Genocide Convention relates to gender groups reflects a deliberate choice. The article concludes with asserting that the choice represents a lacuna in international criminal law that in the end compromises the legitimacy of the crime of genocide, since the personal scope of the crime of genocide risks being in discord with current social and political trajectories.

The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations

This article addresses the issue of the uniform and autonomous interpretation of private law conventions, including of private international law conventions, from the perspective of their Contracting States, particularly their judiciaries, and of the international organizations. Firstly, the author analyses the use of standard uniform interpretation clauses, and the origin of such clauses, in the context of the Hague Conference on Private International Law. The following part the article addresses negative and positive obligations imposed on States and their judiciaries under international law regarding the uniform and autonomous interpretation of international treaties. It is argued that States are not only obliged to refrain from referring to concepts from national laws for the purpose of the interpretation of international law instruments, but also that they face certain positive obligations in the process of applying the conventions. Those include referring to foreign case law, international scholarship, and under certain circumstances, also to travaux preparatoires. Thirdly, the author discusses the role of international organizations—e.g. HCCH, UNCITRAL, UNIDROIT, in safeguarding and facilitating the uniform and autonomous interpretation of private law conventions. It does so by describing various related tools and approaches, with examples and comments on their practical use (e.g. advisory opinions, information sharing, access to supplementary material, judicial exchanges and legislative action).

The Legal Protection of Well-Known Service Trademark (The Case of Inter-Continental Vs The Intercontinental)

The competition in the field of international services has increased the potential for copyright infringement of well-known service marks. Accordingly, it is necessary to examine the criteria for well-known service marks and legal protection to protect the trademarks’ copyright. This paper analyzes the criteria for well-known service marks according to the instruments of international law and national law. Besides, this study aims to investigate the forms of well-known service mark violations and the efforts to recover the trademarks. The method employed in this study was normative legal research. That method was used since this thesis examined the norms in the laws and regulations as well as the judgments relating to the trademarks to find the law against the issue addressed by utilizing statute approach and conceptual approach. In the case of INTER-CONTINENTAL v. the intercontinental, the trademark violation occurred was brand dilution. The parties in the INTER-CONTINENTAL v. Intercontinental case could resolve their dispute through alternative dispute resolution in the form of mediation, conciliation, or arbitration. In addition, the act of trademarks counterfeiting and piracy may be subjected to criminal sanctions according to the provisions of the applicable Trademark Law. The infringement of trademark copyrights is a detrimental act for the trademark’s legal owner. The settlement of trademark infringement can be conducted through criminal channels and alternative dispute resolution by mediation, conciliation, or arbitration

Cross-border litigation: Evaluating the Brexit impact – a socio-legal model for data analysis

The UK decision to leave the European Union could directly impact on the application of the EU private international law (‘PIL’) instruments in the UK. Any fresh legal uncertainty driven by such a change in the legal landscape in relation to PIL could have significant impact on private parties’ access to remedies. This article proposes a socio-legal model for measuring the Brexit impact on litigants’ access to legal remedies. In order to systematically identify the important issues (which need to be considered by policy-makers as priority in this context), the proposed theoretical model is developed around the litigants’ strategies. The advanced model has two major features. First, it is set to analyse the triangular relationship between: 1) jurisdiction (procedural rules); 2) choice of law (applicable substantive laws); 3) outcome of a cross-border case. Secondly, the relevant claimants’ and defendants’ strategies in cross-border cases are thoroughly considered by taking a game theoretic perspective.

Występek uprowadzenia osoby małoletniej lub nieporadnej na tle regulacji międzynarodowych

International regulations provide comprehensive and sufficient protection against cross-border abductions and detentions. Among the most important international law instruments is the Convention on the Civil Aspects of International Child Abduction. (The Hague, 25th October 1980) This international agreement allows protection for victims of the crime in question against its negative effects. In addition, the Convention guarantees the immediate return of the unlawfully abducted or detained to the country of permanent residence. Among the discussed international law documents, the Council Regulation No. 2201/2003 (the so-called Brussels II bis 27th November 2003) deserves special attention. It regulates jurisdiction and the recognition and enforcement of judgments and parental responsibility.

Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century

The 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with the enforceability of orders for payment of costs in situations where the precedent disposition applied, and lays down an ‘opt-out’ mechanism for those Contracting States that may not wish to apply that principle. This article frames the discussion of the non-discrimination principle in the wider context of previous private international law instruments as well as from the perspectives of access to justice, human rights and Sustainable Development Goals (SDGs), understanding that its inclusion in the 2019 Convention was an important, inescapable and necessary achievement.