International Law Obligations Research Articles

Clarifying Jus Cogens, Erga Omnes and the Place of Third-party Countermeasures in International Law

There is substantial support in literature of the idea that all norms of jus cogens are erga omnes, in that they produce obligations applicable towards all states. However, not all obligations erga omnes invariably flow from a jus cogens characterisation. Indeed, although this is the case, there is no simple criterion by which one can determine the extent of the overlap between jus cogens and erga omnes. This relationship is further complicated by questions relating to the kind of measures that states may be permitted to take in order to protect or ensure compliance with obligations erga omnes, bringing to light, the debates surrounding the concept and the place of third-party countermeasures regarding state responsibility. Against this backdrop, this article will assess the concept of obligations erga omnes, its relationship with jus cogens as well as the legal position and the place of third-party countermeasures in relation to the protection of obligations erga omnes and/or as a way of invoking state responsibility by reacting to breaches of international law obligations with erga omnes status.

An Analysis of the Obligations of COMESA Public Procurement Regulations: The Case of Zimbabwe’s Public Procurement Regulatory Framework

With the coming into force of the new Constitution in 2013, public procurement was given a constitutional status in Zimbabwe. The Constitution sets out vital principles that public procurement legislation must comply with. Moreover, it is a requirement of the Constitution that the governance of Zimbabwe must be pursued in accordance with Zimbabwe’s international law obligations. Zimbabwe is a founding member of the Common Market for Eastern and Southern Africa (COMESA). To accelerate interstate trade, COMESA promulgated Public Procurement Regulations (PPR) for regional competitive bidding across member states. The viability of the regional trade agreements is hinged on mutual cooperation. Pursuant to the foregoing, member states are required to domesticate international agreements into their municipal laws. In 2017, the Zimbabwean legislature passed the Public Procurement and Disposal of Public Assets Act 5 to give effect to the provisions of section 315(1) of the Constitution (Amendment No. 20), 2013. The public procurement reform agenda in Zimbabwe occurred close to a decade after the adoption of the public procurement regulations by COMESA in 2009. This article explores the obligations imposed on Zimbabwe pursuant to the public procurement regulations. This is done by identifying the public procurement principles enumerated in public procurement regulations, which are binding on member states. This article endeavours to answer the question: To what extent does the Zimbabwean legal framework conform to public procurement regulations? This article notes that the legal framework underlying public procurement in Zimbabwe, by and large, conforms to the bar set in the public procurement regulations. Nonetheless, it highlights Zimbabwe’s public procurement shortcomings. The article concludes by making possible legislative recommendations.

International Law & the Sustainable Development Goals

Law and policy are essential tools to tackle ongoing and emerging environmental challenges and are critical to the fulfilment of sustainable development. Adopted by all 193 United Nations (UN) Member States, the 2030 Sustainable Development Goals (SDGs, also known as the 2030 Agenda) act as the 21st-century framework for sustainable development. This doctoral project seeks to investigate the interactive dynamics between international law and the SDGs to discern the potential of this relationship to strengthen, reinforce, and facilitate the realisation of existing and emerging obligations in international law.

International Wrongfulness of Japan's NCW Sea Discharge

International Wrongfulness of Japan's NCW Sea Discharge

International law obligations for the disposal of Fukushima nuclear-contaminated water under the principles of nuclear safety

The disposal of contaminated water from Japan’s Fukushima nuclear power plant is a significant international nuclear safety issue with considerable cross-border implications. This matter requires compliance not only with the law of the sea but also with the principles of nuclear safety under international law. These principles serve as the overarching tenet of international and China’s domestic nuclear laws, applicable to nuclear facilities and activities. The principle of safety in nuclear activities is fully recognized in international and domestic laws, carrying broad legal binding force. Japan’s discharge of nuclear-contaminated water into the sea violates its obligations under the principle of safety in nuclear activities, including commitments to optimum protection, as low as reasonably practicable, and prevention. The Japanese government and the International Atomic Energy Agency (IAEA) have breached the obligation of optimum protection by restricting the scope of assessments, substituting core concepts, and shielding dissenting views. In the absence of clear radiation standards, they have acted unilaterally without fulfilling the obligation as low as reasonably practicable principle. The discharge of Fukushima nuclear-contaminated water poses an imminent and unpredictable risk to all countries worldwide, including Japanese residents. Japan and the IAEA should fulfill their obligations under international law regarding disposal, adhering to the principles of nuclear safety, including optimum protection, the obligation as low as reasonably practicable, and prevention through multilateral cooperation. Specifically, the obligation to provide optimum protection should be implemented by re-evaluating the most reliable disposal technologies and methods currently available and comprehensively assessing various options. The standard of the obligation as low as reasonably practicable requires that the minimization of negative impacts on human health, livelihoods, and the environment should not be subordinated to considerations of cutting costs and expenses. Multilateral cooperation should be promoted through the establishment of sound multilateral long-term monitoring mechanisms for the discharge of nuclear-contaminated water, notification and consultation obligations, and periodic assessments. These obligations under international law were fulfilled after the accidents at the Three Mile Island and Chernobyl nuclear power plants. The implications of the principles of nuclear safety align with the concept of building a community of shared future for nuclear safety advocated by China. In cases of violations of international law regarding the disposal of nuclear-contaminated water that jeopardize the concept of a community of a shared future for nuclear safety, China can also rely on its own strength to promote the implementation of due obligations through self-help.

Strengthening the medicolegal system: Fulfilling international law obligations during conflicts and disasters to prevent and resolve issues of humanitarian concern

Abstract In times of armed conflict, disasters and violence, people may become separated from their families, go missing or die, or become victims of ill-treatment and sexual violence. Under international humanitarian law, States have obligations to prevent harm and address humanitarian needs. At State level, the medicolegal system is conventionally mandated to address these needs and fulfil related legal obligations. In practice, State responses can sometimes be non-existent, limited by the endemic functionality of existing systems, or degraded by crises of violence, natural disasters and migration. These conditions can, in turn, impede the establishment of peace, reparations, restorative justice efforts and post-conflict reconstruction. This paper explains what a medicolegal system is and the entities that encompass it. The paper highlights the importance of developing clear policies, regulation and procedures that ensure proper functioning of the system. It reviews common gaps and challenges that limit State prevention and response to issues of humanitarian concern. Finally, recommendations when developing and implementing humanitarian programmes to strengthen medicolegal systems are provided, with a particular focus on the content of protection dialogue in diplomatic fora.

MacDermott Lecture 2023: Confounding the rule of law: conflating immigration, nationality, and asylum in the UK

In this MacDermott Annual Lecture, Professor Devyani Prabhat looks at current developments in immigration, nationality and asylum law and evaluates these in terms of the core ingredients of the rule of law. Specifically, the focus is on two aspects of the rule of law as elaborated on by Lord Bingham in his classic exposition on the rule of law (2011.) First, Bingham asserts that ‘Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion’ is a fundamental requirement of the rule of law; and, second, Bingham states that ‘the rule of law requires compliance by the state with its obligations in international law as in national law’. The examples Professor Prabhat analyses in the lecture are that of the East African Asians who could not enter the United Kingdom (UK) with their British passports in the 1960s and 1970s; the Windrush generation and the hostile environment of immigration control; immigration control of European Union nationals in the UK after Brexit; developments in cancellation of British Citizenship; and new legislation and proposals on asylum in the UK. Do these changes in the scope and application of the law comply with the rule of law in general and with the two specific principles on ‘law not discretion’ and ‘international law compliance’ in particular? While answering this question, Professor Prabhat explains how the different legal categories in immigration, nationality and asylum are distinct but are often conflated or confused with each other. Executive discretion should be narrow for nationality and asylum matters to conform with international law, whereas it can be wider for immigration so long as principles of fairness and non-discrimination are adhered to in each instance.

Autonomous weapon systems and IHL compliance: A constrained legal optimisation problem

Abstract Arguments have been made both for and against military use of autonomous weapon systems (AWSs) on the basis of how they will help or hinder a state in meeting its international humanitarian law (IHL) obligations. Often, these arguments are made in isolation, or they fail to address all of the potential compliance concerns related to autonomous weapons. This is not ideal. It means the bearers of legal obligations must locate, assess and piece together the disparate arguments into a coherent structure if they are to know whether they can legitimately utilise a particular autonomous capability and, if so, in what circumstances. This article offers a high-level description of a conceptual framework which can be used to organise and assess legal arguments about autonomous weapons. It proposes that the task of integrating autonomous capabilities into an armed force may be viewed as a constrained optimisation problem wherein the task is to find the optimal balance between the fundamental principles of IHL while also satisfying all normative, technological and strategic/operational constraints.

Prisca Feihle, Review of Alice Ollino. Due Diligence Obligations in International Law.

Prisca Feihle, Review of Alice Ollino. <i>Due Diligence Obligations in International Law.</i>

Limitations on the rights of migrant workers: Is a compliant and consistent approach being followed?

Migration has become a global phenomenon and South Africa, like many other countries, is a recipient of migrant workers. Migrant workers can be classified under five categories: permanent residents, refugees, asylum seekers, temporary residents, and undocumented migrants. This article focuses on documented migrants and their right to engage in work. Integral to the right to work is the right to choose one's trade, occupation or profession freely. This is a constitutionally protected right, but is reserved exclusively for citizens, which implies that migrant workers can be lawfully excluded from working in certain occupations or professions. This ties in with South Africa's obligation to protect employment opportunities for citizens. However, South Africa has immigration laws in place that afford substantial rights to certain categories of migrants. Furthermore, as a member of the UN and International Labour Organisation (ILO), South Africa has certain international law obligations. Against this backdrop, this article engages with the recent Constitutional Court decision of Rafoneke v Minister of Justice and Correctional Services where temporary residents were denied the right to be admitted to practise and be authorised to be enrolled as legal practitioners. The article seeks to establish whether this decision, which has been viewed as disappointing, complies with international law and upholds the legal principles endorsed in preceding cases.

A Comparative Study of the Right to Choose in the Legal Systems of Afghanistan and Iran with a Focus on Islamic Jurisprudence

The right of choice is not defined in the law; however, it can be stated that when the subject of a transaction is more than one item and at most three items, and the customer has the right to choose one of these items, this choice is recognized as the right of choice. The period for the right of choice is three days, and the holder of the right of choice must select one item among the maximum of three items as the subject of the transaction. The fundamental question is whether the right of choice falls under the category of cases that grant the right of rescission to the opposing party, and what is its position in the legal systems of Iran and Afghanistan?&#x0D; The recognition of the position, source, and nature of the inclusion of this right in contracts in the legal system of Afghanistan and its elucidation in the legal system of Iran, considering that this institution has not been explicitly accepted in the legal system of Iran, are the main objectives of this research.&#x0D; The findings of this study indicate that there is no explicit textual basis for the right of choice in the Quran and Hadith, and it is solely derived from the jurisprudential interpretations of Hanafi and Maliki scholars. This institution bears many similarities with the recognized institution of conditional obligations in international law. Although the right of choice is not explicitly stipulated in the legal system of Iran, it can be established in contracts under certain conditions using some provisions of the Iranian Civil Code. It appears that the right of choice can be accommodated within contracts by invoking Article 216 of the Civil Code, where the principle of the supremacy of will is well-recognized. This research follows an analytical and descriptive approach and relies on library research and documentary analysis.

A galaxy of norms: UN peace operations and protection of the environment in relation to armed conflict

AbstractGiven the increasing size and functions of United Nations (UN) peace operations (POs) and the fact that they often operate in contexts where natural resources are degraded, POs have repercussions on the environment. Yet, there is not much literature on their obligations regarding the protection of the environment in relation to armed conflicts. This article provides insights into the obligations of POs in relation to armed conflict. First, it highlights POs’ customary international environmental law obligations. Second, it delves into their environmental obligations under the UN's internal rules and the host State's laws. Third, it explores obligations that arise from their mandates. In each of these sections, the article highlights the relevance and application of these obligations in armed conflicts. The last section examines the obligations of POs to protect the natural environment under international humanitarian law.

International human rights law, devolution and democratic legitimacy: the case study of abortion reform in Northern Ireland

This article uses the case study of abortion law reform to critically assess what is required to secure democratic legitimacy in complying with international human rights law (IHRL) obligations. The case study exposes the inadequacy of the devolution arrangement. The article critiques the methodology through which the views, interests and priorities of the two systems are upheld and protected: a mere bifurcation of competence over law and decision-making. The devolution framework frames democratic legitimacy as requiring the representation of interests of only two governance systems to be balanced – the devolved people of Northern Ireland versus the collective interests of the United Kingdom (UK). Other systems of people with separate interests should be identified and represented. The article assesses the role and challenges that IHRL presents in securing democratic legitimacy. On the one hand, it feeds into an iterative process of ensuring that the voices of those most affected by the law at issue are at the forefront of the law-making process – it facilitates their engagement with the state apparatus. On the other hand, the incorporation of IHRL must be consistent with the aims of the devolution framework: to balance the democratic will of the people of Northern Ireland and the collective will of the UK. If we work from the premise that IHRL is democracy-enhancing in itself, then we need to prioritise inclusive processes for deciding the content of those norms and ensuring they are practically implemented. Devolution politics should not form a barrier to this overall goal.

Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?

Abstract Since India has no established refugee regime, most developments in this sphere have arisen from judgments. However, the lack of relevant applicable law means that these developments are piecemeal and humanitarian at best, failing to make true advances in jurisprudence, and anti-refugee at worst. This article argues that through recourse to international law, these hurdles can be surmounted to ensure more robust protection to refugees. Further, it is argued that constitutional and international law obligations binding India mandate that the Indian judiciary refer to these international law instruments. Doing so would ensure significantly stronger protection for refugees and less deference to the executive’s ad hoc stance.

Australia, ‘the most voter-friendly country in the world’? Examining voting rights for people with physical disabilities

Despite Australia’s reputation as a jurisdiction with enviable voter enfranchisement and participation procedures, people with physical disabilities are inadequately catered for by federal and state/territory electoral processes. While alternative voting schemes seek to address this issue, they are either too narrowly constructed, carry election integrity risks, or otherwise provide a voting experience lacking independence. This article examines adequate enfranchisement for people with physical disabilities in the context of Australia’s international human rights law obligations, including the case study of Given v Australia. Barriers to full enfranchisement of people with physical disabilities are considered, including cost, logistics and political will.

The Role of Flag States of ngo Vessels under Italy’s New Migration Policy

Abstract On 4 and 6 November 2022, the Italian Ministry of Home Affairs, in agreement with the Ministry of Defense and the Ministry of Infrastructures and Transport, issued two inter-ministerial decrees effectively prohibiting two ngo humanitarian vessels from staying in Italian territorial waters for a longer period than “necessary”. As the former Minister of Home Affairs stated, such decrees were the “first act” of a policy aimed at calling on flag countries to respect their international law obligations. In the context of a press release, the Minister even stated that migrants saved at sea and in need of international and complementary protection could be informed of the possibility to apply for asylum on board of the rescuing vessels. The present comment offers an evaluation of the compatibility of such policy, finally given legal status in the Italian Law Decree n. 1/2023, under international law, bearing in mind both what it is legally required of shipmasters vis-à-vis rescued migrants and State obligations under international law.

ETHNO-RELIGIOUS AND POLITICAL DYNAMICS IN THE APPLICATION OF REFUGEE LAWS

Since its emergence in international law, the United Nations Organization’s 1951 Convention Governing Refugee Status (hereafter refers to as 1951 Geneva Convention) has acted as type genus of the international protection law because it is the earliest document which defines and describes refugee in pure legal environment. The refugee is a legal concept in international law, where states are enjoined to comply with certain obligations, but it was established under strong humanitarian principle. Its legality, however, does not dimmish states’ right to sovereignty and protection of territorial integrity. Notwithstanding, states have often found relief or escape from the obligations of international protection law especially when local dynamics prevent wholesome adherence to the principles of international protection law. It is common place to witness the interference of religion, politics, sectarianism et al, in refugee asylum administrations. This work highlights some of these instances with the hope that subsequent studies will sniff out more areas of these dynamics.

Pertanggungjawaban Negara China Akibat Pencemaran Di Laut China Selatan Dalam Prespektif Hukum Lingkungan Internasional

Introduction: One of the satellite imagery analysis companies, Head Of Simularty, based in the United States, found that there has been pollution to the marine environment in the South China Sea area, precisely in the Spratly Islands, namely the coral island of Whitsun Reef which is still part of the Exclusive Economic Zone of the Philippines.Purposes of the Research: Aims to find out and analyze the regulation of international law on pollution in the South China Sea and to find out and analyze the form of accountability of the Chinese State due to marine pollution carried out under international environmental law. Methods of the Research: This legal research uses normative juridical research, case approach, statutory approach, and conceptual approach, primary and secondary legal materials, legal material procedures using primary legal materials which are then associated with secondary legal materials and processing and analysis of legal materials using qualitative descriptive analysis.Results of the Research: The results showed that China had violated international environmental law obligations as stipulated in the Stockholm Declaration 1972, Rio Declaration 1992, UNCLOS 1982 and MARPOL 73/78. Furthermore, marine pollution carried out by the State of China in the territory of the Exclusive Economic Zone of the Philippine State has opposed the provisions of international environmental law as stipulated in the 1972 Stokcholm Declaration and UNCLOS 1982 which states that it prohibits any country from taking acts of pollution against the environment against both its own territory and in the jurisdiction of other countries. Therefore, it is necessary to have accountability efforts that must be carried out due to the pollution actions carried out.

Durable Solution to the Problem of Externally Displaced Persons from the Syrian Arab Republic in OIC Member States

Abstract According to the Office of the United Nations High Commissioner for Refugees (UNHCR), the majority of the 5.7 million UNHCR registered refugees from the Syrian Arab Republic (SAR) reside in five Member States of the Organisation of Islamic Cooperation (OIC), namely Egypt, Iraq, Jordan, Lebanon and Turkey. The present study aims to discover the impact of the measures taken by UNHCR, European Union (EU), OIC, and states in question on the durable solution of the problem of externally displaced persons from SAR in accordance with applicable international law. It explores the scope of states’ international law obligations, their concepts of ‘burden sharing’ and ‘durable solution’ as well as legal aspects of the cooperation between the international organisations and states in question. The difference in legal positions of states and international organisations results in the lack of available forms of durable solution to the problem of external displacement from SAR.

“Two Courts” for One Constitution: Fragmentation of Constitutional Review in the Law of the Kosovo Specialist Chambers in The Hague

AbstractThe Kosovo Specialist Chambers embody a remarkable project involving elements of the domestic law of the Republic of Kosovo, the EU’s external relations law, and international criminal law. The Chambers’ hybrid nature is not only unique, but also atypical in regards to its influence in Kosovo’s constitutional order. The Specialist Constitutional Chamber is one of the instances of the Kosovo Specialist Chambers sitting in the Hague. The Specialist Constitutional Chamber resembles Kosovo’s Constitutional Court on a specific, though exclusive, area of law—the law surrounding the court in general. The two courts not only exercise the same generic function—on the basis of exclusive material criteria—but also possibly parallel and compete with each other. The relationship between the “two courts” is at best explained with the term “fragmentation of constitutional jurisdiction.” While the two courts are forced to endure under the same normative roof—the Constitution—they inherently exercise often conflicting functions and protect irreconcilable ideological perspectives. The article examines the interaction between the two courts primarily in a normative and jurisdictional perspective. It also presents recent tendencies of both courts to divert in divergent pathways. The article concludes that while the two courts present an unobserved case in comparative constitutional law, they also reveal an interesting and unconventional constitutional controversy appearing in the context of a sovereign country’s relationship with international law obligations.