International Legal Community Research Articles

Ensuring Lawful Use of Autonomous Weapons

Abstract The use of autonomous weapons systems (‘aws’) is the source of extensive discussions within the international legal community and beyond. After years of discussing definitions, the discourse is slowly moving on to discuss aws in light of existing law of armed conflict (‘loac’) rules. This article aims to support these discussions by providing a military legal perspective. aws offers great potential benefits to both soldiers and civilians, and control mechanisms already in place for military operations may be employed to define when and how aws can lawfully be used. aws can reduce the exposure of soldiers to dull, dirty and dangerous environments and the risk of incidental civilian harm. To exploit these potentials and ensure legality, regulators need to understand how military forces employ and control the use of force to support their operations, and military planners and decision-makers need to understand the limits of and possibilities within loac.

Theories of Interpretation: Islamic Law v. International

Whereas Europeans exercised influence over Muslim areas in the last century, Muslim countries and its legal systems were expected to be considered and to interact with international rules. The Hague Conferences of 1896, 1902 and 1905 were established for the purposes of developing agreement on private international law. These conferences did not invite Muslim countries though these states situated outside Europe could have treaties applied on their territories when they were under the jurisdiction of European states. In the same line several conferences and arenas have called and recommended the study of the Islamic legal rules. For example, North Sea case the judge argued that the principle of ‘sovereign equality’ protected in Article 2(1) of the United Nations Charter, necessitates the court to refer not only to European legal traditions but also to Islamic legal principles when seeking for a general principle of law. This paper argues that the Islamic law has its unique methodologies of interpretations, can share common views compared to the rules of interpretations in international law, and can offer unprecedented solutions to many international disputed issues. This article questions the ways in which the international scholarship and legal community could benefit from such an ‘exquisite understudied art.’

Judicial Reform in Serbia in Light of “the Venetian Concept” of the Rule of Law

This paper analyses the influence of the standards of the Venice Commission in the area of the rule of law in the course of Serbian judicial reforms. The author first “sketches” the constitutional “path” of the idea of judicial independence and the rule of law in Serbia. He derives an “extract” from the “jurisprudence” of the Venice Commission in the area of the rule of law, which refers to the standards of an independent judiciary summarised in a document called the Rule of Law Checklist. The normative framework, which has been set by the constitutional amendments from 2022 and judicial laws from 2023, is a positive step on the way to building a national rule of law that will be compatible with international standards. In the coming period, Serbia will face numerous external and internal challenges. The Commission points to the relatively weak material position of judges, the lack of interest of young lawyers in applying for judicial positions, the large gap between retiring judges and young people. The Commission particularly emphasises the importance of building a legal culture. The author considers that segment essential for the success of the process that has begun. The author underlines that the international standards of the rule of law must not have absolute supremacy vis-à-vis the real needs of their adaptation to the national political, legal and social environment of the country in question. It is necessary to strive for a dynamic balance that will, in the long term, provide the conditions for the rule of law of national content that confirms the generally accepted civilisational values and achievements of the international legal community. Every step in that process must be carefully thought out and undertaken

What Shaming Reveals: Examining Qatar’s Response to Being Shamed as the Host of the 2022 FIFA Men’s World Cup

AbstractThis Article considers how the ranking of states, as perpetuated by the international legal order, may play a role in the considerations of those targeted by global naming and shaming campaigns. To do so, it examines Qatar’s response to being shamed in the lead up to and during the 2022 FIFA Men’s World Cup. Drawing from international relations literature on status and adopting a critical approach to unpack the prevalence of the hierarchal structuring of states in the contemporary international legal order, the Article claims that the practice of shaming, as a human rights enforcement strategy, inevitably pushes target states to question their status within the international legal community. This could, counterproductively, lead to negative outcomes for the rights of the very individuals these campaigns seek to protect. Furthermore, the Article sketches out a theoretical argument for why certain states may consider the enactment of cosmetic legal reforms to be an attractive strategy for countering a global shaming campaign.

How to Regulate Moral Dilemmas Involving Self-Driving Cars: The 2021 German Act on Autonomous Driving, the Trolley Problem, and the Search for a Role Model

AbstractWith the promulgation of the Autonomous Driving Act in summer 2021, Germany took the worldwide lead on regulating self-driving cars. This Article discusses the (non-)regulation of moral dilemmas in this act. To this end, it clarifies the role of the so-called trolley problem, which influenced the report of the German Ethics Commission that paved the way for this act in particular and the relationship between philosophical reasoning, empirical studies, and the law in general. By introducing the international legal community to the (non-)regulation of moral dilemmas in the German act, the Article critically reviews the German goal, which is to serve as a European and international role model. This will be preceded by a discussion as to why self-driving cars should be allowed as well as the moral dilemmas they cause which should be regulated by the law.

Rivers and Water Systems as Weapons and Casualties of the Russia‐Ukraine War

AbstractThe geophysical, hydrological, and ecological consequences of the Russia‐Ukraine war for the major rivers and water infrastructure in Ukraine are addressed here, focused on the dams and reservoirs of the Dnipro (Dnieper) River and major tributaries, up to and including the destruction of the Kakhovka Dam in June 2023, using remote sensing systems, on‐the‐ground reports, and official sources. The rivers have long played a role as physical barriers during conflicts, but in the current war, water and built water systems have also been targeted for attacks and used as both offensive and defensive weapons. Among the consequences of the conflict have been both direct and indirect effects on civilian populations, agriculture, military operations, water supplies and quality, and natural ecosystems. An historical review shows that such attacks have occurred in the past, but the extent and severity of the current violence appear unprecedented, raising important questions of international law and how international legal and scientific communities should respond.

Захист прав та законних інтересів дітей під час війни в Україні

It was found out that in Ukraine, the issue of protecting the rights and interests of children was given considerable attention even before the war. Starting from the formation of juvenile prevention to educational reforms - all measures were aimed at forming a complete personality of the future generation. It is important that, during their stay in difficult life circumstances, children feel comprehensive protection and that they are not left alone in the cruel realities of life. In territories where there are no active hostilities, it is necessary to ensure the educational process, if possible, the activities of groups and centers for social support of minors. A positive moment will be the joint social work of children with their parents (volunteering, socio-cultural events, legal education to fully inform parents and children about social guarantees and rights during martial law. It was emphasized that under the conditions, when certain rights of citizens are legally restricted during martial law, the problem of ensuring the rights and interests of children becomes actualized. This task is complicated by the large number of internally displaced persons, the increase in the number of children who have lost their parents and relatives, and other factors resulting from the war. The issue of maximum safety of children in all aspects (physical, psychological, social and household) is important for the preservation of a healthy future generation that will face the task of developing Ukraine. It is noted that legislative bodies should actively respond to the challenges of modern times by adopting normative legal acts, or introducing changes and additions to existing ones, in favor of ensuring the rights, freedoms and legitimate interests of children affected by war, relying on international legal experience countries that, unfortunately, were faced with the solution of such problems. Attention is focused on the problem of the safety of children who left Ukraine due to the war. Representatives of the international legal community help solve this problem. One of the main components of the state policy of Ukraine in the field of protection of children's rights is the improvement of the legal framework, including the implementation of the norms of European and international law.

Applying Timor Leste Traditional Conflict Resolution on the Tigray War Conflict: Jaarsummaa and Qaalluu Method

<em>The Tigray War is an ongoing civil conflict that started on November 3, 2020, in Ethiopia's Tigray Region. The idea was first up in June 2005 by the International Criminal Court (ICC), which said that "normal procedures of conflict settlement may possibly meet the criteria for justice." By fusing well-established conflict settlement processes with local knowledge, this proclamation launches efforts by the international legal community to solve problems with peace and justice. On an international, regional, and national level, peace is said to be created by giving local people the tools they need to handle their own problems using conventional methods. This article examines the Gada system's Jaarsummaa and Qaalluu dispute resolution strategy, taking inspiration from Timor Leste traditional conflict resolution.</em>

Legal doctrine as human rights ‘practice’

Abstract‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights’. Yet plausible practical approaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a largely unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.

The rule by climate targets: the experience and legal pathways of China

ABSTRACT The international legal community is working together on exploring a legally sustainable and workable system for climate change. China's climate governance is distinguished by using targets to lead actions in society instead of legally binding laws. Meanwhile, the legalization of climate targets has become a unique feature of climate law globally, so there is naturally a discussion about Rule by Targets and the Rule of Law in climate governance in China. This article believes targets in climate law provide an opportunity for the reconciliation of Rule by Targets and the Rule of Law and possibly a climate rapprochement of liberal democratic states and authoritarian states in dealing with climate issues. This article aims to contribute to the discussion and shed light on how the target-approach works in climate governance in China. It does so by examining the legal background, the legislative, administrative and judicial branches, asserting that climate targets have legally binding force in China without comprehensive legislation. Moreover, this article specifically discusses the challenges with the legalization of climate targets in depth and further provides possibilities for a hybrid model of the climate legal system in China. As a result, China’s local governance experiences could contribute to the quest for a legal solution of global climate change.

AN INTERNATIONAL CONVENTION ON EXPERT DETERMINATION AND DISPUTE BOARDS?

AbstractThis article makes a case for an international convention on expert determination (ED) and Dispute Boards (DBs) that would require its Contracting States to recognise agreements on ED/DBs and enforce ED/DB decisions. Whilst strong, the case for the convention may not be compelling as there are arguments against it. But at least the time has come for the international legal community to start thinking about and debating the need for such an international regime. This article takes the first step towards imagining this international regime by evaluating a number of key issues relating to its scope of application.

Turning Fantasy into Inclusion … Regional Approaches and Unity of International Law

Is international law in crisis, torn as it is between assertions of its unity and the growth of regional groupings in its study and approach? The rhetoric and fears of fragmentation at the turn of the century do not seem to have ended with the reassuring report of the Study Group of the United Nations International Law Commission on the issue. Concerned about preserving the integrity and essence of their discipline, the international legal community is apprehensive about regional approaches and visions, which it sees as potentially leading to the eventual undermining of international law. Analysing this dynamic, of the call for pluralism within international law and the principle of the discipline’s unity, that has been erected as a dogma, this article stresses that the two are not irreconcilable. It explores the ways and means and indicates the conditions under which regional approaches can be a source of enrichment for international law by introducing more diversity, without calling into question either the unity or the universality of the discipline. Indeed, pluralism and multiculturalism are not legal concepts but political and sociological choices that correspond to a vision of society, to the construction of a more inclusive model of society. Regional approaches to international law, by facilitating the construction of a representative, pluralistic, and multicultural international law, allows for its true universality. This universality, in turn, strengthens the unity of international law while nourishing itself from it. However, this is only possible if the concept of unity is dusted off to avoid a dogmatic vision of it.

Legal instability in cyberspace and OSCE’s mitigation role

After the international legal community widely endorsed the application of international law to cyberspace, many open questions remain on the concrete interpretation of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote human rights and conflict prevention, the OSCE can play a major role to support operationalization of international law and application of existing principles to cyberspace. This paper examines some key steps in the aftermath of the creation of norms of behavior, and transparency and confidence-building measures. After a brief analysis of the normcreation process, this piece identifies several pressing cybersecurity challenges on the international landscape, and offers suggestions for consolidating the voluntary non-binding norms States agreed upon. Using lessons learned from other domains, the analysis will focus on mechanisms of building further stability and transparency in cyberspace, in particular by reference to the due diligence principle and States’ human rights obligations.

ON THE QUESTION OF DEFINING THE CONCEPT OF "DIGITAL CONSTITUTIONAL HUMAN RIGHTS" IN THE MODERN PERIOD OF DEVELOPMENT OF LEGAL SCIENCE

The scientific article considers issues related to the definition of the concept of "digital constitutional rights of citizens" and their inclusion in the categorical and conceptual apparatus of the science of constitutional law, in the norms of the constitutions of various states. The author offers an interpretation of this concept. Under "digital constitutional rights of citizens", in this scientific article, a set of universal equal opportunities for human behavior enshrined in the norms of the Constitution of the Russian Federation, is meant, and these opportunities determine the procedure for the implementation of individual and joint activities to use digital electronic services, information, digital technologies, digital products, the procedure for guaranteeing protection their rights in the information space. The article proposes ideas, initiatives and suggestions in terms of forecasting the development of digital constitutional human rights that a person currently possesses, using the new information and communication opportunities provided by the global Internet. Conclusions. An analysis of the practice of international legal documents led the author to the conclusion that despite the fact that international organizations are making attempts to regulate relations in this area, work on substantiating digital constitutional norms in some countries is limited to the development of state programs in which normative legal acts are adopted and introduced changes in the norms of sectoral legislation, in other countries the discussion of this problem is only from the perspective of scientific constitutionalists. It is necessary to start work on a comprehensive international program of international legal regulation of relations in the field of digital rights with the involvement of the international legal community, representatives of the science of constitutional law. This will contribute to the development of a categorical and conceptual apparatus in this area of knowledge.

Судьба учёного в интерьере конституции

The article is a detailed review of a collective monograph published in honor of W.Sadurski, a prominent Australian legal scholar of Polish origin. It illuminates the most important problems of concern today to the international legal community. In particular, it is about the coming to power in a number of EU countries of right-wing populists who demonstratively disregard liberal values and tolerant rhetoric; the problems of the EU’s existence within its current borders, aggravated after the UK’s secession from the Union; and the phenomenon of “illiberal democracy” as one of the most dangerous challenges facing the constitutional development of the countries of Central and Eastern Europe, especially Hungary and Poland. Special attention is paid to democratic backsliding, seen in the steady decline in rankings of post-socialist countries in various ratings of democratic accountability. The paper draws a conclusion about the general crisis that democratic statehood is experiencing on the European continent today and which is perhaps the most serious since the late 1930s. Also addressed is the broader use of various forms of direct democracy, beginning with nationwide and local referendums and ending with various types of plebiscites on confidence. A relatively new form of popular governance has been introduced by deliberative (consultative) democracy, for example in the case of Ireland’s Citizens’ Assembly, which is chosen by random selection and as vox populi gives parliamentary committees recommendations on the most acute and divisive social problems. The volume also illuminates rightist governments’ social-economic policies repudiating the 1990s’ widely accepted concept of the market’s invisible hand and relying on direct payments to the population (as in Poland’s “500+” program, Covid payments, and so on). The Polish case is separately examined, particularly in the context of the so-called ‘war’ with the Constitutional tribunal.

Relevant Issues of Exploration the Concept of Indigenous People in the International Legal Instruments and Ukrainian Legal Doctrine

Abstract In this paper, the problem of determination of the legal personality of indigenous people as a subject of international law is considered. Hence, the problem articulated above leads to the issue related to aspects of practical realization and protection of rights and freedoms of indigenous people enshrined in international legal instruments, which is revealed. The confusion of the term “indigenous people” with that of “national minorities” can be avoided by the subjects of international law. However, one cannot find a solution to this problem without envisaging written rules on the concept of ingenious people in one obligatory, for contracting parties, an international legal instrument. Thereafter, the concept of indigenous people must be unified and, consequently, used by all international legal community. The relevance of this study is due to the need to determine the legal status of indigenous peoples in Ukrainian law. Ukraine has recently acceded to the UN Declaration on the Rights of Indigenous Peoples, which defines the need to implement these provisions in national legislation and ensure the practical implementation of the rights and freedoms enshrined for indigenous peoples. To date, the Constitution of Ukraine makes a distinction between the categories of national minorities and indigenous peoples, but there is no specialized comprehensive law that would determine the legal status of indigenous peoples in Ukraine, in the presence of such a law on national minorities. Thus there is a need to determine the concept of indigenous peoples in Ukrainian legislation.

A COMPARATIVE ANALYSIS OF THE PROPOSED MANDATORY NATURE OF EMPLOYMENT LEGISLATION AND ITS INTERACTION WITH THE CHOICE OF LAW OF AN INTERNATIONAL CONTRACT

In an ever-changing world characterised by globalisation there has been a steep increase in employment contracts with an international character. This may lead to a conflict of laws whereby a forum court is confronted with the application of either the forum’s domestic laws or those of a foreign judicial system. In these cases we are confronted with the interaction between party autonomy and the limitations placed on the exercise thereof. The international legal community has yet to reach a consensus on the requirements of the exercise of party autonomy, and thus there are no ‘supra-national laws’ governing party autonomy.1 Only in extraordinary circumstances will the forum court divert from the proper law of the contract and in doing so veer from the principle of freedom to contract.2 This is illustrated in Louks v Standard Oil Company of New Jersey3 where Cardoza CJ stated so congruously in his obiter that ‘we are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home4.’ This article will endeavour to give an overview of the interaction between the proper law of a contract as chosen by the contracting parties in an international contract and the mandatory rules of a forum court that may be under consideration. This article will undertake a critical comparison and analysis of the methods and reasoning applied by the courts in the jurisdictions of New Zealand, the United Kingdom and South Africa in respect of the mandatory nature of employment legislation and its interaction with the choice of law of an international employment contract. This will be done in reference to a specific company, Cathay Pacific, its employment contracts and the court cases that flowed from the choice of law clause in the contracts between Cathay Pacific and its employees in both New Zealand and the United Kingdom. A discussion of the possible repercussions of such a clause in a South African legal context will follow.

From Nuremberg to the Hague and beyond: International criminal law in courts: Court of Bosnia And Herzegovina as an example

International criminal law in courts will seize our interest forever. Adjudication of international criminal law violations have to happen in and by courts. They may be national courts; they also may be international (permanent or ad hoc) courts. Not to forget: It is also proposed to prosecute internationally active terrorists by international courts. It is worthwhile to take a short look at the historical development of such discussions. The so-called International (Legal) Community has discussed all forms of international criminal jurisdiction and will keep on discussing. In Bosnia and Herzegovina once the so-called internationals started an experiment with the (national) Court of Bosnia and Herzegovina, which in its nutshell was an administrative court that then was turned into a hybrid court predominantly for war crimes (and other serious felonies). As such a hybrid institution the Court was successful. International judges have left and the court became a purely national institution again. The short hybrid history of this court in a corner of the Western Balkans is worthwhile to be studied shortly.

Bin Cheng: His Study of International Law and His Inductive Approach to International Law

Abstract This paper relies on archival research and interviews with Bin Cheng to trace his study of law at the University of Geneva with Maurice Bourquin and at the University College London, University of London with Georg Schwarzenberger. It focuses on Cheng’s doctoral study and his supervisor’s profound influence on his inductive approach to researching the general principles of law. It provides a panoramic view of the international legal community’s overwhelmingly favourable reactions to the publication of Cheng’s thesis in 1953. Finally, it reveals Cheng’s personal reflections on comparative legal education and the study of international law. In our increasingly inter-connected, integrated and complex society today, public international law scholars of today would certainly benefit from drawing upon Cheng’s experience and wisdom in the conduct of our work.

Tracing Chinese Scholar Chen Tiqiang's Pursuit of International Law Education and His Major Contribution to the Doctrine of Recognition

AbstractThis paper relies on archival research to rediscover Chen Tiqiang's study of public international law at Tsinghua University and Oxford University with James Brierly. Particular attention is directed to Brierly's profound influence on Chen's approach to researching the doctrine of recognition and his remarkable performance at his oral examination before Humphrey Waldock and Robert Y. Jennings. In addition to providing an abbreviated overview of the international legal community's overwhelmingly favourable reactions to the publication of Chen's dissertation in 1951, it argues that Chen's experience and accomplishments provide some evidence that China's teaching and scholarship of international law attained an unprecedented milestone in the late 1930s and 1940s.