International Legal Perspective Research Articles

Darfur Symposium: An Introduction

The Sudanese northern region of Darfur, in similarity with the rest of the country, has suffered a number of years of unrest but has been particularly insecure since February 2003 when the two main rebel groups of the region—the Justice and Equality Movement (JEM) and the Sudanese Liberation Army/Movement (SLA/M)—launched attacks on the government.1 The people of Darfur were reacting to what they perceived as the systematic and long-term discrimination by the central government against their region and with the advent of an agreement between the government and the south Sudanese to distribute resources and award greater autonomy to that region, that resentment kindled into conflict.2 The result was government-supported forces, including the infamous Janjaweed, responding to the rebel attacks with even greater brutality, indiscriminately targeting a civilian population they regarded as supporters of JEM and SLA/M. The scale of those affected is inevitably difficult to gauge given the insecurity that persists, which hampers accurate monitoring; but the UN estimated that between 2003 and 2007, in the region of Darfur alone, at least 200 000 individuals have died and a further two million have been displaced as a result of the ongoing conflict.3 Continuing international legal developments on the situation in Darfur, such as the deployment of a joint AU–UN peacekeeping force and the UN Security Council’s referral of the situation to the International Criminal Court, provided the focus for a symposium held at Oxford Brookes University in December 2008 and the following three articles are based upon presentations given. Zeray Yihdego and I, both of the Law Department, co-organized the symposium with support from the university’s Central Research Fund as well as our department. As the topic of the symposium suggested, our intention was for discussion on the situation in Darfur from a variety of international legal perspectives (primarily, international criminal, humanitarian and refugee laws), inviting both academic and practitioner speakers and audience members. The intention behind this approach was to avoid any tendency to consider the situation in Darfur in terms specific to the branches of public international law, and the complexity of situations such as the one taking place in Darfur itself invites and deserves a multifaceted analysis.

Migrant Workers as Citizens within the ASEAN Landscape: International Law and the Singapore Experiment

Using both legal and sociological definitions of citizenship, this paper examines how the international community, ASEAN countries and Singapore have responded to the migrant worker question. The first part of this paper uses ASEAN examples and interrogates the question of migrant worker citizenship from an international legal or policy perspective, particularly recent efforts to construct a differentiated citizenship for migrant workers within destination States based on an inclusionary principle. The second part of this paper then undertakes a close case study of foreign domestic workers or “maids” in Singapore. I examine how maids are depicted as non-citizens under Singapore’s law and policy, how Singaporean nongovernmental organizations have sought to counter this and how the latter may be guided by internationally developed concepts of differentiated citizenship and the inclusionary principle.

Fuzzy Statehood: An International Legal Perspective on Kosovo's Declaration of Independence

AbstractThis contribution subjects Kosovo's declaration of independence of 2008 to a comprehensive and detailed analysis from the perspective of international law. It begins with a reflection on Kosovo's status process as it unfolded in 2006 and discusses some of the challenges that Serbia faced when it proposed that Kosovo be vested with “more than autonomy, less than independence”. The main body of the article speculates on some of the implications that Kosovo's independence may have in public international law, especially with a view to the forthcoming International Court of Justice (ICJ) advisory opinion on the matter. It concludes that the resolution of Kosovo's status has to be seen in the context of a decreasing reliance on the international norm that has hitherto protected the territorial integrity of states.

Prior Approval Systems and the Substance – Procedure Dichotomy Under the WTO SPS Agreement

The de facto moratorium and product–specific measures at issue in the EC – Biotech case involved what amounted to an EC decision to impose a substantive marketing ban on all biotech products. Yet they were treated as involving only a procedural delay under Annex C(1)(A) of the SPS Agreement. The position reached by the Panel in EC – Biotech is surprising from a broader international legal perspective. The likely explanation for the Panel’s approach lies in the SPS Agreement’s negotiating history, and a desire to avoid calling into question the legality of prior approval procedures. However, an absolute distinction between substance and procedure is unsustainable in the longer term.

Xenophobic Violence In South Africa: An International and Domestic Legal Perspective

There is a growing realization that racism, xenophobia and intolerance are the root causes of most of the conflicts and human rights violations that mar our world. Combating these evils is therefore a collective responsibility. A fundamental first step is that States and the international community acknowledge the reality of multi-racial and multi-ethnic societies. Education initiatives and awareness raising about diversity and the harmful consequences of racism can play a very important role in combating racism and xenophobia1. You shall not harm or oppress a stranger, since you too were strangers in Egypt2.Do not consider Allah to be heedless of what the wrongdoers do. He is merely deferring them to a Day on which their sight will be transfixed, rushing headlong – heads back, eyes vacant, hearts hollow. Warn mankind of the Day when the punishment will reach them. Those who did wrong will say, Our Lord, give us a short reprieve3.IFE Psychologia – Special Issue: Xenophobia Vol. 16 (2) 2008: pp. 296-319

Children’s Confidentiality Rights in Healthcare: A Child-Oriented International Legal Perspective

The complex notion of patients’ confidentiality is recognized as a core principle that healthcare practitioners are required to observe. However, mature minor patients do not always enjoy such a right. Although it is often necessary to weight the costs and benefits of maintaining confidentiality for each unique circumstance, blanket benevolent arguments should not be routinely used to deny confidentiality to mature minors. Scientific research has demonstrated the negative consequences of such an approach. Having explored the universal human rights system, this article argues that the observance of confidentiality rights in healthcare is an international legal requirement to observe and implement when dealing with mature minors.

Maritime interdiction of weapons of mass destruction in an international legal perspective

The illicit transport of WMD materials by sea combines contemporary terrorist and proliferation threats with maritime shipping realities to form unprecedented dangers. To counter this threat to international peace and security, worldwide efforts to increase capabilities and cooperation for the interdiction of vessels that are engaged in the trafficking of such materials have in recent years been on the rise. This strengthened emphasis on maritime interdiction, however, is also the subject of much international debate in which, unfortunately, the international law issues that are involved are frequently inaccurately represented. On the one side, too narrowly constructed views of the existing international legal possibilities are often set against expectations of sweeping expansion of maritime interdiction action beyond these confines. On the other side, suggestions of overly broad interdiction possibilities also repeatedly surface. As such, both sides fuel concerns that legal norms will be sacrificed for the objective of countering proliferation and terrorist threats by sea. This article addresses such suggestions by analysing the current scope of maritime interdiction possibilities in international law and considering the extent to which State practice may reflect action and policy in conformity with the international legal framework. The article concludes that the present state of affairs and the ongoing developments involving maritime interdiction of WMD reflect the international law process of constant adjustment by which the essential economic, navigational and security interests that are at stake are held in balance.

Universal Jurisdiction, International and Municipal Legal Perspectives

Universal Jurisdiction, International and Municipal Legal Perspectives

Conflicts of interests and access to information resulting from biomedical research: an international legal perspective.

Recently adopted international texts have given a new focus on conflicts of interests and access to information resulting from biomedical research. They confirmed ethical review committees as a central point to guarantee individual rights and the effective application of ethical principles. Therefore specific attention should be paid in giving such committees all the facilities necessary to keep them independent and qualified.

Establishing Areas of Common Ground between Islamic Law and International Human Rights

This article re-visits the debate about whether or not Islamic law and international human rights are compatible. It examines and responds to the traditional arguments on the subject from both an international human rights and Islamic legal perspective. It formulates a synthesis between two extremes and argues that although there are some differences, that does not create a general state of dissonance between Islamic law and international human rights. The author argues that the differences would be easier to address if the concept of human rights is first positively established from within the themes of Islamic law rather than imposing it as a concept alien to Islamic law. He thus researches into the sources, jurisprudence and general principles of Islamic law to establish the concept of human rights in common perspective with the concept under international human rights law. The article concludes that through this establishment of common grounds Islamic law could serve as an important vehicle for the realisation of international human rights in the Muslim world.

Participation of children in clinical trials: UK, European and international legal perspectives on consent.

The Declaration of Helsinki was, until recently, the leading international code on the conduct of clinical trials on human subjects. The Council of Europe's Convention on Human Rights and Biomedicine (1997) and the ICH guidelines for Good Clinical Practice (1996) represent a significant step towards increased harmonization of standards in the conduct of medical experiments on human subjects. But in spite of emerging areas of consensus, there remain important areas of unclarity and divergence. Medical practitioners involved in paediatric research in the UK are concerned about the lack of certainty in the law, particularly on the application of consent rules to emergency research. This paper examines UK, European and International norms on the participation of children in medical research and compares the circumstances under which consent rules may be waived under each normative regime.

The Fall of Srebrenica and the Attitude of Dutchbat from an International Legal Perspective

In the introduction to their bookSrebrenica: Record of a War Crime, political scientists Jan Willem Honig and Norbert Both write: ‘“Srebrenica” has become synonymous with such an extraordinarily horrific crime that exceptional explanations have been proposed. Stories of conspiracy and betrayal abound. The most popular theory is that Srebrenica fell as the result of a plot involving senior UN personnel, the French government and the Serbian government. Others place the blame firmly on the Dutch UN soldiers, whom they accuse of cowardice during the Serb offensive against the safe area. We reject these explanations. Conspiracy theories tend to be neatly constructed so that every decision, or failure to decide, seems to stem from sinister ulterior motives. They leave no room for the dilemmas of real life, nor for miscommunication or outright failure. As such, they rarely bring us closer to the truth, and more often create a fertile breeding ground for dangerous stab-in-the-back myths’ Honig and Both claim that final culpability should, without a doubt, be attributed to the highest Serb officials and officers who organised the crime and gave the orders for its perpetration. The systematic manner in which the crime was committed, the evidence that detailed plans had been drawn up and that procedures established earlier had been painstakingly carried out — all this points to the direct responsibility of the Bosnian Serb leadership in Pale. Moreover, the Serbian leadership in Belgrade had given, if not the order, then still its tacit consent.

The Gulf War of 1980 – 1988. The Iran-Iraq War in International Legal Perspective

VRÜ Verfassung und Recht in Übersee , Seite 136 - 137

Some curiosities in the sources of the law of armed conflict conceived in a general international legal perspective

In his search for ‘Self-contained regimes’ in the 1985 issue of the Netherlands Yearbook of International Law, Bruno Simma addressed diplomatic law, human rights law and the law of the European Community. He did not consider the most traditional of all ‘special branches’ of international law: the law of war. Although present-day authorities no longer see the modern law of armed conflict as a corpus of law seperate from international law, it is often still considered to be a lex specialis within international law. This special character – although certainly in certain areas still controversial – is notably predicated on the (traditionally) sharp distinction between the conditions of peace and war. Although war ‘in a technical sense’, to use Prof. Dinstein's term, has lost its prominence, if indeed it ever had much, the legal relevance of a distinction between war and peace, or armed conflict or not, is still recognised in international legal instruments as well as by many authors.

Self‐determination, state‐building and the Muhajirs: An international legal perspective of the role of Indian muslim refugees in the constitutional development of Pakistan

Self‐determination, state‐building and the Muhajirs: An international legal perspective of the role of Indian muslim refugees in the constitutional development of Pakistan

"Star Wars" and SDI - an International Legal Perspective

"Star Wars" and SDI - an International Legal Perspective

The exclusive economic zone and public international law

Abstract This paper will set the international background for the evolution of the Exclusive Economic Zone (EEZ) concept in international law and in state practice. It will review the relevant provisions of the UNCLOS III and will discuss the extent to which they have or are likely to guide national practice in the future. The paper will also examine the Reagan Proclamation from an international legal perspective, as well as the possible impact of action taken by the United States in fashioning its EEZ on the stability of the EEZ concept internationally.

International Legal Perspective on the Conduct of Abnormally Dangerous Activities in Frontier Areas: The Case of Nuclear Power Plant Siting, An

The question is examined of whether it is permissible under international law to site nuclear facilities imposing a risk on a neighboring state where benefits to the risk-exposed state are either non-existent or unacceptable because of the associated risks.

Foreign Policy and Fidelity to Law: The Anatomy of a Treaty Violation

On April 13 President Ford signed a bill unilaterally to extend the fisheries jurisdiction of the United States from the present 12-mile limit to 200 miles onto the high seas (and even thousands of miles at sea with regard to salmon) effective March 1, 1977. Barring a sudden breakthrough in the law of the sea negotiations, as of March 1, 1977 the Coast Guard may begin arresting vessels on the high seas pursuant to this act in violation of the treaty obligations of the United States. This action again exposes the inadequacy of the present foreign policy process for taking an international legal perspective into account. It may also prove the greatest mistake in the history of U.S. oceans policy.

Legal Dimensions of the Decision to Intercede in Cambodia

In appraising national security decisions, such as the recent decision to send United States combat forces into the North Vietnamese and Viet Cong border sanctuaries in Cambodia, it is useful to focus on three interrelated questions. First, is the decision consistent with national and international law? Second, is the decision consistent with the national interest? And third, are there other alternatives which are likely to be more satisfactory in implementing the national interest? Each of these questions represents an important perspective for appraisal. Although the answer to the first question is important for answering the second and third questions, international lawyers should resist the temptation to regard an affirmative answer to the legal question as equivalent to proof that a decision is the best option for national action. Conversely, international lawyers should also avoid the temptation to regard personal doubts about the efficacy of a particular option as equivalent to proof of the illegality of the option. An international legal perspective is a critical input in national security decisions and should have a major rôle in defining the national interest and in introducing and delimiting options for national action. On the other hand, efforts to overuse international law, whether by way of support or criticism of national action, serve only to obscure the vital rôle that an international legal perspective should play.