International Legal Regime Research Articles

To Protect Freedom of Expression, Why Not Steal Victory from the Jaws of Defeat?

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation. Those concerns were linked to a recent scholarly call for updates to the United Nations’ international legal regime regarding freedom of expression, particularly with respect to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination. This Article examines the scholarly call’s analysis to assess whether its conclusions are correct, which would make this body of law less useful for platforms to adopt in content moderation. This Article finds that the state of international law on freedom of expression is more protective of speech (and more coherent) than the scholars assessed and proposes ways to achieve their laudable goal of promoting broad protections for freedom of expression in international law. The Article concludes that the existing international legal regime on freedom of expression remains a useful resource for content moderation by global platforms.

Australia, China and the maritime ‘rules-based international order’: comparing the South China Sea and Timor Sea disputes

Abstract Despite systemic internal and external differences, Australia and China have shown striking similarities in their pursuit of disputed maritime resource and jurisdictional claims. This high-stakes area of international politics is governed by a codified, globally accepted international legal regime (the United Nations Convention on the Law of the Sea), making it an important case for examining the relationship between states’ foreign policies and the ‘rules-based international order’. In the South China Sea, Beijing is haunted by the legacy of its strong geopolitically driven support for an expansive law of the sea regime in the 1970s. Strategic considerations also drove Australia’s belated embrace of international legal processes in the Timor Sea in 2016. Before that, successive Australian governments had been as keen to pursue national maritime interests through bilateral negotiations as their Chinese counterparts. Australia’s shift was enabled by pro-Timor domestic public opinion and a confluence of geographic and commercial circumstances not present in the South China Sea.

Migration by Sea: Protection of Asylum Seekers

Protection of asylum seekers migrating by sea are reflected in international law on refugees, international maritime law, international human rights and international criminal law. Asylum seekers shared their mode of travel via sea with many types of migrant, and most of the time they are being referred to as “mixed migration” or “irregular maritime migration” or “boat people”. They have the rights to family life and basic needs and assistance for shelter, food, legal, medical and psychosocial assistance from the UNHCR and the relevant organizations. The right also includes the right to seek and to enjoy protection from persecution(Article 14 of the Universal Declaration of Human Rights) in other countries of asylum. The asylum seeker may be recognized as a refugee when the person’s circumstances fall into the definition of “refugee” according to the 1951 Convention relating to the Status of Refugees (1951 Convention) or other refugee laws. The issues of asylum seekers migrating by sea are complex as a result of conflicts between provisions of different international legal regimes. Aiding those in peril at sea is an obligation codified under several conventions relating to international maritime law such as the United Nations Convention on the Law of the Sea of 1982 (UNCLOS), the International Convention for the Safety of Life at Sea of 1974 (SOLAS) as amended, the International Convention on Maritime Search and Rescue of 1979 (SAR) as amended, and the 1958 Convention on the High Sea (to the extent that it has not been superseded by UNCLOS). Therefore, this write up examines provisions from different strands of international law that bear asylum seekers who are migrating by sea which includes the scope of search and rescue, and disembarkation of asylum seeker on coastal States. Simultaneously it also attempts to explore Malaysia attitudes towards asylum seekers migrating by sea.

Armed Non-State Actors and State Failure: Failing International Law or Failure of International Law

Armed Non-State actors are groups involved in the use of force against states or within themselves under several guises including the right to self-determination. The activities of such groups have over the years led to the failure of several states across the globe, which on the other hand results in dire human and material consequences. As a result, the question has often been asked as to why such armed non-state actors thrive especially in the 21st century, notwithstanding the prominence of international law. Is it that international law has failed in regulating such groups, or that the regulation has in it some inherent weaknesses which encourage their proliferation. This paper examines the role of non-state actors in state failure with reference to a few selected cases, to see how activities presented as emancipatory lead to human devastation. It also explores the international legal regime on non-state actors with a view to see if it encourages the emergence of violent groups in the form of national liberation movements. Using doctrinal methodology, the paper analyses both primary and secondary sources of data, relevant literature, and case law on the topic. It finds that the proliferation of the activities of these groups who destroy the essence of statehood, may not be unconnected with the contemporary reality of the legal regime in international law.

Rights And Treatment Of Prisoners Of War Under Islamic International Humanitarian Law: A Legal Analysis

The central thrust of this paper is on the legal analysis of the rights and treatment of prisoners of war under Islamic International Humanitarian law. Islamic Law as a complete system of law has corresponding rules regulating the treatment of prisoners of war and imbibed therein is the elementary considerations of humanity. This paper makes use of the doctrinal methodology in making legal analysis of the Rights and Treatment of Prisoners of War under Islamic International Humanitarian and in so doing, making cross references with the International Humanitarian Laws of the Geneva Conventions. The paper concludes that the fundamental rules and principles relating to the rights of prisoners of war under Islamic Law show striking similarities with that of the Geneva Conventions. However, issues of maltreatment of persons detained in armed conflicts as well as lack of political will by belligerents to respect and prevent violation of International Humanitarian Law (IHL) are increasingly common area of concern to the extent that Islamic laws and norms relating to the rights and treatment of prisoners of war is a better alternative to conventional International Humanitarian Laws and can be used as a model for improving the contemporary International Legal Regime

Environmental Justice: Linking Human Rights and the Environment

This study outlines the international legal regime on environmental protection and then examines the link between the environment and human rights by reference to the applicaion of human rights law as a legal remedy for environmental issue. Several decades ago, Public International Law not concerned with environmental protecion. The Stockholm conference of 1972 and subsequent international instruments have enriched the international community on the subject. Undoubtedly environmental rights are self executing and they need positive State intervention for their fulfillment. The human fights both procedural and substantive human rights, found in the international Bill of Rights are being applied in relation to environmental issues. The procedural rights must be distinguished from substantive rights recognized in international human rights instruments such as the right to life, the right to health or the right to decent standard of living. The invocatin of substantive human rights in relation to environmental issues has become popular at the national level. The efforts made by Sri Lanka and several South Asian countries are of considerable value. The right to a healthy environment on the other hand denotes the identification of a separate indepedent human right not dependent on existing human rights in the incorporation of a human right to healthy environment into the fundamental rights chapter of our Constitution.

Establishing safety zones around fixed structures at sea on continental shelf (legal issues)

Introduction.Although there have been multiple studies done by both Russian and foreign specialist, one of the most poorly studied international law problems deals with interpretation and application of rules on safety of artificial islands, installations and structures. These measures encompass the coastal state’s right to enact legislation ensuring safety and security of these structures at sea.For the past ten years states have been outlining the need for review of the breadth of the safety zones around offshore installations, first and foremost, around installations and structures used for exploration and exploitation of hydrocarbon resources on the continental shelf. It’s of great importance to protect these structures, in particular from collision with ships, and to prevent accidents. The main reason behind this initiative is the increasing number of accidents on offshore oil rigs.Materials and methods. The basis for this research comprises the international treaties which set forth the regime of safety zones at sea. The materials for this paper are also commentaries of the UN Convention on the Law of the Sea 1982, as well as relevant instruments adopted by IMO, related papers from all three UN conferences on the Law of the Sea, documents issued by the International Law Commission, and the IMO Sub-committee on safety of navigation. The methodological basis of present research consists of such traditional methods as general scientific and specific methods.The results of the study. The author of this paper proves the need for elaboration of more thorough international legal regime of safety zones at sea, since it is one the most principal means to ensure safety and security of offshore structures. Among the reasons is the ambiguous practice of coastal states, based on various approaches taken on the issue of safety zone’s breadth.Discussion and conclusion.The article contains thorough analysis of the international legal regime of safety zones, outlining its flaws. Conducted research emphasizes both positive and negative aspects of applicable national legislation, as well as unravels legal norms different from those enshrined in modern international law.

Protection and Use of Transboundary Groundwater Resources under Public International Law—An Analysis of the UN International Law Commission’s Draft Articles on the Law of Transboundary Aquifers

Groundwater is one of the world’s most important water resources. Although it is highly susceptible for pollution and overexploitation, its extraction rate is predicted to increase over the next decades. Against this background, this article discusses the contribution of the UN International Law Commission’s Draft Articles on the Law of Transboundary Aquifers to the protection of this precious resource. It first provides some information on the characteristics of groundwater and aquifers, then describes briefly the existing international legal regimes addressing transboundary groundwater and the evolution of the Draft Articles, and finally analyses the main criticisms and positive aspects of the Draft Articles.

Uluslararası İnsan Hakları Hukukunda Yaşlı Hakları

International conventions are the backbones of the international human rights regime as they create legal responsibilities for signatory states. However, the international legal regime which is aimed at protecting human rights is not only consisted of conventions. This paper firstly examines to what extend the present conventions within the international human rights law and the international normative documents of “soft law” consider and protect the rights of the older adults. The second section examines several views on whether there is a need for a specific international law for protecting the rights of older adults. Yet, the aim of this paper is not providing a full list of the international and regional normative regulations relating to the rights of the older. It primarily aims at revealing the general features of the international and regional normative regulations relating to the rights of the older and considering the developmental dynamics in this field. The very first thing to say within this scope is that there is not a specific international law for the rights of older adults in contrast to the disadvantageous groups such as children or the disabled people. Similarly, there is not a clear regulation as to the rights of the older adults among the convention stipulations which form the core of the international human rights law. After all, several stipulations of these conventions have features that affect the rights of the older adults either directly or indirectly.

Rebalancing state and Indigenous sovereignties in international law: An Arctic lens on trajectories for global governance

AbstractThe environmental and economic realities of Arctic climate change present novel problems for international law. Arctic warming and pollution raise important questions about responsibilities and accountabilities across borders, as they result from anthropogenic activities both within and outside the Arctic region, from the Global North and the Global South. Environmental interdependencies and economic development prospects connect in a nexus of risk and opportunity that raises difficult normative questions pertaining to Arctic governance and sovereignty. This article looks at how the Arctic has been produced in international legal spaces. It addresses the implication of states and Indigenous peoples in processes of Arctic governance. Looking at specific international legal instruments relevant to Arctic climate change and development, the author attempts to tease out the relationship between the concepts of Indigenous rights and state sovereignty that underlie these international legal realms. What do these international legal regimes tell us with respect to the role of Arctic Indigenous peoples and the role of states in governing the ‘global’ Arctic? It is argued that while international law has come a long way in recognizing the special status of Indigenous peoples in the international system, it still hesitates to recognize Indigenous groups as international law makers. Comparing the status of Indigenous peoples under specific international regimes to their role within the Arctic Council, it becomes evident that more participatory forms of global governance are entirely possible and long overdue.

Britain’s Influence on the Regulation of the Slave Trade in the Twentieth Century

This chapter analyses how Britain shaped the current international legal regime regulating slavery during the 20th century up to the present day. It provides a brief historical account of Britain’s pioneering efforts to regulate the slave trade by means of bilateral treaties and the formulation of a right of search on the seas prior to the 20th century before focusing on Britain’s contribution to the drafting of the 1926 Slavery Convention and the 1956 Supplementary Convention at the League of Nations and the United Nations. The Chapter also addresses the reasons why Britain was at the forefront of the regulation of this area of law.

The Common Core between Human Rights Law and International Criminal Law: A Structural Account

AbstractLegal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects.

Ensuring the Safety of Commercial Space Transportation through Standardization: Implications of the Chicago Convention and ICAO Standards

Commercial space transportation (CST) will occur in the foreseeable future. After the success of Virgin Galactic's first suborbital commercial human spaceflight in 2004, many believed that our generation will explore another frontier of technology. Despite technological advancements, however, the international law currently in place is not prepared to regulate and secure the safety of CST including human spaceflights. Previous legal studies mainly focused on finding ways to accommodate CST under existing international laws, air law, or space law regime. Nevertheless, more than fifty years of legal discussion have yet to yield a decisive solution. Against the odds, CST will commence its business sooner or later. While national laws would be sufficient in many CST operations, some operations (e.g., international flight) would require international rules to secure a safe CST operation akin to what the aviation community developed for international air transport. That mechanism is encompassed in the technical standards created by the International Civil Aviation Organization. In this respect, this study aims to analyze a way to generate internationally harmonized technical standards on CST activities, with or without achieving an international law for CST. First, the article analyzes past legal discussion to understand the landscape of future aerospace activities. Then, the study reviews the history of the international aviation legal regime to find the implications of creating internationally harmonized technical standards for CSTs. The study suggests to the international community first, to forge a common ground across countries and second, that qualitative (not quantitative) international technical standards should arise based on this mutual understanding.

Consistent and Recurring Use of External Legal! Norms: Examining Normative Integration of the FCTC post-Australia – Tobacco Plain Packaging

The Framework Convention on Tobacco Control (FCTC) has emerged as international consensus concerning legally binding trade measures related to tobacco products. Nevertheless, the tobacco industry along with various WTO Member States have regularly argued that certain FCTC compliant measures conflict with various obligations arising from the WTO and international investment agreements. Normative conflicts between the FCTC and international economic law crystalize at the dispute resolution stage. This article analyses WTO and investor state dispute settlement (ISDS) disputes concerning tobacco control measures (TCMs), including Australia – Tobacco Plain Packaging, and shows consistent, recurring, and increasing use of the FCTC by tribunals who reliably uphold non-discriminatory TCMs on public health grounds. Despite a general hesitancy to formally integrate external legal norms in international legal systems, this article posits that the regularity of reliance on the FCTC, not only for evidentiary issues, but also for substantive legal analysis, evidences normative integration of the FCTC in international economic legal regimes. In line with the principle of systemic integration, international tribunals should consider the FCTC not only as factual reference, but also as legal norms when relevant.

Site selection of the Turkish Antarctic Research station using Analytic Hierarchy Process

Determination of the location of a research station in Antarctica is a very important issue, and necessary for countries to have sustainable Antarctic Scientific Program and expeditions. The suitable site selection is affected by long-term scientific work plan, its realization costs, and field experience on the continent. For this purpose, using a well-structured evaluation method is indispensable to handle decision uncertainties. This study focuses on the Analytic Hierarchy Process (AHP) method with using Geographical Information Systems (GIS) to detect the optimum probable location for an Antarctic research station. During the study, three main criteria groups and their sub-criteria were taken into account: spatial condition, accessibility, and international legal regime. The comparisons obtained from AHP method including GIS and surveys were used to find potentially suitable areas to demonstrate fitness-for-use of the allocation results. Finally, the suitability map was produced to identify the potential locations for the future Turkish Research Station by considering the climatic effects, environmental constraints, enabling logistics, cost and scientific interest. This study would help the decision-makers to take final steps for determining the potential Turkish Antarctic Station.

THE LEGAL CHARACTER OF ARTICLE 18 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES

AbstractThe main reason for Article 18 being one of the most opaque provisions of the Vienna Convention is that it establishes a relatively vague ‘interim obligation’ for States to refrain from acts which would defeat the object and purpose of a treaty between its signature and ratification. Although the existence of such an interim obligation has been recognized by States and in various international legal regimes, it remains problematic since Article 18 neither defines nor determines its own contours and when and under which conditions it is being breached. It goes without saying that the legal consequences of a possible breach of this provision are left equally unclear. It remains uncertain how the interim obligation of Article 18 fits into the general international law of treaties; what its legal nature and temporal scope is; which role the principle of good faith plays as a possibly underlying principle of this provision; and how we should understand the object and purpose of a treaty and how it can be defeated. Furthermore, its apparent focus seems to be on bilateral rather than multilateral treaties, but this exclusive application of this interim obligation to bilateral treaties would contravene both the expressed and implied intent of the drafters. Therefore, this article also discusses how Article 18 fits within the normative system of international law and law-making treaties, such as human rights treaties.

Access to Essential Medicine: Making a Case for Compulsory Licensing of Pharmaceutics in Pakistan

Access to essential medicine has been a serious issue in the low income countries. Statistics show that many a patient dies in Pakistan due to lack of access to essential medicine. Pakistan is member of World Trade Organization. It fulfills its obligations towards protection of intellectual property right and by well formulated rules and policies. However, the well-being of its people with regard to health represents a grave scenario. After establishing the fact of appalling scenario of health on one hand and the growth of pharmaceutical industry on the other the study highlights the flexibilities in international legal regime against monopolistic practice of patent holder. It discusses some of the instances of grant of Compulsory Licensing. After examining the legal frame work of Pakistan, it concluded in favour of grant of Compulsory Licensing in appropriate cases without risking its obligation under WTO.

Discriminatory Customary Practices Against Women’s Rights: An Account Of Intervention Strategies By Southern African Developing States

Discriminatory customary practices against the protection of gender rights still thrive in many Southern African developing states despite domestic and international legal regimes to prevent them. These practices were borne out of customary inclinations of the patriarchal social system in most African communities, which hold women and the girl-child in perpetual subordination to the male. In other words, the African customary systems wrongly perceive the male gender as being naturally superior to the female. More so, the loopholes in the executive and legislative efforts to combat human rights abuses as well as judicial pronouncements and governmental apathy in eradicating abuses against gender discrimination towards women in the Southern African developing states are apparent. Consequently, discriminatory customary practices continue to thrive despite legislative framework protecting gender rights in the states. The methodology adopted in this paper is a doctrinal approach, which places reliance on legal materials that are enacted and enforced by African Developing states. The article examines international and states laws, norms, institutions, international and national publications and other international legal instruments relating to gender discrimination. Most importantly, the central attention of this study focuses on the discriminatory customary practices against women in the Southern African Developing States. The current study finds that, despite identifiable discriminatory customary practices which are still practised and condoned as being the lifestyle and tradition of groups are criminalized and declared abhorrent by specific domestic legislation of nations, the human rights of the girl-child and women continue to be in chains and fetters. In conclusion, this article advocates increased advocacy, judicial activism and more proactive legislative action that protect women and the girl-child in the Southern African developing states.

Decommissioning of (Abandoned or Disused) Offshore Installations

The purpose of this chapter is to provide an overview of the international legal regime relating to the decommissioning of offshore oil and gas installations with particular focus on environmental protection. The chapter is divided into four sections. The first section examines the rules governing the removal of abandoned or disused installations. The second section looks at the rules relating to the disposal of offshore installations by dumping. The third section examines the rules relating to the pollution of the marine environment arising from, or in connection with, decommissioned offshore installations. The fourth, and final, section looks at the possibility of leaving abandoned or disused installations on the seabed to be used for other purposes, including use as artificial reefs, to promote and support marine biodiversity and fisheries, thus contributing to healthy marine ecosystems.

An International Registry and Registrar for Priority Rights to Extract Resources on Celestial Bodies

In the context of global energy crises related to the traditional energy sources, as well as in connection with modern challenges and threats caused by the instability of the world energy markets, there is a necessity to expand and use the objects of energy complex that use renewable energy sources like solar energy.Such energy usage can be a reason for different interstate disputes due to the uncertainty in international legal regimes of space energy sources under international space law. Firstly, there is no legal definition of “space resource.” Secondly, the current international space treaties contain only basic principles and norms for regulating this kind of space activity. Finally, there could be many issues related to the responsibility and liability for such a new kind of space activity. This paper will be devoted to the issues mentioned above and to other questions related to this problem.