Interpretation Of International Law Research Articles

Policy on Maritime Border Disputes Between Indonesia and Australia: Stephen M. Walt’s Neorealism Perspective

Indonesia is a maritime country with an Exclusive Economic Zone (EEZ) covering an area of 7.81 million square kilometers. Consequently, Indonesia has numerous disputes with neighboring countries regarding maritime boundaries in the EEZ, particularly with Australia. Several incidents have strained the relationship between the two countries. For example, from December 2013 to January 2014, there were six instances of the Australian Navy unintentionally violating Indonesian waters during border operations. Other issues include illegal fishing, human trafficking, illegal transshipment, and, more recently, an Australian warship's breach of Indonesian waters on September 8, 2022. Maritime boundary disputes occur when two or more countries have overlapping claims in the same maritime territory. These disputes can be caused by differences in the interpretation of international law, conflicting economic interests, historical or cultural claims, or geopolitical tensions between the involved nations. Maritime boundary disputes can be resolved through negotiations, international arbitration, mediation, or legal processes. In this case, the neorealism theory, developed by Stephen M. Walt, provides an understanding of international relations, changes in power structures, conflicts, cooperation among nations, and the factors influencing foreign policies. By applying Stephen M. Walt's neorealism theory, this study analyzes the policy frameworks of Indonesia and Australia in managing their international relations and the factors that have led to the disputes between the two.

Inside the treaty interpreter’s mind: An experimental linguistic approach to international law

AbstractOne particularly intense critical debate over interpretation in international law concerns the role of moral factors – specifically, the degree to which such factors influence legal interpretation, and how the law should deal with them. A formalist approach argues that moral considerations should be excluded as non-legal; a critical legal studies approach suggests they are an inevitable part of the functioning of international law and must therefore be acknowledged; and an inclusivist approach would suggest their influence is permissible, albeit only under certain circumstances. In this article, we are concerned with the question of whether moral factors influence interpretation at all, taking international treaties as the object of study. To address this question, we take a novel approach, proposing an experimental linguistic framework to test whether linguistic categorizations (originally developed for the analysis of everyday language) can be successfully applied to treaty interpretation, relying on both laypersons and experts as participants. Although some caveats must be made, the experiments deliver clear results: both groups are influenced by morals in their interpretation of international treaty norms. On this basis, we draw conclusions regarding (i) how the process of interpretation of international law operates; and (ii) what the institutions managing that process, such as courts, should factor-in when deliberating their decisions. By adopting this novel perspective, we also contribute to linguistic and experimental approaches to international law at the methodological level.

Using the Concept of Genocide as a Tool for Resistance: Legal Pluralities in Civic Action Against Son Preference in Tirupati, India

In this paper based on original fieldwork, I seek to contribute to our understanding of the concept of genocide by examining how civil society actors draw from some aspects of it when seeking to bring about social change in relation to son preference primarily in Tirupati, India. Drawing from Nordic “critical” legal scholarship, I argue that the turn to the international criminal law concept of genocide could be theorized as a case of legal pluralism. Based on empirical material, I posit that even so to say formally “wrong” uses of legal concepts appear to be politically powerful. I suggest that the use of the international legal order in Tirupati’s civil society could be seen as an emancipatory strategy that follows an “instrumental” interpretation of international law. I conclude by arguing that the empirical material implies that we may need to rethink some of the underlying assumptions of the concept of genocide by highlighting its potential of serving as a tool for resistance for actors in civil society.

The Reversed Implementation of the ICC’s Principle of Complementarity: Case Study of Argentina Investigation for Rohingyas

Complementarity is the basic principle of the ICC’s jurisdiction. As a fundamental principle, it harmonizes the relationship between ICC and National Courts. The Rome Statute clearly states that the ICC is complementary to national courts. However, in the case of Rohingya, the Argentine Lower Court applied this principle in reverse by rejecting the investigation, requested by the Burmese Rohingya Organization UK under universal jurisdiction, for the case of Rohingya since the ICC had already investigated a similar case. This paper seeks to answer whether the ICC’s complementarity principle can be applied in reverse, as decided by the Argentine Lower Court, according to international law. A juridical normative research method will be used to address these issues. In addition, the recognized principles of interpretation in international law will be used to enrich the meaning of the ICC’s complementarity. Based on the analysis, it is obvious that, according to international law, the complementarity cannot be applied in reverse, even by states parties to the Rome Statute. According to the Rome Statute's provisions, every State is required to exercise criminal jurisdiction over persons responsible for international crimes. For this reason, this paper strengthens the arguments for the Argentine Appeal Court to overturn the Lower Court’s decision and reopen the investigation into the case.

The EU’s Representation in International Organizations: Case C-161/20 Commission v. Council (International Maritime Organization)

This article analyses Case C-161/20 Commission v. Council (International Maritime Organization (IMO)), in which the Court of Justice of the EU upheld a Council Decision endorsing a submission to the IMO by the Presidency of the Council on behalf of the European Commission and the Member States (MSs), and not on behalf of the EU. With this case, the Court contributes to the debate on the EU’s external representation, particularly in the context of an international organization to which all the MSs, but not the EU, are parties and which regulates issues falling within EU competences. Combining an EU external relations law and a public international law perspective, this article assesses the Court’s reliance on and interpretation of international law and explores the boundaries carved by EU and international law for the participation of the EU as a separate entity in the IMO. It also seeks to discern how this case fits within the Court’s established ‘gatekeeping’ mechanisms in determining the effects of international law in the EU legal order and whether it signals an emerging, more flexible engagement with international law. International Maritime Organization, European Union, international organizations, Court of Justice of the EU, competences, international law, external representation

State Apologies and International Law

Abstract This article explores whether transnational state apologies—apologies from one state to another, but invariably apologies from “strong” states to “weak” ones—have any real meaning under international law. Without the force of law, states could continue to pursue the same or similar policies to those things for which they now apologize. One of the more remarkable aspects of transnational state apologies is the way in which they challenge the dominant “territorial” interpretation of international law. Through these apologies, states are committing themselves to protect not only their own citizens, but foreign nationals as well. Moreover, these principles are reflected in things like the Responsibility to Protect (R2P) initiative as well as the Arms Trade Treaty. On the other hand, there is also evidence of a fissure between (apologetic) words, on the one hand, and international law and state practice, most notably the law on state responsibility as well as the legal apartheid now institutionalized in both the United States and in Europe—the two largest purveyors of state apologies.

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

Problems of the Uncertainty of Law through the Prism of the Metamodern

The aim of the study is to form the fundamental problems of interpretation of legal texts on the basis of modern philosophical approaches, as well as the search for possible ways to overcome them. The focus of the article is the legal interpretation in international law, due to a number of special characteristics, like the extreme diversity of cultural and legal traditions, the relative primitiveness of international relations, etc. The author does not seek to draw prescriptive conclusions, but to describe descriptively the workings of the language of law, its understanding and use. The problem of the perception of texts is not new for science, but the relevance of this work is related to the analysis of the postmodernist critique of the interpretation of law. The main part of this critique focuses on two fundamental problems: semantic indeterminacy, when subjects put different meanings into the words they use, and also structural indeterminacy, demonstrated by M. Koskenniemi, when the arguments of the parties are seen as equivalent, making it impossible to make a truly reasoned choice between the arguments presented by the parties. Overcoming postmodernist criticism is possible on the basis of the concept of metamodern, which implies overcoming the main ideas and concepts of the modern and postmodern era. General scientific methods are used, in particular, deduction — to apply the concept of metamodern to individual problems of interpretation, as well as induction — to form general conclusions based on the analysis of the practice of interpretation of legal texts. The removal of the postmodern thesis of semantic indeterminacy of texts is based on the appeal to the ideas of modernity about the establishment of rules of interpretation and acceptance of certain limits of reasonable interpretation. Overcoming the identified structural ambiguity in the application of legal norms lies in rethinking the universal hierarchical organized system of values of modernity. In the modern world, a system with quasi-hierarchical values operates, where, in the absence of an explicitly constructed universal hierarchy, states view some values as higher in priority than others, making it possible for courts to choose between value-based arguments.

КОГНИТИВНО-ПОВЕДЕНЧЕСКИЕ ПОДХОДЫ В ИЗУЧЕНИИ МЕЖДУНАРОДНЫХ ОТНОШЕНИЙ И МЕЖДУНАРОДНОГО ПРАВА

The review presents the debatable positions of scientists on a cognitive behavioral approach in international legal scholarship. The review describes cognitive psychology of rules of interpretation in international law. The author reveals some nudging measures in international relations.

Pierfrancesco Rossi, Review of Odile Ammann, Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example

Pierfrancesco Rossi, Review of Odile Ammann, Domestic Courts and the Interpretation of International Law: Methods and Reasoning Based on the Swiss Example

The Methodology of Formal Interpretations of Judicial Decisions by the International Court of Justice

Abstract This article examines the International Court of Justice’s methodology in cases where it interprets its own decisions under the procedure in Article 60 of the Statute. The Court is constrained by respect for the res judicata of the previous decision. When interpreting the decision the Court and its judges strive to find the intention behind a decision, and emphasise elements that include wording, context, and object and purpose. A comparison with how the Court interprets treaties, resolutions from the United Nations Security Council, and unilateral declarations by States show that the instruments have important different but that their interpretation nonetheless have some basic similarities. On this basis it may be possible to formulate general principles of interpretation in international law.

Prawo czy bezprawie? O legalności wprowadzenia Niemieckiej Listy Narodowościowej na Górnym Śląsku w świetle czwartej konwencji haskiej postrzeganej przez pryzmat wykładni prawa międzynarodowego przez prawników niemieckich i polskich

In the following article, I will attempt to present the matter of the German Nationality List in Upper Silesia from three historical and legal perspectives, as well as a brief overview of how it influenced the fate of the Upper Silesians and the Polish-German relations. After a short description of the most important results of the introduction of the German Nationality List in Upper Silesia and its impact on the relations between the Polish and German people, I will present the literal wording of the Fourth Hague Convention (with particular emphasis on the third chapter including the exercise of occupation) and show an example of its use after the First World War. In the next part, I will present the Polish legal interpretation of its provisions in the context of assessing the legality of introducing the German Nationality List in Upper Silesia. In the last part, I will present the different standpoint of German lawyers to achieve my main research goal, which was to present (in a comparative way) the importance of the legal interpretation in international law – although texts of the conventions are most often formulated clearly and initially their wording does not raise any doubts in the interpreter, they create the possibility of a broad interpretation, often openly undermining the foundations of the entire international order. Although the example itself is historical, the subject of differences in the interpretation of international law is particularly important nowadays, with the advancing globalization and international integration. The article uses both the texts of legal acts (the Fourth Hague Convention and the Briand-Kellogg Pact) and their subsequent interpretations by Polish and German lawyers. In the part concerning Polish-German relations in the light of the German Nationality List in Upper Silesia, the memories of witnesses of history were also used.

Beyond Backlash: The Consequences of Adjudicating Mega-politics

This article concludes the special issue on “The International Adjudication of Mega-Politics”. It examines the implications of adjudicating mega-politics for politics, for society, for the case at hand, and for the ICs involved. We draw on the findings of the special issue contributions, identifying the many strategies that ICs use to rule on the issue without inciting a political backlash. The conclusion also develops further the claim that the international adjudication of mega-political disputes is not necessarily democracy undermining. The analysis ends up questioning whether we should be worried about ICs adjudicating mega-political disputes. The cautiously salutary findings do not mean that all involved should welcome more adjudication of mega-political disputes. It is generally better for stakeholders to resolve their disputes themselves, so long as minority and vulnerable individuals and groups are not thrown under the bus in the process. The findings of this special issue do, however, mean that the international adjudication of mega-politics, while deeply frustrating for political leaders that would prefer to ignore international law, is perhaps not something that should be avoided wherever possible. Circling back to Ran Hirschl’s original concern about juristocracy, the overall finding is that international judicial review need not contribute to juristocracy. Instead, international legal review of mega-political cases may be a limited but nonetheless consequential fail-safe against the alternative of unfettered and unquestioned actions and interpretations of international law, rendering international law a rule-by-law tool of heads of state.

Rezension: Odile Ammann, Domestic Courts and the Interpretation of International Law. Methods and Reasoning Based on the Swiss Example

Rezension: Odile Ammann, Domestic Courts and the Interpretation of International Law. Methods and Reasoning Based on the Swiss Example

The Cognitive Psychology of Rules of Interpretation in International Law

While Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) prescribe the rules of interpretation for international treaty law as “disciplining rules,” the rules of interpretation themselves are understudied from a cognitive psychology perspective. This is problematic because, as Jerome Frank observed, “judges are incurably human,” like everybody else. I submit that behavioral approaches could provide insights into how biases and heuristics affect the way judges and other interpreters use the VCLT rules.

The Religious Roots of the American Concept of Human Rights

The paper is devoted to the analysis of the primary source of the modern concept of human rights – the United States Declaration of Independence, a document directly related to the “Jefferson’s Bible” quilted by the author of the Declaration T. Jefferson. The author emphasizes that the United States of America were perceived by Jefferson as New Israel, the idea traditionally supported by the dominant US ideology, which determines the nature of foreign policy and the interpretation of international law. Tracing historical dynamics of Jeffersonian ideas, the author briefly analyses the current state of human rights concept in international law in its constant political time-serving changes. The author concludes that the concept of human rights does not have its own ontology, and in modern conditions becomes the basis of the idea of the West exceptionalism in relation to the rest of the world. The article notes that the idea upheld by the West concerning the primacy of human rights over the principle of State sovereignty leads to the collapse of the entire system of international relations and international law and means permanent war.

El estatuto de responsabilidad civil en los Convenios de Ginebra y su aplicación por los tribunales de justicia chilenos

Este artículo examina la discusión sobre la prescripción de las acciones civiles reparatorias en casos de crímenes de lesa humanidad, y en especial la interpretación de los jueces chilenos al aplicar los Convenios de Ginebra de 1949. Conforme a cánones de interpretación del derecho internacional, se considera como principio básico la reparación integral de las víctimas (o sus familiares) de violaciones a la dignidad humana; por tanto, la imprescriptibilidad de estos crímenes es aplicable no sólo tratándose de responsabilidad penal, sino también de la civil.

Towards Cementing International Law through Renaissance of the United Nations Charter

INTRODUCTION. This year is the 75-th anniversary of the Great Victory of the Allies – Britain, the Soviet Union and the USA – over Nazi Germany. The most important legal result of this victory has become the Charter of the United Nations – the universal treaty initiated by Great Britain, the Soviet Union and the USA (and later – by China and France) aiming to save succeeding generations from the new world war by establishing United Nations mechanisms to maintain international peace and global security. The UN Charter has since become the foundation of modern international law, respected by States across continents and generations. That seems, however, to begin changing after the collapse of the Warsaw Pact, when its former-members «socialist» European countries (including Bulgaria and Poland) became a part of the Western military bloc – North Atlantic Treaty Organization (NATO). NATO seems to demonstrate now a new attitude to fundamental principles of the UN Charter, first of all, to the principle relating to the use of armed force only according to the UN Charter. NATO States-members launched in 1999 an air campaign against Serbia without authorization by the Security Council; then an ad hoc western coalition, led by the United States, resorted to armed force in 2003 against Iraq and organized in the occupied territory of Iraq the death penalty of the President Saddam Hussein. Even some western European States, France and Germany, first of all opposed such military action of the USA for ignoring the UN Charter. The apparent involvement of the USA in the unconstitutional removal of the Ukrainian President Yanukovich from power in Kiev in 2014 and the subsequent local war between those who recognize such a discharge as legitimate and those who do not (both referring to the right of self-defense) – these facts make the problem of international peace especially urgent. In this political environment, the risks of World War III seem to be increasing. This paper addresses such challenges to modern international law.MATERIALS AND METHODS. Th background of this research is represented by the teachings of distinguished scholars and other specialists in international law, as well as international materials including documents of the international conferences relevant to the topic. Some of such materials are alarming, noting that the international legal system is in danger of collapse and it is doubtful whether an international legal order will be possible in the coming decades at all. Others are not so pessimistic. The analytical framework includes also suggested interpretations of the UN Charter and other international treaties regulating interstate relations in the area of global security. The research is based on a number of methods such as comparative law and history of international law, formal logic, including synthesis of relevant facts and analogy.RESEARCH RESULTS. It is acknowledged that there is a need for a more coherent international legal order, with the system of international law being at its heart. Within the context of applicable principles and norms of international law, this article specifically provides the results of analysis of the following issues:1) centrifugal interpretations of international law as they are reflected in its sources; 2) the need for increasing the role of the UN Charter in the global international legal framework; 3) modern values of the UN Charter as an anti-confusion instrument; 4) the contemporary meaning of the Principles embedded in the UN Charter; 5) comparison of the main principles of international law and general principles of law; 6) jus cogens and the UN Charter.DISCUSSION AND CONCLUSIONS. After discussing the issues noted above, this paper concludes that it is in the interest of the community of states as a whole to clarify the normative structure and hierarchy of modern international law. Greater discipline will need to be demonstrated in the use and classification of principles of international law and general principles of law in the meaning of Article 38 of the ICJ Statute. The content of jus cogens norms most probably will be gradually identified, after diffi lt discussions across the international community, both at interstate level and among academics. At the heart of such discussions may be the conclusion suggested in this paper on the peremptoriness of the principles of the United Nations Charter – Articles 1 and 2. Such an approach will further promote international law at the advanced quality of regulation of international relations and, for the good of all mankind, assist in the establishment of an international environment much more dependent on the rule of law.

Gray Zones and Vulnerability in the U.S.-Japan Alliance: Operational and Legal Dimensions

executive summary: This essay examines the gray-zone situation around the Senkaku Islands, assesses the vulnerabilities for the U.S.-Japan alliance, and proposes three measures to cope with the definitional and policy gaps between the two nations. main argumentThe vulnerabilities of the U.S.-Japan alliance in a gray zone come from structural and internal gaps in domestic laws, interpretation of international law, and views on the operation of the military and law-enforcement agencies. While it is difficult to fix these issues in the short term, if these gaps are left unchallenged, managing gray-zone contingencies and close interoperability between the Japan Self-Defense Forces and the U.S. military will be affected. To avoid this outcome, three steps are recommended. The first is to deepen exchanges and promote shared understanding about the gaps among practitioners and legal advisers in Japan's National Security Secretariat and the U.S. National Security Council. The second is to create a Japanese version of the U.S. Department of Defense's Law of War Manual . The third is conducting various exercises that test the legal limits of a joint response. policy implications • While Japan and the U.S. agree that the gray-zone concept is characterized by both a situational aspect and a time-and-space aspect, their conceptions differ in terms of where a gray zone ends and war begins due to dissimilar domestic laws. This variance in definition could be a potential vulnerability in a joint U.S.-Japan military response. • China seems to be working to achieve its political and territorial ambitions in five stages. Japan and the U.S. must agree on what stage in the process China is currently conducting operations and how to best counter it. • A key vulnerability of the U.S.-Japan alliance is rooted in the difference of interpretations on the right of self-defense. As allies, they must be able to understand and manage these differences in the event of a gray-zone contingency.

Rezension: Odile Ammann, Domestic Courts and the Interpretation of International Law. Methods and Reasoning Based on the Swiss Example

Gerichte in der Schweiz und in anderen Ländern haben in ihrer Rechtsprechung zunehmend Normen des Völkerrechts anzuwenden und damit auch auszulegen. Odile Ammanns Dissertation fokussiert vor diesem Hintergrund auf die innerstaatliche Auslegung völkerrechtlicher Normen durch Gerichte. Die Arbeit zeigt auf, inwiefern die innerstaatliche Auslegungspraxis für die Einhaltung völkerrechtlicher Verpflichtungen, aber auch für die Fortbildung des Völkerrechts relevant ist, und legt dar, nach welchen Grundsätzen die Auslegung zu erfolgen hätte. Sie analysiert die Gerichtspraxis in der Schweiz im Detail, ordnet sie rechtsvergleichend ein und stellt dabei fest, dass die aktuelle Praxis bisweilen Mängel aufweist: Die völkerrechtlichen Auslegungsmethoden werden tendenziell nur ungenügend berücksichtigt und zum Teil nicht korrekt angewendet. Argumente zur Auslegung sind oft nicht ausreichend substantiiert, die Gerichte zitieren zur Begründung vor allem eigene Urteile und zuletzt ist die verwendete Terminologie manchmal unpräzise und die Begründungen wirken oberflächlich und repetitiv.