Matter Of International Law Research Articles

Australian Legislation concerning Matters of International Law 2023

Australian Legislation concerning Matters of International Law 2023

The role of tuna-RFMOs in combating ‘ghost fishing’: Where is the Catch?

The multifaceted impacts of ‘ghost fishing’ are currently representing severe threats to the marine environment, with detrimental effects on ecosystems, species, and habitats. This article examines whether and how the tuna-RFMOs have implemented legal obligations applicable to minimize catch by abandoned, lost, or otherwise discarded fishing gear through a systematic assessment of all their adopted conservation and management measures between 2000 and 2023. The study yields several findings, including that two of the organizations at present have not adopted any measures to minimize catch by lost, abandoned, or otherwise discarded fishing gear, and that there generally exists considerable gaps between what is required as a matter of international law regulating fishing gear, and the efforts currently taken by the tuna-RFMOs to minimize ‘ghost fishing.’

Australian Legislation concerning Matters of International Law 2022

Australian Legislation concerning Matters of International Law 2022

From Theory to Reality: A Definition for the Termination of Non-International Armed Conflicts

Abstract This article seeks to examine how various theories, which have been designed to determine the end of non-international armed conflicts (NIACs), have been applied in practice. As international humanitarian law is temporal in its application, determining when a conflict legally concludes is vital to assess the rights and duties of parties involved during the final stages of conflict. In order to examine how international law approaches the issue of conflict termination, three case studies are undertaken (Afghanistan, Solomon Islands and Sierra Leone) to examine the practice of the parties involved in the transition out of a NIAC paradigm and into the jus post bellum (law after war). While the article does not seek to identify a clear definition in customary international law as to the nature of a NIACs termination, through an analysis of practice and theory implementation, it is hoped that an improved picture as to how NIACs may conclusively end as a matter of international law can be brought to light.

Dignity Deployed: An Examination of Refugee Rights through Domestic Dignity Jurisprudence

Abstract The 1951 Convention relating to the Status of Refugees (Refugee Convention) provides protection for people with a well-founded fear of persecution who find themselves outside their country of nationality. The treaty not only sets out a legal status for those recognized as refugees by the country of asylum, but also certain civil, political, social, and economic rights throughout the refugee status determination process. Yet, despite being faced with the highest numbers of displaced people since the Second World War, States parties to the Refugee Convention routinely fail to meet the standards set out by the Convention. This article explores how domestic courts enforce treaty compliance not as a matter of international law, but rather by using the concept of constitutional dignity. The discussion examines how constitutional courts around the world have used dignity as both a substantive right and a functional standard in order to fulfil the promises of the Refugee Convention. The article concludes with an argument for dignity as a powerful tool to fill gaps in refugee protection globally.

Not Illegal: The SolarWinds Incident and International Law

Abstract In 2021, the USA and other governments formally blamed Russia for a wide-ranging hacking campaign that breached the update process for SolarWinds Orion network monitoring software and used that access to compromise numerous government agencies, companies and other entities. Despite denouncing Russia’s cyber espionage and imposing sanctions, the USA did not call Russia’s actions illegal as a matter of international law – and for good reason. Based on the publicly available facts, this article argues that the SolarWinds incident likely did not run afoul of international law as it currently stands. The article considers the prohibitions on the use of force and intervention, emerging rules with respect to violations of sovereignty and due diligence, and international human rights law, and it concludes with some reflections on the role of states and scholars in decisions about whether to close gaps in international law.

Australian Legislation concerning Matters of International Law 2021

Australian Legislation concerning Matters of International Law 2021

Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?

AbstractEU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Some scholars have adopted the same position, justifying their position referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of EU institutions the second. The argument of EU institutions cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.

Istorijska pobeda ili kula u vazduhu? - značaj arbitražne odluke u predmetu Green Power v. Spain u sukobu Evropske unije i međunarodnog sistema rešavanja investicionih sporova

The EU and ISDS have been embroiled in an exhausting feud over intra-EU investment disputes which may still not reach its climax despite several dramatic and radical moves by the European Union and its Member States against the nearly unfettered resistance of the ISDS. Green Power v. Spain is the first international investment case in which the tribunal denied jurisdiction due to an incompatibility of the arbitration clause in the Energy Charter Treaty with EU law in light of the Achmea case, but also the first case where the rule of lex superior was employed to tip the scale in favour of EU law. The overview of the award will be presented against different backgrounds: massive investment case law uniformly denying intra-EU preliminary objections on one hand, and concerted actions of the EU and its Member States to construct a dam against intra-EU investment cases, on the other. The aim of this case note is to review the possible relevance of the Green Power v. Spain arbitral award and the argument that EU law is lex superior as a matter of international law, in pending and future intra-EU investment disputes, and to assess to what extent different factors, such as the seat and rules of arbitration and general rules of international law, molded the reasoning of the tribunal. The arbitral award is a meticulous decision with instructive arguments on how to situate supremacy of EU law within the law of treaties while navigating the rough waters of enduring conflicts amid different international agreements and between various levels of governance. Given that the tribunal offered a variety of reasons to uphold the applicability of EU law to determine jurisdiction, there is the distinct possibility that the award might have an impact on other investment tribunals.

Human dignity as a fundamental basis and a practical tool of “right to hope” in criminal law

The scientific article focuses on the analysis of a sentence of life imprisonment without a realistic prospect of release in Ukraine as a violation of the “right to hope” in the context of the human dignity category. The study provides an overview of approaches to the definition of human dignity in national legal doctrine and practice, a historical and legal analysis of the origins of legal regulation of the idea of ​​respect for human dignity in international legal acts, and analyses the constitutional stages of the evolution of this concept as a matter of international law. The author has reviewed the jurisprudence of the European Court of Human Rights on this issue and studied the reasons of the Court on setting standards for acceptable treatment of a person through the lenses of human dignity and the inadmissibility of inhuman and degrading offences. Taking into account these standards, a critical assessment has been carried out, in particular, of the judicial practice of the Federal Republic of Germany on the application to a prisoner of such a type of punishment as preventive detention with indefinite duration. Emphasis has been given to the national judicial practice in cases of possible releasing life-sentenced prisoners in the conclusions of the Grand Chamber of the Supreme Court and the decision of the Constitutional Court of Ukraine on this issue. Based on the results of the study, a set of measures, including amending the legislation to bring it in line with the requirements of European human rights standards to protect human dignity and ensure the “right to hope” has been offered.

Australian Legislation concerning Matters of International Law 2020

Australian Legislation concerning Matters of International Law 2020

‘Antisocial Behaviour, Unfriendly Relations’: Assessing the Contemporary Value of the Categories of Unfriendly Acts and Retorsion in International Law

Abstract This article considers the international law categories of unfriendly acts and retorsion in the modern context. To date, these categories articulating the freedoms that States enjoy below the threshold of international wrongfulness have received little attention in academic debate. But we consider both categories are of increasing relevance in the context of modern international conflict (in the broadest sense) and inter-State competition, particularly in relation to the regulation of hostile cyber activity between States. Unfriendly acts denotes State activity which, while lawful as a matter of international law, would nonetheless not be welcomed by the States it targets. Retorsion covers another sub-set of lawful but unfriendly State activity, substantively the same as unfriendly acts but done in response to prior unwelcome acts of other States. Having defined these categories, including by reference to a survey of contemporary State practice and judicial treatment, this article then considers why their utility and relevance to States are increasing. The article ends on the cautionary note that while unfriendly acts and retorsion may be increasingly necessary and desirable to States as international law tools as hostile activity occupies more of the space below forcible acts, they equally need to be properly understood and ‘handled with care’ by international lawyers, to ensure they are not bestowed with legal characteristics they do not possess, unduly constraining States in the process. The risk of misuse of these categories by States also needs to be kept in mind.

Coast Guard Law of the People’s Republic of China and Its Implications in International Law

Abstract In January 2019, the People’s Armed Police set up a working group to draft the Coast Guard Law of the People’s Republic of China. The 13th National People’s Congress Standing Committee concluded its twenty-fifth session and scrutiny of this draft law, which officially entered force on 1 February 2021. The Law is divided into 11 chapters and 80 articles, including but not limited to maritime security, maritime crime investigation, use of non-firearm and weapons, and international cooperation. This article outlines and analyses the Law, as well as focusing on its implications as a matter of international law.

The history of international law matters

The history of international law matters

International Regulation of Cyber Operations

Cyberspace constitutes an unstable environment, featuring rapid changes in the nature of the actors using it, the technologies applied and the inter-personal, governmental and commercial interactions facilitated thereby. The global COVID-19 pandemic exponentially accelerated the trend of digitalization in various fields of life, increasing even more the dependency on cyber-infrastructure and with it the potential for harmful cyber-attacks. Traditionally, states have been cautious in invoking international law in the context of cyber-attacks, and they tended to refrain from denouncing attacks against them as violations of international law, or attributing it to other states. This state of affairs appears to be changing, however. While there are of disagreements as to the way that international law applies in the cyberspace, a common understanding had emerged about some key international law norms that apply in this field. States like Australia, France, Germany, Israel, the United Kingdom, and the Netherlands have recently articulated their legal positions on how international law applies in cyberspace. In the same vein, states who fell victim to cyber-attacks are increasingly attributing them, as an international law matter, to other states, or non-state actors. Arguably, the increased role played by international law in cyberspace constitutes a reaction to the fact that cyber-attacks become more and more frequent, and dangerous, capable of shutting down critical infrastructure, including nuclear centrifuges and water pumping facilities. This chapter will describe and critically evaluate the norms of international law which regulate cyber-operations, and discuss some of the policy considerations underlying them. Part I offers a short history of cyber-attacks. Part II presents the current international law framework governing cyber-attacks. Part III delves into the attribution challenge in cyberspace. Part IV concludes and suggests a way forward.

Australian Legislation concerning Matters of International Law 2019

Australian Legislation concerning Matters of International Law 2019

International Humanitarian Law on the Periphery

Does international law matter on the periphery, where potential subjects are marginalized with uncertain legal status and without lawmaking power? Under what conditions would international law matter among the actors on the periphery, to be accepted as law, remain relevant, and eventually be complied with? By adopting an interdisciplinary perspective from international law and international relations, this article assesses how international humanitarian law (ihl) is accepted and adhered to among the non-state armed actors (nsaas). The author argues that international law matters on the periphery when two conditions are met. The first is when incentives of nsaas are compatible with ihl’s goal of restraint. The second is when the interpretation of ihl at the local level is consistent with international law at the global level. This article provides ample examples of nsaas’ words and deeds to illustrate the arguments.

Australian Legislation concerning Matters of International Law 2018

Australian Legislation concerning Matters of International Law 2018

INTERNATIONAL AVIATION/AIRSPACE LAW AN OVERVIEW

Aviation law is the branch of law that concerns flight, air travel, and associated legal and business concerns. Some of its area of concern overlaps that of admiralty law and, in many cases, aviation law is considered a matter of international law due to the nature of air travel. However, the business aspects of airlines and their regulation also fall under aviation law. In the international realm, the International Civil Aviation Organization (ICAO) provides general rules and mediates international concerns to an extent regarding aviation law. The ICAO is a specialized agency of the United Nations. In the United States and in most European nations, aviation law is considered a federal or state-level concern and is regulated at that level. In the U.S., states cannot govern aviation matters in most cases directly but look to Federal laws and case law for this function instead. For example, a court recently struck down New York's Passenger Bill of Rights law because regulation of aviation is traditionally a federal concern. Aviation law, however, is not in the United States held under the same Federal mandate of jurisdiction as admiralty law; that is, while the United States Constitution provides for the administration of admiralty,[1] it does not provide such for aviation law. States and municipalities do have some indirect regulation over aviation. For example, zoning laws can require an airport to be located away from residential areas, and airport usage can be restricted to certain times of day. State product-liabilitys law are not preempted by Federal law and in most cases, aviation manufacturers may be held strictly liable for defects in aviation products. Space law, which governs matters in outer space beyond the Earth's atmosphere, is a rather new area of law but one that already has its own journals and academic support. Much of space law is connected to aviation law.

Revising Citizenship within the European Union: Is a Genuine Link Requirement the Way Forward?

EU institutions have argued on several occasions that national and EU citizenship should not be awarded without any genuine link with the Member State concerned. Various political theorists have adopted the same position as these institutions and have justified their arguments by referring to the genuine link requirement established by the International Court of Justice in Nottebohm. This has prompted criticism from legal scholars, who point out that Nottebohm was wrong as a matter of international law and moral principle. This paper shows that supporters and critics have often failed to recognise that they have been talking with different conceptions of the genuine link requirement in mind. The question of whether to apply a genuine link requirement for the recognition of nationality is altogether different from the question of whether to apply a genuine link requirement for the acquisition of nationality. Nottebohm concerns the first; the arguments of political theorists and EU institutions the second. Their arguments cannot therefore be dismissed by dismissing Nottebohm. I subsequently explore the normative arguments for predicating the boundaries of national membership on a genuine link requirement. There are weighty moral reasons for member states to condition the acquisition of national and EU citizenship on the presence of a genuine link. Finally, moving from the normative to the practical, I argue that such a requirement would have far-reaching consequences (targeting not just investor citizenship schemes) and cannot be enforced as a requirement under EU law.