Meaning Of International Law Research Articles

Command Responsibility in the Brereton Report: Weakened Accountability and the Threat to Rights, Freedoms, and Reputation

While the Brereton Report found that there was credible information that Australian soldiers committed numerous war crimes, it stated that no commander above patrol level should bear criminal responsibility. The wide spectrum of standards adopted for command responsibility in international law means that there is some basis to argue that applying the Brereton Report’s standard would comply with Australia’s international obligations. However, this standard does not offer the best balance of upholding high criminal justice standards and ensuring convictions are ‘deserved’, while deterring serious violations of rights during armed conflicts, such as the right to life and freedom from torture. In addition, a failure to address the scepticism that no Australian commander above patrol level is legally accountable raises questions of adherence to the rule of law. It may impact on Australia’s standing and its perceived commitment to international criminal justice.

“Inter Arma Silent Musae”. Destroying Museums, Historical Buildings, and Monuments during the War in the Ukraine as War Crimes within the Meaning of International Law

The article summarizes the situation related to the armed conflict in Ukraine in the context of the destruction of monuments and cultural objects as a war crime. The considerations relate to the provisions of international and European law, as well as to the positions developed by international case law. The stands of the international organization and community alongside the bodies of the European Union have been indicated. Poland’s efforts to help Ukrainian monuments are also discussed. Reference is made to the activities of the Center for Cultural Assistance in Ukraine established in Poland, within the structure of the National Heritage Institute and the Committee for Assistance to Museums of Ukraine.

On Due Diligence and the Rights of Indigenous Peoples in International Law: What a Māori World View Can Offer

Due diligence is on the rise in international law. However, its roots and historic narrative remain heavily Eurocentric in nature. This becomes problematic in the context of states’ due diligence obligations relating to the rights of indigenous peoples. Meanwhile, due diligence can also be found in indigenous legal systems. An example is tikanga, which regulates the lives of the Māori in New Zealand. This paper attempts to investigate principles of tikanga reflecting features of a standard of care and compares this to the way due diligence is currently given meaning in international law. From this it follows that tikanga puts more emphasis on ‘relationships and balance’ than contemporary positive international law does. This paper argues for a culturally appropriate approach that integrates this feature with respect to states’ due diligence obligations relating to the protection of the rights of indigenous peoples in the context of the Māori in New Zealand. In doing so, it will become clear that this approach leads to a situation where an indigenous people is being heard and taken seriously, which forms the anchor of the international legal framework protecting the rights of indigenous peoples. With that in mind, this paper offers a template on due diligence and the rights of indigenous peoples in international law.

The Significance of the Ultimatum in International Law: The Responsibility of the Head of the USSR for the Events of January 1991 in Lithuania

Summary This article analyzed the significance of the ultimatum as a means of declaring aggression against another state in international law, and what influence it has in evaluating the actions of the head of USSR in the context of the events of January 13th 1991. The first part of the article analyzed the classical concept of ultimatum and its meaning in international law. Later, alternative forms of expression of ultimatum, which were formed in the 20th century, and practiced during international conflicts, and their assessment in international law, were analyzed. Finally, after refining the existing legal significance of the ultimatum, we analyzed the significance of the ultimatum against Lithuania issued by the head of the USSR on 10 January 1990, We also examined his further actions on 11–13 January 1991 in evaluating assumptions of his personal responsibility as head of USSR of the armed forces regarding the tragic events of January 13th 1991. As a result of the investigation, it was concluded that the ultimatum of the head of the USSR issued on January 10th, 1991, within the meaning of international law, had a direct connection in the assessment of the issue of criminal liability in relation to international crimes committed by the armed forces of the USSR. The aggressive foreign policy pursued by the head of the USSR in expressing it within a tacit ultimatum based on the try and see method, and subsequently international crimes against the Lithuanian state committed by military units, are considered the actual basis for the emergence of personal criminal liability of the head of the USSR for the events of January 13th, 1991 under international law.

Global Warming and Displacement: Challenges and Solutions in the Maldives

For Small Island Developing States such as the Maldives, climate change poses an existential threat to the future and welfare of their countries’ populations. The effects of global warming, such as rising sea levels and increased flooding, have forced countries to consider different measures in order to adapt, and some are even worried about a possible climate forced migration as a result of these dangers. Unfortunately, a lack of recognition of climate migrants under international law means that island states are left on their own to decide the best course of action. This raises an important question: What are possible challenges and solutions for Small Island Developing States [SIDS], such as the Maldives, who are planning for the climate forced migration of their populations? Using a case study of the Maldives, this paper explores both mitigation and adaptation measures that the Maldivian government has considered to develop its climate resilience. It also argues that rather than plan for relocation, the Maldives and other SIDS should prioritize keeping their populations together, maintaining cultural integrity, and implementing initiatives which support sustainable development.

Becoming an internally displaced person in Australia: state border closures during the COVID-19 pandemic and the role of international law on internal displacement

ABSTRACT In response to COVID-19, Australian state and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.

Applicability of the international humanitarian law to the fight against the Islamic State during the 2013-2017 conflict in Iraq

The article addresses the applicability of international humanitarian law during the armed conflict in Iraq in 2013-2017 waged against the Islamic State. The paper answers how to classify this conflict against the background of the law of armed conflict. The argumentation for considering it as a non-international conflict with the Islamic State and the Iraqi government as parties is presented. The discussed failure to recognize the Islamic State's status as a state within the meaning of international law does not classify the armed conflict as international. The classification has not been changed by the United States and allied states' intervention, which, as one at the invitation of the Iraqi government, does not mean qualifying the conflict as international. The article also discusses the scope of the norms of international humanitarian law that apply to the conflict in question. It primarily concerns Article 3 that is common to the Geneva Conventions and customary law. Protocol II supplementing the provisions of the Geneva Conventions will not apply as Iraq is not a signatory to it.

« Toil of the noble world » : Pasquale Stanislao Mancini, Augusto Pierantoni and the international legal discourse of 19th century Italy

The aim of this article is to reconstruct, from a legal historical point of view, the complexity and the meaning of international law in the Italian peninsula during the 19th century. The paper will analyse different entanglements that constituted the core of nineteenth-century Italian international legal discourse. It is structured in four sections, dealing respectively with : 1) the principle of nationality elaborated by Pasquale Stanislao Mancini and its repercussion both on private and public international law ; 2) the return to the historical origins of Italian international law and the role played by comparative constitutional law ; 3) the implementation and translation of particular legal genres, such as the attempts to codify international law ; 4) colonial education, including legal education, through the creation of the Scuola diplomatico-coloniale (colonial and diplomatic school).

From Crusades to Colonization: Violence in Secular and Religious Political Theory

This paper examines the transition in political philosophy between the medieval and early-modern periods by focusing on the emergence of sovereignty doctrine. Scholars such as Charles Taylor and John Rawls have focused on the ability of modern-states to overcome conflicts between different religious confessionals. In contrast, this paper seeks to examine some of the peace-promoting features of Latin-Christendom and some of the conflict-promoting features of modern-secular states. The Christian universalism of the medieval period is contrasted with the colonial ventures promoted by the Peace of Westphalia. This paper’s goal is not to argue that secularism is in fact more violent than religion. Rather, it seeks to demonstrate the major role that religion played in early modern philosophy and the development of sovereignty doctrine. It argues against the view that the modern, secular state is capable of neutrality vis-à-vis religion, and also combats the view that the secular nature of modern international law means that it is neutral to the different beliefs and values of the world’s peoples. These observations emphasize the ways in which state power and legitimacy are at the heart of the secular turn in political philosophy.

The Contested Authority and Legitimacy of International Law: The State Strikes Back

Written to engage IR theory debates, this chapter argues that the crafting, invocation, interpretation and application of international law are a primary means through which states collectively rule and contest politics in international relations today. Yet since international law (IL) draws its legitimacy and authority from public affirmations of and diffuse support for the rule of law, public support for the rule of law is a permissive condition for IL to be politically constraining. After explaining how national and transnational legal practices constitute international law’s de facto authority, the chapter explores both ordinary and extraordinary contestations of IL authority. Ordinary contestation takes place within a legal field, when lawyers, stakeholders, judges and government officials debate and contest over the meaning of international law. Political tactics are also part of ordinary contestation, but because the curators of IL authority are transnational, a state may be unable to impose its preferred IL interpretation. Where states fail to impose a preferred interpretation, three extra-ordinary contestation strategies can be used to escape IL authority: 1) states can seek to replace international law’s authority with domestic law’s authority; 2) states can pit different international laws against each other by maneuvering within and around international regime complexes; and (3) states can attack the legitimacy and authority of international law altogether. Where authority challenges enhance IL accountability, they are to be welcome. But each strategy can also be used to tear at the fabric of IL authority, potentially undermining the permissive conditions that make IL both constraining and effective.

Self Determination and the People of Egypt in 2011

If the will of the people is important in the principle of self determination, modern international law should recognize the wishes of a settled population within a sovereign state as a principle/concept of law using Egypt as precedence. The meaning of self determination within the context of decolonization, human rights and respect for state sovereignty seems to have a settled meaning in international law as will be supported by scientific research sources.However, what seems contentious is the right of the people within a sovereign state to self determination and the process through the organs of the state or by direct demands through other means like the recent revolt in Egypt.Current issues in the middle east particularly Egypt amongst other states attracts Global attention as world leaders unanimously asserted that ‘’the wish/will of the people should be respected.’’What is the will/wish of the people within a settled population constituting a state? What is the definition of the people? Is the will of the majority representative of the general will? Is the will of the people becoming an emerging concept/principle within the right to self determination in modern international law?The above questions are issues that have attracted my attention to research in the current issues with particular reference to Egypt as transition process is being negotiated. Also being a challenge to the position of how the people within a settled state can assert their right in determining their own future about how they wish to be governed.

The Concept of <i>Erga Omnes</i> Obligations in International Law

In international law, the concept of erga omnes obligations refers to specifically determined obligations that states have towards the international community as a whole. In general legal theory the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as far back as Roman law and is used to describe obligations or rights towards all. In municipal law it has the effect towards all in another, general context. The concept is very important because in today’s structure of international society, composed of independent entities giving rise, as a rule, to legal relations on a consensual basis, erga omnes obligations can further enable the International Court of Justice to go beyond reciprocal relations among states based on consent in further developing international law on the basis of a natural law approach. By its very nature this affects the freedom of state consent and the sovereignty of states. This paper will try to shed some light on this concept by analysing its meaning in international law, starting from its appearance, consequent development and its position at the present time.

La naissance du Soudan du Sud : la paix impossible ?

The independence of the Republic of South Sudan, officially proclaimed on 9 July 2011 further to the organisation of a referendum on self-determination, has been hailed by the international community. The new state was rapidly recognised, including by Sudan, and accepted as a member of the UN and the African Union. The process of secession by which South Sudan separated from Sudan is little controlled by international law and the appearance of a new state is always a one-off phenomenon, which in the case in point was negotiated after a lengthy civil war. The enthusiasm for the outcome stands in stark contrast to the difficulties encountered in building South Sudan. These pertain to the conflicting relations it maintains with Sudan, especially over the Abyei zone and petroleum resources, but also over serious internal problems. The existence of South Sudan, within the meaning of international law, and international peace and security are under threat and the humanitarian situation in the region is a matter of particular concern.

September 11 and the Laws of War

Do the laws of govern the September 11 attacks? Did the attacks constitute war crimes? These questions are difficult because they touch upon complex legal problems involving deep conceptual ambiguities in international humanitarian law. It is unclear under what conditions the laws of apply. This ambiguity arises from the combination of two related developments in the laws of war: (1) The laws of now govern de facto as well as de jure warfare; and (2) the laws of now govern internal as well as international conflict. The central difficulty is how best to define the scope and content of international humanitarian rules applicable in non-international conflict. In this Article, I argue that the September 11 attacks violated the Common Article 3 of the Geneva Conventions; and that this determination has important consequences for both U.S. antiterrorism policy and international humanitarian law. Careful scrutiny of the treaty text, structure, and history of the potentially applicable laws of strongly supports the conclusion that the terrorist attacks of September 11 constituted the initiation or confirmation of an armed conflict within the meaning of international law; and that the attacks were war crimes. The dual concerns that animate the scope and content of Common Article 3 - humanitarian protection and state sovereignty - are best served by this reading of armed conflicts not of an international character. The laws of offer a proven, durable mode of imposing principled constraints on organized violence. This widely-accepted, fully articulated normative framework should guide efforts to fashion an effective, humane response to new forms of organized violence - including catastrophic terrorism.

Innovative elements and expected effectiveness of the 1991 eia convention

The EIA Convention provides new means for international pollution control. While drawing on notions established already in other treaties, in particular the 1974 Nordic Convention, it further advances the duty of states to consider transboundary environmental impact of activities under their jurisdiction. In addition, the EIA Convention provides more specific routines for notification in case of transboundary effects. It also advances the use of EIA, and it gives the concept a more precise meaning in international law. Finally, it enhances the right of the public to take part in EIA procedures in transboundary contexts. The authors argues that the effectiveness of the convention will depend on the participation of the public in the EIA procedures and on the coordination of notification procedures.

New International Law: Silence, Defence or Deliverance?

The meaning of international law is conveyed in the act of interpretation. The meaning consists of both the semantic content and the significance of the applied norms in an actual situation. This is because international law is not a physical fact, not a thing, but a human phenomenon. Even sceptics have to yield to some sort of understanding of meaning if they try to articulate their scepticism. In human phenomena the two the meaning-content and the meaning as significance have to be considered together. Every legal claim in the international environment has a significance and a semantic meaning which depend on each other. Both are present in the making and in the perception of a claim. They are the two sides of the same coin. The semantic meaning and the significance of international law become known only through an act of interpretation. This is the actuality character of international law. Norms complete with meaning and significance do not exist a priori as independent objects which could be picked up by whomever, whenever. They come into existence in a network of actual factors. The practitioner of international law knows this from experience. There is no book or store where he could find universally applicable norms and put them to use as they are. That is why he has to keep on struggling with those hard cases, no matter how many of them he already has on the record. Time after time he has to choose and compromise anew, taking into account the circumstances, possible consequences of his interpretation and semantic possibilities. In fitting together norms and particular circumstances, the practitioner cannot separate the meaning-content and the significance. The significance is reflected in the search for the right meaning-content. The mind

Self-determination in political philosophy and international law

While nationalism is in origin a European idea, it has spread far beyond the boundaries of Europe in the last century to become a prevalent ideology in all major regions of the world. One indication that this is the case is the increasing extent to which self-determination has become an important problem for the theory and practice of international law. It is the case, however, that selfdetermination has a quite different meaning in international law than it has in contemporary political philosophy. International law posits a principle of Popular Self-Determination (PSD) that applies to cases in which populations of already existing countries lack selfgovernment. In contrast, a number of contemporary political philosophers assert a right of National Self-Determination (NSD) that applies to nationalities without their own independent states. I argue here that the principle of PSD found in international law is philosophically more warranted than the right of NSD claimed by nationalists and current in political philosophy. Self-determination as a political concept dates from the early years of this century, but its origins lie in eighteenthand nineteenth-century philosophy. The idea of self-determination originated as a notion of the freedom of individuals to determine the conditions of their own life. Its later expansion to include the selfdetermination of communities as well as individuals has been characterised as a shift of concern from ‘personhood’ to ‘peoplehood’.’ The political principle of self-determination was first proclaimed by Lenin and Wilson in the aftermath of World War I. Despite the failure of the League of Nations or international jurists to acknowledge this principle in the 1920s and 3Os, such proclamations inaugurated the modern advocacy of self-determination. Some measure of recognition was achieved after World War II by references to self-determination in the United Nations Charter and by the adoption of UN Resolutions 1514 and 2625 in 1960 and 1970. Despite controversy as to whether such documents constitute legitimate sources of international law, they do indicate the growing customary acceptance of some principle of selfdetermination.2 This principle has also been acknowledged in a number of state constitutions and treaties, interstate organisational charters and declarations, and decisions by the World Court. What has been recognised in most of these documents is the right or at least claim of ‘peoples’ to self-determination. Peoples are here understood to be the inhabitants of countries-which may be and usually are

Re Josef Delacher and Company

States as international persons — In general — Meaning of term "Germany" after Second World War — Whether term of historical and geographical significance only or whether conveying precise meaning in international law — The law of Austria.

A Comparative Study of the South African Constitution

The self-governing colonies of the British Empire are not, it is true, states within the meaning of international law, for Great Britain has, among other things, the legal right to conclude with other nations treaties which affect her colonies. It is, moreover, too much to say that the self-governing colonies will become members of the family of nations. Still it is a fact that England has in recent years granted them more or less participation in the negotiation of treaties affecting their welfare; and in a recent treaty of general arbitration Great Britain expressly reserves “the right before concluding a special agreement in any matter affecting the interest of a self-governing Dominion of the British Empire, to obtain the concurrence therein of the Government of that Dominion.” Consequently these colonies possess a certain standing in international relations which can not be overlooked, and which justifies some comparative study of their fundamental laws. The object of this paper is, therefore, to give a general sketch of the constitution of South Africa, recently approved by the English Parliament, in the light of the earlier constitutions similarly granted to Canada and Australia.