Non-state Parties Research Articles

Is the Commission on the Limits of the Continental Shelf Mandated to Consider Submissions from Non-States Parties to the United Nations Convention on the Law of the Sea?

Abstract This article scrutinises the mandate of the Commission on the Limits of the Continental Shelf (Commission) to consider submissions from non-States Parties to the 1982 United Nations Convention on the Law of the Sea (LOSC). It challenges the prevailing viewpoints that exclude non-State Parties from the submission process, proposing a nuanced approach that privileges legal orthodoxy and political feasibility. It proposes that LOSC Article 76, containing the Commission’s mandate, can be interpreted as a stipulation pour atrui, conferring rights to third States in accordance with Article 36 of the Vienna Convention on the Law of Treaties. Innovatively, this possibility is explored here with a particular concern for preserving the balance of interests achieved in 1982. Its timeliness is due to the intentions of making a submission recently expressed by the United States, a non-State Party.

The United States Announcement on Extended Continental Shelf Outer Limits: Implications for the Asia-Pacific?

Abstract On 19 December 2023, the United States Department of State issued an Announcement concerning the outer limits of the continental shelf in areas beyond 200 nautical miles (M) of the coast (the U.S. Announcement), three of which are in the Asia-Pacific region. This article provides the spatial scope of the areas within the limits of the U.S. continental shelf beyond 200 M located in the Asia-Pacific region and examines the implications of the U.S. Announcement for the entitlement of continental shelf beyond 200 M of other Asia-Pacific States. The article briefly describes the requirement for establishing the outer limits of the continental shelf beyond 200 M in keeping with Article 76 of the 1982 United Nations Conventions on the Law of the Sea (unclos). The U.S. Extended Continental Shelf Project is then described before the legal issues arising for a non-State Party to unclos are discussed.

The Role of the International Criminal Court (ICC) in Resolving Israeli War Crimes Against Palestinian Civilians

The Israeli-Palestinian conflict, especially in the context of war crimes that harm Palestinian civilians, has become the focus of world attention. The International Criminal Court (ICC), based on the 1998 Rome Statute, has jurisdiction over crimes of genocide, crimes against humanity, war crimes and crimes of aggression. This research analyzes the role of the ICC in dealing with Israeli war crimes against Palestinian civilians. The ICC, as a permanent international tribunal, can try perpetrators of war crimes regardless of their official capacity in their country of origin. The ICC has the potential to provide justice for Palestinian victims of war crimes, although the challenge is to exercise jurisdiction over non-party states and ensure its decisions comply with international expectations for justice and peace

Balancing the Legitimate Interests of States

This study explores the principles of domestic criminal jurisdiction under international law, focusing on universal jurisdiction. It analyzes the contentious nature of universal jurisdiction, particularly its application by international judicial organs post-human rights and international criminal law developments. The research scrutinizes the Rome Statute's provisions, debating whether it implicitly or explicitly endorses universal jurisdiction over non-party state nationals. It also examines the complementarity principle within the Statute, arguing that it safeguards state interests by prioritizing national jurisdiction. The findings affirm universal jurisdiction's recognition under international law and its potential activation under the Rome Statute, while complementarity balances states' interests against the jurisdiction of international courts.

‘Challenges and Regulatory Precautionary Approach of Flag States in Implementing Obligations Under the Ballast Water Management Convention’

Increasing shipping activities necessitated by an upsurge in international trading has a resultant impact on the marine ecosystem. Apart from the usual incidences of marine pollution and oil spillages, the introduction and transfer of invasive alien species (IAS), often known as harmful aquatic organisms and pathogens (HAOP), are increasing and impacting marine ecosystems and biological diversities. In realization of these threats, at the United Nations Conference on Environment and Development (UNCED), the International Maritime Organization (IMO) was requested to consider the adoption of appropriate rules on ballast water discharge based on the understanding that ships’ ballast water serves as a pathway for such bio-invasion transfer. Responding to these challenges led to the adopting of several regulations, technical guidelines, and rules, including the Ballast Water Management Convention in 2004. Hence, implementing the Convention has several implications for the existing legal regimes on flag states. The Convention and its Guidelines are complex and technical, coupled with a differential approach to ballast water management (BWM) by non-state parties like the U.S. Therefore, this research paper analyses some of the challenges and precautionary regulatory approaches for flag states in implementing the Convention while carrying out their obligations under the Convention. It concluded by suggesting a reflection of universally acceptable and environmentally friendly standards for ballast water management and treatment for containing the increasing prevalence of bio-invasion in the marine ecosystem.

Assessment of Stakeholder Options to Participate in Disputes Over Seabed Mining

Exploitative mining in the deep seas is coming, and with it will arrive a new wave of international disputes. Numerous stakeholders will be interested in these disputes, such as those seeking to profit from exploitative mining activity; developing states seeking to benefit from equitable sharing of wealth and lessons learned; and environmentalists all over the world worried about environmental catastrophes that could result from such activity. Stakeholders include the mining contractor, the sponsoring state of the contractor, the International Seabed Authority (ISA) created by the UN Convention on the Law of the Sea (UNCLOS) to control mining activity in the deep seas, states (both states parties to UNCLOS and those that are not) and affected communities, which includes Indigenous peoples and climate activists. However, the dispute settlement system of UNCLOS treats these different stakeholders unequally in terms of whether they may be parties to a dispute proceeding and, if so, what claims they may bring. Unsurprisingly, the system excludes non-states parties and non-state entities (apart from the International Seabed Authority and the contractor), such as Indigenous peoples and climate activists, from serving as parties (claimant or respondent) to a dispute. This essay explores the limited ways in which excluded stakeholders nonetheless may be able to participate in a dispute initiated under UNCLOS. Specifically, they may serve as witnesses, experts, or amicus curiae in proceedings before the International Tribunal for the Law of the Sea (ITLOS), the Seabed Disputes Chamber, or a commercial arbitral tribunal. This essay also advocates for the ISA to establish administrative processes for ongoing monitoring and whistleblower complaints. Such processes would allow excluded stakeholders to submit relevant evidence and information that could—and should—be used in any formal dispute settlement processes initiated by those stakeholders who enjoy direct participatory rights.

India’s Hostility to Internationalize Criminal Justice- A Prejudiced Reluctance?

On May 31, 2013 United Nations urged India to institute a commission of inquiry serving as a transnational justice mechanism, into extra-judicial killings in its north-eastern states. Urging India to repeal the controversial Armed Forces Special Powers Act, 1958, United Nations also asked India to ensure that the legislation regarding the use of force by the armed forces provides for the respect of the principles of proportionality and necessity. Various reports have shown that the state violence in Kashmir and North Eastern States of India was institutionalized through a culture of institutional impunity to the state forces which perpetuate the state of human rights violations. India has not acceded to the Rome Statute. It abstained in the vote adopting the statute in 1998, saying it objected to the broad definition adopted of crimes against humanity, the right given to the Security Council to refer cases, delay investigations and bind non-state parties, and the use of nuclear weapons or other weapons of mass destruction not being explicitly outlawed. Even though India has ratified the Geneva Conventions, it has decided to overlook the Common Article 3. In light of the above, this paper highlights why the emerging power India, abstains from joining the Rome Statute and the possibility of India being brought under the scanner of International Criminal Court.

States Cooperation in Arresting Senior State Officials and Sitting Heads of State under International Criminal Law: Quo Vadis ICC

Albeit the Rome Statute does not recognise the immunity of incumbent presidents before the International Criminal Court (ICC), prosecuting sitting presidents of non-parties states has become a debacle. Accordingly, despite the decisions of the Supreme Court of Appeal of South Africa and the Pre-Trial Chamber II of the ICC against non-compliance of South Africa and Jordan respectively in the arrest of Al Bashir as the serving President of Sudan, Al Bashir has never been tried even now as a former president because no state is willing to arrest and surrender him. The main defence for not cooperating with the Court is that the serving president, especially of non-states parties still enjoys immunity recognised by customary international law. Accordingly, while Article 27 of the Rome Statute is not applicable to non-state parties as argued by these states, Article 98 is applicable even though these arguments have been categorically rebutted by the Court. Consequently, since the Al Bashir case remains a prototype for state cooperation and the prosecution of serving heads of state before the ICC, this might become the fate of Vladimir Putin as serving head of state of the Russian Federation. This article used qualitative research methods and argues that without state cooperation in matters of arrest and surrender of sitting heads of state and other senior state officials to the ICC, the court’s effort to realise justice for crimes against humanity will remain largely unsuccessful under international criminal law. Keywords: State cooperation, Putin’s arrest warrant, Al Bashir case, International Criminal Court, non-state parties to the Rome Statute.

Subsidiary and the structure of property law

This article provides an account of the structure of property law based on the principle of subsidiarity. This principle holds that more centralized organizations, including governments, should fulfil a subsidiary role in relation to the individuals and groups of which they are comprised. While subsidiarity has been highly influential in the areas of public law, constitutional law, and international law, its relevance to property law has been underappreciated. Property rights distribute decision-making authority over resources to non-state parties. This promotes a number of interrelated benefits associated with subsidiarity, including the qualitatively distinct contributions made by individuals and groups to the common good, the instrumental benefits of decentralized decision-making, the intrinsic benefits of involvement in actions and decisions affecting oneself, and the development of virtues. However, the principle of subsidiarity also suggests important roles for public authorities, including assuring an appropriate distribution of resources in society and intervening where the private authority of owners fails to uphold the common good. In this respect, subsidiarity offers a distinctive understanding of the divide between private and public law. Private law doctrine appropriately provides owners with a significant sphere of presumptive authority, yet this is subject to broad powers of public authorities to alter the baseline where, in their judgment, the common good requires it. This article argues that the concept of subsidiarity can help to bridge the divide between progressive property theory and theoretical approaches that emphasize the authority of owners. It can also contribute to an understanding of the concept of property, public access rights to private property, property-based community governance, and legal protections for property rights.

The Travails of Prosecuting Serving Heads of State before the ICC: The Case of Omar Al Bashir and Vladimir Putin

Even though the International Criminal Court (ICC) is more than two decades after the Rome Statute was ratified by state parties, prosecuting serving heads of state before its jurisdiction has been a nightmare, albeit the Court does not recognise immunities before its jurisdiction. Accordingly, waiving the personal immunity of serving heads of state has been one of the greatest contentions before the Court as seen in the Al Bashir case. While cooperation in matters of arrest and surrender to the Court remains another major concern, the fact that the treaty creating the Rome Statute is primarily binding only on state parties is another obstacle, since consent is required from non-state parties before any prosecution. This article argues that prosecuting President Putin will result in a debacle just like his counterpart Al Bashir given that the issue of immunities and cooperation is still a major concern. Unfortunately, until all states become parties to the Rome Statute, this issue of state cooperation with the Court is still far from over. Consequently, all states are urged to become party to the Rome Statute to minimise the travails of prosecuting serving heads- of-state. Keywords: Rome Statute, immunities, cooperation in matters of arrest and surrender, serving heads of state, Vladimir Putin, Omar Al Bashir.

Protection of People at Sea under International Law: Lesson Learnt from Pushback Action to boat people in Indonesia and Malaysia

People at sea, one of which is the Boat People, has become a problem not only for Europeans but also in Southeast Asia with increasing asylum seekers from Rohingya and migrants from Bangladesh. Southeast Asia is already facing the problem of boat people returning from the Vietnam Asylum. However, an old story becomes a new story that never ends in Southeast Asia when the strategist state to Sanctuary did not participate in the 1951 Geneva Convention. As a result, many people faced pushback and died or lost at sea. This research will discuss the extent to which “protection of persons at sea” and the “search and rescue” can cover the protection of boat people under UNCLOS 1982. This study also analyses how UNCLOS 1982 will work to protect boat people when states protect themselves with the "non-party Geneva Convention 1951". Researchers argued that protection for people at sea, and the of search and rescue cover all dangerous situations faced by all people at sea, even if they are asylum seekers or boat people. They must first be protected from danger at sea, brought ashore, and the territorial state can exercise judgment on them. The "non-state party" has become a shield for Indonesia, and Malaysia to reject boat people and even push boat people back from their territory. However, the two countries are part of the UNCLOS 1982 with the obligation to carry out search, rescue, and protect humans at sea. As a result, they must rescue them and bring them ashore first before they are deported or pushed back from their boats. To investigate the relationship between the protected “protection of persons at sea” and the “search and rescue” and boat people, this paper seeks to assess UNCLOS 1982, customary international law and related cases.

International principles of combating the illegal use for profit of humanitarian aid, charitable donations, or free aid

The article is devoted to an extremely relevant topic - the characteristics of the international principles of combating the illegal use for profit of humanitarian aid, charitable donations, or free aid. It has been proven that much of international humanitarian assistance is based on the premise that armed conflict will inevitably resume, but that all parties involved can take steps to minimize the hardships faced by civilians caught in the chaos. Nevertheless, the parties involved in the conflicts constantly do not fulfill their demands. The International Court of Justice has repeatedly noted that the right to humanitarian assistance is the core of ergo omnes obligations.
 The article establishes that the legal mechanisms, the current jurisdictional mechanisms for the international protection of the right to humanitarian aid, require significant time costs and the consent of the state to provide it with humanitarian aid. Political mechanisms are particularly effective in resolving disputes of this type because they are more flexible and can be used to combat the behavior of non-state parties. After all, a significant negative factor during an active armed conflict is that a person's right to humanitarian aid mainly depends on the political will of states to use the means available at their disposal to ensure implementation and execution. It turns out that the procedure for considering interstate complaints regarding the violation of the right to humanitarian assistance involves a long process, as well as the complete exhaustion of national remedies. Transferring a case to the European Court of Human Rights is also a long-term process that does not provide for temporary procedures for settling the situation. In such a case, the role of the courts is not preventive and cannot contribute to the prevention of violations of the right to humanitarian assistance. In addition, if judicial protection is always evaluated as a traditional way of protecting violated rights, then there are also alternative ones, for example, a monitoring procedure that focuses on the analysis of "situations" in which human rights are violated, considering the frequency of violations over time, and not the number of victims. This makes it possible to identify even individual violations of human rights.

Can criminal organizations be non-State parties to armed conflict? – CORRIGENDUM

Can criminal organizations be non-State parties to armed conflict? – CORRIGENDUM

Domestic Implementation of Crimes against Humanity in Central Asia

AbstractCrimes against humanity constitute mass crimes against civilian populations and represent the so-called ‘core crimes’ of international criminal law. Central Asian states have so far abstained from incorporating the corpus delicti of crimes against humanity in their criminal legislation. After a short overview of the current status of crimes against humanity under international law, this article analyses the domestic legislation of five Central Asian countries: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. It looks at current Criminal Codes to suggest how those could be strengthened by the inclusion of properly formulated crimes against humanity dispositions, taking into account the peculiarities of these national legal systems. The article also offers a brief review of possible factors which might have precluded the states in question from proper implementation. It argues in favour of such implementation, delineating its legal benefits and potential advantages for both State Parties and non-State Parties to the Rome Statute in Central Asia.

Can criminal organizations be non-State parties to armed conflict?

AbstractThe motivations of armed groups are widely considered to be irrelevant for the applicability of international humanitarian law (IHL). As long as organized violence is of sufficient intensity, and armed groups have sufficient capacity to coordinate and carry out military operations, there is an armed conflict for purposes of international law. It follows that large-scale criminal organizations can, in principle, be treated legally on a par with political insurgent groups. Drug cartels in particular, if sufficiently armed and well organized, can constitute armed opposition groups in the legal sense when their confrontation with State forces is sufficiently intense. This article problematizes this interpretation. It corroborates standing legal doctrine in finding that subjective motives are not a sound basis to exclude the application of IHL, but it argues that a workable distinction can be made between the strategic logic and the organizational goals of criminal groups and those of political insurgents. Drawing on a growing body of empirical studies on the political economy of criminal violence, a strong presumption is defended against qualifying as armed conflict organized violence involving criminal organizations.

해사노동협약의 선원권리와 관할권이 갖는 국제법적 함의 고찰

This thesis compares and surveys the jurisdiction of UN Convention on the Law of the Sea, which stipulates the jurisdiction of the sea, as well as International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, which are representative international conventions related to human rights. Through this, the limits of the protection of seafarer' human rights possessed in International Human Rights Covenants and UNCLOS were presented, and the legal significance of the jurisdiction of Maritime Labour Convention, 2006 at the point of protecting the seafarers’ rights was re-examined.Since the International Human Rights Covenants stipulates universal human rights, it does not reflect the specificity of seafarer or prescribe jurisdiction. Therefore, the international community shall implement international human rights Covenants by taking into account customary international law and UNCLOS. The exclusive jurisdiction of the flag State over seafarers' human rights is recognized through the interpretation of UNCLOS and the International Human Rights Covenants. However, there is a default in UNCLOS, not explicitly stipulating the State's obligations for seafarers' human rights, and there is a limit to the protection of seafarers' human rights when the jurisdiction of the flag State, coastal State, and port State is applied to seafarer according to UNCLOS jurisdiction. MLC improved the limits of state enforcement jurisdiction by supplementing the default in UNCLOS. It clearly defined the social rights of seafarers and established the duty and jurisdiction of the flag State as a subject to guarantee them. In addition, by introducing the port State control of the IMO Maritime Conventions into MLC, it became possible to protect seafarer of ships that do not enforce effective flag State’ jurisdiction. In addition, MLC protects seafarers from before the conclusion of seafarers’ employment contract by stipulating jurisdiction of the seafarer supplying State to a seafarer recruitment service located in the State party and the scope of application was expanded by applying domestic legal requirements to a seafarer recruitment service in a non-State party even when a shipowner in a State party uses a seafarer recruitment service in a non-State party.

The Plight of Boat Refugees to Thailand

Abstract Thailand is a coastal State, and the plight of Rohingya boat refugees from Myanmar is an ongoing issue there. However, Thailand has no refugee laws and the State is also a non-State party to the 1951 Refugee Convention. Refugee issues are being treated under ad hoc decisions in Thailand; therefore, refugees have no legal status there, they are treated as illegal immigrants. Moreover, being a coastal State, Thailand rigorously controls its seas. However, Thailand signed on to core international human rights instruments which ensure protection from torture, including their guarantee of civil and political rights to all individuals within its territory. As a State-party to international maritime laws, Thailand also has obligations to assist any person at sea. Against this background, this article examines the challenges of refugee protection in Thailand, where special focus is given to the Rohingya boat refugees within an examination of its maritime laws. In conclusion, it suggests a solution for refugee protection in Thailand under the existing regime. While particular literature on the Rohingya boat refugees in Thailand is very limited, it is expected that the article will fill the gap in existing literature regarding the boat refugee issue in Thailand.

Asylum Seekers and Refugee Management: (Im)Balance Burden Sharing Case between Indonesia and Australia

Since the 1970s, Indonesia has been acting as a transit country for asylum seekers and refugees to reach Australia and New Zealand. Being a non-state party to the Refugee Convention, Indonesia has become the strategic partner for Australia in managing the issue of asylum seekers and refugees. The two countries have been involved in many bilateral and regional arrangements to tackle the issues. The “Bali process” is one of Indonesia and Australia's arrangements to lead the region in tackling forced migration and refugees. Unfortunately, despite their “common” interests, many of Australia's policies towards asylum seekers have negatively impacted Indonesia in many ways. This paper uses desk study research with a normative approach to analyse nationally and internationally relevant laws and policies. This paper analyses the Bali Process as regional cooperation means of burden-sharing in which Indonesia and Australia play dominant roles while scrutinising how both countries implement the policies within their domestic realms. In addition, the dynamics within the two countries will also be examined to understand how they shape their policies. This paper argues that Indonesia has fulfilled its part by managing these protected persons within Indonesia. However, Australia seems to consistently try to shift its burden to Indonesia as its neighbouring state. By revisiting the Bali Process arrangement, it is suggested that Australia needs to respect its commitment and take any means necessary to keep good relations with its neighbours, including Indonesia.

The International Criminal Court Jurisdiction Towards The Deportation Issues In Myanmar

<p><em>This research aims to comprehensively analyze the International Criminal Court’s jurisdiction in adjudicating gross violations of human rights involving a non-party state of the 1998 Rome Statute and its application to the perpetrators of deportation against the Rohingya with Myanmar as the non-party state. The results showed that this jurisdiction can be implemented under three conditions, first, the crime is committed by nationals of a non-party state on the territory of a state party to the Statute. Second, the UN Security Council refers a situation to the International Criminal Court in its resolution. Third, through an ad hoc declaration that a non-party state of the Rome Statute accepts the International Criminal Court’s jurisdiction. Since the territorial jurisdiction of the International Criminal Court covers crimes that occur wholly or partly on the territory of a state party, it can be applied to the deportation against the Rohingya in Myanmar. This involved the fleeing of this ethnic group from attacks by the Government of Myanmar to Bangladesh, a state party to the 1998 Rome Statute</em></p>

The measures against the International Criminal Court (USA v. ICC): the perspective of International Law

Since its creation, the International Criminal Court has faced the refusal of the United States to cooperate, which, in addition to staying outside the Rome Statute, has undertaken a real strategy of weakening the Criminal Code. The argument put forward by the US Government against the Rome Statute is that an international treaty cannot create obligations for a non-party state and therefore the United States denies any jurisdiction of that jurisdiction over its nationals. As early as 2000, that country had unsuccessfully introduced a proposal before the Preparatory Commission to prevent bringing American military personnel to the Court. The American Service Members Protection Act (ASPA), bilateral immunity agreements and Security Council resolutions constitute the arsenal used by States at that time to neutralize the ICC. Recently, the United States signed an order authorizing the United States to prevent and penalize employees of the International Criminal Court from entering the country. The US administration, which has been critical of the ICC for months, is opposed to launching investigation into war crimes in Afghanistan. Is not that a sign of difficulty with the US Legal Justifications? In other words, does this weakness open up the possibility of prosecution in the event of a violation of international law by US?