International Law Perspective Research Articles

Attribution of cyber operations: an international law perspective on the Park Jin Hyok case

States are increasingly willing to publicly attribute hostile cyber operations to other States. Sooner or later, such claims will be tested before an international tribunal against the applicable international law. When that happens, clear guidance will be needed on the methodological, procedural and substantive aspects of attribution of cyber operations from the perspective of international law. This article examines a recent high-profile case brought by the United States authorities against Mr Park Jin Hyok, an alleged North Korean hacker, to provide such analysis. The article begins by introducing the case against Mr Park and the key aspects of the evidence adduced against him. It then considers whether the publicly available evidence, assuming its accuracy, would in principle suffice to attribute the alleged conduct to North Korea. In the next step, this evidence is analysed from the perspective of the international jurisprudence on the standard of proof and on the probative value of indirect or circumstantial evidence. This analysis reveals the need for objective impartial assessment of the available evidence and the article thus continues by considering possible international attribution mechanisms. Before concluding, the article considers whether the principle of due diligence may provide an alternative pathway to international responsibility, thus mitigating the deficiencies of the existing attribution law. The final section then highlights the overarching lessons learned from the Park case for the attribution of cyber operations under international law, focusing particularly on States' potential to make cyberspace a more stable and secure domain through the interpretation and development of the law in this area.

Am I a Person?

This paper is a preliminary inquiry on the concept of personhood applied to persons with disabilities from an international law perspective. It is not academically rigorous and it is not meant to be transformed into an academic publication, but rather to plant the seed for a serious study on whether individuals affected by physical disabilities can be considered persons under the applicable rules of international law. The preliminary argument is that the UN Convention on the Rights of Persons with Disabilities was drafted from an ableist standpoint, and is inadequate to protect the rights of persons with disabilities - in fact, the Convention implies that persons with disabilities are not fully persons, as they neither enjoy the same rights as able-bodied persons nor are necessarily supposed to.

The Dilemma Between the Freedom to Use and the Proscription against Appropriating Outer Space and Celestial Bodies

Abstract Although a large-scale extraction of resources from outer space does not seem feasible yet, associated legal debates are already underway. Indeed, anticipating a race for space resources, some States are taking the lead in enacting legislation regulating future exploitation by their subjects. Sales of “extraterrestrial real estate” by private entities have been taking place for decades. This article addresses the topic of exploitation of space resources from an international law perspective—regardless of whether it will be firmly on the agenda tomorrow or in thirty years’ time. The crucial issue is to establish if, and eventually how, it is possible to conciliate the two principles at stake here: freedom to use outer space and celestial bodies, which arguably includes exploitation, and the impermissibility of their appropriation. It will be pointed out that, rather than proposing a comprehensive and rigid mechanism, the Outer Space Treaty and the Moon Agreement could represent a starting point, a proactive framework for achieving consensus among States and for seeking multilateral solutions for the exploitation of space resources.

The alleged tension between the Global Compact for Safe, Orderly and Regular Migration and state sovereignty: ‘Much Ado about Nothing’?

AbstractIn a landmark effort to finally acknowledge the necessity to jointly respond to the global phenomenon of large movements of refugees and migrants, the process initiated in 2016 with the approval of the New York Declaration for Refugees and Migrants eventually led to the adoption of two UN Global Compacts, respectively the Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCR). Despite the enthusiastic support shown at first by the international community, the GCM negotiations have been more controversial and ultimately shaken by the clamorous withdrawals of several states. The main argument used by the withdrawing governments to justify the sudden refusal to adopt the GCM was based on the claim that the document − although non-binding − undermines the ‘sovereign right’ of the state. Such a claim, given the centrality that the principle of state sovereignty has acquired since the Peace of Westphalia, deserves to be further analysed from an international law perspective by resorting to the ‘sovereignty test’ developed by Schrijver. The present work, after briefly introducing the main tenets of the GCM, applies the ‘sovereignty test’ to the GCM to dissect the alleged tension between state sovereignty on the one hand and the shared approach to international migration envisaged by the pact on the other. This article’s ultimate goal is to prove that the GCM does not aim to restrain state sovereignty; rather, it strives to remind states of existing international commitments already undertaken at the regional and global level.

When Environmental Obligations Collide with State Sovereignty: An International and Sharia Law Perspective

This article critically reviews the notion of State sovereignty under international law and argues that to achieve eco-justice as well as sustainable development goals, a restrictive and ecological approach needs to be taken toward the principle of states’ permanent sovereignty over natural resources. Environmental sustainability requires states’ environmental obligations to be identified as erga omnes so they can be addressed toward the international community as a whole and fall within the scope of article 48 of the ILC Articles on States Responsibility. Interestingly, in complete alignment with this progressive interpretation, sustainable utilization of natural resources has a longstanding foundation in Islam. According to some Islamic scholars, the Islamic notion of Al-Anfal implies that the Islamic States cannot own the natural wealth and resources in their territories, but should only manage them for the benefit of all generations in a manner that the origin of the source would be preserved at all times. Therefore, suggested transformation can be acceptable to the Muslim majority countries. This research takes a normative approach and a library research method to the inevitable development that needs to take place in international law.

LEGAL PROTECTION FOR INDONESIAN MIGRANT WORKERS

The purpose of this study is to determine and analyze the legal protection of Indonesian citizens working abroad from the perspective of domestic law and international law. The research method used is descriptive research methods and qualitative analysis techniques. The results obtained from this study indicates that human trafficking is a growing human rights problem in the international community, with a focus on prostitution involving women and children. Over time, changing times and increasing demand, human trafficking is no longer only in the field of prostitution, but also used in the form of forced labor, slavery, and the sale of organs. To regulate the protection of migrant workers, the United Nations General Assembly passed Case No. 45/158 in New York on December 18, 1990 which became the legal umbrella by issuing it. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The problem of migrant workers working abroad is currently a special concern of the Indonesian government as a guarantee that the state's goal is to protect the entire nation carried out. Protection in the form of a legal norm from Indonesia and legal entities abroad is an important factor to support the protection of migrant workers. With the direction of international and national law, Indonesian goverments puts out every effort to carry out legal protection optimally.

Acceso al derecho de asilo de los niños, niñas y adolescentes no acompañados en México

Este artículo tiene la finalidad a estudiar los diferentes problemas, realidades y retos que enfrenta la niñez refugiada no acompañada en México para acceder al procedimiento de asilo en México. Sobre todo, cuando el fenómeno de la movilidad humana ha tenido gran relevancia en esta región de las Américas debido a las políticas actuales migratorias, las cuales tienden a darle mayor prioridad al tema de seguridad, que a los derechos humanos de los niños, niñas y adolescentes (NNA) con indicios de desprotección internacional. Al respecto, se utilizará el método sistemático y de revisión bibliográfica, para analizar el problema del acceso al procedimiento de asilo de la niñez refugiada en México y, los retos que enfrentan en cuanto a sus derechos humanos. Esta propuesta toma como referencia los planteamientos abordados desde la perspectiva del derecho internacional de los derechos humanos y del derecho de los refugiados.

International Law Perspectives on Cruise Ships and covid-19

Cruise ships have contributed to the spread of covid-19 around the world and State responses to the pandemic have needed to account for the presence of these ships in their ports and the medical treatment of both passengers and crew on board. This contribution outlines the key bodies of international law that must be brought to bear in deciding on State action in response to cruise ships and their covid-19 cases: the law of the sea, international health law, shipping conventions and especially treaties protecting the rights of seafarers, international human rights law and laws relating to consular assistance. While these laws tend to reinforce each other, it is argued that the need for humanitarian considerations to feature strongly in State decision-making is challenged by systemic weaknesses.

The Global Compact for Safe, Orderly and Regular Migration: A Kaleidoscope of International Law

The Global Compact for Safe, Orderly and Regular Migration has prompted an intense political debate at both the international and domestic levels. Most controversies focus on its legal stance and highlight the hybrid character of the Compact as a soft law instrument. While acknowledging the political nature of the Compact, this paper delves into its legal dimensions from the perspective of international law. This inquiry into its normative content discloses three main features: the Compact is not a codification of international legal norms governing migration; it is an instrument of both consolidation and expansion of international law to foster intergovernmental cooperation and promote safe, orderly and regular migration.

Harnessing Public Institutions for Labour Law Enforcement

The paper explores how to integrate a Transnational Labour Inspectorate (‘TLI’) dealing with transnational private instruments of Multinational Enterprises (‘MNEs’) into the International Labour Organization (‘ILO’). After exploring monitoring initiatives with roots in public international organizations, we will argue that from an international law perspective on international legal personality such activities can be justified. Under the qualification of ‘subject normation’, as we dub these activities, we will argue that the ILO is the best situated locus to embed a system to inspect commitments MNEs voluntary adhere to in their CSR strategies, including Global Framework Agreements. Finally, we explain how the TLI as we envisage it could fit within the existing system of enforcement and compliance monitoring of the ILO.

La ilegalidad del muro de Donald Trump

En este trabajo se analiza, desde la perspectiva del derecho internacional, el impactode la construcción de un muro por parte del gobierno de los Estados Unidos en la fronteracon México. Con base en estudios de expertos en ecología se analiza el impacto en el ecosistemala introducción de un elemento agresivo, intrusivo como la construcción de un murode la región fronteriza. La frontera está regulada por una gran cantidad de normas jurídicasinternacionales, las cuales, con la construcción de un muro, Estados Unidos viola al dañar, enforma irreversible, el ecosistema de la región. Precisamente el derecho internacional contemporáneoen materia de medio ambiente limita la soberanía interna de los Estados, en relacióncon actos que puedan dañar a los vecinos.

GTI and TESAT Anti-Terrorism Reports for 2020: the results of a comparative analysis

The subject of this research is the content and methodology of the relevant and informative public international anti-terrorism reports – the Global Terrorism Index (GTI) and the European Union Terrorism Situation and Trend Report (TESAT) for 2020. The goal of this article consists in examination of applicability of analogous methodologies of socio-legal scientific research dedicated to the phenomenon of terrorism in the national strategic anti-terrorist law enforcement and law protection activities. The research task is to give a general overview to GTI and TESAT anti-terrorism reports for 2020, explore their structure and content, analyze the statistical data on international terrorism and terrorism in the EU member-states for 2019. The object of this article is the strategic data on the criminalized phenomenon of terrorism from the perspective of international law. The scientific information analysis of statistical data on terrorism allows differentiating terrorism by the subjective aspect of this act, view it in space and time for developing a deeper understanding on the factors and conditions of its proliferation, determine the strategies on counteraction. The conclusion is formulated that in the international scientific research terrorism is viewed as a sociological phenomenon, and rather than cumulative unlawful acts alone; the international community converge the approaches towards understanding and criminalization of terrorism (coordinate the lists of terrorist organizations and suspected individuals). The novelty of this work consists in the description of modern scientific methods of information analysis of the data on terrorism in the European Union and worldwide – trends, indicators, geoinformation representation and data analysis, as well as other relevant methods of statistical data analysis. The author’s special contribution is the comparison of methodological approaches of the two anti-terrorism research, as well as in publication of relevant information from foreign sources

러시아 공사관 부지 처리 과정의 국제법적 검토

구 러시아 공사관은 구한말 당시 정동에 위치한 외국 공사관 중에서 가장 큰 규모로 건축되었다. 구 러시아 공사관은 일제강점기를 거치는 동안 제정러시아, 소련 영사관으로 사용되었고, 한국전쟁 당시 파손되어 현재 정동 언덕에 탑 부분만 남은 채 정동공원, 정동상림원 아파트, 정동빌딩이 들어서있다. 본 연구는 해당 부지가 처리되었던 일련의 사실관계를 정리하고, 그 과정에서 문제된 국제법적 쟁점을 검토하고자 하였다.BR 구 러시아 공사관이 건축되었던 부지가 누구의 토지였고, 어떤 경위로 러시아 측이 공사관을 건립하였는지에 관한 직접적인 사료는 발견하기 어렵다. 그렇지만 일제강점기 토지대장에는 “러시아국” 소유로 등재되었고, 정부 수립 이후 계속하여 미등기 상태로 방치되어 있었다. 정부는 해당 부지에 무허가 판자촌이 난립하자 1960년부터 ‘토지수용 방침’과 ‘매각처분방침’ 등을 수립하여 국유화를 단행하기에 이르렀다. 이 과정에서 법무부는 민법 부칙에 의거, 러시아의 소유권이 상실하였다는 답변을 하여 국유재산으로 보존등기가 이루어졌다. 국무회의에서는 해당 부지를 공원 또는 법조회관 등으로 사용할 것을 의결하였는데, 법조회관 등의 건립이 무산되면서 일부는 공원으로 조성되었고, 나머지는 민간에 불하되어 현재에 이르고 있다. 구소련은 1990년 한소 수교 당시 이 문제를 제기하여, 정부가 보상금을 지급하고 대사관 부지를 상호 제공하는 내용의 합의를 하면서 이 문제는 해결되었다.BR 이 문제는 우선 러시아가 제정러시아 및 소련의 권리를 승계하고, 대한민국 역시 정부수립 이전에 형성된 재산관계를 인정하는 입장을 취한다는 점에서 출발해야 한다. 러시아측 사료와 정부 보고서 등을 종합하면 러시아 측이 ‘매매’로 해당 부지를 취득했다고 추정할 수 있고, 그렇지 않더라도 일제강점기 토지대장의 등재에 따라 해당 토지를 원시취득한 것으로 볼 수 있는바, 러시아가 구 러시아 공사관 부지 소유권을 보유했다고 보는 것이 합리적이다. 한편, 대한민국이 수립된 이후에도 소련이 미수교국이었다는 사정은 러시아가 해당 부지를 보유하는 것과는 무관하다고 보아야 한다. 또한 해당 부지가 외교공관 등으로 기능하고 있었다고 보기는 어려우므로 외교관계에 관한 비엔나협약 위반은 직접적으로 적용되지 않는다고 보아야 한다.BR 결국, 구 러시아 공사관 부지를 처리했던 정부의 일련의 조치는 토지수용법상 ‘수용’에 해당한다고 볼 것이다. 국유화 단행 시점에 러시아 측에 일체의 보상이 없었던 이상 ‘위법한 수용’에 해당하여 국제위법행위를 구성한다고 할 것이고, 해당 부지가 이미 민간에 불하되어 원상회복이 불가능하다고 판단되는 이상 금전배상이 문제되는 경우라고 하겠다. 따라서 러시아 측과 체결한 보상 협정은 국가책임에 따른 금전 배상이 이루어진 것으로 평가된다.BR 구 러시아 공사관 부지 처리 과정에서는 국가 승계와 국가 책임 등의 복잡한 국제법적인 쟁점이 대두되었다. 당시 정부로서는 서울 중심부에 위치한 대규모 토지를 방치하기는 어려웠을 것인바, 이 문제는 여전히 난제로 평가된다.

Transnational Surrogacy in China: From the Perspective of Private International Law

Chinese courts’ attitudes toward domestic surrogacy have appeared to soften and are inclined to protect the best interests of children and the legal rights of intended parents. However, many problems remain unsolved in transnational surrogacy cases, including the validity of a contract, parentage or guardianship determination, citizen conferral, and household registration. In this article, transnational surrogacy is analyzed from the perspective of private international law, particularly jurisdiction, choice of law, and recognition of foreign judgment on parental relationships and foreign public documents. In addition, some specific cases, such as transnational surrogacy for same-sex partners and transnational surrogacy without the consent of intended parents, are discussed and analyzed in detail.

SENGKETA LAUT CINA SELATAN DALAM PERSPEKTIF HUKUM INTERNASIONAL

The South China Sea Region is one of the largest waters in the world and has a strategic role both in terms of economy, politics and security so as to make this region have great potential that can be utilized by countries around the region. The consequences of many interests in this region is potential conflict form many state. This article analyzes several disputes that occur in the South China Sea based on international law. The purpose of this article is to find out the steps taken by states to resolving these international legal disputes. Through the analysis in this article it was found that in the perspective of international law, the dispute over the South China Sea was sourced from differences of principles in determining maritime boundaries. The analysis of this article also found several steps and efforts that can be taken by the disputing countries to resolve the South China Sea dispute.Keywords : South China Sea; International Dispute; International Law

Law Enforcement Issues and Regulations in Undelimited Maritime Boundaries: An International Law Perspective

Maritime boundaries play an essential role in determining the state's sovereignty, rights to exploit natural resources, maintain security, and territorial integrity. However, maritime boundaries often overlap between states, which can amount to conflicts. Maritime areas whose boundaries have not been agreed between neighboring states are referred to as “undelimited maritime boundaries” (UMB). Indeed, Article 74 of the United Nations Convention on the Law of the Sea 1982 has set out rules regarding UMB. However, conflicts still arise between states; for instance, the conflict related to law enforcement between Indonesia and Viet Nam in the South China Sea. This study aims to analyze law enforcement issues and the rights and obligations of states in UMB under international law. This study uses normative legal research which applies the method of legislative, conceptual, and analytical approaches. This study finds that states involved in UMB are prohibited from carrying out excessive law enforcement since it could trigger more conflicts and will hamper the ongoing final maritime delimitation negotiation process. In order to ensure zero conflicts during the negotiation process, this paper recommends that Indonesia should make every effort to enter into a comprehensive provisional arrangement about UMB with its neighboring states.
 Keywords: International Law, Law Enforcement, Undelimited Maritime Boundaries.

Jurisdiction and Applicable Law to International Commercial Agency Agreements from a Jordanian Perspective

Abstract Doing business abroad within the framework of commercial agency or distribution agreements presents not only several financial and commercial challenges but also legal ones, raising questions about the applicable law, jurisdiction, and particularly the arbitrability of disputes arising out of commercial agency agreements governed by Jordanian law. The purpose of this article is to highlight selected aspects of Jordanian commercial agency law from the perspective of private international law in Jordan. It aims to discuss the applicable law and jurisdiction pertaining to international commercial agency agreements subject to Law No. 28 of 2001 on Commercial Agents and Intermediaries as a mandatory law. The article highlights the recent different methodological approaches adopted by the Jordanian Court of Cassation in dealing with commercial agency agreements, which can be described as heterogeneous, controversial, and traditional; they are tainted with dogmatic traditions and at odds with the Court’s own grundnorms.

Doing business abroad: a review of selected recent Canadian case-studies on corporate accountability for foreign human rights violations

ABSTRACT While it is reported that a large part of the mining activity abroad comes from Canada, a robust regulatory framework for addressing human rights violations committed by Canadian mining companies is lacking in Canada. From Canadian and international law perspectives, this paper addresses the issue of accountability of Canadian companies who commit human rights violations while operating in foreign countries. The paper discusses reports of human rights abuses by Canadian corporations and the jurisdiction of Canadian courts in cases of alleged violations committed abroad. It analyses selected recent decisions from Canadian courts as case-studies and argues that legal reform is needed to ensure accountability of Canadian corporations operating abroad and access to civil law remedies.

A typology of local governments’ engagement with human rights: Legal pluralist contributions to international law and human rights

Local governments around the world have been engaging with international law and policy at an exponential intensity, with prominent engagement in climate change, migration and more recently human rights. This engagement cannot be adequately understood within the terms and framework of positive international law alone. This contribution aims to map and create a grounded typology of local government engagement with human rights, encompassing both activities within their localities and outside - at national, international or transnational scales. The article introduces local governments’ engagement in the Formation of Human Rights, Implementation of Human Rights, Defence of Human Rights, Coordination of Human Rights, Dissemination of Human Rights and the Contestation of Human Rights as empirical ideal types that have emerged from data through grounded theory. Analysing this engagement from the perspectives of both positive international law as well as legal pluralism, with specific focus on the New Haven School of Law, the article argues that local governments are now at the core of a newly formed norm-generating community. Local governments engage with local and international actors and processes both within the rules of inclusion of contemporary international law-making - seeking to expand these norms to include local governments themselves - but they also contest and challenge the very rules of the game in the first place, and resort to creating “human rights in the city” as a body of norms parallel to international human rights law. Whether we accept a pluralist understanding of international law to include local governments and their human rights engagement, or whether we consider these developments to be outside international law, forming a parallel normative order in the legal pluralist sense, local government engagement with human rights has already succeeded in reaching and influencing many established international actors and has already infiltrated recent instruments of positive international law.

Corrigendum to “Counter-conducts and the green grab: Forest peoples’ resistance to industrial resource extraction in the Saracá-Taquera National Forest, Brazilian Amazonia” [Global Environmental Change Volume 56, May 2019, 124–133](S0959378018311701)(10.1016/j.gloenvcha.2019.04.004)

The authors regret to inform readers that a correction was missed to be performed in the 4th para in the section titled “Rights claims as counter-conducts”. The sentence “They were only recognised as an identity category under the amorphous signifier “traditional populations” by Decree 6.040 in 2007.” had to be changed to “They were only recognised under the identity category “traditional communities” by Decree 6.040 in 2007.” The following sentence has been removed: “Their heterogeneous origins, including European, African and Native Amazonian heritages, from the perspective of states, governments and international law are impossible to fit into essentialised ‘indigenous’ or ‘tribal’ categories used in the ILO169 and the Brazilian Constitution of 1988 (Fraser, 2018).” The authors apologise for any inconvenience caused.