Practice Of International Law Research Articles

From the Rule of Law to the Rule of Code? Predictive Data Analytics and the Changing Contours of UN Humanitarian Response

The field of humanitarian aid is undergoing a revolution, but international lawyers have not realized it yet. Thanks to the deployment of predictive data analytics, UN agencies and other humanitarian actors are increasingly able to forecast where and when a crisis will strike, who it will affect, and what needs it will create. These developments enable new forms of anticipatory humanitarian response, which promise to increase efficacy in the mitigation of disasters. However, international lawyers have so far been strikingly silent about the normative implications of this emergent ‘rule of code’. Seeking to fill this gap, this article assesses the impact of data-driven humanitarian response on the contours and practice of international law in its social context. Are predictive data truly capable of portraying neutral factual truths, thus removing the need to make responsible choices about humanitarian aid allocation? Will lawyers be relegated to a subservient position vis-a-vis the legions of digital experts who are swelling the ranks of humanitarian agencies? And, more generally, what does it take to think and do international law in the age of big crisis data?

The Role of the Internet in International Law-Making, Implementation and Global Governance

This paper delves into influence of the internet on international law and global governance, a phenomenon that increased incrementally over the last decade before the COVID-19 emergency precipitated it. It posits that the digital world birthed whole new 'territories' where the practice of states and other actors is recorded and displayed, but it also exists independently from the physical realm. With respect to law-making, the internet acts as both a sounding board for, and an originator of, international practice. New technologies and social networks have also certainly increased the availability of information to governments and the public regarding violations of international norms. Yet, they have created a new – online – environment in which internationally wrongful acts can be committed. This further qualifies, yet does not make less significant, the relevance of the internet for the implementation of international law. The paper further submits that technological power has become a fundamental force of leverage in global governance, akin to economic, military, and political might for states and a wide range of non-state actors alike. Big Tech companies and other corporations but also civil society, social and political groups, and individuals are all potential stakeholders participating formally and informally (or to be included) in the sharing of power. Notwithstanding the difficulty to articulate a concept that comprehensively rationalises the impact of the internet on the processes and structures of international law and governance, the paper highlights a gap between the theory and practice of international law and offers a contribution in this direction.

КОНЦЕПЦИИ УСТОЙЧИВОГО РАЗВИТИЯ, ЭКОЛОГИИ ЧЕЛОВЕКА И КАЧЕСТВА ЖИЗНИ В МЕЖДУНАРОДНОМ И НАЦИОНАЛЬНОМ ЭКОЛОГО-ПРАВОВОМ ИЗМЕРЕНИЯХ: ДО И ПОСЛЕ ПАНДЕМИИ COVID-19

The article analyzes modern understanding of the concepts of sustainable development, human ecology and quality of life in the scientific doctrine and practice of international and national law. Their interpretations in the environmental law dimension before and after the COVID-19 pandemic are evaluated.

The Chinese Approach to International Environmental Law

Modern international environmental law, shaped by the Stockholm Conference (1972), Rio Summit (1992), and Paris Climate Conference (2015), tackles global environmental challenges through its unique approach to the allocation of responsibilities, institution building, and compliance mechanisms. As the world’s biggest developing country and second largest economy, China’s position and practice of international environmental law are crucial to global environmental governance. This article examines the Chinese approach to international environmental law from a historical perspective and in the context of domestic socio-economic development through the Mao, Deng, and Xi regimes, with a special focus on China’s participation in the landmark UN conferences in Stockholm, Rio de Janeiro, and Paris. It first reviews the profound impact of the Stockholm Conference (1972) on China’s awakening to environmental issues during the Mao regime (1966 – 1976) and explains the ‘Five Principles of Peaceful Coexistence’ that has guided China’s interaction with the world. Secondly, it explores how Deng’s pragmatic leadership, focusing on economic reform and opening-up to the world, has transformed China from a passive participant at the periphery of the international legal order to an active member of established legal regimes by signing and ratifying environmental treaties and advocating the principle of common but differentiated responsibilities for fair allocation of legal obligations at the Rio Summit (1992). The article addresses how China under Xi responds to new greater expectations of a rising China in the construction of the post-2020 climate regime. Fourthly, it reflects on change and continuity of the Chinese approach to international environmental law over the fifty-year journey beginning in Stockholm and argues that while enhanced economic power has seen a more assertive and confident China making commitments under the Paris Agreement (2015), the unwavering adherence to sovereign equality and right to development has remained unshaken. The article concludes with the prospect that a politically stable and economically prosperous China will be more capable of delivering its climate commitments as a responsible great power in a world that is increasingly divided by intensifying nationalism, regional conflicts and ideological struggles.

International Law Online: How Will the Pandemic Change the Practice of Law?

This panel was convened at 1:45 p.m., Friday, March 26, 2021, by the ASIL-Midwest Interest Group. Through a roundtable discussion, the panel explored the changes that the pandemic has had on the practice and teaching of international law. Professor Brian Farrell and Professor Stuart Ford, Co-Chairs of the Midwest Interest Group, co-moderated the panel discussion and introduced the panelists: Juliet Sorensen of the Northwestern Pritzker School of Law; Lawrence Schaner of Schaner Dispute Resolution LLC; Kanglin Yu of the University of Iowa College of Law; Dr. Robert Eno, Registrar of the African Court of Human and Peoples’ Rights; and Vera Korzun of the University of Akron School of Law.

Evolution of the activities of states as reflected in legal and political Teachings

Evolution of the activities of states as reflected in legal and political Teachings

Australian Practice in International Law 2019

Australian Practice in International Law 2019

The Financialization of International Law

We investigate how the international investment regime turned into an investment vehicle. Through the process called third-party funding, financiers back international legal claims by firms against countries and in turn seek a share of any potential award. More generally, we add to debates on how international regimes evolve and at times generate unanticipated consequences. Building off work on the sociology of fields, we argue that institutional change can occur when individuals from different fields interact. Each field has its own local practices and beliefs about how governance institutions like international regimes function. When professionals from one field analyze problems in another, they use the tools from their native field. If potential solutions provide material and status benefits for the dominant actors in the targeted regime, cross-field coalitions can form and change the targeted regime’s practice. As hedge funds in the finance field and lawyers in the international law field sought to reinvent themselves after the 2008 financial crisis, they teamed up to make Investor State Dispute Settlement a speculator’s game. Theoretically, we embed theories of regime change within larger social relations, highlighting the importance of informal interactions among regime operators for the use and function of governance institutions. We underscore the role of field interdependence as actors engage in contestation across social and political domains. Empirically, we demonstrate the way in which financialization has had far-reaching consequences that extend well beyond traditional economic sectors, reconfiguring the practice of international law.

Jurisprudential and legal study of mediation and its impact on Iran-Saudi Arabia relations

Preparing the ground for peace and reconciliation through mediation is a common practice in international law. The Criminal Justice System uses mediation to resolve the conflict between governments and achieve a criminal justice system, which is far from common formalities in criminal and civil arbitration. Given the inefficiency of international courts and lack of guarantee of performance of the penalties imposed by these courts, alternative solutions such as peace and conciliation and mediation have been proposed to resolve international disputes.
 In jurisprudential terms, numerous verses and narratives about peace, reconciliation and mediation have been provided and this method of conflict resolution has been fully endorsed by the jurisprudents of the Islamic religions.
 The main purpose of this study is to identify the status of mediation in jurisprudential and legal terms as one of the methods of resolving conflicts between governments, whose role in Iran-Saudi Arabia relations will be investigated with respect to the disputes between the two countries, especially in recent years.

The Ramifications of Reservations to Human Rights Treaties

This paper discusses the legal ramifications of reservations to multilateral human rights treaties. It examines the approach of the International Court of Justice (ICJ), compared to that of the European Court of Human Rights (ECtHR), in light of the general practice in international law relating to reservations and the International Law Commission’s commentary. The paper then discusses the scope for change and growth, given the nature of the two different approaches. Once it has set out the current law it describes the role of the evolving moral, social and political climate in society and the effect that it has on the conversation around human rights and treaty reservations. It answers three main questions around reservations: first, whether reservations are allowed; second, the conditions under which they are allowed; and third, if reservations are not allowed, whether the invalid reservation cancels a party’s membership of the treaty. Having answered these three questions, the paper draws to the conclusion that, ultimately, for international law to continue to be effective, state sovereignty must be given the utmost respect and importance in relation to reservations. With the current polarisation of the political climate, as is evidenced by the traditionally liberal states’ leaning towards conservative values, as in Britain and the United States, a push by the ECtHR to sever reservations from treaties and still bind the state will only alienate key players from the international stage. At face value, one may be inclined to think that the stringent protection of human rights values and limiting the reservations to such values is beneficial but, in reality, this would make participation in the international framework unappealing to states as their sovereignty would be infringed. Therefore, the ICJ’s approach is advantageous as it understands the role of reservations in achieving participation and it also understands the state practice element. Thus, in line with the ILC commentary and the ICJ’s judgements, the ECtHR’s recent rulings will not become the international law norm and state sovereignty with respect to reservations will continue to prevail.

The ‘Caste’ as ‘Discrimination Based on Work and Descent’ in International Law: Convincing or Compromising?

The difficulty in categorising caste discrimination into standard categories of human rights violations has forced Dalit activists into comparing caste discrimination with racial discrimination – a highly condemned practice in international law. This strategy materialised through the word ‘descent’ in Article 1 of the icerd. Currently, caste discrimination has become important on the human rights agenda under the guise of ‘discrimination based on work and descent’ (dwd), and by extension, ‘racial discrimination’. The main theme of this article is to address the capability of the dwd mechanism to comprehensively capture the intricacies of caste discrimination. Upon analysis, it was found that dwd dilutes the religious aspect of the caste system. Hence, this article advocates a caste-specific Convention, which focuses on both religious and secular aspects of the caste system. This won’t happen soon; therefore, caste should be maintained as a unique form of dwd in the meantime.

Chronology of Practice: Chinese Practice in Private International Law in 2019

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

International Law Post-Pandemic

This paper reflects on International Law in the face of the COVID-19 (coronavirus disease 2019) viral pandemic. First, the article examines the role of International Law against the pandemic, focusing mainly on the regulatory framework available to the World Health Organization (WHO). Then, based on the examination of the stance of some States before the pandemic and the action of the WHO, the text points out evidence that the current geopolitical conjuncture still holds national sovereignty as a maxim. Further, the document explains how maintaining the primacy of sovereignty is not an adequate strategy to deal with contemporary times' global challenges. Finally, the article highlights the relevance of assuming a systemic perspective in the practice of contemporary International Law, which, despite its flaws, should still be used as an instrument for peace and international cooperation.

The Philosophical Poverty Of Hart’s Concept Of Law: David Hume, The International Legal System And Sovereignty As ‘Effective Control’

This essay demonstrates that the positivist predisposition to philosophicallyimpoverish their arguments leads to inadequate and imprecise understanding of law. In contrast, by taking a whole systematic philosophical argument, in this case from David Hume, and examining it through Philosophical-Policy and Legal Design, the philosophical poverty of Hart’s concept of law can be fully illuminated. Instead of a positivist concept of law based on false classification of norms, and the denial of international law as law, the true nature of international law in the evolution of social convention, Justice-As Sovereignty and ‘effective control’ as its rule of recognition will be illuminated. The increased complexity and norm-sensitivity of Hume’s concept of law will be argued to create a greater philosophical space for the practice of international law and evidence of how Hume’s logic of concepts maps onto practice in terms of the both the Lotus case and the Isle of Palmas arbitration will be explained.

Australian Practice in International Law 2018

Australian Practice in International Law 2018

Spatio-Temporal Dimensions of Indigenous Sovereignty in International Law

The sovereignty of indigenous peoples has long been a matter of debate. This chapter investigates the spatio-temporal dimensions of indigenous sovereignty in international law. The topic holds both theoretical relevance and contemporary practical significance, as it can inform and transform ongoing debates on the rights of indigenous people. The chapter highlights the importance of history in any serious and constructive consideration of the territorial and spatial dimensions of sovereignty. It also highlights that a just or at least fair resolution of any question relating to sovereignty, including its territorial dimension, must fully consider competing stories, histories, and temporalities of sovereignty. This method of analysis infuses the concept of sovereignty with inter-civilisational connotations, which are often neglected in current debates. The chapter supports the emergence of novel concepts, such as parallel sovereignty, to complement and give further impulse to the self-determination of indigenous peoples within the state. This reflection appeals to the experiences and histories of non-Western cultures and civilisations, thereby opening new avenues for informing future theory and practice of international law.

ÉMERGENCE ET DÉCLIN DE LA GOUVERNANCE DÉMOCRATIQUE EN DROIT INTERNATIONAL

Les années 1989-2010 peuvent être considérées comme une époque – sans précédent dans l’histoire du droit international au cours de laquelle la gouvernance – interprétée ici comme l’exercice de l’autorité publique au niveau national à travers des institutions plus ou moins centralisées – s’est vue réglementée par un nombre grandissant de règles de droit international. Cette évolution s’est notamment traduite par l’émergence d’une obligation relative à l’origine démocratique des gouvernements. Cette obligation a été qualifiée dans la doctrine américaine de « principe de légitimité démocratique ». Toutefois, l’importance géostratégique acquise par certains États non démocratiques, la priorité désormais accordée à l’agenda sécuritaire, la crise économique de 2007-2010, ainsi que les instrumentalisations des politiques de démocratisation par certains pays occidentaux semblent avoir freiné la consolidation du principe de légitimité démocratique en droit international. En effet, le rôle que la démocratie a joué dans la pratique de la reconnaissance, la création d’États, les relations diplomatiques, la coopération économique, l’utilisation des forces multilatérales et l’accréditation au sein des organisations internationales semble s’être affaibli significativement, laissant présager la fin de cette époque toute singulière dans l’histoire du droit international. Après avoir brièvement décrit la consolidation (I) et l’affaiblissement contemporain (II) du principe de légitimité démocratique dans la pratique du droit international et la doctrine depuis 1989, cet article évaluera de manière critique les leçons tirées de cette période, en particulier s’agissant de la mesure dans laquelle le droit international est à même de réglementer la gouvernance au niveau national (III). Il se penchera enfin sur les diverses dynamiques qui ont traversé la doctrine ayant étudiée cette question au cours des deux dernières décennies (IV).

The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions

Abstract Common Article 1 of the Geneva Conventions of 1949 is foundational, but not exceptional: the duty to respect and ensure respect for the Conventions must be considered within the framework of public international law as a whole. The Article obliges each High Contracting Party and its organs to respect the Geneva Conventions, and to ensure respect for these Conventions by the population over which it exercises authority and any other persons or groups whose conduct is attributable to it. This scope is demonstrated by the ordinary meaning of the term, subsequent agreements, subsequent practice and other relevant rules of international law, and confirmed by reference to the travaux preparatoires. In particular, erga omnes status does not affect it. As a matter of good faith performance of the Conventions, each High Contracting Party also has a duty not to encourage violations by others. Common Article 1 does not require, as some authors have argued, the prevention or termination of breaches of the Geneva Conventions by other parties to conflict, but High Contracting Parties may choose to take steps toward doing so, as a matter of policy.

Aproximaciones a la noción de “ambición” en el Acuerdo de París

The notion of ambition plays a preponderant role within the rules of the Paris Agreement, in particular, regarding the progressive updating of National Determined Contributions (NDC). However, this concept does not yet have sufficient clarity and distinction to be able to serve as a trulyguiding directive in the formulation of Chile's new contributions. That is why we try to deliver some guidance from the practice of climate negotiations and International Law. We also offer a brief orientation regarding the consequences that this reading would have for Chile when formulating its new NDC.

Chronology of Practice: Chinese Private International Law in 2018

This paper contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six typical cases, which involve the validity of a choice of court clause under the transfer of contract, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are selected. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.