Progressive Development Of International Law Research Articles

Revitalizing the International Law Discourse on the Prohibition of Maritime Piracy: Voices from International Law Commission’s Work on Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

In Defence of Future Generations: A Reply to Stephen Humphreys

Abstract In this reply to Stephen Humphreys, we challenge the dismissal of future generations as a locus of responsibility for present generations. Drawing from diverse sources such as indigenous law, environmental jurisprudence and practice, we demonstrate that global discourse on intergenerationality is broader and more nuanced than Humphreys suggests. Our response highlights the importance of incorporating diverse perspectives to enrich discourse and promote an inclusive approach to the progressive development of international law. Further, we contend that ‘future generations’ discourse has emancipatory power, offering potential for reshaping international law based on a vision of justice and solidarity across time and space. We call for increased dialogue and collaboration among scholars, practitioners and frontline communities to ensure that future generations discourse remains grounded in real-world experiences. By persistently interrogating and developing our understanding of responsibilities owed to future generations, we can imagine and cultivate a more inclusive – and, hence, more promising – approach to addressing climate change and related global crises.

The law of war as a source of contemporary branches of international law

Branches of international law arise mainly as a result of the following factors: 1) complications of international legal consciousness (international human rightslaw, international security law, international environmental law, international criminal law, etc.) and 2) technological progress (international air, space, nuclear law, relevant innovations in international maritime law, etc.). Under the influence of the same factors, new institutions are formed within existing branches (responsibility for international crimes, prohibitions of genocide, prohibitions of apartheid, responsibility for environmental pollution, instant custom, etc.). The article examines the mechanism of formation of the international humanitarian law, the law of armed conflicts, international security law, international human rights law, and international criminal law. It is claimed that they are based on a traditional section of pre-classical international law - the law of war. The first attempts to regulate the conduct of armed conflicts formed the basis for the creation of these branches. The first scientific systematization of international law was one proposed by Hugo Grotius. The scholar proposed to divide the system of this law into two interrelated components - the law of war and the law of peace. Grotian systematization formed the basis of further scientific systematics of international law in the 17th-19th centuries. The Hague Peace Conferences changed the traditional view of the division of international law into the law of war and peace. The Hague peace conventions influenced on formation of the international humanitarian law. The 20th century became a period of active formation of new branches of international law within the framework of the process of "codification and progressive development of international law" under the auspices of the United Nations. So the traditional law of war gave birth to several branches of modern international law.

The International Law Commission, the Institut, and States

Unlike the International Law Association (ILA) and the Institut de Droit International (the Institut), the International Law Commission (the Commission, or ILC) is not 150 years old. Established in 1948, the Commission is exactly half the age of the two codification bodies to which this Symposium is dedicated and is celebrating its seventy-fifth anniversary in 2023.1 Like its older cousins, the Commission is charged with the codification and progressive development of international law. Among the many differences between the Commission and its older cousins, one that stands out and that provides the lens for this essay, is its close relationship to states. Although a comparison of both the ILA and the Institut with the younger, but apparently more “authoritative” body, the Commission, is worthwhile,2 due to space limitations, I focus my comments on the Institut and the Commission. This essay will home in on the impact of the relationship of these two bodies with states and argues that this relationship affects, to some extent, the work of the relevant bodies, both in terms of what topics they may address and how they address them. This broad conclusion, which is necessarily limited by space considerations, is substantiated on the basis of the membership and outputs of the two bodies.

INTERNATIONAL LAW ASPECTS OF THE POST-BREXIT MIGRATION POLICY OF THE UNITED KINGDOM

Introduction. In March 2022, the Home Office of the United Kingdom of Great Britain published the Statement on New Immigration Plan according to which persons having no right to reside on its territory would be removed to “safe third countries” according to the agreements with such states. On April 13th, 2022, a Memorandum of Understanding between Great Britain and Rwanda was signed prescribing that persons whose applications for asylum were not considered by Great Britain be removed to Rwanda for those applications to be considered by the latter. Incompatibility of the contemporary immigration policy of Great Britain with its international law obligations justifies the topicality of the assessment of its implications for codification and progressive development of international law. Materials and Methods. The assessment of the contemporary immigration policy of Great Britain from the standpoint of international law includes the matching of the provisions of the international and national acts adopted by Great Britain as well as official statements of its state bodies and officials and the provisions of universal treaties and “soft law” acts. The writings of the publicists studying international law aspects of forced migration, asylum and human rights served as theoretical framework of the present study. Research Results. The assessment of the Memorandum of Understanding reveals the incompatibility of its provisions with the international law norms on asylum and human rights. Such international law policy of the state should be regarded as an example of rejection of international law which is referred to as “international law nihilism” in Russian legal doctrine.Discussions and conclusions. The authors argue that further adoption of legal and political measures contrary to states’ obligations under treaties and international custom as well as the absence of expressed official positions of states with regards to such measures may have an impact on construction and application of international law norms governing legal status of forced migrants.

Prohibition of massive and serious pollution of marine environment as a jus cogens. Identification, legal bases and consequences in view of the recent work of the International Law Commission

Taking into account the progressive development of international law in recent decades relating to the protection of environment it is remarkable that until recently international courts and tribunals took a rather restrictive approach concerning reference to the hierarchy of norms. This is in stark contrast to international human rights law as some of its key rules have already been identified as jus cogens. Thus, drawing from these developments there is a need for recommencing the debate concerning the existence of peremptory norms relating to the protection of the environment. At the normative level allocating the jus cogens logic to this area can certainly bring the needed structure of community interest, instead of the reciprocal paradigm and consequently influence more strongly future normative development of this branch of law. The article evaluates whether specific obligations to protect the marine environment can be considered as a peremptory norm of general international law. The current work of the International Law Commission and discussion on its reports in the United Nations General Assembly Sixth Committee are used as tools for appraisal of the state of the law in this respect. It is undeniable, that obligations to protect the marine environment reflect fundamental values of the international community, which are universally applicable. As a result, the normative weights of these obligations clearly advocates for the recognition of peremptory norm status of particular prohibitive rules concerning protection of the marine environment.

International Law-making on the Prevention and Control of Epidemics

Abstract International law-making takes various forms. The UN General Assembly has a general mandate for new law-making, but it has not engaged in major treaty making for some time. The International Law Commission (ILC), charged with codification and progressive development of international law, has not in recent years dealt with topics that are relevant to the pressing need of the international community as a whole. In such an environment, it is remarkable that the Institut de Droit International (IDI), the 19th century type of an old institute, has embarked on the law-making activity on the critical issue of prevention and control of epidemics with the unusual sense of urgency, adopting in August 2021 a Resolution composed of 17 Draft Articles and Preamble. It is hoped that a comprehensive framework convention on epidemics will be elaborated on the basis of this Resolution in the near future.

United Nations of the International Law Commission: qualifications and procedure for the election of members

The United Nations of the International Law Commission is one of the most prominent international institutions dealing with the progressive development of international law and its codification. At the same time, the analysis of the latest scientific publications, which disclose various aspects of the activities of the International Law Commission of, has led to the conclusion that representatives of the native science of international law do not pay adequate attention to the study of various aspects of its legal status. Taking this into account, the article reveals the procedure of election of the members of the International Law Commission of and describes the established requirements for their qualification. According to the results of the conducted research it has been established that membership of the International Law Commission is consisted of 34 persons having an acknowledged authority in the branch of international law and representing the most important forms of civilization and the main legal systems of the world. From the first session until today, the membership of the International Law Commission has changed three times, in particular: in 1956; in 1961; and in 1981. Each time the reason for the increase in the membership of the International Law Commission has been the significant increase in the number of States Members of the United Nations. All members of the International Law Commission attend meetings on their own account and not as representatives of member states of the United Nations. As a general rule, the members of the International Law Commission are elected on the basis of equitable geographical distribution in a secret ballot by the General Assembly of the United Nations for a term of five years, with the right of re-election. In the event of a vacancy in its membership at the time of the next election, the International Law Commission shall fill the vacancy independently. The grounds for such an election may be the incumbent member's own wish to cease serving on the International Law Commission, death, serious illness, appointment to a new post, and so forth. Members elected to fill casual vacancies shall serve for the remainder of the term of the current membership of the International Law Commission and shall be eligible for re-election at the next election.

The law of international treaties in the scientific works of Hersch Lauterpacht

The article examines the doctrinal contribution of Professor Hersch Lauterpacht to the development of International Treaty Law. Based on the analysis of Hersch Lauterpacht's scientific work in the field of international treaty law, his contribution to the development of concepts of codification and progressive development of international law, principles of interpretation, and the relationship between the principle of effective interpretation and intentions of the parties to treaty.
 It is emphasized that, according to Lauterpacht, the codification of international law is necessary for the international community as a whole, so it should be carried out within the UN and aimed at its general acceptance by states. Therefore, all states should be given equal opportunities to participate in and join the work on codification.
 It is pointed up that among the principles of interpretation of international treaties, the main of them, H. Lauterpacht singles out the principle of good faith. The scholar considers this norm as one of the general principles of law recognized by civilized states in the matter of interpretation.
 Particular attention is paid to the doctrinal views of H. Lauterpacht on the relationship between the principle of effective interpretation and the intentions of the parties to the agreement. The researcher has noted that the intention of the parties should be a primary factor in the interpretation of agreements. According to H. Lauterpacht, in the interpretation of treaties, any considerations - effectiveness or inefficiency - which tend to turn certain intentions of the parties into a factor of secondary importance, are incompatible with the true purpose of interpretation. In fact, applying the principle of efficiency, the court does not replace the intentions of the parties and does not replace it with a third factor. Professor H. Lauterpacht, exploring the relationship between the principle of efficiency and the common intention of the treaty parties raises one of the most controversial and elusive issues of jurisprudence - the nature and limits of the judicial function. In his view, this function is largely to interpret the rule of law, regardless of the source in which it is set out. In the international sphere, the problem is complicated by the existence of a number of factors, such as the lack of common intention of the parties directly related to the subject matter of the dispute; international treaties or individual provisions are often a political substitute rather than a legal expression of the agreement of the parties.

ОСОБЛИВОСТІ ВЗАЄМОДІЇ ПРАВООХОРОННИХ ОРГАНІВ УКРАЇНИ З КРАЇНАМИ ЄС В УМОВАХ ВОЄННОГО СТАНУ

Peculiarities of the interaction of law enforcement agencies of Ukraine with the EU countries in the conditions of martial law. The aforementioned scientific article outlines the issues of ensuring the cooperation of law enforcement agencies of Ukraine with EU countries in conditions of martial law. The theoretical and practical interest in the study of the legal security of military security is primarily related to the socio-economic and geopolitical changes that have taken place around the world in recent years. In modern realities, Ukraine faces many problems, the solution of which is directly related to the identification and analysis of sources of real and potential threats to national interests. The purpose of this article is to study individual forms of cooperation between law enforcement agencies of the EU and Ukraine under martial law. The author comes to the conclusion that the effective functioning of pan-European cooperation of states in the field of expert forensic and operational investigative activities is possible under the condition of constructive and multifaceted cooperation of the Council of Europe and the European Union both at the institutional level of the specified international organizations and within the framework of the activities of individual structures. The practice of applying an arrest warrant, as one of the aspects of mutual recognition of court decisions in criminal cases, has successfully proven that cooperation in the field of justice and internal affairs along the lines of expert-criminological and operational-investigative activities is possible without the harmonization of criminal and criminal-procedural legislation of European states, as well as without the creation of a model pan-European criminal code. The successful application of the European arrest warrant also gave the EU the opportunity to move even further in the direction of mutual recognition of court decisions – to develop several European warrants, including warrants for witness statements and investigations. The European Investigation Warrant is a special mechanism for the execution of one or more investigative measures within the framework of the investigation of crimes in the requested state in order to obtain evidence. Separate legal instruments were integrated into a single normative act, which contributed to the process of codification and progressive development of international law and replaced the traditional system of providing legal aid in criminal cases. The European Union, using new legislative powers in the field of expert forensic and investigative activities, moved to adopt legally binding normative acts that do not require national ratification on the most urgent issues of ensuring security and law and order in the EU.

Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

Progressive Development of International Law in the Context of Contemporary Trends and Problems of Colonization of Mars as a Celestial Body

Progressive Development of International Law in the Context of Contemporary Trends and Problems of Colonization of Mars as a Celestial Body

Invocation of State Responsibility for Violation of Obligations Owed to the International Community as a Whole

The article discusses the features of the application of paragraph 1 (b) of Art. 48 of the Draft Articles on State Responsibility, developed by the UN International Law Commission and taken into consideration by the UN General Assembly by its resolution 56/83 of December 12, 2001. The norm of this article enshrines the right of any state that is not a victim to call to international legal responsibility state that has committed a breach of an obligation owed to the international community as a whole. This rule contributes to the establishment in modern international law of the ancient Roman theory of actio popularis, according to which any citizen could file a claim in the public interest. The UN International Law Commission is considering paragraph 1 (b) of Art. 48 of the 2001 Draft Articles on State Responsibility as a result of the progressive development of International Law. This is manifested primarily in a new approach to the interpretation of concepts such as “the international community as a whole” and “obligation owed to the international community as a whole”. The article notes that the concept of "the international community as a whole" should no longer be considered as a community of sovereign states, since it already presupposes a more active participation in maintaining international legitimacy of all participants of international relations – subjects of international law. In addition, attention is drawn to the fact that the concept of “obligation owed to the international community as a whole” is a new category proposed by the International Law Commission as a part of the progressive development of the theory of erga omnes and jus cogens norms. The author compares these types of obligations and points out a number of problems that may arise while interpreting this concept in order to apply this rule in practice.

SOVIET ORIGINS OF THE DOCTRINE OF INTERNATIONAL LAW IN MODERN RUSSIA

The purpose and objectives of this article are to define and characterize the Soviet origins of the doctrine of international law in modern Russia. Methodological approach. The work uses general scientific methods, as well as elements of comparative legal, historical and legal methods and the method of legal interpretation. Results and conclusions. The article reveals the Soviet origins of the Russian doctrine of international law, analyzes the Concept of National Security, the Concept of Russian Foreign Policy and the National Security Strategy of Russia, as a development and complement to the Soviet doctrine of international law-the core of the modern doctrine of international law of Russia, which largely corresponds to the generally recognized principles of international law established in the UN Charter. Originality and value. The article shows the historical significance of the Great October Socialist Revolution, the legislative activity of the Soviet government for the progressive development of international law, describes the first decrees, declarations and international treaties of the RSFSR, defines the role of the Soviet Union in the formation of the United Nations and the development of the fundamental principles of international law within the framework of this organization.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.

V.M.Koretsky at the United Nations. Codification and Progressive Development of International Law (To the 130th Anniversary of his Birth)

On the occasion of the 130th anniversary of the birth of Academician V. M.Koretsky his activity at the United Nations is highlighted, which covers the period 1946–1970 in its structures of the codification and progressive development of international law. These are bodies like the General Assembly, the Committee on Progressive Development of International Law and Its Codification, the International Law Commission, the Human Rights Commission and its Editorial committee for the preparation of the draft of the Universal Declaration of Human Rights. His participation in a number of international conferences held within the UN and also his work as a Judge of the UN International Court of Justice (1961–1970) are shown. The life path of the Scholar and the role in the creation of the Institute of State and Law of the National Academy of Sciences of Ukraine, which rightly bears his name, are traced. The comparison of the largest in the history of international relations codification and progressive development of international law, which carried out in conditions of raising legal awareness of the peoples in connection with the end of World War II and the creation of the United Nations, with the current period of instability in international relations threatening the peoples of World War III is made. The current state of international relations is characterized by the decline of authority of international law and the erosion of the international legal order established by the UN Charter as a consequence of the crisis of the liberal economy and related globalization of international relations

Analysis Of States’ Comments On International Law Commission’s Reports On Jus Cogens In Sixth Committee Of United Nations General Assembly

At its second session, in 1947, The International Law Commission was established by the General Assembly with a view to give effect to Article 13, paragraph 1(a), of the charter of the United Nations to “initiate studies and make recommendations for the purpose of encouraging the progressive development of International law and its codification. Since its inception the International Law Commission has pursued very focused research work and has presented many draft treaties on various topics of international law, which in the most cases have subsequently bec0me skeleton of many treaties passed by United Nations General Assembly. At any given point of time the International Law Commission is always working on some forthcoming proposed international conventions. As a matter of procedure the commission every year send a report of its’s work to the United nations General Assembly. These yearly reports of the commission are discussed in the legal committee of the General Assembly, which is famously known as Sixth Committee (Legal) of the United Nations General Assembly. In sixth committee meetings legal members of all States issue their statements expressing their country’s opinions on the Commission’s work on its various ongoing projects to formulate drafts for the proposed international treaties which would come in future. States generally express their view points on all such projects. A careful analysis of these Statements issued by the States’ in the Sixth Committee, can provide an insight in the inclination of the States toward such forthcoming treaties. The vocabulary which these legal diplomats use to express their country’s opinion can provide idea whether a country is positive and receptive for any particular international treaty or the country has antagonistic view point about a draft treaty. These Statements are very good for the purpose of research on international law. These provide a clear idea that what aspects related to an international law problem are weighing with which kind of countries. A careful analysis can show that how priorities of the country’s are different and sometime clashing on the basis their economic and military might, their historical experiences and geographical set-ups. In the present report nearly 200 students of UPES Law School (B.BA.LL.B. Corporate Law_ 2017 Batch (B1&B2) and B.Com.LL.B. Taxation Law_ 2017 Batch (B1&B2)) have analysed statements issued by the States in Sixth Committee in its four annual sessions (71st session to 74th session) where the annual reports of International Law Commission’s works related to four annual sessions of the commission were discussed. The students have focussed only on States’ comments on the commission’s work on proposed international convention on the Jus Cogens (Pre-emptory Norms of International law).

Report of the 7th forum of the African Union Commission on International Law / Rapport du 7e forum de la Commission de l’Union africaine sur le droit international

INTRODUCTION The African Union Commission on International Law (the AUCIL) was established as an advisory organ on the basis of Article 5(2) of the Constitutive Act of the African Union. On February 4, 2009 the Executive Council of the Union adopted the operational Statute of the AUCIL. The objectives of the AUCIL, inter alia, are to undertake activities relating to the codification and progressive development of international law on the African continent with special reference to the laws of the Union, including African customary law arising from the practice of Member States (Article 4(4)). Furthermore, the AUCIL shall cooperate and collaborate in the teaching, study and dissemination of International law and African Union law, with universities, institutions and other educational and research bodies, and lawyers’ associations (Article 9). For several years now, the AUCIL has held an annual Forum as a means to fulfill these goals. The AUCIL convened its 7th Forum on 10 and 11 December, 2018, at the African Union headquarters in Addis Ababa, Federal Democratic Republic of Ethiopia. The Theme for the Forum was, “MANAGEMENT OF AFRICA’S NATURAL RESOURCES’’. This theme was deliberated on the context of African Union Agenda 2063. Officers for the Seventh Forum were: Chairman of Forum: Hon Judge Ismael Abdi Hersi, Vice-Chairperson of AUCIL Rapporteur General of Forum: Hon Kathleen Quartey Ayensu, AUCIL Commissioner In attendance: Ag Executive Secretary, Dr Guy-Fleury Ntwari, and selected Attorneys from the Office of the Legal Counsel, African Union Commission.

Full access The International Law Commission’s Draft Articles on Transboundary Aquifers: striking the appropriate balance between sovereignty and international cooperation

Groundwater is a vital resource that is largely out of sight and out of mind. Activities worldwide are rapidly increasing the pressure on this important but invisible freshwater resource, causing widespread quantity depletion and quality degradation. To prevent a future water crisis, the International Law Commission’s 2008 Draft Articles on Transboundary Aquifers became the first global instrument to address the management of transboundary aquifers, whether hydrologically connected to a system of surface waters or not. This article examines the progressive development of international law through the Draft Articles and considers the balance struck between territorial sovereignty and international cooperation in the context of groundwater resources. Reflecting on the various approaches towards sovereignty over shared natural resources, the history and development of Draft Article 3 on sovereignty, and the obligations of international cooperation which purport to limit State sovereignty, this article concludes that the appropriate balance has been struck, reflecting the theory of limited territorial sovereignty with hints of the notion of a community of interest.

State Sovereignty in the Planetary Management of Natural Resources

Protagonists of global environmental governance often view the sovereign State as well as the principle of sovereignty as major stumbling blocks for effective environmental conservation and sustainable development. Some even herald the demise of the idea of the sovereign State. However, reality has it differently. Sovereignty is no longer an unqualified concept. Manifold new duties have been imposed upon the sovereign State as a result of the progressive development of international law. Much of the modern international law movement vests States with the responsibility to adopt regulations, to monitor and secure compliance and exercise justice in order to achieve its implementation, whereas supranational global environmental governance has remained notoriously weak. This article examines this proposition by reference to the environmental and developmental role of states in three landmark multilateral treaties: The United Nations Law of the Sea Convention (1982), the Convention on the Conservation of Biological Diversity (1992) and the Paris Agreement on climate change (2015). They demonstrate that sovereignty serves as a key organisational principle for the realization of global values, such as environmental conservation and sustainable development.