Relevant International Law Research Articles

Fulfiling the State duty to cooperate on the discharge of Fukushima nuclear contaminated water: Potential pathways

Given the far-reaching impact of the decades-long discharge of Fukushima nuclear contaminated water, Japan and States likely to be affected are unequivocally obligated to cooperate under the United Nations Convention on the Law of the Sea, nuclear safety conventions and relevant customary international law. The fulfilment of the duty to cooperate, however, encounters two primary challenges in practice: the intrinsic nature of the cooperation is discretionary, while the extrinsic form of the duty is polymorphic. Realising the two challenges that are yet to come, this paper contextualises the fulfilment of the duty to cooperate by proposing a three-dimensional cooperation as the potential pathways, namely bilateral communication, regional cooperative arrangement, and multilateral cooperation through competent international organisations. It makes inquiry into the feasibility and effectiveness of the cooperation based on the fundamental principle of good faith, and concludes that States should actively engage to strike a necessary balance between national interest and common interest to protect human health and the environment under this specific context.

Multidimensional Legal Research on the Transfer of Environmentally Sound Technologies in China

The transfer of environmentally sound technologies has always been the focus of controversy to combat global climate change. The essence of the transfer of environmentally sound technologies is the coordination of interests among regions, with the aim of mitigating and adapting to global climate change. The realization of environmentally sound technology transfer mainly reflects the game between control and freedom, the coordination of public interests and private interests, and the equilibrium theory of supply and demand. Faced with the current situation of weak laws on the transfer of environmentally sound technologies, it is suggested that China needs to establish and improve the relevant legal system from the four dimensions of technology transfer law, environmental law, intellectual property law, and investment law, improve the legal system to realize the transfer of environmentally sound technology, and strengthen the connection between China’s laws and relevant international law rules. At the same time, in order to improve the management mechanism of environmentally sound technology transfer, it is suggested that China should propose legal measures to optimize the institutional system of environmentally sound technology transfer from three dimensions, namely the state, social organizations, and individuals, and form a governance model of multi-actor cooperative management to promote the transfer of environmentally sound technology between China and other countries to achieve the goal of coping with climate change and to protect the global environment.

The Position of Religious Schools Under International Human Rights Law

This article considers the application of international human rights law to the employment of persons by Australian religious schools. In particular, it considers the claim, increasingly made in support of Australian domestic legislative reform, that the application of ‘inherent requirements’ tests to employees within religious schools appropriately gives effect to the requirements of international law. Part One observes that that law is found in two primary protections: the protection provided to religious schools as the collective manifestations of the religious beliefs of individuals, including parents and guardians, and the protection against discrimination. Part Two illustrates the domestic implications of these regimes by considering the human rights rationales offered by the governmental proponents of the Victorian Equal Opportunity (Religious Exceptions) Amendment Bill 2021. It concludes that the Equal Opportunity (Religious Exceptions) Amendment Act 2021(Vic) is an inadequate implementation of relevant international human rights law and that similar legislation in development in other States and the Commonwealth should be scrutinised carefully.

PROTECTIONS OF THE VICTIMS OF HUMAN TRAFFICKING UNDER THE PREVENTION AND SUPPRESSION OF HUMAN TRAFFICKING ACT, 2012

This study mainly focuses on the available protections for the victims of human trafficking provided by the Prevention and Suppression of Human Trafficking Act, 2012 of Bangladesh. Because, human trafficking victims in most of the cases remain with vulnerable condition and in highly need of urgent protection for their survival. Bangladesh, as a member of international community has taken initiative by legislating anti-human trafficking Act 2012 for combating this heinous offence. The researcher further critically analyses the loopholes in the provisions of the Act related with protection of victims, in line with international standard and concerned literature. Furthermore, the paper explores several findings and suggests possible way out for boosting the existing anti-human trafficking Act of the country. The aim of this paper is to enhance the protection mechanisms for the victims through analyzing and examining the available protection provided by the above Act. It further aims to address the learners, researchers and policy makers to pay more attention in this issue to protect the misfortune section of the citizen of Bangladesh. The possible outcome of this paper is that it comes across several gaps inside the Act which are requiring to be reconsidered and amended the law. This is purely a doctrinal research and entails qualitative phenomena. Hence, researcher consults with the specific law mentioned above along with relevant international laws on human trafficking and their protections. In addition, researcher examines the scholarly works, articles, reports on human trafficking in Bangladesh to achieve the objectives of this paper.

Regulating a ‘state of exception’ in Times of War: The Legal Regime Applicable to Derogation in Situations of Armed Conflict

Abstract An armed conflict is one of the severest forms of ‘public emergency’, the very condition to activate the derogation regime of international human rights law. There is indeed no greater threat to the very survival of a nation to warrant the suspension of human rights than an armed conflict. However, while adopting the relevant international humanitarian law (IHL) treaties, states have bound themselves ‘to respect and ensure the respect for’ the norms enshrined therein, regardless of the urgency and exceptional challenges that they may face as a result of an armed conflict. As such, derogation from the baseline rules in those treaties is, in principle, not permissible by making reference to the existence of military necessity or the general state of armed conflict. Notwithstanding this, some provisions in the various IHL treaties exceptionally envisage the possibility of derogation from the rights and privileges of a particular group of victims of armed conflict for security reasons. One of such provisions is Article 5 of the Fourth Geneva Conventions (GC IV), which explicitly allows derogation both within a state’s own and occupied territories. Similar other provisions, albeit some without express mentioning of derogation, can also be found in the Four Geneva Conventions (1949) and their Additional Protocols of 1977. Nonetheless, there is a common thread that runs through these provisions, that is, a state’s power of derogation is limited by strict legal constraints. This essay aims at illustrating these normative restrictions by fleshing out the limits placed upon states’ ability to suspend the rights and freedoms of some individual victims of armed conflict, using Article 5 of GC IV as a reference point. It is argued that while derogation from some norms of IHL is exceptionally possible and lawful, any derogation measure should comply with some procedural and substantive requirements and remain justified throughout its duration. No exceptional circumstance, whether the exigencies of military necessity or the protection of national security, can be invoked to dispense with such requirements.

A ‘Right to Nutrition’ in its Social, Legal, and Political Context: How International Human Rights Translate to Zambian Realities

Abstract Every country has populations that are affected by malnutrition, and one third of all people in the world are malnourished. Among approaches to addressing malnutrition, the language of human rights is notably present in international nutrition discourse and national policy and covenants, but the conceptualization, implications and utility of human rights for nutrition practice are contested. This empirical research explores how the utility of a ‘right to nutrition’ is perceived by different actors, and how differences in interpretation affect its potential for reducing malnutrition. In undertaking this qualitative case-study, we apply socio-legal, critical development studies, and political science approaches to compare and contrast written documents and stated viewpoints, across actors in different sectors and levels from global to local, with a focus on Zambia. Human rights are clearly integrated with ideas of nutrition in written documents across levels, but these are largely rhetorical devices providing moral leverage and guiding language, not clearly directing action. Zambia has domesticated relevant international human rights law and has recent case law implicitly underpinning a right to nutrition; using the law brings a strengthening of policy, but also a narrowing of focus in terms of populations covered and issues justiciable. Views on what a right to nutrition means in practice are contested, with a lack of citizen’s rights education limiting participation, and a lack of clear norms on who should be doing what scattering accountability. Our research demonstrates that there are three distinct aspects to a rights-based approach—rhetorical, legal and practical—but that these generally act in silos. We argue that explicitly acknowledging these three functions of human rights is an important first step if a right to nutrition is desired; and explicitly addressing these aspects in combination and in context is fundamental to a coherent rights-based approach to nutrition.

Situating children in divorce mediation in South Africa and Australia: A comparative study

This study focuses on situating children in divorce mediation in South Africa and Australia. This study investigates how South Africa and Australia have domesticated and are implementing relevant international laws and policies that allows hearing the voices of children in divorce mediation. This study found that South Africa and Australia do not have specific legislation that provides hearing in the child's voice in divorce mediation. However, the Australian government funds on-going research to improve the hearing of a child's voice in divorce mediation. Aided by government funding, Australia has developed unique techniques to listen to the child's voice during divorce mediation. The special priority afforded to children’s rights in South Africa and Australia is justified under the Capabilities approach cost-effectiveness principle because it prevents a spiralling need for state intervention later in the lives of its citizens. Some of the techniques used by the Australian government go beyond the requirements of the UNCRC and ACRWC. For example, some FRCs employ technology to screen for child abuse before hearing a child's voice in divorce mediation. Like the Office of the Family Advocate in South Africa, FRCs use a teamwork approach where child consultants and mediators work together to listen to the child's voice during divorce mediation.

Fragmented International Law and Uncertainties Related to Dual Use Space Technology

If an attack is ever carried out on an outer space object, it will require the relevant international law to be referenced. This includes the laws concerning international humanitarian law, international space law, and general international law. However, present legal frameworks are insufficient to provide a clear answer to which outer space may be utilized for military purposes. In this context, the advancement of space with dual applications presents a more complex situation for the application of laws. Attacks on the ground-based space systems or strikes on space-based assets are not fully covered by either international law or the IHL. The potential responses of the current legal frameworks to dealing with space weapons and dual-use technology are limited. This paper aims to explore how international law deals with the use of force in space. It focuses on the limited scope of the law dealing with dual-use technologies and space weapons.

Force Majeure and Investment Arbitration

Abstract This article addresses force majeure in international investment arbitration as it interacts with relevant domestic, commercial and international laws. As a classic excuse for non-performance of obligations in most domestic legal systems and a ‘general principle of law’, force majeure is also widely accepted in public international law as a ground for precluding wrongfulness of the acts of State under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). In investment arbitration practice, force majeure has been invoked to justify non-performance of contractual obligations or treaty obligations. For the former, the contractual force majeure clause is crucial, while for the latter, investment treaty tribunals tended to refer to ARSIWA Article 23 on force majeure. The case law has demonstrated that the conditions for the invocation of force majeure as a circumstance precluding wrongfulness under the ARSIWA are much narrower and stricter than the conditions set for invoking force majeure in the context of contract or commercial law. The article argues that the different standards applied by treaty and contract arbitration tribunals are rooted in the distinct systems of applicable law, which traditionally did not cause many problems or attract much attention. With the increasingly blurred boundaries between domestic and international, private and public laws, the legitimacy and sustainability of such conventional distinction might demand reconsideration. It suggests to explore a more consistent interpretation and application of force majeure claims under the two legal systems, and one way forward is to allow more flexibility in the interpretation and application of ARSIWA so that the international rules on force majeure could be better aligned with force majeure under commercial law.

Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?

This article examines the relevant international law associated with genocide and hate speech and examines whether there are any legal grounds to hold a corporation liable for how people chose to use its product or service in relation to human rights violations. The analysis begins with a brief overview of international criminal and human rights law, relevant treaties, jurisdictional issues, and the legal theories of corporate criminal liability and complicity. Because current international law provides no clear answer, this article proposes that international courts use a balancing test which evaluates a non-exclusive list of ten main factors.

Prosecuting Human Violations Committed in the Anglophone Cameroon Crisis: A Disquisition on the Legal Framework

The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's ʺdemocraciesʺ which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis.

Prosecuting Human Violations Committed in the Anglophone Cameroon Crisis: A Disquisition on the Legal Framework

The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's ʺdemocraciesʺ which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis.

Notes: State liability in respect of a child negligently injured at an early childhood development centre: A critical assessment of BE obo JE v MEC for Social Development, Western Cape

This case note compares the judgments of the Western Cape High Court, the Supreme Court of Appeal and the Constitutional Court in BE on behalf of JE v MEC for Social Development, Western Cape. It suggests that the conclusion reached by the Western Cape High Court was not only the better decision in terms of a just outcome, but also the right decision when weighing the facts against the applicable statutory framework and case law, including the relevant international law. Furthermore, the case note submits that the approaches of the two higher courts to the wrong fulness inquiry were not in line with a children’s-rights approach and did not consider the state’s duty under international law to protect children’s rights, including the child’s right to play in a safe environment and to education, inclusive of the period from early childhood to birth.

The European Court of Human Rights’ Engagement with International Human Rights Instruments: Looking at the Cases of Domestic Violence

In its recent jurisprudence on domestic violence, the European Court of Human Rights started to examine the domestic violence cases in the light of relevant international human rights law developed in this specific area. This article examines the engagement of the European Court of Human Rights with other international and regional human rights instruments in domestic violence cases. Upon examination, the article concludes that by integrating its case law into international human rights law the European Court of Human Rights broadens the scope of protection for domestic violence victims and maintains the unity of international law.

Legal Guarantees for the Safety of China’s Offshore Oil and Gas Facilities: Status, Defects and Countermeasures

Abstract The safety of offshore oil and gas facilities is a deep concern in relation to the security of China’s fossil energy supply. At present, there are a series of international law protection systems with the offshore facility safety zone system as the core. Most of world’s major maritime countries have established offshore oil and gas facilities protection systems in the form of domestic legislation in accordance with relevant international law, and some of them have adopted measures expanding the scope of their safety zones to strengthen protection. However, there remain some defects in the existing international law system. Therefore, the Chinese government needs to promptly clarify its position on issues related to the offshore facilities safety zone system, and propose the formulation of a specialised convention.

LEGAL CAPACITY OF PARTIES WITH INTELLECTUAL, PSYCHO-SOCIAL AND COMMUNICATION DISABILITIES IN TRADITIONAL COURTS IN KWAZULU-NATAL

According to the Committee on the Rights of Persons with Disabilities, article 12 of the Convention on the Rights of Persons with Disabilities specifies that all people everywhere have a right to equal recognition before the law and that there are no circumstances in which this right may be limited. However, General Comment 1 of the CRPD Committee indicates that globally persons with cognitive and psychosocial disabilities are frequently denied legal capacity. This article sets out to explore the current situation and legal imperatives regarding the legal capacity of persons with intellectual, psycho-social or communication disabilities in traditional courts in KwaZulu-Natal. Traditional courts operate in some rural areas of South Africa and are presided over by a chief and a traditional council. These traditional courts are the closest and cheapest dispute resolution forum in rural areas and utilise restorative justice principles. The legal test for mental and legal capacity in formal courts is not applied in traditional courts. This article reports on research conducted by an NGO in KwaZulu-Natal that found evidence of negative attitudes and a lack of knowledge regarding accessibility and reasonable accommodation among traditional leaders. In these courts, persons with disabilities are not accepted as equal before the law. In some proceedings in traditional courts, an adult with a disability (male or female) is treated as a minor and is required to be represented by a parent or a male member of the family without a disability. A short summary of pertinent aspects of the Traditional Courts Bill indicates the scope for improvement in relation to full participation and equality before the law. We submit that South Africa’s implementation of the relevant international and regional law obligations under the CRPD and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities is found wanting, including a lack of appropriate training of traditional court personnel and a lack of awareness of the equal recognition of legal capacity among families supporting persons with disabilities.

The Italian Legislature and International and EU Obligations of Domestic Criminalisation

Abstract This article explores the nature and content of international and EU obligations to adopt certain criminal domestic legislation, and the impact that they have on the Italian legislature. In light of relevant international, EU, and domestic law provisions, the article investigates what is required of Italy to implement obligations of domestic criminalisation. It is argued that the Italian legislature is bound to implement obligations of domestic criminalisation both under international law and the Italian constitutional law. The article ends with an overview of the legal consequences that Italy may face for failure to implement international and EU obligations of domestic criminalisation.

The impact of government regulation and surveillance of information communication technologies

As human lives transition online, so do human rights. The main challenge for the world and other actors is to transition all human rights to the digital sphere. This paper argues that the human rights-based approach can be helpful in focusing discussions about security on individuals rather than states. This article provides an overview of countries and companies that pose risks to human rights in the digital sphere and development of information communication technologies. It lists the most relevant international laws and standards, technical standards, business guidelines, Internet principles and policy initiatives that have been crucial in transitioning the human rights regime to the digital sphere.

Primjena regulative Brisel II bis na ostvarivanje prava na kontakt sa djetetom šireg porodičnog kruga lica

In this paper, the author explores the sources of European Union Law that regulate one segment of parental responsibility - the right of access to a child. The focal point of research is the transition from the conventional (interstate) regulation of judicial cooperation in marital disputes and parental responsibility issues to the regulation enacted by the European Union institutions, with specific reference to the Brussels II bis Regulation. First, the author briefly points out to its relationship with other relevant international law sources regulating this subject matter: the Hague Convention on the Civil Aspects of International Child Abduction; the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in the Field of Parental Responsibility and Measures for the Protection of Children; and other international sources of law. Then, the author examines in more detail its relationship with the Brussels II bis recast Regulation, which will be applicable as of 1 August 2022. In addition, the paper includes an analysis of the first case in which the Court of Justice of the European Union (CJEU) decided on the application of the Brussels II bis Regulation, at the request of granparents to exercise the right of access to the child. On the issue of determining the competent court which has jurisdiction to decide on how this right shall be exercised, the CJEU had to decide whether the competent court is determined on the basis of the Brussels II bis Regulation or on the basis of national Private International Law rules. This paper is useful for the professional and scientific community because it deals (inter alia) with the issue of justification of adopting a special source of law at the EU level, which would regulate the issue of mutual enforcement of court decisions on the right of access to the child. This legal solution was proposed by the Republic of France, primarily guided by the fundamental right of the child to have contact with both parents.

Liability for Transboundary Damage of Genetically Modified Organisms: Existing Patterns and Application

Normative analysis found that for the application of liability for transboundary damage to genetically modified organisms, there are currently three liability patterns: traditional state liability, private law liability, and liability for transboundary damage. It will not be an effective solution to the problem of penalty for damages, if the above liability patterns apply to transboundary damage of genetically modified organisms separately. And this approach is inconsistent with the legal principles of relevant international law and judicial practice. So this article uses method of legal interpretation to analyze and interpret the provisions of Convention on Biological Diversity, The Cartagena Protocol on Biosafety and The Nagoya-Kuala Lumpur Supplementary Protocol to clarify the true meaning of the provisions in depth, and eliminate errors and omissions. At the same time, this article uses the method of theoretical analysis to analyze the existing liability patterns. Finally, we found, the principle of timely and adequate compensation for victims should be implemented in complex realities, and genetically modified damage should be dealt with and in accordance with the attributes of damage, causation and other factors. According to these factors, we will divide transboundary damage of genetically modified organisms into three types: intentional transboundary movement, unintentional transboundary movement and illegal transboundary movement. To divide the transboundary damage to genetically modified organisms and apply different liability patterns according to different situations should be the best approach.