State Responsibility Research Articles

Tanggung Jawab Negara Terhadap Pengungsi Dan Pengaruhnya Bagi Hubungan Diplomatik, Perspektif Konvensi Wina 1961

Introduction: The Afghan government's pro-Western policies and secular ideologies caused a strong reaction from radical groups who wanted to establish a new Afghan government, resulting in a civil war in Afghanistan.Purposes of the Research: The purpose of this study is to examine and discuss the implementation of state responsibilities and their impact on Afghan refugees in Indonesia for diplomatic relations, from the perspective of the 1961 Vienna Convention.Methods of the Research: This research is based on the normative legal research method which is also known as library research. The approach used is a conceptual approach, a statutory approach, and a case approach. The procedure for collecting legal materials is carried out by studying and analyzing library materials in relation to literature, conventions, and laws. Processing and analysis of legal materials is carried out by examining, researching, and compiling legal materials in an orderly and logical manner to ensure the completeness of legal materials so that they can be interpreted.Results of the Research: Based on the results of research on state responsibility for refugees and its effect on diplomatic relations, the perspective of the 1961 Vienna Convention. The principle of state sovereignty in international relations has a very large influence on the right of a country to control a government territory, society or over itself so that in practice it is against refugees a state is negligent or violates what is required by international law, namely in providing protection, promotion and respect for human rights based on a treaty and customary international law. As an example; there are several countries that are parties to the 1951 Convention, act to receive and provide protection, expel and return refugees to other places or to their countries of origin where these actions have violated the Non-Refoulement Principle Article 33 paragraph 3 which is basically related to the principle of protecting human rights. Meanwhile, there are also countries that, although not participants in the 1951 Convention, accept and make laws and regulations that apply to refugees to ensure the protection of human rights that refugees do not get because of conflicts that occur in their place or country of origin.

Multilateral Debt Relief for Clean Ocean Energy

As states bring more and more offshore wind online and build renewable energy capacity, the promise of large-scale ocean renewables such as offshore wind is not shared equally across all coastal states. This paper examines the situation of coastal states identified by the World Bank as Heavily Indebted Poor Countries (HIPCs) in the context of the boom in offshore wind investment. Specifically, the paper looks at the limited access to renewable energy production exacerbated by ongoing public debt loads, and the almost complete lack of access to clean ocean energy development for the poorest coastal states. Using statistics from the International Renewable Energy Agency and datasets from the Our World in Data project, this paper highlights that the most indebted coastal states only have access to 0.69% of the available renewable energy even though these states represent 4.6% of the global population. In the context of state responsibility for failing to meet climate obligations under the UNFCCC, this paper argues that a sovereign debt relief package offers an equitable remedy to HIPC coastal states, many of whom owe a substantial portion of their GDP as external public debt. The debt service payments would be invested in the upfront capital costs of ocean-based clean energy. These types of debt relief arrangements address international state responsibility and offer the dual co-benefits of long-term economic development and low-carbon sustainability.

BRAZILIAN INCLUSION LAW AND THE MARRAKESH TREATY: GUARANTEES OF ACCESSIBILITY TO BOOKS FOR PEOPLE WITH VISUAL IMPAIRMENTS

This study addresses the issue of limited access to literature for people with visual impairments, focusing on the analysis of the relevant legal provisions. The objective is to examine the barriers faced by people with blindness and low vision when seeking works in accessible formats. In this context, we highlight the importance of aligning Brazilian copyright legislation with the Brazilian Inclusion Law and the Marrakesh Treaty. We argue that it is the State's responsibility to develop public policies that ensure accessibility in various sectors, including the cultural sector, in order to guarantee the equality of rights stipulated by these legal frameworks.

Could Necroleachate Be the Cemetery's Sewage? A Panorama from Brazilian Legislation.

Cemeteries can be compared to landfills, as the leachate produced in these areas, also known as necroleachate, can be environmentally transported, polluting groundwater, surface water, and soil. In Brazil, to ensure no negative environmental impacts and public health risks, cemetery management is the responsibility of states and municipalities. In this context, this article aims to discuss Brazilian sanitary-environmental legislation concerning cemetery waste management. Only half of all Brazilian states have established sanitary-environmental cemetery legislation, and only 19 municipalities have specific laws. These laws, however, are broad and contain many gaps. Necroleachate care and control require both sanitary and environmental assessments to avoid environmental vulnerability and contamination risks for populations inhabiting surrounding areas. In this regard, new water analysis parameters in environmentally vulnerable areas should be established to control the population's drinking water quality, such as the detection of C. perfringens. Furthermore, the construction of vertical cemeteries instead of horizontal ones and the adoption of cremation procedures should also be considered. This assessment comprises a novel research framework, as no studies on the impact of Brazilian laws on environmental necroleachate contamination are available to date.

The Geopolitics in the Global Compacts: Sovereignty, Emerging Norms, and Hypocrisy in Global Migration Governance

ABSTRACT The Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCM) were adopted by the UN General Assembly in 2018. After nearly five years, it is time for a critical reflection on the geopolitical interests that motivated the negotiations, agreements, and implementation. The purpose of this special issue was to critically examine how states used the Global Compacts to achieve their strategic interests using migration diplomacy. Each article attempts to question and problematise the assumptions, logics, and rhetoric put forward in the Global Compacts and resulting implementation by states and international organisations. The special issue also highlights the emerging norm of state responsibility for well-managed migration within the Global Compacts, and the notable silences around non-refoulement, internal displacement, and climate migration. The authors in this special issue worked to understand the gaps, hypocrisy, and contradictions in the implementation, now five years after the adoption of the Global Compacts. This introduction article lays out the driving questions for the special issue, along with our main themes, concepts, and contributions.

Perlindungan Hukum Terhadap Warga Negara Asing dalam Perspektif Hukum Internasional

Residents of a country are citizens and non-citizens. People who are not citizens are called foreigners. The determination of whether a resident is a citizen or not is regulated by the national laws of each country. National laws determine who is a citizen. country. Regardless of his status as a citizen or foreigner, he is a subject of international law, has rights and obligations based on international law in a limited sense. In this limited sense, in contrast to the definition of states as subjects of international law in the full sense, when considering the issue of international legal protection of foreigners, an academic approach to the theory and practice of international courts is used. A foreigner has the right to equal protection under the laws of the country in which he resides reside and are also entitled to certain rights to opportunities for a decent life, as regulated in Article 9 of the Montevideo Convention of 1933 which reads: "Citizens and foreigners are equally protected by law and neither national authorities nor foreigners can claim rights other than or higher than the rights of citizens. Based on the opinions of international law experts, we will know the legal principles and theories relating to the position of individuals as subjects of international law. The principle of citizenship is the main basis for implementing the principles of state authority and responsibility towards citizens and foreigners

Pendampingan Pos Bantuan Hukum (POSBAKUM) Kepada Masyarakat Kurang Mampu Dalam Konteks Equality Before The Law Di Pengadilan Agama Kabupaten Jember

The presence of the Legal Aid Post (Posbakum) is generally referred to as a major invasion, representing a development of the previous government's legal aid policies. Its existence reflects Indonesia's lawful state responsibilities. The Supreme Court (MA) established Posbakum in all courts of first instance that provide legal aid services, including General Courts, Religious Courts, and State Administrative Courts. This service activity was carried out at the Jember Religious Court with the goal of providing knowledge and understanding to the people of Jember Regency, particularly the less fortunate, so that they are more aware of the Jember Religious Court's legal aid facilities, which can assist in filing or handling cases and ensuring equality before the law.

Some Legal Aspects of Western Military Aid to Ukraine

The article deals with the some legal aspects of Western military aid to Ukraine. The first part briefly analyzes the Russian Federation's attack on Ukraine from a "just war" perspective. The following part is devoted to individual perspectives of different branches of international law on military aid to Ukraine - the law of neutrality, ius ad bellum, ius in bello, issues of co-belligerency and state responsibility for complicity in internationally illegal actions. The conclusion summarizes the findings and gives an answer to the question why Western aid to Ukraine mostly does not violate the norms of international law.

International Liability for Violation of “WTO Rights”: Functions of the WTO Dispute Settlement Body

Introduction. The article discusses the theoretical and practical features of the content of the rules on liability and their application by the Dispute Settlement Body of the World Trade Organization. Theoretical Basis. Methods. The theoretical basis was scientific developments in domestic and foreign doctrines concerning the responsibility of states and organizations under general international law and “WTO law”, which are of fundamental importance for the subject of analysis in the present. Among them are the works of Russian specialists – L. P. Anufrieva, D. S. Boklan, G. M. Kalachigin, A. Ya. Kapustin, Ya. S. Kozheurov, I. V. Rachkov, M. Trunk-Fedorova and others, as well as foreign authors – G. Arangio-Ruiz, J. Gomul, J. Pauvelin, D. Jackson, J. Crawford, E. W. Pietersmann and others. In preparing the article, such general scientific methods of cognition as systemic and structural analysis, synthesis, deduction, induction, analogy, formal logic, and private scientific special research methods were used: historical-legal, comparative-legal, formal-legal. Results. As a result of the analysis: a) a hypothesis is put forward about the existence of two “autonomous” (special treaty) regimes: the actual “WTO rights” in relation to general international law, on the one hand, and “responsibility in WTO law” as lex specialis in its relationship with the rules on liability in international law in general (lex generalis), on the other; b) a fundamental feature of the approach to international responsibility in the “WTO law” in the case of the use by its members of measures that do not comply with the norms of the “package” of WTO agreements, as opposed to how this happens when applying the “classical” positions of the law of responsibility in general international law with its inherent wrongful conduct, the basis of wrongfulness is the use of the presumption of “cancellation or reduction of benefits”. In light of this, complete disregard for the concept of “responsibility for violating WTO law” does not seem rational, bearing in mind that one way or another the term “inappropriate measure” is made dependent on the assessment of the behavior of subjects - in accordance with or not in accordance with WTO law; c) proposals are made to introduce into the Arrangement on Rules and Procedures Governing Dispute Resolution (hereinafter referred to as the ADR), provisions on “restrictive measures” to be applied to violators. This is especially important in the current period, when under the conditions of “sanctions pressure” against Russia, including from the side of the WTO member states, an unjustified asymmetry is being created: bypassing the fundamental principles of “WTO law”, the main foundations of international trade, declared throughout the the last decades, and as a rule, there is no question of responsibility for “wrongfulness”, i. e., “violation of the WTO law”, in the literal legal interpretation; d) in view of the clearly ongoing crisis in the WTO dispute resolution system due to failures in the work of the Appellate Body as its principal link, an appropriate interpretation of the WTO DRS is proposed in direct connection with the provisions of the Marrakesh Agreement in order to change the tools for electing members of the Appellate Body of the Resolution Body WTO disputes - not by consensus, but by voting. Discussion and Conclusion. In order to draw attention to the issues of the functioning of the WTO as a multilateral trading system that needs to ensure stability, sustainability and liberalization of the regulation of interstate trade relations, the article, in the course of analyzing the problems of international responsibility, gives a definition of the concept of “responsibility in WTO law”, and also proposes for discussion the introduction of some additional provisions, both relating to general approaches to said liability, and relating to non-enforcement of decisions of the Dispute Settlement Body.

Liability issues for environmental damage caused by military aggression of a terrorist country

The article focuses on the issues of liability for environmental damage caused by the military aggression of a terrorist country. The subject matter of the study is the impact of the consequences of military aggression against Ukraine on the state of its natural resources, the legal characterisation of these consequences in terms of liability and issues related to compensation for the damage caused. The purpose of the study is to outline the problems arising in the course of legal determination of the possibility of bringing a terrorist country which deliberately destroys natural resources to legal liability, and the difficulties arising in determining the extent of environmental damage caused. The research methods used, in particular, logical-semantic and dialectical, made it possible to consider the main features of the concept of “ecocide” as a crime against humanity and its direct connection with the genocide of the Ukrainian people.
 The relevance of the topic is due to the fact that the negative environmental consequences of hostilities violate the norms of both Ukrainian and international law and have all the signs of ecocide, which is currently considered a crime exclusively at the level of national legislation. It has been concluded that it is possible to ensure the responsibility of the aggressor State for environmental damage through the establishment of a special international tribunal. The factors that make it difficult to determine the amount of environmental damage caused in order to ensure its further compensation have also been identified. These factors include: a significant area of damage; species diversity of natural resources that were damaged (soils, subsoil, water bodies, atmospheric air, flora and fauna, territories and objects of the nature reserve fund); the connection of natural resources, which contributes to the spread of negative effects on the environment; the international nature of environmental damage; the long-term consequences of environmental damage; the fact that it is impossible for state authorities and civil society activists to record the full extent of the negative environmental impact of hostilities due to the existing danger.
 A conclusion has been made that it is necessary to take these factors into account when developing terminology for environmental damage caused by military actions. It has also been proposed to take a number of practical measures aimed at ensuring compensation for environmental damage, in particular: to recognise the fact of environmental terrorism as part of ecocide, which is combined with genocide of the Ukrainian people, at the national and international levels; to introduce a system of continuous monitoring and recording of the damage identified; to develop methods for assessing the impact of terrorist actions on the state of each individual natural resource, taking into account the possibility, necessary means and expected timeframe for restoration to a state suitable for their intended use; to apply political and economic levers based on international law to ensure compensation for environmental damage caused by a terrorist country.

FROM THE SECTORAL ANGLE TO THE GENERAL RULES OR HOW THE CONVENTION ON INTERNATIONAL LIABILITY FOR DAMAGES CAUSED BY SPACE OBJECTS INFLUENCED THE DEVELOPMENT OF THE INTERNATIONAL LAW OF STATE RESPONSIBILITY AND LIABILITY?

This article discusses the impact the 1972 Liability Convention exerted upon the further discussion on state responsibility and liability rules within the UN International Law Commission. The question it seeks to answer is the issue of how, and to what extent, its provisions influenced the development of international law on the responsibility of states and international organizations and the institution of international liability of states. Most notably, the present article demonstrates how the Liability Convention served as a reference point for the International Law Commission’s works struggling to codify the general rules of states’ liability. It also examines the factors that, from the mid- 1990s onward, have steadily diminished its role in the ongoing debate and how it finally informed the final shape of the 2006 Draft principles on the allocation of loss in the case of transboundary harm arising from hazardous activities. Furthermore, it analyses the 2001 Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the 2011 Articles on Responsibility of International Organizations (ARIO). With this in mind, it is put forward that the differences mandate strict differentiation between international responsibility and international liability at the theoretical level. Nonetheless, the Liability Convention could furnish patterns based on which, notably, the institution of joint and several responsibility of states and international organizations, respectively, have been modelled. Therefore, it is concluded that the lex specialis and the self-contained character of the regime established under this Convention effectively limit its impact on the development of international regimes of responsibility and liability of states and international organizations. However, they do not eliminate them altogether. Ironically, in practical terms, the Convention marked the 2001 ARSIWA and, indirectly, the 2011 ARIO more decisively than the 2006 Draft Principles, even though the Convention – similar to the DP 2006 – addresses states’ liability, not their responsibility.

THE CONCEPT OF LONG – TERM SUSTAINABILITY OF OUTER SPACE ACTIVITIES AND THE INTERNATIONAL RESPONSIBILITY OF STATES FOR SPACE ACTIVITIES

The concept of long-term sustainability of outer space activities is based on rational assumptions regarding outer space as a limited resource, which will inevitably shrink in the long term if States do not take appropriate preventive measures. The arguments for this are all the stronger as it concerns a real threat to the safety of space operations, and what is more, to their continuation in the future. The legal status of outer space determines the responsibility of States for the activities of both governmental and non-governmental entities. The UN COPUOS Guidelines for the Long-term Sustainability of Outer Space Activities strongly remind of this. This is an important element of this document, which should be considered not only in the context of liability for damage caused as a result of space activities, but also in the context of liability for violating the principles adopted in the key treaty of international space law, which is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 27 January 1967. The main purpose of this article is to present the assumptions of the concept and, in their light, to refer to its structural treaty connotations in the field of generally recognized international responsibility of the State for space activities. The study is also intended to show workable solutions adopted in national law that implement the COPUOS Guidelines, as a necessary and inevitable direction of national activity of countries wanting to explore and use outer space safely and responsibly.

INSTITUTE OF EXPROPRIATION OF FOREIGN PROPERTY: DE FACTO & DE JURE

Not only Russian, but also foreign modern legal science bypasses the issue of the legal nature of the state’s right to expropriate private property. Its limits and limitations are unclear, as are the guarantees of the right to private property. In most cases, the right to expropriate is perceived as a given and the prerogative of the state. However, it is quite obvious that the principle of the certainty of law presupposes the normative clarity of the regimes and types of expropriation, the conditions for its implementation in relation to other restrictions and methods for the forced termination of the right to private property. In conditions of high turbulence in international relations, the question of the correlation between the norms of international, private international and national (domestic) law in determining the mechanism and legal regime of expropriation is especially relevant. Discussions on the relationship between the legal mechanisms of expropriation and nationalization, on the denition of criteria and the very legal nature of the compensation due to a private owner during expropriation do not leave the agenda. Particularly acute is the question of the grounds and forms of international responsibility of states exercising the right to expropriation, both in violation of the general norms and principles of international law, and special in relation to expropriation in relation to the interests and rights of private owners. The attention of the author is focused on this issue in connection with the emerging negative trends in the development of lawmaking in this area, not only at the national, but also at the international level.

Analysis of Green Liability on Environmental Damage--State Responsibility in International Investment Law

Long before the birth of international environmental law, disputes over transboundary environmental damage have long existed in global trade and investment. Since the promulgation of the Rio Declaration on Environment and Development, with the arrival of the Period of Liberalization in international investment, the environmental issues involved in cross-border investment have skyrocketed, and international judicial bodies such as the International Court of Justice and the International Tribunal for the Law of the Sea have adjudicated a number of disputes over transboundary environmental damage. These post-Rio transboundary environmental damage disputes are characterized by complex afflictions, wide scope and serious damage. At this stage of adjudication, international judicial institutions have not developed relatively stable standards, principles and systems for ex post facto remedies for transboundary environmental damage. From the perspective of state responsibility, this paper analyzes the issue of transboundary environmental damage theoretically and practically, and explores the attribution, standards, and requirements of responsibility for cross-border environmental damage arising from international investment and the formation of the ex post facto remedy system, in order to provide reference for the establishment of a more sound and refined remedy mechanism of transboundary environmental damage in future international investment practice.

Child Trafficking in Africa: Reimagining the Problem

Current perspectives on the intractability of child trafficking in Africa considers the problem as a failure of law enforcement or a lack of political will by state actors. In response, these works tend to suggest the need for strengthened institutional mechanisms as a preventative measure to curb the problem. We contend however, that this perspective does not fully appreciate the seeming detachment of civil society in Africa regarding the plight of children. In light of this, we argue that an examination of child trafficking as an intractable human rights problem ought to first, interrogate how childhood is viewed in the continent. Such interrogation creates the possibility of reimagining the problem by observing the lived realities of children in Africa and the (in)ability of society to keep track with their humanity. Further, we propose the need to memorialize the harms that children in Africa have been exposed to in the past and present through commemorative markers, as a means of appreciating the precarity of childhood in the continent. We reason that doing so will create a stronger sense of responsibility for state and civil society towards children and potentially curb child trafficking.

Vulnerability, Care Ethics and the Protection of Socioeconomic Rights via Article 3 ECHR

Abstract Vulnerability analysis serves a distinct purpose within adjudication of Article 3 of the European Convention of Human Rights ('ECHR'), in that it has been used by the European Court of Human Rights (‘ECtHR’ or ‘the Court’) to lower the threshold for a finding of ill-treatment from which positive obligations relating to socioeconomic rights have arisen. However, the group-based notion of vulnerability invoked by the Court is extremely limited, producing minimal protection from deprivation whilst equally paternalizing and essentializing the populations it deems vulnerable. In light of these failings, this article proposes a new element to be incorporated within the Court’s vulnerability analysis which can deliver greater protection of socioeconomic rights via Article 3: the political theory of care. By highlighting care’s potential to transform the concepts of vulnerability and state responsibility whilst empowering the care-receiver, it argues that care can overcome the limitations of the Court’s current approach as a means of targeting destitution.

Contested Actors around the Initiation of a Non-Judicial Settlement Mechanism for Past Gross Human Rights Violations: A Socio-Legal Study of the PPHAM Team

The PPHAM Team (Non-Judicial Resolution of Past Gross Human Rights Violations) was initiated by the Jokowi-Ma'ruf administration as an alternative settlement mechanism for Past Gross Violations of Human Rights through the issuance of Presidential Decree Number 17/2022 (Keppres 17/2022). From this context, the establishment of the policy was criticized and rejected by civil society organizations (CSOs) and the Victims. This was because the PPHAM Team was deemed a measure of State responsibility “hand-washing” and an indication of impunity preservation. Therefore, this study aimed to evaluate the contestation of actor interests among the State, Victims, CSOs, and others, by emphasizing the theoretical framework of transitional justice. This was a socio-legal study coupled with a qualitative approach, where data were obtained through interviews and observation of mass media coverage. The results argued that the initiation of the PPHAM Team was only beneficial to the interests of the State and did not completely address the preferences of the Victims on accountability and truth.

Perspectives on constitutional responsibility some countries in the world introduction and comparison with Vietnam

The Constitution is the document with the highest position in the legal hierarchy, acting as the original law, as a basis for other documents in the system of legal documents of each country. The contents are indispensable in most constitutions. With the highest legal position and effect, the constitution plays an important role in ensuring human rights and citizens' rights by recognizing these rights, binding the state's responsibility in realizing these rights. constitutional rights and the constitution is also a document restricting the power of the state. Constitutional liability is an important tool for strengthening and developing democracy, but in practice, not all countries are directly mandated by their constitutions or legal documents constitution as a special form of liability. This article gives a general review of constitutional liability in a few diffe ent nations to compare and offer ideas for considering the constitutional liability institution in Vietnam.

Private Military and Security Companies, Responsibility of States and International Humanitarian Law: Toward an Interdisciplinary Definition

El objetivo del artículo es doble. En primer lugar, identificar los elementos que distinguen a las Compañías militares y de seguridad privadas (CMSP) de otras entidades. En segundo lugar, proponer una definición de las CMSP en el derecho internacional humanitario (DIH). La hipótesis del estudio es que el tipo de servicios militares prestados por las CMSP, su participación directa en las hostilidades y las llamadas “tres externalidades” son los elementos centrales de las CMSP y brindan una base sólida para su definición en el DIH. La metodología de investigación aplicada se basa en la orientación epistemológica interpretativista, la cual se refleja a través de una pregunta de investigación abierta que busca examinar una serie de elementos y procesos observables que contribuyen a determinar el resultado. Para ello, la pregunta de investigación se formula de tal forma que el análisis propuesto ilustra la forma en que los agentes sociales e internacionales representan “el mundo” y un objeto de estudio (las CMSP y su personal) a través de sus interpretaciones intersubjetivas. Esta es la preferida por el pluralismo metodológico y los enfoques interdisciplinarios.

International Community? What International Community?

Abstract The expression “international community” is ubiquitous in international legal instruments, government policies, jurisprudence and scholarship. Yet, its meaning, significance and repercussions in international law are still unclear. The departing point of the analysis is the horizontal or decentralized character of the international legal order, which lacks any authorities above States and has traditionally been the kingdom of bilateralism. In the second part of the XX Century, however, States moved beyond bilateralism and accepted the existence of obligations owned to the international community as a whole. The paper looks at such historical development from three different perspectives: (a) the definition(s) of “international community” in State practice and its possible identification with the United Nations; (b) the legal implications of the emergence in international jurisprudence and practice of obligations owned to the international community as a whole, as celebrated in the Barcelona Traction Case (1970); and (c) the rules governing international responsibility for breaches of those obligations, which were not completely defined in the International Law Commission’s Articles on State Responsibility (2001).