Substantive International Law Research Articles

‘The world is not organized for Peace’: Feminist manifestos and utopias in the making of international law

AbstractFeminists have utilized manifestos and utopias in order to make important, often revolutionary, contributions to international law. However, these engagements have not been reflected in the substance of international law. The sources of international law – specifically customary international law – rely on a narrow understanding of historical knowledge. This article centres the 1924 manifesto and the ‘New International Order’ created by the Women’s International League for Peace and Freedom, as tools to assess the exclusion of the under-utilized history of feminist peace work from the sources of international law. This allows for a reflection on customary international law’s weaknesses and reaffirms the importance of feminist approaches to international law.

Prevention of trans-boundary environmental impact: legal framework and challenges of implementation

Trans-boundary environmental impact occurs where development projects in one country or state have extra-territorial effect on neighbouring state and this aspect of environmental law falls squarely within the purview of international environmental law. This paper examines the prevention of trans-boundary environmental impact, legal framework and challenges of implementation in Nigeria and generally. The paper adopts a doctrinal approach. The paper discusses trans-boundary environmental impact and its origin in Nigeria. The paper notes that the first trans-boundary environmental impact in Nigeria happened in 1988 and prior to that there was no substantive environmental legislation in place. The paper evaluates the existing domestic and international legal frameworks and discovers that the substantive domestic law in Nigeria, lacks the necessary impetus to address environmental impact of a trans-boundary nature. The paper further finds that the international framework are not complemented by strong, substantive international law. Some of these treaties are married by vague language and weak enforcement mechanisms. The paper notes that there are several challenges preventing implementation of trans-boundary EIA and includes cost of trans-boundary EIA, limited access to document in the affected areas and unwillingness of the public to participate with an activity in another state. The paper recommends that the existing legal frameworks both at the national and international fora should be supported by strong substantive laws to enable implementation and concludes that the challenges can be overcome by specifying the parameters for determining the significance of effects, encourage public participation and dispute resolution mechanisms. Key Words: Environment, Assessment, Impact, Prevention, Challenges, Implementation

Beyond Fragmentation: Cross-Fertilization, Cooperation and Competition Among International Courts and Tribunals

The international community in the 21st century is more legalized and more judicialized than at any other period in history. Yet today’s international legal order is also fragmented, leading to concerns about the proliferation of specialized legal regimes, adjudicated by an uncoordinated assemblage of international courts and tribunals. In this volume, we and our fellow authors explore international judicial cooperation, competition, and cross-fertilization “beyond fragmentation.” Existing scholarship on international legal fragmentation, we suggest, has moved through three phases in recent decades. In the first phase, practitioners and scholars reacted with alarm to the judicial proliferation of the post-Cold War years, which they feared would create systemic problems of overlapping and contested jurisdiction, as well as conflicting and divergent interpretations of law. Following this period of “postmodern anxieties,” the new century saw the pendulum swing towards towards a second, more optimistic school of thought, which empirically identified (and normatively championed) a series of techniques whereby international judges could “manage” fragmentation through dialogue and cross-fertilization, producing convergence and unity in international law. Most recently, in the opening salvos of a third wave, skeptics have questioned the management account, pointing to the mixed motives of international judges and the limits of cross-fertilization. Building on this debate, this volume interrogates the record of cross-fertilization, cooperation, and competition among international courts and tribunals. In doing so, we address three important themes. First, we examine the phenomenon of cross-fertilization in the area of procedural law, finding that that courts do indeed learn and borrow from each other in establishing procedural rules, which show signs of convergence. Second, we examine the more complex experience of cross-fertilization in substantive international law, where we find greater variation among international courts and tribunals in their willingness to refer and defer to others. Third and finally, we investigate the agents of cross-fertilization, including not only judges but also international governmental organizations, international court registries and arbitral secretariats, member states, litigants, and counsel. Each of these actors, we suggest, possesses mixed motives, weighing their (perhaps weak) interest in the coherence of the international legal system against their (perhaps dominant) interests in their own regional or substantive legal order or values, or indeed with simply winning their current dispute. The picture that emerges is one in which international judicial cross-fertilization is both real and important, but also highly variable and asymmetric across courts and issue-areas, and likely to remain so.

The Machinery of International Law and Democratic Backsliding: The Problem of Term Limits

Abstract Our era is one of democratic backsliding. International courts and institutions have provided some bulwark against this trend, but we are now witnessing leaders seeking to use international law to extend their power. Courts in several countries have relied on international human rights norms to facilitate term limit extensions by leaders seeking to retain power beyond what is constitutionally allowed. This Article documents these cases and calls for a more robust and substantive international law of democracy-protection.

The Principles of Environmental Based Development in International Law and Sustainable Development Goals

Introduction to The Problem: The Sustainable Development Goals or SDGs are development goals in 2030 to carry out environmentally sound development, which explicitly aims to carry out development that is to meet environmental sustainability and is based on human rights. It is also an adaptation of the principles of the Stockholm Declaration 1972. Purpose/Objective Study: This research is to find the principles of environmentally sound development, both within the principles of international law and the SDGs principles, that are expected in future development policies to be carried out in the perspective of the right to the environment, both the central and regional governments. Design/Methodology/Approach: In this doctrinal law research, it is examined using the conceptual approach contained in the principles of development and environmental principles contained in the substance of international law. Findings: In the principles of international law, there are seven principles of sustainable development goals agreed by the international community in the Rio Conference as a guideline in implementing equitable development based on human rights, which also must be guided by the targets of sustainable development within the SDGs. Paper Type: Research Article

Collective Security Through Law (Mach II): Norm-Cascades and the United Nations

If the pursuit of collective security through law that held sway in 1945 rested on the judicial function of pacific dispute settlement, the place of law in collective security in 2015 rests on the (quasi) legislative function of standard-setting. This paper examines changes in the way law is instrumentalized by UN organs and agencies in order to address non-traditional threats to international peace and security that do not emanate from state-on-state aggression. Positive legal instruments like UN Security Council (UNSC) resolutions and multilateral conventions such as the UN Convention on Transnational Organized Crime are only the tip of the iceberg and that beneath the binding legal provisions contained in them lie cascading strata of increasingly detailed and technical norms. It suggests that these norms can be understood as what Michel Foucault called ‘infra-law’ – a form of law that operates on the underside of formal, positive law. Inspired by Fleur Johns’ work on non-legality, it calls for international lawyers to pay attention to technical implementation practices as a way of mitigating some of the negative tendencies of disciplinary power. Contrary to other ways of bringing such practices and mechanisms into the sightlines of international lawyers – such as Global Administrative Law and certain forms of soft law – the paper argues that there is no need to rebrand such practices as positive international law or as lex ferenda. Instead, it is suggested that international lawyers can deal with these phenomena as proximate to substantive international law. The paper distinguishes the province of international law from that of international lawyers.

The Role of Jus Cogens in Resolving the Inter-Temporal Problem in Mau Mau Torture Claims and Other Historical Injustices: A Theoretical Exploration

The Chief obstacle in the resolution of historical injustices in international law is the inter-temporal question, summarized as the requirement that positive substantive international law, as it stood at the time in which an injustice occurred, ought always to apply over latter laws. Jus cogens, being largely independent from positive international law, offers a possible resolution to this problem: a possibility that this thesis explores using Mau Mau torture claims as a case study. Present in much legal opinion on the question is a presumption that inter-temporal law applies unless state practice justifying an exception for jus cogens can be found. However, this necessarily subjects jus cogens to inter-temporality and contradicts the standard meaning of jus cogens and its superior status in the entire legal framework of international law. It is argued in this paper that the superiority of jus cogens in international law should be reflected in the application of the inter-temporal principle, as indeed it should in the application of all other inferior norms and principles wherever relevant subject matter is in issue.After the introduction in chapter one, the above-described problem in the scholarly approach to inter-temporal law and jus cogens is highlighted in chapters two and three, wherein an apparent normative conflict between jus cogens and inter-temporal law is demonstrated. But if jus cogens norms begin at an identifiable point in time and are prospective in nature, no over-lap and thus no contradiction can be spoken of where the matter occurred before the emergence of these norms, a problem tackled in chapter four. Difficulties in the standard definition of jus cogens found in article 53 of the Vienna Convention on the Law of Treaties are also discussed along with an argument for an unlimited temporal scope of application for ‘humanitarian’ peremptory norms. Lastly, chapter five approaches the problem through the prism of a balancing scale of competing interests. In short, this thesis argues that there is no threat to justice, law or truth in applying ‘humanitarian’ peremptory norms to old injustices in the area of state responsibility.

The International Judge in an Age of Multiple International Courts and Tribunals

International law, although still unsophisticated in comparison to domestic law, is increasingly showing signs of becoming a developed legal system. While there remains no central legislator or enforcer, substantive international law has come to be identified and codified in many areas, thanks in part to the work of the International Law Commission (ILC) and the Sixth Committee of the UN General Assembly. As international law has developed, the number of participants in the international legal system has grown. Within this evolving international system, legal disputes are increasingly brought for resolution before judicial or quasi-judicial institutions. The 1990s saw a marked quantitative and qualitative expansion of international courts and tribunals. This Article focuses on two fruits of the increasing fecundity of the international judicial system. First, what is the international judge to do when there are several fora that could deal with a dispute, apart from his or her own? Second, what is an international judge to do when the jurisprudence on an issue is inconsistent between international courts and tribunals? The contribution the Article seeks to make is to provide, in line with the precedent set by the Burgh House Principles on the Independence of the International Judiciary, a blueprint to aid the international judge in dealing with two of the more common ramifications of an ever expanding family of international law.

The 2014 Judicial Activity of the International Court of Justice

The three disparate cases decided by the International Court of Justice (Court or ICJ) in 2014 may not contribute much to the development of substantive international law, but they are instructive about the operations of the Court. Perhaps the Court was not at its finest in terms of coherent legal reasoning in these three cases; it certainly avoided difficult questions in all of them. Yet each of the three cases had significant numbers of separate and dissenting opinions, which sometimes reveal more about the Court’s reasoning than is apparent from the judgment or order itself.

Extradition: International Law and Domestic Law: Gary McKinnon v. Natwest Three

Extradition law is an amalgamation of international and domestic law with an obligation on states to extradite due to treaty obligations that work in tandem with a state‟s domestic extradition law. It involves a complex admixture of levels and forms of regulation, i.e., incorporating various levels of international and domestic laws. Here, international law refers to public international law. The recent extradition cases of Gary McKinnon and the NatWest Three which have brought forth so much controversy on the international scene also serves as a point guard to the literature underlying Extradition, particularly the United Kingdom (UK)-United States (US) Extradition, which is the main focus of this research. An interplay of international law and domestic law is a consequence of Extradition. While so much controversy surrounds the practical aspect of the concept, it is worthy to mention that Membership of the European Union and the enactment of the Human Rights Act 1998 have incorporated two bodies of substantive international law into English domestic law. International relations is obviously a wonderful concept and if it could bring fraudsters like the NatWest Three to book and discover the acts of McKinnon who, if he was not traced, would have brought havoc to the US and indeed, the entire world, the war against terror would not be an effort in futility.

International Law and the Extraordinary Interaction Between the People's Republic of China and the Republic of China on Taiwan

International Law and the Extraordinary Interaction Between the People's Republic of China and the Republic of China on Taiwan

Judge Max Huber at the Permanent Court of International Justice

A towering figure in the history of the Permanent Court of International Justice, Max Huber left his imprints on the work of the International Court of Justice as well as various fields of substantive international law. Huber did not exactly overrate the potential for international law, yet he was instrumental in defining and fleshing out an international lawyer's approach that stands as a monument to international legal thinking when put into practice. The Permanent Court outshined earlier institutions and created a heritage worth preserving and nurturing. Huber was quintessential in drafting many of the landmark decisions of the Permanent Court and, as with the awards rendered by him as sole arbitrator, they remain pertinent and relevant.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction

The legal framework surrounding the construction of the Wall in the occupied Palestinian territory has been extensively discussed in the context of international politics as well as national jurisprudence. The International Court's advisory opinion is meant to be an authoritative statement of law aimed at clarifying this much contested matter. This contribution examines the court's treatment of the points of substantive international law applicable to the construction of the Wall and the ensuing legal consequences. Furthermore, it considers the reaction to the advisory opinion by the Israeli Supreme Court's decision in the case of Mara'abe. This contribution concludes that the International Court's treatment of the legal position in strict terms of legality must be preferred to the application of balancing tests by the Israeli Supreme Court, especially given the latter's deficient treatment of the proportionality test.

Oil Platforms: Lessons of Dissensus

AbstractThe recent judgment of the International Court of Justice in the Case Concerning the Oil Platforms ('Oil Platforms') is a fascinating and confusing mix of formal consensus and substantive dissensus. By fourteen votes to two, the Court dismissed both the United States defence and Iran's substantive claim in the case. Yet the Court's nearly complete unanimity is belied by a considerable substantive disagreement on the reasoning leading to this outcome, as reflected in the numerous separate and dissenting opinions appended to the judgment. An analysis of these opinions reveals that the disagreement within the Court cannot be considered simply a reflection of varying judicial appreciations of law and fact; it reveals a fundamental, even philosophical disagreement relating to the very function of the Court: Is the principal function of the Court the adjudication of claims brought by States, or the settlement of disputes between States? The fundamental disagreement among the Judges on this issue seems a reflection of their training and background – between Judges trained in the common law tradition and those hailing from the civil law or similar more policy-oriented backgrounds. Apart from the jurisprudential disagreement relating to the function of the Court, the judgment also raises important issues of substantive international law, in particular those relating to the relationship between the law of peace and the law of armed conflict. The judgment testifies to the continuing validity of this distinction, despite the many attempts of international legal scholarship to move beyond this distinction to a more enlightened era of international relations.

Exceeding the Limits of Territorial Bounds: The Helms-Burton Act

SummaryThe author argues that the Helms-Burton Act violates general principles of international law. The analysis begins with a brief discussion of the extraterritorial purposes, structure, and operation of the act, followed by a survey of international responses to Helms-Burton by the principal trading partners of the United States: diplomatic protest, formalized dispute settlement under international trade agreements, retaliatory blocking leghlation, and multi-hteral scrutiny in and by international institutions. The author then turns to principles of jurisdiction with a view to demonstrating that Helms-Burton does not meet the applicable thresholds to support either the private right to sue for trafficking in confiscated property under Title III of the act or the governmental exclusion of designated aliens from admission to the United States under Title IV. In this regard, substantive international law arguments in relation to extraterritoriality and nationality, remoteness, the effects doctrine, human rights, and the reasonable expectations of other nations are also considered.

Recent Developments in United Nations Treaty Registration and Publication Practices

The framework for the systematic registration and publication of international agreements on an intergovernmental level was set in Article 18 of the League of Nations Covenant, and later in Article 102 of the United Nations Charter. The purpose of treaty registration and publication is to give effect to the principle and policy of “open covenants”—enunciated as the first of President Wilson’s Fourteen Points—in lieu of secret diplomacy. In addition, these procedures serve to record “contemporary trends in substantive international law” for the benefit of judicial and government practitioners, scholars, and specialists in various fields.

Interpretation by Public International Organizations of their Basic Instruments

The operation of public international organizations and the development of that sector of substantive international law which such organizations administer require that an effective mechanism exist for the authoritative interpretation of their basic instruments.

The Codification of International Law

There are certain preliminary observations which should be made before we can take up the question of codifying international law or the method of codification, for without a correct understanding of certain matters, which may be considered fundamental, we may not know whether we are to deal with a system of law or a system of philosophy. As a matter of fact we are dealing with both, for law develops unconsciously or consciously in accordance with the principles of philosophy. If the law of nations is to be considered law in the strict sense of the word, we must deal with it as a system of law. If, on the other hand, it is a system of philosophy rather than of law, we must deal with it as philosophy, and the point of approach and the method of treatment will be different. But, above and beyond law, we are dealing with justice, and with those principles of justice, which, expressed in rules of law, we call the law of nations. Justice is the source; the principles of justice applicable to the conduct of nations constitute the law of nations, and the rules of law based upon these principles change with conditions, or to meet new conditions, and form the body and substance of international law at any given period.