Traditional International Law Research Articles

Uncertain, unstable and unequal: Can regime interaction help international fisheries law address anthropocene challenges?

The term “Anthropocene” has become ubiquitous within debates on the future of international environmental law. While contested, it can generally be understood to refer to the fundamental idea that the world has entered a new era in which human activities, more than any other factor, are the driving force for change within the Earth system. This concept has inspired a rethinking of traditional international environmental law in line with the challenges that are expected to result from human-induced environmental impacts. This article explores how the Anthropocene will challenge international fisheries law and how understanding the role of regime interaction as a central characteristic of international law will be a necessary part of addressing these challenges. In order to determine what might be said to constitute Anthropocene conditions the article explores the effects of human activities on two core planetary boundaries, climate change and biosphere integrity, in the context of the world’s oceans. Through examining the human-induced threats to these boundaries, common themes of uncertainty, instability and inequality within the Anthropocene ocean are identified, highlighting broadly the ways in which the current international fisheries legal regime alone is inadequate to achieve its goals in the Anthropocene context. This article proposes that enhanced regime interaction, between related regimes such as international fisheries law, international climate change law and international biodiversity law could allow international fisheries law to be more readily able to meet the uncertain, unstable and unequal Anthropocene context.

From a Traditional International Law Approach to a Human Rights-Based Approach to Statelessness

From a Traditional International Law Approach to a Human Rights-Based Approach to Statelessness

TWAIL and Alternative Visions: ‘Talking About a Revolution’: Afterword to the Foreword by Antony Anghie

Abstract This Afterward is in response to an invitation by EJIL to engage with Tony Anghie’s Foreword in the same journal entitled ‘Rethinking International Law: A TWAIL Retrospective’. I join in conversation with Anghie to further expand and amplify the redemptive potential of TWAIL, through a focus on human rights. I tease out and amplify a robust account of what constitutes an ‘alternative vision’ found in TWAIL as an epistemological inquiry that reflects a yearning to break free of the Eurocentric discourses that continue to structure human rights and the human subject. It also draws attention to the transformative and revolutionary vision of the project available in the aftermath of the critiques of traditional international law.

CONSIDERATION UPON THE PROTECTION OF THE HUMAN RIGHTS

The purpose of the present article is to bring general information connected to the human rights. We all know the fact that in the traditional international law, the protection of the human rights through international actions was not to be found. The concept of the international law of the human rights appears only in the second half of the 20th century, and thus matters connected to acknowledging and respecting them become problems of international interest and they do not depend exclusively only on the internal jurisdiction of the states.Romania admitted, appreciated and regulated the citizen’s rights as well as the theories that argumented their existence and also it has ratified the majority of the universal and European treaties concerning the human rights.

THE RESPONSIBILITY FOR ENVIRONMENTAL DAMAGES DURING ARMED CONFLICTS: THE CASE OF THE WAR BETWEEN RUSSIA AND UKRAINE

Background: There is no war without catastrophic impacts, not only on humans and states but also on the environment and nature. As with all wars, the question is raised as to whether an invasion or aggression is legitimate according to international law. This research aims to discuss an emerging issue at the international level, which is the responsibility of the aggressor state for the environmental damages incurred by the victim state. This paper discusses the possibility of establishing Russia’s responsibility for the environmental damages incurred in Ukraine. It will also shed light on the possible ways Ukraine may raise Russia’s responsibility, internationally speaking. The novelty of this study stems from its originality – it is the first on this topic in the field of international relations and international law. Methods: In this research, the author used a case study to provide an in-depth perspective on the responsibility of the invading state for the environmental damages caused to the victim state. Here, the author used a historical and statistical framework to shed light on the impacts of the Russian aggression against Ukraine on the environment. Moreover, analytical and structural methods were deployed to explain the methods by which Ukraine and the international community might establish Russian responsibility for the environmental damages caused by the invasion. To support the ideas discussed in this paper, the author uses legal texts, international conventions, and official reports issued from national and international institutions. Results and Conclusions: The author found that the Russian aggression against the Ukrainian territory has caused severe environmental damages, which cannot go unpunished. Although traditional international law may be insufficient to punish Russia, customary law, warfare law, and international environmental law include rules that may be used to raise the Russian responsibility for these damages.

Making Sense of Violent Extremism

In “Making Sense of Security,” J. Benton Heath convincingly argues that the concept of security should be understood as a struggle for epistemic authority. Heath develops a comprehensive typology that helps to understand the processes through which people make sense of the term security, while it also helps identifying the legal and political practices involved. However, as he rightly observes, these approaches to security are “not stable equilibria but rather more like quantum states, in which each type contains the potential for the others.”1 Global counterterrorism law powerfully illustrates this evolution. In particular, the growing field of preventing and countering violent extremism (P/CVE) reveals a flow of security conceptions, including realist, widened, and discursive security. Applying Heath's typology to this field shows that evolving rationales have set in motion normative practices, which are difficult to trace from within a traditional international security law framework. In their relational modes, such practices aim at turning risks into opportunities, thus denoting that one's security is the other's perpetuation of insecurities. The recourse to resilience as a technique of counterterrorism governance that instrumentalizes shared and emerging social identities and practices in order to prevent extremism, contributes to the entrenchment of an ever-expanding security apparatus. But it is precisely by resorting to social life—unpredictable as it is—that resilience becomes a quantum state itself, which bears potential for disruption.

The Trees Speak for Themselves: Nature’s Rights Under International Law

This note argues that the United Nations should center nature’s rights in the upcoming Global Pact on the Environment, solidifying the patchwork of international environmental law and encouraging domestic protection of the environment. Part II explores the current state of international environmental law, outlining the ways in which the doctrine remains incomplete. Part III establishes that Earth jurisprudence is an effective method to fill the gaps existing within traditional international environmental law. Part IV emphasizes the importance of soft law in international law. It draws a parallel between the creation of the Universal Declaration of Human’s Rights and a potential global Declaration of Nature’s Rights, thus establishing the possibility for a path forward for the Global Pact. Part V concludes.

Free-Flow of Data. Is International Trade Law the Appropriate Answer?

The paper - presented in a Conference organized in March 2020 at Dublin City University on Protection Imperialism and Data Sovereignty - points out that free-flow of data is a growing issue of contention in international relations and that there is an urgent need for agreements on the issue. It doubts however that traditional international trade law instruments (typically GATT and GATS, and related regional agreements) are the appropriate tools, while surely international trade fora have the experience to come up with ad hoc solutions based on national sovereignty, reciprocity and involvement of other international organizations such as ITU. The paper also posits that from a FFD perspective there is little difference – nor a significant difference can be made – between “personal data” and “non-personal data”.

The New Regulation of the European Union on Artificial Intelligence: Fuzzy Ethics Diffuse into Domestic Law and Sideline International Law

This paper discusses how ethical norms on artificial intelligence were created and how they are now reflected in the European Commission's new proposal for a regulation on artificial intelligence. It argues that the process of ethical norm diffusion into hard domestic law sidelines traditional international law.

Responsible Business in a Digital World – What’s International Law Got to Do With It?

The observation that digital transformation challenges some of the underpinnings of traditional international law and regulation also applies to responsible business conduct. The Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises are the most comprehensive international standard on responsible business conduct. This article discusses the impacts of digitalisation on responsible business conduct and the relevant case law by OECD National Contact Points and shows that as a sui generis instrument of international law the Guidelines can play an important role in accommodating business as the key driver of digital transformation and in addressing the related risks on people, the environment and society. However, several shortcomings of the existing regulatory framework are identified, particularly with regard to the imbalance of state and business responsibilities and the challenges for adequate regulatory responses in a highly dynamic environment where developments are driven by the private sector. Therefore, a holistic approach, based on 'Responsible Business Conduct by Design' both in technology and regulation is suggested. Given the specific features and impacts of digitalisation on responsible business conduct, such an approach would need to be of a hybrid nature by including a variety of actors and models of regulation beyond the state. To create a safe space for experimenting and testing new regulations and for mutual learning the article concludes with call for a new interface and for exploring a 'regulatory sandbox' at the international level.

Defining war crimes: a look to the prosecution by international criminal judicial bodies

The article is dedicated to the overview of the scope and application of international prosecution on war crimes. Although theterm “war crimes” is not a new concept in international law, different approaches exist in defining the precise limits of it. War crimesare always considered as one of the primary challenges and pecularities minimizing the whole efficiency of international law. Nevertheless,not all known prosecutions on war crimes ended with success. In traditional international law war crimes are always related tomilitary or armed conflicts what may be international or non-international conflict. History of international humanitarian law demonstratesthat almost all of the military conflicts were associated with war crimes. However, international law was not able to buil upstrong judicial mechanisms for the prosecution of war crimes for a long time. Modern type of international prosecution over war crimescan be linked to military tribunals established after World War I. At the same time, we should not forget that most of war crimes committedbefore and during WWI still remain unpunished. These problems demand new conceptual approach to the understanding of warcrimes as well as methodology of international prosecution. We know that first military tribunals were of quasi-international character.Although modern international law contains fully international military tribunals, still there are a lot of cases of failure to punish warcrimes. We need to understand that being a type of international crimes against peace and humanity, war crimes can be committed outsidethe active period of war. Thus, there is a need to re-define again the scope and subject matter of war crimes. On the other hand,prosecution of war crimes should be studied apart from other international law violations, human rights in particular.

Data and the Elasticity of Sovereignty

Traditionally, the world map and territorially bounded spaces have dominated ways in which we imagine how states govern, make laws, and exercise their authority. Under this conception, underlined by traditional international law principles of territorial sovereignty, each state would have exclusive authority to govern and make laws over everything concerning the land within its borders. Yet developments like the proliferation of data flows, which are based on divisible, mobile, and interconnected components of data, are not territorially bounded. This presents a challenge to traditional bases for territorial sovereignty and jurisdiction under international law, which some scholars claim is exceptional due to certain characteristics of data. The question as to how states exercise jurisdiction over, or spatially locate, a protean thing such as data, is one which deserves further exploration. By comparing the approaches of China, EU, and the US, this paper explores how laws and regulations in this area are having extraterritorial effects, thus moving away from a strict territorial approach, yet at the same time, are “reterritorializing” by linking their laws on data privacy and data transfers to data infrastructure, data subjects, or data controllers. This shows that states tend to repurpose their territorial sovereignty as they see fit, but this repurposing is not something which is unique to the data governance context. States have used a variety of justifications historically for the extraterritorial exercise of jurisdiction, as well as found creative ways to reterritorialize things, people, events, and processes that were not strictly territorially bounded within their borders. Thus, rather than treat regulations on data privacy and data transfers as an exceptional exercise of territorial sovereignty beyond borders, we might consider this an exemplification of yet another creative reimagining of the elasticity of sovereignty. These exercises in reimagining are significant when we consider their distributional effects and how they allocate decision-making power over governance of data. The elasticity of sovereignty means that authority, governance, and decision-making are ultimately functions of power.

International Law and Interdisciplinarity

The article presents three main arguments in favour of an interdisciplinary opening of international law. The first emerges from the transition from traditional international law to transnational law, as a result of which specialized legal subsystems increasingly overcome the boundaries of nation states and, by making themselves independent of the pyramidal structure of the constitutional order, tend to overlap one another. Consequently, the transnational sphere is characterized by a significant intersection of competences, so that contemporary international law cannot be understood properly without a substantial expertise in fields that transcend its usual understanding. The second argument in favour of interdisciplinarity is related to the content of law in general and of international law in particular. Because a set of norms fulfils the task of stabilizing the normative expectations that are generated within a specific social subsystem, it inevitably incorporates the kind of rationality that characterizes the functioning of that same social subsystem. Thus, to understand how a legal subsystem works, it is necessary to take into account the fundamental constituents of that kind of rationality which makes up the rules of interaction within the social subsystem related to that particular set of norms. The third argument for interdisciplinarity derives, finally, from the overall rationale of law. In fact, beyond the functional rationality that the legal norms acquire insofar as they fulfil the task of stabilizing the normative expectations generated within specialized social subsystems, the law also enshrines a more inclusive understanding of a metasystemic rationality, namely a comprehensive idea of social order. Therefore, law is to be interpreted as the system of formal propositions that lay down the rules and principles that govern human interaction according to a specific view of how the “well-ordered society” should be defined. While law’s relation to the specialized subsystems is the expression of its functional rationale, its link to the idea of how the “well-ordered society” is understood manifests its more encompassing social rationality and, by reflecting what we can define as the paradigms of order, incorporates the knowledge developed within extra-legal discourses.

How Many Cheers for the Peace Pact?

The Internationalists, the much-praised study of Oona Hathaway and Scott Shapiro, fails badly in its estimate of the Kellogg-Briand Pact (the Peace Pact of 1928) and its larger characterization of the “Old World Order” and the “New World Order.” The authors unfairly excoriate Grotius as having “made the world safe for war,” and they mischaracterize the law of neutrality and the status of jus in bello in traditional international law. They misread the significance of the Peace Pact and its relationship to the League of Nations. They also offer a distorted view of the New World Order, mistaking the lineaments of the 70 years that followed World War II. The publicists of the law of nations, whose work made a deep imprint on America’s founders, are condemned by the authors as bearers of iniquitous principles, but they still have much to teach us.

The Elephant in the Room: Coercion

Dan Efrony and Yuval Shany's article offers some critically important observations on the reception of the Tallinn Manual 2.0 by states, as well as subsequent state practice and opinio juris with regard to the international use of cyber operations. Based on their case studies, Efrony and Shany conclude that states have largely been reluctant to adopt fully the norms, premises, and analogies offered by the Tallinn Manual. The authors argue that there is a “deep uncertainty about the treatment of cyberspace as just another physical space, like land, air, or sea—over which states may exercise sovereignty or control.” The authors further explain that there is an “uneasy fit” between traditional international law regarding internal and external state power, and the regulation of a unterritorial cyberspace. In other words, cyberspace is a sui generis domain, such that analogies to physical-space domains are often ill-suited, and at times doomed to failure.

Status & Consequences of the Referendum & Independence of Kurdistan Regional Government From the Perspective of International Law

The outbreak of World War I and the arrival of the Ottomans was the most significant international event affecting the determination of Kurdistan. France and UK in 1916, the future after the war came to an agreement as Sykes_ Picot breakdown of the Ottoman Empire and a smaller number of countries, mostly under the protection of great powers, Iraq was also one of those countries that were protected by the UK. Iraqi Kurds repeatedly in different periods of the twentieth century have attempted to fight against the central government. The US and its allies invaded Iraq in 1991 and Saddam Hussein's defeat in the Persian Gulf War and Then 688 resolution granting autonomy to Kurds in northern Iraq, including events that made the Kurds autonomous. In 2003, after the Kurds cooperated in the US war against Iraq, the Kurdish federal region was formed with the support of the United States, and this issue was accepted by the Iraqi constitution. After the formation of the Iraqi federal state, the Kurdish influence and power of the country increased. However, the restoration of Kurdistan did not have the abundance of nationalist interests and its motivation for Kurdish independence. Traditional international law, given its state-centered nature, never has the right to self-determination to the detriment of the division of the country has not interpreted and the international community, particularly the principle of self-determination in the first stage It tends to move toward federalism and autonomy.

States as de-facto-constituent Power in Constitutionalized International Law?

The constitutionalization hypothesis in international law cannot claim validity without addressing the problem of constitutional legitimacy. This paper tries to apply the familiar statist answer - the distinction between constituent and constituted power - to the prominent role of states in the international community. Emphasizing the theories of both Abbé Sieyès and Carl Schmitt by modifying them for transnational application, the argument is put forward that the potential role of states as constituent power in a constitutionalized international legal order is a matter of perspective primarily: If the question of constituent power is asked as a question of technical <italic>origin</italic>, the position of states as ultimate point of reference in traditional international law at first glance might be seen as analogous to the self-unfolding of popular sovereignity within the nation-state. As soon as the question of constituent power becomes an issue of <italic>legitimacy</italic>, the law-making competence of states does not suffice for reconstructing them as transnational constituent power any longer.

Информационно-когнитивное cиловое «форматирование» правящих элит субъектов военно–политической обстановки в «переходный период»

Analysis and forecast for development of possible means of power politics in the transition period until 2024 is of immense importance not only for the military development plans and the future of defense procurement (and therefore the country's military expenditures), but to any conscious changes in the military art. First of all we are talking about the strategy of the states that directly depend on the means of reference as armed and unarmed political power struggle. This is a fundamental position of political and military science well-known for a long time [Shaposhnikov, 2016]. It is also clear that not only currently there are radical changes in the priorities of the use of certain power tools, you have to select the most preferable (least risky, more effective and less costly) force politicians from all existing and constantly updated huge set of tools. But this specificity has been observed before, for example, with the advent of nuclear weapons and their means of delivery, when it became possible to achieve strategic objectives directly without the consistent achievement of tactical results. Moreover, the choice of the most effective military tools in the era of nuclear weapons was raised repeatedly and it was natural in the USSR and in the West during the last century. And, I would emphasize, not only - and maybe not so much - of the means of armed struggle (AMSE), as of force political leverage in general - economic, informational, political, diplomatic, etc. But in the modern transition period (2014-2025), these processes have become not only very dynamic, but frankly destabilizing, ignoring previous agreements on compliance with international security and strategic stability, and simple traditional international law and political communication.

The Valuation of Ecosystem Services in International Investment Arbitration

Ecosystem services are essential to human life, inextricably woven into the foundations of our civilizations and economies. This article lays the theoretical foundation for the incorporation of ecosystem services valuation into international arbitration, applying the scientific and economic scholarship in this area to legal dispute resolution. Traditional international investment law and modern legal scholarship fail to address either the value ecosystem services bring to landowners or the repercussions of investor activity on their fragile health and vitality. The evolution of international dispute resolution and growing threats to the natural environment urge the development of a new perspective that closes these gaps. Investor-state dispute settlement is a flexible enforcement framework used by thousands of international investment agreements. It provides an ideal forum for inaugurating the internalization of the positive externalities generated by these precious resources. Recognizing the economic and environmental importance of these services and their impact on legal relationships, this article unfolds a legal basis for incorporating the valuation of ecosystem services into damages calculations in international investment arbitration awards.

The Valuation of Ecosystem Services in International Investment Arbitration

Ecosystem services are essential to human life, inextricably woven into the foundations of our civilizations and economies. This Article lays the theoretical foundation for the incorporation of ecosystem services valuation into international arbitration, applying the scientific and economic scholarship in this area to legal dispute resolution. Traditional international investment law and modern legal scholarship fail to address either the value ecosystem services bring to landowners or the repercussions of investor activity on their fragile health and vitality. The evolution of international dispute resolution and growing threats to the natural environment urge the development of a new perspective that closes these gaps. Investor-state dispute settlement is the flexible enforcement framework used by thousands of international investment agreements. It provides an ideal forum for inaugurating the internalization of the positive externalities generated by these precious resources. Recognizing the growing economic and political importance of these services and their impact on legal relationships, this Article unfolds a legal basis for incorporating the valuation of ecosystem services into damages calculations in international investment arbitration awards.