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24650 results in Public International Law

Page 396 of 1233

  • Less is More: Legal Imagination in Context: Introduction

  • MARTTI KOSKENNIEMI
  • Journal:
    Leiden Journal of International Law / Volume 31 / Issue 3 / September 2018
    Published online by Cambridge University Press:
    21 June 2018, pp. 469-472
    Print publication:
    September 2018

  • Why all this interest in the history of international law today? A partial explanation can surely be found from the end of the 20-year period of liberal-internationalist ascendancy (1989–2008) and the perplexity that has followed its demise. Mark Zuckerberg put it succinctly in a manifesto on Building Global Community in Facebook in February 2017. When his company started, he noted, it was to ‘bring . . . us closer together and build . . . a global community’. ‘[T]his idea’, he suggested, ‘was not controversial’. But suddenly there has emerged a ‘movement for withdrawing from global connection’. Nor have international law scholars rested silent. Eric Posner has termed the present moment – with glee – as the ‘backlash’ against ‘liberal cosmopolitanism’. More soberly, perhaps, Philip Alston has noted the rise of ‘challenges [to] the human rights movement’ that are ‘fundamentally different from much of what has gone before’ while James Crawford has warned against ‘large-scale retreat into nativism and unilateralism’. What used to be a clear and broadly shared objective – building of a global community – is no longer so clearly visible. So, the temptation might be to look backwards instead and ask, ‘how did we get here?’.

  • C - Only Scraps of Paper?

  • Cindy Wittke
  • Book:
    Law in the Twilight
    Published online:
    07 June 2018
    Print publication:
    21 June 2018, pp 83-163

  • Summary

    Chapter C provides a baseline study on how international courts and tribunals have dealt with peace agreements between state and non-state parties. Disputes about the interpretation and violation of peace agreements between state and non-state parties are rarely settled by domestic courts. Instead, the settlement of disputes concerning the interpretation and implementation of peace agreements is delegated to external actors and dispute settlement mechanisms. Depending on their mandate and function, these actors and dispute settlement mechanisms will have to deal with international as well as domestic legal aspects of the respective peace agreement(s). Chapter C investigates how international courts and tribunals have explicitly or implicitly dealt with peace agreements between state and non-state parties. Using examples reaching from proceedings of the Special Court of Sierra Leone and the International Court of Justice to international arbitration, Chapter C provides an overview of how international courts and tribunals have dealt with the legal dimensions of peace agreements, the status of their non-state parties, the nature of the obligations that peace agreements impose on the parties and the question of which laws govern these agreements' creation and interpretation. The analysis also highlights the potential implications of the involvement of the Security Council.

  • A - Peace Agreements between State and Non-State Parties

  • Cindy Wittke
  • Book:
    Law in the Twilight
    Published online:
    07 June 2018
    Print publication:
    21 June 2018, pp 1-13

  • Summary

    Chapter A introduces the analytical challenges when exploring the international and domestic legal dimensions of the negotiation and implementation of internationalised peace agreements to settle intra-state conflicts between a state and at least one non-state party. Using the example of the Rambouillet Agreement for Kosovo, Chapter A introduces five core-questions that shape the book's analysis: Have common or standardised practices emerged with regard to the form and/or substance of peace agreements between state and non-state parties? What are the legal dimensions of the internationalisation of peace agreements between state and non-state parties? Who has the authority to decide on the interpretation and implementation of these peace agreements? How do international courts and tribunals handle internationalised peace agreements between state and non-state parties? What effect does the involvement of the Security Council as third party during the negotiation and implementation of peace agreements have on the status of the non-state parties, the agreements' status, and the norms and obligations created by peace agreements? A focus on answering these questions throughout the book will help to unpack how processes of negotiating and implementing peace agreements to settle intra-state conflicts between state and non-state parties are increasingly shaped by international supervision.

  • 11 - International environmental law

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 574-622

  • Summary

    Introduction: trends in international law-making for the environment

    International environmental law provides a useful example of a rapidly developing field of international law, and demonstrates some of the difficulties involved in resolving modern global problems within the traditional legal framework.

    International environmental law is a relatively recent development. The environment did not feature in the Charter of the United Nations (UN Charter) and none of the constituent bodies of the United Nations (UN) was expressly given an environmental mandate. Since the 1960s, however, we can trace a steady growth in international law concerned with environmental problems. This growth of law at the international level is mirrored by Australia's domestic environmental law experience. Both reflect the growing public awareness of environmental issues and the demand for a legal response.

    Various trends in the development of international environmental law may be recognised. Historically, this area of law developed as a reaction to particular instances of harm, resulting in international agreements that deal with a single issue: for example, prevention of one type of pollution or protection of a particular species of wildlife. As truly global problems became apparent – for example, depletion of the ozone layer, and global warming – the response of the international community has been to develop agreements that are broader and more strategic in their approach.

    The principle of territorial sovereignty, which holds that nations have the right to use their own territory and resources as they please, presents a particular challenge for international laws seeking to protect the environment. Full support for traditional notions of sovereignty cannot be maintained if global environmental issues are to be effectively dealt with. This tension is clearly reflected in the debates, both national and international, over appropriate responses to issues such as climate change.

    International environmental law has responded to this challenge by developing new principles to guide decision-making and resolve disputes, including the precautionary principle, intergenerational equity, common but differentiated responsibility, and the common concern of humankind. New methods of law-making have emerged, in particular the use of ‘soft law’ for the development of environmental law. There is a growing use of ‘guiding principles’ and economic incentives, rather than strict legal ‘rules’, to encourage changes in behaviour.

    International environmental law must address the different viewpoints of developing and developed nations.

  • 7 - Jurisdiction

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 320-389

  • Summary

    Introduction

    Jurisdiction refers to the ability of a State to make and enforce its laws. While often related to sovereignty, and intrinsically linked to its territory, jurisdiction can exist without a connection to territory. Jurisdiction can be held to exist in a variety of contexts, depending on the location of events, the nationality of participants or the surrounding circumstances, and will also indicate whether a State may be able to undertake enforcement action to uphold its law. This chapter considers the nature of jurisdiction insofar as it affects persons, corporations, ships and aircraft. The different types of recognised international law jurisdiction are each assessed, including territorial jurisdiction, nationality jurisdiction, universal jurisdiction, the protective principle, and passive personality jurisdiction. Jurisdictional immunities as they apply to States, Heads of States, State officials and diplomats are also considered.

    Types of jurisdiction

    All types of jurisdiction may be divided into two basic types: prescriptive jurisdiction and enforcement jurisdiction. Prescriptive jurisdiction is the power to regulate an activity, and to prescribe certain behaviour. That is to say, prescriptive jurisdiction is the ability to make laws that can validly purport to regulate people and situations, regardless of their location. Enforcement jurisdiction is the ability of a State to validly enforce its law, through the exercise of executive and judicial power. That is, it is the legal validity of a State to arrest, try, convict and gaol an individual for a breach of its laws.

    Jurisdiction can be further broken down into categories, based on territory, nationality, the nature of the act in issue, and possibly even the nationality of the victim. Each of the different categories is explored specifically below, but each raises issues of prescriptive and enforcement jurisdiction. In considering any of the circumstances that have given rise to national jurisdiction, there also needs to be consideration of whether the State exercises merely prescriptive or also enforcement jurisdiction.

    The Case of the SS ‘Lotus’ (often known as the Lotus Case) is a very famous decision of the Permanent Court of International Justice (PCIJ) that has been the subject of much ongoing debate. In the extract that follows, Judge Moore considers some broad issues relating to jurisdiction and international law.

  • 13 - Use of force

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 677-728

  • Summary

    Introduction

    The 20th century witnessed two great global wars that are commonly referred to as World War I (1914–18) and World War II (1939–45). The combined military and civilian casualties of these two wars exceeded 60 million people, with a resulting devastating impact upon Europe and parts of Africa and Asia. These events were the catalyst for the modern constraints on the use of force. Until the beginning of the 20th century, international law made little effort to regulate the resort to war. Many international legal scholars of that era conceded that war was a normal part of the conduct of international relations and that international law had little role to play in the decisions made by States to go to war. Two major developments changed legal thinking on these matters. First, the 1899 and 1907 Hague Peace Conferences reached agreement on 16 Conventions and accompanying Declarations, which placed limitations on how belligerent States conducted themselves during hostilities, including the weapons they could use. These Conventions and Declarations, often referred to as ‘Hague law’, were a key component in the early development of the modern law of armed conflict. Second, the creation of the League of Nations following the conclusion of World War I placed constraints on the resort to the use of force. The Covenant of the League of Nations, found within the 1919 Treaty of Versailles, sought in art 11 to make ‘any war or threat of war’ a matter of common concern to the members of the League. This development was soon followed by the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy (Kellogg–Briand Pact), which clearly provided for the renunciation of the resort to the use of force. Article 1 provided:

    The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.

    While ultimately these developments in international law proved unable to prevent the outbreak of World War II, they did provide the foundation for key provisions of the Charter of the United Nations (UN Charter), of which art 2(4) is one of the most significant.

  • 1 - The nature of international law

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 1-44

  • Summary

    Introduction

    What would the world be like without international law? We cannot really answer this question but we do know that the world relies on this body of law to deal with important and difficult issues. International law helps develop our aspirations for the international community and facilitates problem solving around such issues as terrorism, the increasing spread of diseases, and the need to reduce carbon emissions and mitigate against the effects of climate change. It contributes to creating order in the world and also to the deployment of political ambitions, which in turn can sometimes create additional problems for the international community, such as States claiming new territory or resources that are disputed. Importantly, it also enables a world without a central government to generate solutions for emerging and complex issues and problems, such as cyber-security and warfare.

    Not all international issues and problems are, however, easily identifiable as being within the purview of international law. An example of a complex international issue is the rise of globally significant cyber-attacks that do not appear to be State-sponsored or have State institutions as their main targets. However, given the significance of such attacks to the international community, many have assumed that international law and its institutions would have a central role in dealing with them. International law and its institutions, however, have limited powers and State institutions usually have to coordinate enforcement activities against foreign hackers. Domestic problems or issues, on the other hand, sometimes raise significant international law issues despite appearing as relevant only to the State concerned. For example, increasing taxes in Australia on domestically consumed movies, rather than on the income of nationally registered companies, acts as an import tariff on corporations that do not have Australian operations. Whether Australia can impose taxes on domestic consumption of goods and services has to be assessed in terms of implications for its international trade obligations. International law can, therefore, address and deal with very specific local issues and problems.

    International law is commonly defined as the rules governing the legal relationship between States. International law provides a framework for understanding what rights and duties States have in relation to each other, and other international actors such as the United Nations (UN).

  • 14 - Enforcement of international law

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 729-758

  • Summary

    Introduction

    One of the challenges of the international legal system is that of enforcement. While the municipal legal system has developed mechanisms for law enforcement, including the police forces, the courts and prison systems, there is no equivalent in international law. That international law does not possess the same enforcement mechanisms as exist in municipal law is highlighted as a major point of distinction between the two legal systems. It is often said that in the absence of an ‘international policeman’ it is not possible to effectively enforce international law.

    Enforcement mechanisms that have been developed since the creation of the United Nations (UN) in 1945 have transformed the international legal system from the one that pre-dated the outbreak of World War II. Principal among these has been the establishment of the International Court of Justice (ICJ) as the judicial organ of the UN – it has the capacity to resolve international legal disputes and deliver judgments that are binding upon those parties to the case, and that may ultimately be subject to Security Council recommendations if a party ‘fails to perform the obligations incumbent upon it’. In addition, the Security Council has significant powers under Chapter VII of the UN Charter to seek to ‘maintain and restore international peace and security’ and as part of that mandate the Council regularly adopts resolutions that are binding upon member States of the organisation and enforceable by way of various mechanisms, including economic sanctions. However, the capacity of the Security Council to sometimes act decisively in these matters has historically been hampered by the use of the veto by one of the Permanent Members (China, France, Russian Federation, United Kingdom, United States of America). This was particularly an issue during the Cold War, and while the veto is now not used as frequently it can have an impact on how the Security Council can respond to an international crisis involving violations of international law, as occurred with the Council's response to the events in Syria from 2011 onwards.

    In addition to the UN Charter, since 1945 multilateral treaties have developed increasingly sophisticated mechanisms for enforcement.

  • 8 - State responsibility

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 390-452

  • Summary

    Introduction

    States as international legal actors enjoy international legal personality, which includes the right to seek redress for an international wrong and also to be held accountable for an internationally wrongful act. Clearly a State can only commit an internationally wrongful act in international law through individuals or entities acting on its behalf, or through being responsible for such conduct. Two elements are therefore essential for invoking State responsibility:

  • (a)The existence of an international legal obligation between States. This obligation may originate from treaty, customary international law, general principles of law, or any other recognised source of international law.

  • (b)That the conduct of a State, including persons and entities for which the State is responsible, has resulted in an internationally wrongful act that has caused loss or damage to another State.

    • The consequences that follow a finding of State responsibility for an internationally wrongful act are significant and fundamental to international law. As observed by the Permanent Court of International Justice (PCIJ) in the Chorzów Factory Case: ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.

    The content of the international law rules on State responsibility gradually evolved throughout the 20th century. In 1969 the International Law Commission (ILC) began working on the topic of State responsibility, during which time ‘Draft Articles’ were prepared in the expectation that a Convention would eventually be negotiated. The ILC's work proceeded through a number of drafts, a name change, and significant debate within both the ILC and the international legal community on the legal rules that were proposed. Eventually on 9 August 2001 the ILC adopted the Articles on Responsibility of States for Internationally Wrongful Acts. While often referred to as the ‘Draft Articles’, reflecting the lengthy process of ILC deliberation over various drafts across nearly three decades, following the noting of the ILC's work by the UN General Assembly in December 2001 the term ‘Draft Articles’ is no longer widely used. Nevertheless, the Articles on Responsibility of States for Internationally Wrongful Acts (ILC Articles), while having the appearance of a treaty, are unlikely to ever become fully endorsed as part of a convention on State responsibility primarily due to a lack of impetus for such a development among States.

  • Preface

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp xiii-xiv

  • Summary

    Since the second edition of this book was published in 2014 there have been continual developments in international law through State practice, new treaties and an expanding international jurisprudence developed by a growing array of international courts and tribunals. For example, in 2016 an international tribunal handed down a much anticipated Award in the South China Sea Case between the Philippines and China, which provided clarity to certain aspects of the law of the sea, and to some dimensions of the law relating to international dispute resolution. Likewise, in 2018 a Conciliation Commission will deliver a report arising from a dispute between Australia and Timor-Leste over a maritime boundary in the Timor Sea. In 2015 the international community was finally able to achieve consensus on a successor to the Kyoto Protocol to the United Nations Framework Convention on Climate Change in the form of the 2015 Paris Agreement. Throughout 2017 the United Nations Security Council was also responding to the threats posed to international peace and security by North Korea's nuclear program and new Resolutions were adopted to ensure the maintenance of international peace and security. These developments have resulted in a continual thickening of international law, with the consequence that some gaps in the law have been covered, understanding of the law has been enhanced, and adjudication and enforcement of international law have added to a better appreciation and understanding of its capacity.

    This third edition takes stock of some of these and other important recent developments in international law. Challenges such as climate change, crimes against humanity, human rights abuses, nuclear proliferation, resource management, self-determination of peoples, and transnational crimes such as people smuggling are considered. These challenges have caused States, international organisations and the international community more generally to reconsider some of the foundational concepts and principles of international law, and whether new approaches to these and other emerging challenges to the international order are required.

    This work seeks to assess these issues from a traditional international lawyer's perspective, but also one that considers appropriate Australian State practice. While international law is a truly global discipline, we believe there is much to be gained from examining, where appropriate, Australian viewpoints and practice in international law and that tradition has been continued in this edition.

  • 3 - Law of treaties

  • Donald R Rothwell, Australian National University, Canberra, Stuart Kaye, University of Wollongong, New South Wales, Afshin Akhtar-Khavari, Queensland University of Technology, Ruth Davis, University of Wollongong, New South Wales, Imogen Saunders, Australian National University, Canberra
  • Book:
    International Law
    Published online:
    12 April 2019
    Print publication:
    19 June 2018, pp 110-172

  • Summary

    Introduction

    The rapid development of international law in the post–World War II period from 1945 onwards also coincided with greater reliance upon treaties as a source of international law. Treaties had always been recognised as a source of international law, and their status was confirmed in art 38 of the Statute of the International Court of Justice (ICJ Statute). However, it was the development of the United Nations (UN), with its emphasis upon international law and focus upon treaty-making as a means of not only peaceful resolution of disputes but also multilateral agreement between States on matters of common concern, that was the catalyst for a greater reliance upon treaties in the conduct of international relations.

    This chapter begins by briefly examining the growth of treaty-making, before considering what a treaty is, including the nature of ‘instruments of less than treaty status’. It then covers treaty negotiation, creation and entry into force; reservations, objections and declarations to treaties; and legal obligations arising once a treaty has entered into force. The chapter then turns to treaty interpretation, and then examines how treaties are voided or ended through invalidity, suspension or termination. Finally, the chapter concludes with a discussion of amendment and modification of treaties.

    Growth of treaty-making

    The UN has actively promoted reliance upon treaties as a means of developing international law, with the International Law Commission (ILC) tasked in its early years with the responsibility of drafting a number of treaties, which were then presented for negotiation and consideration at a multilateral conference of UN member States. Through this process, international law rapidly developed in the postwar period of the late 1940s to 1960s in areas such as international humanitarian law, the law of the sea, and human rights. While these developments were occurring at the multilateral level under the sponsorship of either the UN or other developing international organisations, there was also a growth in bilateral treaty–making as States began developing their postwar economies and rebuilding their international relations across many different fields of interest. This phenomenon in international treaty-making was also gradually duplicated at the regional level as groups of States with shared interests came together to reach settlement upon matters of common interest.

Page 396 of 1233