Commenced in January 2007
Frequency: Monthly
Edition: International
Paper Count: 3012

Search results for: international treaty law

3012 The Role of State Practices and Custom in Outer Space Law

Authors: Biswanath Gupta, Raju Kd

Abstract:

Space law is the new entry in the basket of international law in the latter half of the 20th Century. In the last hundred and fifty years, courts and scholars developed a consensus that, the custom is an important source of international law. Article 38(1) (b) of the statute of the International Court of Justice recognized international custom as a source of international law. State practices and usages have a greater role to play in formulating customary international law. This paper examines those state practices which can be qualified to become international customary law. Since, 1979 (after Moon Treaty) no hard law have been developed in the area of space exploration. It tries to link between state practices and custom in space exploration and development of customary international law in space activities. The paper uses doctrinal method of legal research for examining the current questions of international law. The paper explores different international legal documents such as General Assembly Resolutions, Treaty principles, working papers of UN, cases relating to customary international law and writing of jurists relating to space law and customary international law. It is argued that, principles such as common heritage of mankind, non-military zone, sovereign equality, nuclear weapon free zone and protection of outer space environment, etc. developed state practices among the international community which can be qualified to become international customary law.

Keywords: customary international law, state practice, space law, treaty

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3011 One year later after the entry into force of the Treaty on the Prohibition of Nuclear Weapons (TPNW): Reviewing Legal Impact and Implementation

Authors: Cristina Siserman-Gray

Abstract:

TheTreaty on the Prohibition of Nuclear Weapons(TPNW)will mark in January 2022 one year since the entry into force of the treaty. TPNW provides that within one year of entry into force, the 86 countries that have signed it so far will convene to discuss and take decisions on the treaty’s implementation at the first meeting of states-parties. Austria has formally offered to host the meeting in Vienna in the spring of 2022. At this first meeting, the States Parties would need to work. Among others, on the interpretations of some of the provisions of the Treaty, disarmament timelines under Article 4, and address universalization of the Treaty. The main objective of this paper is to explore the legal implications of the TPNW for States-Parties and discuss how these will impact non-State Parties, particularly the United States. In a first part, the article will address the legal requirements that States Parties to this treaty must adhere to by illustrating some of the progress made by these states regarding the implementation of the TPNW. In a second part, the paper will address the challenges and opportunities for universalizing the treaty and will focus on the response of Nuclear Weapons States, and particularly the current US administration. Since it has become clear that TPNW has become a new and important element to the nonproliferation and disarmament architecture, the article will provide a number of suggestions regarding ways US administration could positively contribute to the international discourse on TPNW.

Keywords: disarmament, arms control and nonproliferation, legal regime, TPNW

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3010 Penalization of Transnational Crimes in the Domestic Legal Order: The Case of Poland

Authors: Magda Olesiuk-Okomska

Abstract:

The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.

Keywords: international criminal law, transnational crimes, transnational criminal law, treaty crimes

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3009 Treaties-Fulfilled or Breached: A Study for Peacefulness of Religions

Authors: Syed A. Alam, Arifa Bilal

Abstract:

A propagated wave of barbaric and injustice Muslims has been popularized by the International powers in the recent past to divert the winning force of Muslims in the Afghan war against Russia. It is a tactic to demolish the power of Jihaad and the religious image of Islam. The propaganda picturized that Muslims were not peaceful or trustworthy people by displaying some brutal actions of a little number of funded people. The word ‘Islam’ is titled as ‘complete codes of life’ because of the peacefulness and trustworthiness of these codes for whole lives. These codes help the whole of humanity beyond the boundaries of any religion, sect, creed, color, geography, or race to lead their lives peacefully and trustfully. The human beings who act upon these codes of life, Islam, can be called Muslims. Those people are not Muslims who do not act upon these codes of life. History is evident that the Muslims proved themselves, collectively, that they are acting upon these codes of life. In this article, an analytical study was conducted regarding popular treaties signed between Muslims and non-Muslim communities in different times and regions on different matters. The study included the treaties of Hudabiyah Treaty, Mithaq-e-Madinah, Lucknow Pact, Indus Water Pact, Air Space Violation Treaty, Gallipoli Treaty, Amity Treaty, US-Russia Peace Treaty, and Wadi Arab Peace Treaty. After critical analysis of these treaties, it can be clearly concluded that Muslims fulfilled these treatises, but non-Muslim stakeholders of these treaties broke these treaties in one aspect or many and in the start or later. It can be concluded that the history of treaties between Muslim and non-Muslim communities declared that Muslims had fulfilled these treaties and pacts, so they are more trustworthy and peaceful people.

Keywords: fulfilled treaties, Muslim and non-muslim pacts, Islam and peacefulness, Islam and treaties

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3008 Creating Legitimate Expectations in International Energy Investments: Role of the Stability Provisions

Authors: Rahmi Kopar

Abstract:

Legitimate expectations principle is considered one of the most dominant elements of the Fair and Equitable Treatment Standard which is today’s most relied upon treaty standard. Since its utilization by arbitral tribunals is relatively new, the contours of the legitimate expectations concept under investment treaty law have not been precisely defined yet. There are various fragmented views arising both from arbitral tribunals and scholarly writings with respect to its limits and use even though the principle is ‘firmly rooted in arbitral practice.’ International energy investments, due to their characteristics, are more prone to certain types of risks, especially the political risks. Thus, there are several mechanisms to protect an energy investment against those risks. Stabilisation is one of these investment protection methods. Stability provisions can be found under domestic legislations, as a contractual clause, or as a separate legal stability agreement. This paper will start by examining the roots of the contentious concept of legitimate expectations with reference to its application in domestic legal systems from where the doctrine under investment treaty law context was transplanted. Then the paper will turn to the investment treaty law and analyse the main contours of the doctrine as understood and applied by arbitral tribunals. 'What gives rise to the investor’s legitimate expectations?' question is answered mainly by three categories of sources: the general legal framework prevalent in a host state, the representations made by the officials or organs of a host state, and the contractual commitments. However, there is no unanimity among the arbitral tribunals and the scholars with respect to the form these sources should take. At this point, the study will discuss the sources of a stability provision and the effect of these stability provisions found in various legal sources in creating a legitimate expectation for the investor. The main questions to be discussed in this paper are as follows: a) Do the stability provisions found under different legal sources create a legitimate expectation on the investor side? b) If yes, what levels of legitimate expectations do they create? These questions will be answered mainly by reference to investment treaty jurisprudence.

Keywords: fair and equitable treatment standard, international energy investments, investment protection, legitimate expectations, stabilization

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3007 A Temporal Analysis on the Legal Status of the Turkish Straits in the Scope of National and International Legislation

Authors: Gizem Kodak, Birsen Koldemir

Abstract:

The Turkish Straits are at the crossroads of Europe and Asia continents and are unique waterways connecting the Black Sea countries to the rest of the world. Because of the geostrategic value of the location, passage of trade and war ships through the Turkish Straits has become a vital attraction and importance for the great powers and the riparian states throughout the history. This study contains a temporal analysis of the legal measures implemented in the Turkish Straits System. In this context, the historical alternation of the Turkish Straits has been examined, taking into account the relevant national and international regulations. In other words, relevant national and international regulations have been examined in this study according to historical time schedules. Parallel to the main concept mentioned above, the first chapter focuses on international regulations. These arrangements are organized according to date order and in three subheadings: Sèvres Treaty (1920), Lausanne Treaty (1923) and Montreux Convention (1936). Another topic, the national regulations, has been examined under five subheadings. These; (1982), Port Regulations of Canakkale (1982), Marine Traffic Regulations of the Turkish Straits and Marmara Region (1994) and Maritime Traffic Regulations for the Turkish Straits (1998). In doing so, the aim was to identify the differences in legal arrangements throughout the time regarding the navigation through the Turkish Straits. The current situation of the Turkish Straits has been presented in detail in the last part of the work, taking Montreux Convention into consideration. In this context, the articles of the Convention which regulate the passage of trade vessels have been examined from two perspectives; Peace time and war time. As for the measures that can be implemented in time of war, three options put forward depending on Turkey's stance: ‘Turkey not being belligerent’, ‘Turkey being belligerent’ and ‘situation in which Turkey considers herself threatened with imminent danger of war’.

Keywords: temporal analysis, maritime law, Turkish straits, maritime accidents

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3006 The Law of Treaties and National Security of Islamic Republic of Iran

Authors: S. M. Tavakoli Sani, M. Sabbet Moghadam, Y. Khorram Farhadi, Iraj Rezayi Nejad

Abstract:

The concept of national security in Iran is a permanently effective factor in acceptance or rejection of many international obligations. These obligations had been defined according to the type of legislation of Iran in many aspects. Therefore, there are several treaties at international level which requires Iran’s security to come in contact with obligations in these treaties in a way that an obstacle to join to them and their passage in parliament. This issue is a typical category which every country pays attention to be accepted in treaties or to include their national security in that treaties and also they can see the related treaties from this perspective, but this issue that 'what is the concept of Iran’s national security', and 'To what extent it is changed in recent years, especially after Islamic Revolution' are important issues that can be criticized. Thus, this study is trying to assess singed treaties from the perspective of Iran’s national security according of the true meaning of treaty and to investigate how the international treaties may be in conflict with Iran’s national security.

Keywords: treaties, national security, Iran, Islamic Revolution

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3005 Breaching Treaty Obligations of the Rome Statute of the International Criminal Court: The Case of South Africa

Authors: David Abrahams

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In October 2016 South Africa deposited its ‘instrument of withdrawal’ from the Rome Statute of the International Criminal Court, with the Secretary-General of the United Nations. The Rome Statute is the founding document of the treaty-based International Criminal Court (ICC). The ICC has jurisdiction to hear cases where crimes against humanity, war crimes and genocide have been committed, on the basis of individual criminal responsibility. It is therefore not surprising that one of the ICCs mandates is to ensure that the sufferings, due to gross human rights violations towards the civilian population is, in principle, brought to an end by punishing those individuals responsible, thus providing justice to the victims. The ICC is unable to effectively fulfill its mandate and thus depends, in part on the willingness of states to assist the Court in its functions. This requires states to ratify the Statute and to domesticate its provisions, depending on whether it is a monist or dualist state. South Africa ratified the Statute in November 2000, and domesticated the Statute in 2002 by virtue of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002. South Africa thus remains under an obligation to cooperate with the ICC until the final date of withdrawal, which is October 2017. An AU Summit was hosted by South Africa during June 2015. Omar Al-Bashir, whom the prosecutor of the ICC has indicted on two separate occasions, was invited to the summit. South Africa made an agreement with the AU that it will honour its obligations in terms of its Diplomatic and Immunities Privileges Act of 2001, by granting immunity to all heads of state, including that of Sudan. This decision by South Africa has raised a plethora of questions regarding the status and hierarchy of international laws versus regional laws versus domestic laws. In particular, this paper explores whether a state’s international law treaty obligations may be suspended in favour of, firstly, regional peace (thus safeguarding the security of the civilian population against further atrocities and other gross violations of human rights), and secondly, head of state immunity. This paper also reflects on the effectiveness of the trias politca in South Africa in relation the manner in which South African courts have confirmed South Africa’s failure in fulfilling its obligations in terms of the Rome Statute. A secondary question which will also be explored, is whether the Rome Statute is currently an effective tool in dealing with gross violations of human rights, particularly in a regional African context, given the desire by a number of African states currently party to the Statute, to engage in a mass exodus from the Statute. Finally, the paper concludes with a proposal that there can be no justice for victims of gross human rights violations unless states are serious in playing an instrumental role in bringing an end to impunity in Africa, and that withdrawing from the ICC without an alternative, effective system in place, will simply perpetuate impunity.

Keywords: African Union, diplomatic immunity, impunity, international criminal court, South Africa

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3004 Establishing the Legality of Terraforming under the Outer Space Treaty

Authors: Bholenath

Abstract:

Ever since Elon Musk revealed his plan to terraform Mars on national television in 2015, the debate regarding the legality of such an activity under the current Outer Space Treaty regime is gaining momentum. Terraforming means to alter or transform the atmosphere of another planet to have the characteristics of landscapes on Earth. Musk’s plan is to alter the entire environment of Mars so as to make it habitable for humans. He has long been an advocate of colonizing Mars, and in order to make humans an interplanetary species; he wants to detonate thermonuclear devices over the poles of Mars. For a common man, it seems to be a fascinating endeavor, but for space lawyers, it poses new and fascinating legal questions. Some of the questions which arise are whether the use of nuclear weapons on celestial bodies is permitted under the Outer Space Treaty? Whether such an alteration of the celestial environment would fall within the scope of the term 'harmful contamination' under Article IX of the treaty? Whether such an activity which would put an entire planet under the control of a private company can be permitted under the treaty? Whether such terraforming of Mars would amount to its appropriation? Whether such an activity would be in the 'benefit and interests of all countries'? This paper will be attempt to examine and elucidate upon these legal questions. Space is one such domain where the law should precede man. The paper follows the approach that the de lege lata is not capable of prohibiting the terraforming of Mars. Outer Space Treaty provides the freedoms of space and prescribes certain restrictions on those freedoms as well. The author shall examine the provisions such as Article I, II, IV, and IX of the Outer Space Treaty in order to establish the legality of terraforming activity. The author shall establish how such activity is peaceful use of the celestial body, is in the benefit and interests of all countries, and does neither qualify as national appropriation of the celestial body nor as its harmful contamination. The author shall divide the paper into three chapters. The first chapter would be about the general introduction of the problem, the analysis of Elon Musk’s plan to terraform Mars, and the need to study terraforming from the lens of the Outer Space Treaty. In the second chapter, the author shall attempt to establish the legality of the terraforming activity under the provisions of the Outer Space Treaty. In this vein, the author shall put forth the counter interpretations and the arguments which may be formulated against the lawfulness of terraforming. The author shall show as to why the counter interpretations establishing the unlawfulness of terraforming should not be accepted, and in doing so, the author shall provide the interpretations that should prevail and ultimately establishes the legality of terraforming activity under the treaty. In the third chapter, the author shall draw relevant conclusions and give suggestions.

Keywords: appropriation, harmful contamination, peaceful, terraforming

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3003 Military Role of Russia beyond Its National Boundary

Authors: Nipuli Gajanayake

Abstract:

The Russian military role beyond its national frontier has become a debatable hot topic in the international political arena. It’s advanced, and strategic responses in combating regional and international security problems have always been a factor to debate and criticize. Under such critical circumstances, Russia is attentive to play its military role according to the provisions of the Military Doctrine of the Russian Federation. Most importantly, the legal basis of the doctrine has also consisted with the generally recognized principles and norms of international law. Therefore, Russian international military assistances are pledged to accomplish international peace and security. The expansion of Russian military participation in the United Nations Peacekeeping operations, and military- political, and technical cooperation have largely evident the great effort of Russia in maintaining and restoring international peace and security. Moreover, the conflict management diplomacy and the development of dialogue with nation states to confront military risks and threats can also identify as a part of preserving international peace and security. In addition, Russia strives to strengthen the system of collective security with regional and international organizations through the legal framework of the Collective Security Treaty Organization (CSTO). Maintaining cooperative ties with the Commonwealth of Independent States (CIS), the Organization for Security and Cooperation in Europe (OSCE) and the Shanghai Cooperation Organization (SCO) have highlighted the Russian deliberation on maintaining regional peace and security. Nevertheless, the extension of cordial relations with nation states and providing of military assistances during tensions and conflicts on their territories can also underscore as Russians commitments on maintaining international peace and security. Observing and recognizing the disparity between the West portrayed terms like ‘illegal Russian interventions’ and the comprehensive reality behind the ‘Russian military assistances’ are important to understand. However, a lopsided vision or a perspective towards the Russian international military role would not present a clear understanding about its valued and also dedicated hard work on maintaining international peace and security.

Keywords: collective security, diplomacy, international military role of Russia, international peace and security

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3002 The Current Development and Legislation on the Acquisition and Use of Nuclear Energy in Contemporary International Law

Authors: Uche A. Nnawulezi

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Over the past decades, the acquisition and utilization of nuclear energy have remained a standout amongst the most intractable issues which past world leaders have unsuccessfully endeavored to grapple with. This study analyzes the present advancement and enactment on the acquisition and utilization of nuclear energy in contemporary international law. It seeks to address international co-operations in the field of nuclear energy by looking at what nuclear energy is all about and how it came into being. It also seeks to address concerns expressed by a few researchers on the position of nuclear law in the most extensive domain of the law by looking at the authoritative procedure for nuclear law, system of arrangements and traditions. This study also agrees in favour of treaty on non-proliferation of nuclear weapons based on human right and humanitarian principles that are not duly moral, but also legal ones. Specifically, the past development activities on nuclear weapon and the practical system of the nuclear energy institute will be inspected. The study noted among others, former president Obama's remark on nuclear energy and Pakistan nuclear policies and its attendant outcomes. Essentially, we depended on documentary evidence and henceforth scooped a great part of the data from secondary sources. The study emphatically advocates for the adoption of absolute liability principles and setting up of a viability trust fund, all of which will help in sustaining global peace where global best practices in acquisition and use of nuclear energy will be widely accepted in the contemporary international law. Essentially, the fundamental proposals made in this paper if completely adopted, might go far in fortifying the present advancement and enactment on the application and utilization of nuclear energy and accordingly, addressing a portion of the intractable issues under international law.

Keywords: nuclear energy, international law, acquisition, development

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3001 Absolute Liability in International Human Rights Law

Authors: Gassem Alfaleh

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In Strict liability, a person can be held liable for any harm resulting from certain actions or activities without any mistake. The liability is strict because a person can be liable when he or she commits any harm with or without his intention. The duty owed is the duty to avoid causing the plaintiff any harm. However, “strict liability is imposed at the International level by two types of treaties, namely those limited to giving internal effect to treaty provisions and those that impose responsibilities on states. The basic principle of strict liability is that there is a liability on the operator or the state (when the act concerned is attributable to the state) for damage inflicted without there being a need to prove unlawful behavior”. In international human rights law, strict liability can exist when a defendant is in legal jeopardy by virtue of an internationally wrongful act, without any accompanying intent or mental state. When the defendant engages in an abnormally dangerous activity against the environment, he will be held liable for any harm it causes, even if he was not at fault. The paper will focus on these activities under international human rights law. First, the paper will define important terms in the first section of the paper. Second, it will focus on state and non-state actors in terms of strict liability. Then, the paper will cover three major areas in which states should be liable for hazardous activities: (1) nuclear energy, (2) maritime pollution, (3) Space Law, and (4) other hazardous activities which damage the environment.

Keywords: human rights, law, legal, absolute

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3000 Foreign Artificial Intelligence Investments and National Security Exceptions in International Investment Law

Authors: Ying Zhu

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Recent years have witnessed a boom of foreign investments in the field of artificial intelligence (AI). Foreign investments provide critical capital for AI development but also trigger national security concerns of host states. A notable example is an increasing number of cases in which the Committee on Foreign Investment in the United States (CFIUS) has denied Chinese acquisitions of US technology companies on national security grounds. On July 19, 2018, the Congress has reached a deal on the final draft of a new provision to strengthen CFIUS’s authority to review overseas transactions involving sensitive US technology. The question is: how to reconcile the emerging tension between, on the one hand, foreign AI investors’ expectations of a predictable investment environment, and on the other hand, host states’ regulatory power on national security? This paper provides a methodology to reconcile this tension under international investment law. Based on an examination, the national security exception clauses in international investment treaties and the application of national security justification in investor-state arbitration jurisprudence, the paper argues that a traditional interpretation of the national security exception, based on the necessity concept in customary international law, fails to take into account new risks faced by countries, including security concerns over strategic industries such as AI. To overcome this shortage, the paper proposes to incorporate an integrated national security clause in international investment treaties, which includes a two-tier test: a ‘self-judging’ test in the pre-establishment period and a ‘proportionality’ test in the post-establishment period. At the end, the paper drafts a model national security clause for future treaty-drafting practice.

Keywords: foreign investment, artificial intelligence, international investment law, national security exception

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2999 “It Isn’t a State Problem”: The Minas Conga Mine Controversy and Exemplifying the Need for Binding International Obligations on Corporate Actors

Authors: Cindy Woods

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After years of implacable neoliberal globalization, multinational corporations have moved from the periphery to the center of the international legal agenda. Human rights advocates have long called for greater corporate accountability in the international arena. The creation of the Global Compact in 2000, while aimed at fostering greater corporate respect for human rights, did not silence these calls. After multiple unsuccessful attempts to adopt a set of norms relating to the human rights responsibilities of transnational corporations, the United Nations succeeded in 2008 with the Guiding Principles on Business and Human Rights (Guiding Principles). The Guiding Principles, praised by some within the international human rights community for their recognition of an individual corporate responsibility to respect human rights, have not escaped their share of criticism. Many view the Guiding Principles to be toothless, failing to directly impose obligations upon corporations, and call for binding international obligations on corporate entities. After decades of attempting to promulgate human rights obligations for multinational corporations, the existing legal frameworks in place fall short of protecting individuals from the human rights abuses of multinational corporations. The Global Compact and Guiding Principles are proof of the United Nations’ unwillingness to impose international legal obligations on corporate actors. In June 2014, the Human Rights Council adopted a resolution to draft international legally binding human rights norms for business entities; however, key players in the international arena have already announced they will not cooperate with such efforts. This Note, through an overview of the existing corporate accountability frameworks and a study of Newmont Mining’s Minas Conga project in Peru, argues that binding international human rights obligations on corporations are necessary to fully protect human rights. Where states refuse to or simply cannot uphold their duty to protect individuals from transnational businesses’ human rights transgressions, there must exist mechanisms to pursue justice directly against the multinational corporation.

Keywords: business and human rights, Latin America, international treaty on business and human rights, mining, human rights

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2998 Global Peace and Security: The Role of International Peace and Security Organizations and the Need for Institutional and Operational Reforms

Authors: Saint C. Nguedjip

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This paper is an analytical review a set of 20 literatures as required by the assignment prompt. The review centers on global peace and security. What role do international organizations play in global peace and security? The review centers around three main points. First, I examine global peace and security impacts on global governance. Secondly, it highlights the role traditional international community and security organizations such as the United Nations (UN), the North Atlantic Treaty Organization (NATO), and others play in providing the globe with peace and collective security. Third, it suggests a way forward as those institutions seek betterment and improvement. The review begins by defining some concepts and addressing the ambivalent meaning of peace and war. Scholars and researchers have conducted extensive research on the importance of international organizations. Yet, there is still a lot to consider if betterment and improvement are on the agenda. The review will shed light on the failures and challenges that these organizations. Those challenges are continuously undermining peacebuilding and peacekeeping actions of a great number among those institutions created with an ultimate mission of keeping the world order organized and coordinated for peace and security regardless of differences, cultures, and backgrounds. Women face violence on a daily basis, while racism and discrimination cause klm; ]]];inflammations worldwide. The chaotic situation in Ukraine is a wake-up call on scholarship and practitioners alike to come up with suggestions as well as recommendations that help mitigate insecurity while promoting peace and security, not only for Ukrainians but also for all countries facing wars and others issues. This paper will point the audience toward the right direction.

Keywords: security, peace, global governance, global peace and security, peacekeeping, international organizations, human rights, multilateralism, and unilateralism, gender, women

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2997 Demystifying the Legitimacy of the International Court of Justice

Authors: Roger-Claude Liwanga

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Over the last seven decades, there has been a proliferation of international tribunals. Yet, they have not received unanimous approval, raising a question about their legitimacy. A legitimate international tribunal is one whose authority to adjudicate international disputes is perceived as justified. Using the case study of the International Court of Justice (ICJ), this article highlights the three criteria that should be considered in assessing the legitimacy of an international tribunal, which include legal, sociological, and moral elements. It also contends that the ICJ cannot claim 'full' legitimacy if any of these components of legitimacy is missing in its decisions. The article further suggests that the legitimacy of the ICJ has a dynamic nature, as litigating parties may constantly change their perception of the court’s authority at any time before, during, or after the judicial process. The article equally describes other factors that can contribute to maintaining the international court’s legitimacy, including fairness and unbiasedness, sound interpretation of international legal norms, and transparency.

Keywords: international tribunals, legitimacy, human rights, international law

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2996 The Notion of International Criminal Law: Between Criminal Aspects of International Law and International Aspects of Criminal Law

Authors: Magda Olesiuk-Okomska

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Although international criminal law has grown significantly in the last decades, it still remains fragmented and lacks doctrinal cohesiveness. Its concept is described in the doctrine as highly disputable. There is no concrete definition of the term. In the domestic doctrine, the problem of criminal law issues that arise in the international setting, and international issues that arise within the national criminal law, is underdeveloped both theoretically and practically. To the best of author’s knowledge, there are no studies describing international aspects of criminal law in a comprehensive manner, taking a more expansive view of the subject. This paper presents results of a part of the doctoral research, undertaking a theoretical framework of the international criminal law. It aims at sorting out the existing terminology on international aspects of criminal law. It demonstrates differences between the notions of international criminal law, criminal law international and law international criminal. It confronts the notion of criminal law with related disciplines and shows their interplay. It specifies the scope of international criminal law. It diagnoses the current legal framework of international aspects of criminal law, referring to both criminal law issues that arise in the international setting, and international issues that arise in the context of national criminal law. Finally, de lege lata postulates were formulated and direction of changes in international criminal law was proposed. The adopted research hypothesis assumed that the notion of international criminal law was inconsistent, not understood uniformly, and there was no conformity as to its place within the system of law, objective and subjective scopes, while the domestic doctrine did not correspond with international standards and differed from the worldwide doctrine. Implemented research methods included inter alia a dogmatic and legal method, an analytical method, a comparative method, as well as desk research.

Keywords: criminal law, international crimes, international criminal law, international law

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2995 Official Seals on the Russian-Qing Treaties: Material Manifestations and Visual Enunciations

Authors: Ning Chia

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Each of the three different language texts (Manchu, Russian, and Latin) of the 1689 Treaty of Nerchinsk bore official seals from Imperial Russia and Qing China. These seals have received no academic attention, yet they can reveal a site of a layered and shared material, cultural, political, and diplomatic world of the time in Eastern Eurasia. The very different seal selections from both empires while ratifying the Treaty of Beijing in 1860 have obtained no scholarly advertency either; they can also explicate a tremendously changed relationship with visual and material manifestation. Exploring primary sources in Manchu, Russian, and Chinese languages as well as the images of the visual seals, this study investigates the reasons and purposes of utilizing official seals for the treaty agreement. A refreshed understanding of Russian-Qing diplomacy will be developed by pursuing the following aspects: (i) Analyzing the iconographic meanings of each seal insignia and unearthing a competitive, yet symbols-delivered and seal-generated, 'dialogue' between the two empires (ii) Contextualizing treaty seals within the historical seal cultures, and discovering how domestic seal system in each empire’s political institution developed into treaty-defined bilateral relations (iii) Expounding the seal confiding in each empire’s daily governing routines, and annotating the trust in the seal as a quested promise from the opponent negotiator to fulfill the treaty terms (iv) Contrasting the two seal traditions along two civilization-lines, Eastern vs. Western, and dissecting how the two styles of seal emblems affected the cross-cultural understanding or misunderstanding between the two empires (v) Comprehending the history-making events from the substantial resources such as the treaty seals, and grasping why the seals for the two treaties, so different in both visual design and symbolic value, were chosen in the two relationship eras (vi) Correlating the materialized seal 'expression' and the imperial worldviews based on each empire’s national/or power identity, and probing the seal-represented 'rule under the Heaven' assumption of China and Russian rising role in 'European-American imperialism … centered on East Asia' (Victor Shmagin, 2020). In conclusion, the impact of official seals on diplomatic treaties needs profound knowledge in seal history, insignia culture, and emblem belief to be able to comprehend. The official seals in both Imperial Russia and Qing China belonged to a particular statecraft art in a specific material and visual form. Once utilized in diplomatic treaties, the meticulously decorated and politically institutionalized seals were transformed from the determinant means for domestic administration and social control into the markers of an empire’s sovereign authority. Overlooked in historical practice, the insignia seal created a wire of 'visual contest' between the two rival powers. Through this material lens, the scholarly knowledge of the Russian-Qing diplomatic relationship will be significantly upgraded. Connecting Russian studies, Qing/Chinese studies, and Eurasian studies, this study also ties material culture, political culture, and diplomatic culture together. It promotes the study of official seals and emblem symbols in worldwide diplomatic history.

Keywords: Russia-Qing diplomatic relation, Treaty of Beijing (1860), Treaty of Nerchinsk (1689), Treaty seals

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2994 Idea of International Criminal Justice in the Function of Prosecution International Crimes

Authors: Vanda Božić, Željko Nikač

Abstract:

The wars and armed conflicts have often resulted in violations of international humanitarian law, and often commit the most serious international crimes such as war crimes, crimes against humanity, aggression and genocide. However, only in the XX century the rule was articulated idea of establishing a body of international criminal justice in order to prosecute these crimes and their perpetrators. The first steps in this field have been made by establishing the International military tribunals for war crimes at Nuremberg and Tokyo, and the formation of ad hoc tribunals for the former Yugoslavia and Rwanda. In the end, The International Criminal Court was established in Rome in 1998 with the aim of justice and in order to give satisfaction the victims of crimes and their families. The aim of the paper was to provide a historical and comparative analysis of the institutions of international criminal justice based on which these institutions de lege lata fulfilled the goals of individual criminal responsibility and justice. Furthermore, the authors suggest de lege ferenda that the Permanent International Criminal Tribunal, in addition to the prospective case, also takes over the current ICTY and ICTR cases.

Keywords: international crimes, international criminal justice, prosecution of crimes, ad hoc tribunal, the international criminal court

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2993 Sri Lankan Contribution to Peace and Security in the World: Legal Perspective

Authors: Muthukuda Arachchige Dona Shiroma Jeeva Shirajanie Niriella

Abstract:

Suppressing terrorism and ensuring peace and security of the people is one of the topics which have gained serious attention of the world community. Commissions of terrorist activities, locally and internationally lead to an uncertainty of peace and security, violations of human rights of the people. Thereby it demands stringent security laws and strong criminal justice systems, both at domestic and international levels. This paper intends to evaluate security laws in Sri Lanka through the criminal justice perspective, including their efficacy in relation to combat terrorism. The paper further intends to discuss the importance of such laws in upholding the peace and security at both local and universal levels. The paper argues that the term ‘efficacy’ does not stand for, sending people to jail at large-scale, but the ability to combat terrorism crime without violating the rights of the innocent people. The qualitative research method is followed to conduct this research which contains an extensive examination of security laws available as counter-terrorism laws in Sri Lanka with the relevant international standards adopted by the UN treaties. Primary sources which are relevant to the research, including judicial pronouncements are also discussed in this regard. Secondary sources such as reports, research articles and textbooks on this topic and information available on the internet are also reviewed in this analysis.

Keywords: terrorism, security laws, criminal justice system, Sri Lanka, international treaty law

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2992 An Extended Eclectic Paradigm of Dunning: Impact of New International Business Processes

Authors: D. De Matías Batalla

Abstract:

This paper develops and extended eclectic paradigm to fit the firm internationalization process with the real international business world. The approach is based on Dunning´s, introducing new concepts like mode of entry, international joint venture o international mergers and acquisitions. At the same time is presented a model to describe the Spanish international mergers and acquisitions in order to determinate the most important factor that influence in this type of foreign direct investment.

Keywords: dunning, eclectic paradigm, foreign direct investment, IJV, international business, international management, multinational firms, firm internationalization process, M&A

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2991 Power, Pluralism, and History: Norms in International Societies

Authors: Nicole Cervenka

Abstract:

On the question of norms in international politics, scholars are divided over whether norms are a tool for power politics or a genuine reflection of an emergent international society. The line is drawn between rationalism and idealism, but this dialectical relationship needs to be broken down if we hope to come to a comprehensive understanding of how norms play out in international society. The concept of an elusive international society is a simplification of a more pluralistic, cosmopolitan, and diverse collection of international societies. The English School effectively overcomes realist-idealist dichotomies and provides a pluralistic, comprehensive explanation and description of international societies through its application to two distinct areas: human rights as well as security and war. We argue that international norms have always been present in human rights, war, and international security, forming international societies that can be complimentary or oppositional, beneficial or problematic. Power politics are present, but they can only be regarded as partially explanatory of the role of norms in international politics, which must also include history, international law, the media, NGOs, and others to fully represent the normative influences in international societies. A side-by-side comparison of international norms of war/security and human rights show how much international societies converge. World War II was a turning point in terms of international law, these forces of international society have deeper historical roots. Norms of human rights and war/security are often norms of restraint, guiding appropriate treatment of individuals. This can at times give primacy to the individual over the sovereign state. However, state power politics and hegemony are still intact. It cannot be said that there is an emergent international society—international societies are part of broader historical backdrops. Furthermore, states and, more generally, power politics, are important components in international societies, but international norms are far from mere tools of power politics. They define a more diverse, complicated, and ever-present conception of international societies.

Keywords: English school, international societies, norms, pluralism

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2990 The Doctrine of Military Necessity under Customary International Law: A Breach of International Humanitarian Law

Authors: Uche A. Nnawulezi

Abstract:

This paper examines an essential and complex part of International humanitarian law standards of military necessity. Military necessity is an unpredictable phenomenon. The unpredictability of this regulation likewise originates from the fact that is one of the most fundamental, yet most misjudged and distorted standards of international law of armed conflict. This rule has been censured as essentially wrong in light of its non-compliance with the principles of international humanitarian law in recent past. The author noted in this study that military necessity runs counter to humanitarian exigencies. These have generated debate among researchers for them to propose that for international law to be considered more important, it is indispensable that the procedures and substance of custom be illuminated and made accessible to every one of the individuals who may utilize it or be influenced by it. However, a significant number of analysts have attributed particular weaknesses to this doctrine. This study relied on both primary and secondary sources of data collection. Significantly, the recommendation made in this paper, if completely adopted, shall go a long way in guaranteeing a better application of the principles of international humanitarian law.

Keywords: military necessity, international law, international humanitarian law, customary law

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2989 An Examination of the Challenges of Domestication of International Laws and Human Rights Laws in Nigeria

Authors: Uche A. Nnawulezi

Abstract:

This study evolved from the need to look at and evaluate the difficulties in the domestication of International Laws and Human Rights Laws in Nigeria. Essentially, the paper-based its examination on documentary evidence and depended much on secondary sources, for example, textbooks, journals, articles, periodicals and research reports emanating from suggestions of international law experts, jurists and human rights lawyers on the development challenges in domesticating international laws and human rights laws in Nigeria. These data were analyzed by the application of content analysis and careful observation of the current municipal laws which has posed great challenges in the domestication of International laws. This paper might follow the historical backdrop of the practices in the use of International law in Nigeria and should likewise consider the challenges inherent in these practices. The paper suggests that a sustainable domestication of International Laws and its application in Nigerian courts will ensure a better enforcement of human rights within the domestic jurisdiction.

Keywords: international law, human rights, domestication, challenges

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2988 Changing Landscape of International Law of Governance: ‘One Belt One Road Initiative’ as a Case Study

Authors: Tikumporn Rodkhunmuang

Abstract:

The importance of ‘international law of governance’ is the means and end to deal with international affairs. This research paper seeks to first study the historical development of international law of governance from the classical period of the international legal framework of global governance until the contemporary period of its framework. Second, the international law of governance is extremely turning into the crucial point in its long history because of the changing of China's foreign policies towards ‘One Belt One Road Initiative’. Third, the proposing model of the existing international law of governance within Chinese characteristics will be the new rules and modalities of modern diplomacy and governed international affairs. Methodologically speaking, this research paper is conducting under mixed methods research, which are also included numerical analysis and theoretical considerations. As a result, this research paper is the critical point of the international legal framework of global governance that changing the diplomatic paradigm as well as turning China into a great-power in international politics. So, this research paper is useful for international legal scholars and diplomats for slightly changing their understanding of the rapidly changing their norms from western norms to the eastern norms of international law. Therefore, the outcome of the research is the modern model of China to make a diplomatic relationship with other countries in the global society.

Keywords: global governance, international law, landscape, one belt one road

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2987 Limitations of Recent National Enactments on International Crimes: The Case of Kenya, Uganda and Sudan

Authors: Emma Charlene Lubaale

Abstract:

The International Criminal Court (ICC) operates based on the principle of complementarity. On the basis of this principle, states enjoy the primary right to prosecute international crimes, with the ICC intervening only when a state with jurisdiction over an international crime is unable or unwilling to prosecute. To ably exercise their primary right to prosecute international crimes domestically, a number of states are taking steps to criminalise international crimes in their national laws. Significant to note, many of the laws enacted are not being applied in the prosecution of the international crimes allegedly committed. Kenya, Uganda and Sudan are some notable states where commission of international crimes is documented. All these states have recently enacted laws on international crimes. Kenya enacted the International Crimes Act in 2008, Uganda enacted the International Criminal Court Act in 2010 and in 2007, Sudan made provision for international crimes under its Armed Forces Act. However, in all these three states, the enacted national laws on international crimes have thus far not featured in any of the proceedings before these states’ courts. Instead, these states have either relied on ordinary crimes to prosecute international crimes or not prosecuted international crimes altogether. This paper underscores the limitations of the enacted laws, explaining why, even with efforts taken by these states to enact national laws on international crimes, these laws cannot be relied on to advance accountability for the international crimes. Notably, the laws in Kenya and Uganda do not have retroactive application. In Sudan, despite the 2007 reforms, the structure of military justice in Sudan has the effect of placing certain categories of individuals beyond the reach of international criminal justice. For Kenya and Uganda, it is concluded that the only benefit that flows from these enactments is reliance on them to prosecute future international crimes. For Sudan, the 2007 reforms will only have the desired impact if reforms are equally made to the structure of military justice.

Keywords: complementarity, national laws, Kenya, Sudan, Uganda, international crimes, limitations

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2986 The Education-Development Nexus: The Vision of International Organizations

Authors: Thibaut Lauwerier

Abstract:

This presentation will cover the vision of international organizations on the link between development and education. This issue is very relevant to address the general topic of the conference. 'Educating for development' is indeed at the heart of their discourse. For most of international organizations involved in education, it is important to invest in this field since it is at the service of development. The idea of this presentation is to better understand the vision of development according to these international organizations and how education can contribute to this type of development. To address this issue, we conducted a comparative study of three major international organizations (OECD, UNESCO and World Bank) influencing education policy at the international level. The data come from the strategic reports of these organizations over the period 1990-2015. The results show that the visions of development refer mainly to the neoliberal agenda, despite evolutions, even contradictions. And so, education must increase productivity, improve economic growth, etc. UNESCO, which has a less narrow conception of the development and therefore the aims of education, does not have the same means as the two other organizations to advocate for an alternative vision.

Keywords: development, education, international organizations, poilcy

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2985 Human Rights Abuse in the Garment Factory in Bekasi Indonesia

Authors: Manotar Tampubolon

Abstract:

Although the Indonesian human rights protection has increased in recent years, but human rights violations still occur in the industrial sector. Crimes against human rights continue to occur and go unnoticed in spite of the government's legislation on human rights, employment law in addition to an international treaty that has been ratified by Indonesia. The increasing number of garment companies in Bekasi, also give rise to increased human rights violations since the government does not have a commitment to protect it. The Indonesian government and industry owners should pay attention to and protect the human rights of workers and treat them accordingly. This paper will review the human rights violations experienced by workers at garment factories in the context of the law, as well as ideas to improve the protection of workers' rights.

Keywords: human rights protection, human rights violations, workers’ rights, justice, security

Procedia PDF Downloads 346
2984 Sexual and Gender Based Crimes in International Criminal Law: Moving Forwards or Backwards

Authors: Khadija Ali

Abstract:

Prosecution of sexual violence in international criminal law requires not only an understanding of the mechanisms employed to prosecute sexual violence but also a critical analysis of the factors facilitating perpetuation of such crimes in armed conflicts. The extrapolations laid out in this essay delve into the jurisprudence of international criminal law pertaining to sexual and gender based violence followed by the core question of this essay: Has the entrenchment of sexual violence as international crimes in the Rome Statute been successful to address such violence in armed conflicts?

Keywords: conflict, gender, international criminal law, sexual violence

Procedia PDF Downloads 437
2983 The U.S. Missile Defense Shield and Global Security Destabilization: An Inconclusive Link

Authors: Michael A. Unbehauen, Gregory D. Sloan, Alberto J. Squatrito

Abstract:

Missile proliferation and global stability are intrinsically linked. Missile threats continually appear at the forefront of global security issues. North Korea’s recently demonstrated nuclear and intercontinental ballistic missile (ICBM) capabilities, for the first time since the Cold War, renewed public interest in strategic missile defense capabilities. To protect from limited ICBM attacks from so-called rogue actors, the United States developed the Ground-based Midcourse Defense (GMD) system. This study examines if the GMD missile defense shield has contributed to a safer world or triggered a new arms race. Based upon increased missile-related developments and the lack of adherence to international missile treaties, it is generally perceived that the GMD system is a destabilizing factor for global security. By examining the current state of arms control treaties as well as existing missile arsenals and ongoing efforts in technologies to overcome U.S. missile defenses, this study seeks to analyze the contribution of GMD to global stability. A thorough investigation cannot ignore that, through the establishment of this limited capability, the U.S. violated longstanding, successful weapons treaties and caused concern among states that possess ICBMs. GMD capability contributes to the perception that ICBM arsenals could become ineffective, creating an imbalance in favor of the United States, leading to increased global instability and tension. While blame for the deterioration of global stability and non-adherence to arms control treaties is often placed on U.S. missile defense, the facts do not necessarily support this view. The notion of a renewed arms race due to GMD is supported neither by current missile arsenals nor by the inevitable development of new and enhanced missile technology, to include multiple independently targeted reentry vehicles (MIRVs), maneuverable reentry vehicles (MaRVs), and hypersonic glide vehicles (HGVs). The methodology in this study encapsulates a period of time, pre- and post-GMD introduction, while analyzing international treaty adherence, missile counts and types, and research in new missile technologies. The decline in international treaty adherence, coupled with a measurable increase in the number and types of missiles or research in new missile technologies during the period after the introduction of GMD, could be perceived as a clear indicator of GMD contributing to global instability. However, research into improved technology (MIRV, MaRV and HGV) prior to GMD, as well as a decline of various global missile inventories and testing of systems during this same period, would seem to invalidate this theory. U.S. adversaries have exploited the perception of the U.S. missile defense shield as a destabilizing factor as a pretext to strengthen and modernize their militaries and justify their policies. As a result, it can be concluded that global stability has not significantly decreased due to GMD; but rather, the natural progression of technological and missile development would inherently include innovative and dynamic approaches to target engagement, deterrence, and national defense.

Keywords: arms control, arms race, global security, GMD, ICBM, missile defense, proliferation

Procedia PDF Downloads 68