From the bottom-up : redesigning the international legal response to anthropogenic climate change

The design of the Kyoto Protocol renders it incapable of effectively responding to the problem of anthropogenic climate change. Therefore, this article explores the opportunity to construct a new, principled legal approach to respond to climate change that is premised on nationally derived legal responses. To do so, this article considers the theoretical foundation of the international legal response to climate change – Hardin's "The Tragedy of the Commons‟ – and the systemic design faults of the Kyoto Protocol. This article also suggests four principles – a judicious mix of legal instruments, flexibility, intrinsic legal coherence, and quantifiable and achievable targets for the reduction of greenhouse gas intensity – that are necessary to guide the creation of a nationally derived legal response to climate change. This approach is intended to provide the catalyst for new bilateral and multilateral arrangements that can, with the passing of time, generate sufficient momentum to drive the creation of a new and effective cooperative international legal framework to mitigate anthropogenic climate change.

Shifting global powers and international law : challenges and opportunities [Challenges of Globalisation series]

This book examines the influence of emerging economies on international legal rules, institutions and processes. It describes recent and predicted changes in economic, political and cultural powers, flowing from the growth of emerging economies such as China, India, Brazil, South Africa and Russia, and analyses the influence of these changes on various legal frameworks and norms. Its contributors come from a variety of fields of expertise, including international law, politics, environmental law, human rights, economics and finance. The book begins by providing a broad analysis of the nature of the shifting global dynamic in its historical and contemporary contexts, including analysis of the rise of China as a major economic and political power and the end of the period of United States domination in international affairs. It illustrates the impact of these changes on states’ domestic policies and priorities, as they adapt to a new international dynamic. The authors then offer a range of perspectives on the impact of these changes as they relate to specific regimes and issues, including climate change regulation, collective security, indigenous rights, the rights of women and girls, environmental protection and foreign aid and development. The book provides a fresh and comprehensive analysis of an issue with extensive implications for international law and politics.

Integrated coastal zone management and sustainable development of coastal area : a short overview of international legal framework

This chapter contains sections titled: Introduction ICZM and sustainable development of coastal zone International legal framework for ICZM Implementation of international legal obligations in domestic arena Concluding remarks References

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Prosecution of maritime terrorists : the role of national courts in ensuring accountability

Maritime security has emerged as a critical legal and political issue in the contemporary world. Terrorism in the maritime domain is a major maritime security issue. Ten out of the 44 major terrorist groups of the world, as identified in the US Department of State’s Country Reports on Terrorism, have maritime terrorism capabilities. Prosecution of maritime terrorists is a politically and legally difficult issue, which may create conflicts of jurisdiction. Prosecution of alleged maritime terrorists is carried out by national courts. There is no international judicial institution for the prosecution of maritime terrorists. International law has therefore anticipated a vital role for national courts in this respect. The international legal framework for combating maritime terrorism has been elaborately examined in existing literature therefore this paper will only highlight the issues regarding the prosecution of maritime terrorists. This paper argues that despite having comprehensive intentional legal framework for the prosecution of maritime terrorists there is still some scopes for conflicts of jurisdiction particularly where two or more States are interested to prosecute the same offender. This existing legal problem has been further aggravated in the post September 11 era. Due to the political and security implications, States may show reluctance in ensuring the international law safeguards of alleged perpetrators in the arrest, detention and prosecution process. Nevertheless, international law has established a comprehensive system for the prosecution of maritime terrorists where national courts is the main forum of ensuring the international law safeguards of alleged perpetrators as well as ensuring the effective prosecution of maritime terrorists thereby playing an instrumental role in establishing a rule based system for combating maritime terrorism. Using two case studies, this paper shows that the role of national courts has become more important in the present era because there may be some situations where no State is interested to initiate proceedings in international forums for vindicating rights of an alleged offender even if there is a clear evidence of violation of international human rights law in the arrest, detention and prosecution process. This paper presents that despite some bottlenecks national courts are actively playing this critical role. Overall, this paper highlights the instrumental role of national courts in the international legal order.

The role of common but differentiated responsibility in the 2020 climate regime

The principle of common but differentiated responsibility (CBDR) will play a role in the 2020 Climate Regime. This Article starts by examining differential treatment within the international legal order, finding that it is ethically and practically difficult to implement an international climate instrument based on formal equality. There is evidence of state parties accepting differential responsibilities in a number of areas within the international legal order and the embedding of CBDR in the United Nations Framework Convention on Climate Change (UNFCCC), means that that differential commitments will lie at the heart of the 2020 climate regime. The UNFCCC applies the implementation method of differentiation, while the Kyoto Protocol applies both the obligation and implementation method of differentiation. It is suggested that the implementation model will be the differentiation model retained in the 2020 climate agreement. The Parties’ submissions under the Durban Platform are considered in order to gain an understanding of their positions on CBDR. While there are areas of contention including the role of principles in shaping obligations and the ongoing legal status of Annex I and Non-Annex I distinction, there is broad consensus among the parties in favour of differentiation by implementation with developed and major economies undertaking Quantified Emission Limitation and Reduction Objectives (economy wide targets) and developing countries that are not major economies undertaking sectoral targets.

Reparations for Indigenous People: International and Comparative Perspectives

Published in concomitance with the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, this volume brings together a group of renowned legal experts and activists from different parts of the world who, from international and comparative perspectives, investigate the right of indigenous peoples to reparation for breaches of their individual and collective rights. The first part of the book is devoted to general aspects of this important matter, providing a comprehensive assessment of the relevant international legal framework and including overviews of the topic of reparations for human rights violations, the status of indigenous peoples in international law, and the vision of reparations as conceived by the communities concerned. The second part embraces a comprehensive investigation of the relevant practice at the international, regional, and national level, examining the best practices of reparations according to the ideologies and expectations of indigenous peoples and offering a comparative perspective on the ways in which the right of these peoples to redress for the injuries suffered is realized worldwide. The global picture painted by these contributions provides a view of the status of relevant international law that is synthesized in the two final chapters of the book, which include a concrete example of how a judicial claim for reparation is to be structured and prescribes the best practices and strategies to be adopted in order to maximize the opportunities for indigenous peoples to obtain effective redress. As a whole, this volume offers a comprehensive vision of its subject matter in international and comparative law, with a practical approach aimed at supporting legal academics, administrators, and practitioners in improving the avenues and modalities of reparations for indigenous peoples

The International regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people dislocated because of environmental change. Such dislocation may occur internally within the country of original origin or externally into another State’s territory. International and national legal frameworks do not currently recognise or assist people displaced as a result of environmental factors including displacement occurring as a result of climate change. Legal frameworks developed to deal with this issue will need to consider the legal rights of those people displaced and the legal responsibilities of those countries required to respond to such displacement. The objective of this article is to identify the most suitable international institution to host a program addressing climate displacement. There are a number of areas of international law that are relevant to climate displacement, including refugee law, human rights law and international environmental law. These regimes, however, were not designed to protect people relocating as a result of environmental change. As such, while they indirectly may be of relevance to climate displacement, they currently do nothing to directly address this complex issue. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic. Commentators in this area have proposed three different regulatory models for addressing climate displacement. These models include: (a) Expand the definition of refugee under the Refugee Convention to encompass persons displaced by climate change; (b) Implement a new stand alone Climate Displacement Convention; and (c) Implement a Climate Displacement Protocol to the UNFCCC. This article will examine each of these proposed models against a number of criteria to determine the model that is most likely to address the needs and requirements of people displaced by climate change. It will also identify the model that is likely to be most politically acceptable and realistic for those countries likely to attract responsibilities by its implementation. In order to assess whether the rights and needs of the people to be displaced are to be met, theories of procedural, distributive and remedial justice will be used to consider the equity of the proposed schemes. In order to consider the most politically palatable and realistic scheme, reference will be made to previous state practice and compliance with existing obligations in the area. It is suggested that the criteria identified by this article should underpin any future climate displacement instrument.

Environmental pollution from shipbreaking industry : international law and national legal response

The international legal regime on shipbreaking is in its formative years. At the international level, the shipbreaking industry is partially governed by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. However, how far this convention will be applicable for all aspects of transboundary movement of end-of-life ships is still, at least in the view of some scholars, a debatable issue. Against this backdrop, the International Maritime Organisation (IMO) has adopted a new, legally binding convention for shipbreaking. There is a rising voice from the developing countries that the convention is likely to impose more obligations on recycling facilities in the developing countries than on shipowners from rich nations. This may be identified as a clear derogation from the globally recognized international environmental law principle of common but differentiated treatment. This article will examine in detail major international conventions regulating transboundary movement and environmentally sound disposal of obsolete ships, as well as the corresponding laws of Bangladesh for implementing these conventions in the domestic arena. Moreover this article will examine in detail the recently adopted IMO Ship Recycling Convention.

The international regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances, the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people relocating as a result of environmental change. International legal frameworks do not currently recognise or assist people displaced as a result of environmental factors. The objective of this chapter is to examine the areas of international law relevant to displacement arising from environmental factors, consider some of the proposed climate displacement instruments and suggest the most suitable international institution to host a program addressing climate displacement. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks, or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic...

International regulatory framework for food production and diversity

Stakeholders commonly agree that food systems need to be urgently reformed. Yet, how food systems should be reformed is extremely contested. Public international law and regulations are uniquely placed to influence and guide law, policy, programmes and action at regional, national and local levels. Although plenty of international legal instruments intersect with food-related issues, the international regulation of food systems is fragmented, understudied and contested. In order to address these issues, this paper maps and analyses the public international regulatory aspects of food production with a view to providing recommendations for reform. Accordingly, this paper brings together a variety of binding and non-binding international regulatory instruments that to varying degrees and from a range of angles deals with the first activity in the food system: food production. The following paper traces the regulatory tools from natural resources, to the farmers and farm workers that apply skill and experience, and finally to the different dimension of world trade in food. The various regulatory instruments identified, and their collective whole, will be analysed against a rights-based approach to food security.

An analytical study revisiting debate on interpretation of Article 38 of the Statute of International Court of Justice

Article 38(1) of the Statute of International Court of Justice (hereinafter ICJ) is today generally seen as a direction to the significant sources of international law, which the world court must consider in resolving disputes; however, the list is not exhaustive nor encompasses all the formal and material sources of the international legal system. Article 38 of the Statute of ICJ was written ninety years ago in a different world, a question is under debate in many states, whether or not sources mentioned in Article 38 of the statute are compatible with needs of 21st century ? In recent decade, many new actors come on the stage which have transformed international law and now it is not only governs relations among states but also covers many International Organizations. Article 38(2) does refer to the other possible sources but does not define them. Moreover, law is a set of rules that citizens must follow to regulate peace and order in society. These laws are binding on both the individual and the state on a domestic and international level. Do states regard this particular rule as a rule of international law? The modern legal system of states is in the form of a specified and well organized set of rules, regulating affairs of different organs of a state. States also need a body of rules for their intercourse with each other. These sets of rules among states are called “International Law.” This article examines international law, its foundation and sources. It considers whether international conventions and treaties can be the only way states can considerably create international law, or there is a need for clarity about the sources of international law. Article is divided into two parts, the first one deals with sources of international law discussed in Article 38 of the statute of International Court of Justice whereas the second one discusses the material and formal sources of law, which still need reorganization as sources of law.

The international regulation of sustainable forest management : doctrinal concepts, governing institutions and implementation

The overarching objective of the research was to identify the existence and nature of international legal principles governing sustainable forest use and management. This research intended to uncover a set of forest legal considerations that are relevant for consideration across the globe. The purpose behind this, is to create a theoretical base of international forest law literature which be drawn upon to inform future international forestry research. This research will be of relevance to those undertaking examination of a particular forest issue or those focusing on forests in a particular region. The thesis explains the underlying legal issues in forest regulation, the dominant international regulatory approaches and makes suggestions as to how international and national forest policy could be improved.

World's pre-eminent powers recent treatment to international law : a paradigm of interest served or harmed

The US's recent rejection of some international laws may have been done to ensure American interests but it may have the opposite effects. While its recent rejection of some international legal arrangements has meant an unpopular opinion of America, its interest has been served.

Dreams and nightmares of alternative powers' futures

This chapter argues the importance of the role and nature of other powers to world order. The author suggests that, if the US are not prepared to take a lead in creating a rules-based legal order, they should and can do so – and it is in their interests to do so. America should be a natural leader in this process, taking part in a global dialogue just as they did in the transatlantic dialogue during the late eighteenth century.