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.

Legal ethics in a post-Westphalian world : building the international rule of law and otehr tasks

The emergence of strong sovereign states after the Treaty of Westphalia turned two of the most cosmopolitan professions (law and arms) into two of the least cosmopolitan. Sovereign states determined the content of the law within their borders – including which, if any, ecclesiastical law was to be applied; what form of economic regulation was adopted; and what, if any, international law applied. Similarly, states sought to ensure that all military force was at their disposal in national armies. The erosion of sovereignty in a post-Westphalian world may significantly reverse these processes. The erosion of sovereignty is likely to have profound consequences for the legal profession and the ethics of how, and for what ends, it is practised. Lawyers have played a major role in the civilization of sovereign states through the articulation and institutionalisation of key governance values – starting with the rule of law. An increasingly global profession must take on similar tasks. The same could be said of the military. This essay will review the concept of an international rule of law and its relationship to domestic conceptions and outline the task of building the international rule of law and the role that lawyers can and should play in it.

Access to essential medicines: Public health and international law

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases. Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research. In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing. In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable... The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

Environmental rights, justice and climate change

The human rights implications of climate change are increasingly gaining attention, with wider international acknowledgement that climate change poses a real threat to human rights. This paper considers the impact of climate change on human rights, looking particularly at the experiences of Torres Strait Islanders in northern Australia. It argues that human rights law offers a guiding set of principles which can help in developing appropriate strategies to combat climate change. In particular, the normative principles embodied in environmental rights can be useful in setting priorities and evaluating policies in response to climate change. The paper also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

Bringing protection home : healing the schism between international obligations and national safeguards created by extraterritorial processing

Extraterritorial processing schemes are designed to prevent and deter access to statutory and judicial safeguards in the country responsible for the interception and transfer of asylum seekers to a third country. In line with this objective, they incorporate interdiction, transfer and processing practices and standards that are deliberately isolated from the national legal and institutional protections within either the intercepting state or the third country where processing occurs. Australia's recent disbandment of its extraterritorial processing centres in third countries highlights the fact that extraterritorial processing schemes have proven unworkable as a matter of international law, as they negate the national safeguards fundamental to the satisfaction of a state's protection obligations.

Removing barriers to protection at the exported border : visas, carrier sanctions, and international obligation

Asylum is being gradually denuded of the national institutional mechanisms (judicial, legislative and administrative) that provide the framework for a fair and effective asylum hearing. In this sense, there is an ongoing ‘denationalization’ or ‘deformalization’ of the asylum process. This chapter critically examines one of the linchpins of this trend: the erection of pre-entry measures at ports of embarkation in order to prevent asylum seekers from physically accessing the territory of the state. Pre-entry measures comprise the core requirement that foreigners possess an entry visa granting permission to enter the state of destination. Visa requirements are increasingly implemented by immigration officials posted abroad or by officials of transit countries pursuant to bilateral agreements (so-called ‘juxtaposed’ immigration controls). Private carriers, which are subject to sanctions if they bring persons to a country who do not have permission to enter, also engage in a form of de facto immigration control on behalf of states. These measures constitute a type of ‘externalized’ or ‘exported’ border that pushes the immigration boundaries of the state as far from its physical boundaries as possible. Pre-entry measures have a crippling impact on the ability of asylum seekers to access the territory of states to claim asylum. In effect, states have ‘externalized’ asylum by replacing the legal obligation on states to protect refugees arriving at ports of entry with what are perceived to be no more than moral obligations towards asylum seekers arriving at the external border of the state.

Failed states and the rule of law

The last decade has seen an emerging consensus that the rule of law is critical in both domestic and international affairs. ‘Failed’ states generate important issues for both the rule of law and, importantly, for their intersection or interaction. A ‘failed’ state almost inevitably involves a breakdown of the domestic rule of law. When international intervention occurs, it raises concerns over substantive issues. Among these is the application of international law and international norms, including among other, the conventions and treaties, the responsibility to protect and protection of civilians. Where international missions seek to assist the people of ‘failed’ states in rebuilding their nations, establishing the rule of law is often the primary or initial pursuit. Any such international assistance/intervention is more effective if it is clearly subject to the rule of law and provides an exemplar/demonstration of how power should be exercised

International law and the regulation of violence : shifting perceptions of the legitimacy of the jus ad bellum?

International law’s capacity to influence state behaviour by regulating recourse to violence has been a longstanding source of debate among international lawyers and political scientists. On the one hand, sceptics assert that frequent violations of the prohibition on the use of force have rendered article 2(4) of the UN Charter redundant. They contend that national self-interest, rather than international law, is the key determinant of state behaviour regarding the use of force. On the other hand, defenders of article 2(4) argue first, that most states comply with the Charter framework, and second, that state rhetoric continues to acknowledge the existence of the jus ad bellum. In particular, the fact that violators go to considerable lengths to offer legal or factual justifications for their conduct – typically by relying on the right of self-defence – is advanced as evidence that the prohibition on the use of force retains legitimacy in the eyes of states. This paper identifies two potentially significant features of state practice since 2006 which may signal a shift in states’ perceptions of the normative authority of article 2(4). The first aspect is the recent failure by several states to offer explicit legal justifications for their use or force, or to report action taken in self-defence to the Security Council in accordance with Article 51. Four incidents linked to the global “war on terror” are examined here: Israeli airstrikes in Syria in 2007 and in Sudan in 2009, Turkey’s 2006-2008 incursions into northern Iraq, and Ethiopia’s 2006 intervention in Somalia. The second, more troubling feature is the international community’s apparent lack of concern over the legality of these incidents. Each use of force is difficult to reconcile with the strict requirements of the jus ad bellum; yet none attracted genuine legal scrutiny or debate among other states. While it is too early to conclude that these relatively minor incidents presage long term shifts in state practice, viewed together the two developments identified here suggest a possible downgrading of the role of international law in discussions over the use of force, at least in conflicts linked to the “war on terror”. This, in turn, may represent a declining perception of the normative authority of the jus ad bellum, and a concomitant admission of the limits of international law in regulating violence.

UK Design as a Global Industry : International Trade and Intellectual Property

The importance of design to the UK economy is widely recognised. It is one of the key pillars of the knowledge economy, it plays an important role in the innovation process, and it is one of a number of specialisms that help to set the UK apart from global competition. But despite this importance, the nature of design-intensive industries – the businesses that practice and sell design – is remarkably hard to pin down. This uncertainty renders it hard to analyse, and makes it difficult to develop clear, consistent policies to support the designers. The Hargreaves Review recommended that more research was needed to develop a clear evidence base for improving the intellectual property system for design. This report forms part of that evidence base. It examines how UK design figures in the global economy, and considers how the intellectual property system can best support its growth.

UK Design as a global industry : international trade and intellectual property Executive Summary

This is an independent report comissioned by the Intellectual Property Office (IPO) and supported by the Design Council.