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.

Deforestation, REDD and international law

International environmental law governing conservation and management of forests has been largely limited to soft-law instruments. Nevertheless, increasing attention has been given to forest issues, most recently in the context of the climate change regime and the reducing emissions from deforestation and degradation (REDD) mechanism. The current law impacting upon the protection of forests and the contribution of emissions from deforestation will be considered in this chapter. The way forward will be explored, including the current options being considered for the post-Kyoto period.

International conventions and model laws : their impact on domestic commercial law

Panellist commentary on delivered conference papers on the topic of ‘International Conventions and Model Laws - Their Impact on Domestic Commercial Law’.

Book review : Olivier Corten, The Law Against War

Olivier Corten’s The Law Against War is a comprehensive, meticulously-researched study of contemporary international law governing the use of armed force in international relations. As a translated and updated version of a 2008 book published in French, it offers valuable insights into the positivist methodology that underpins much of the European scholarship of international law. Corten undertakes a rigorous analysis of state practice from 1945 onwards, with a view to clarifying the current meaning and scope of international law’s prohibition on the use of force. His central argument is that the majority of states remain attached to a strict interpretation of this rule. For Corten, state practice indicates that the doctrines of anticipatory self-defence, pre-emptive force and humanitarian intervention have no basis in contemporary international law. His overall position accords with a traditional, restrictive view of the circumstances in which states are permitted to use force...

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.

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.

Environmental constitutional reform in the developing world : shifting the perspective of international law?

In recent years a growing number of states have chosen to recognise environmental issues in their national constitutions. Some have added declarations about the value of the environment, some have sought to restrict or regulate government’s ability to take action which would potentially harm the environment, while others have proclaimed that citizens possess a right to an environment of a particular quality. A survey of these constitutional provisions reveals that the majority of reform in this area has come from developing states, including a number of states which have been designated as among the least developed countries in the world. The increasing focus on constitutional environmental rights appears to represent a shift in the attitude of developing and emerging economies, which could in turn be influential in setting the tone of the environmental rights debate more broadly, with potential to shape the future development of international law in the area. This chapter examines constitutional environmental rights in an attempt to determine whether consistent state practice can in fact be identified in this area which might form the basis of an emerging norm. It will also analyse some of the potential contributing factors to the proliferation of a constitutional right to a good environment among developing states, and the implications for the development of customary international law.

China's "Responsible Protection" concept : re-interpreting the Responsibility to Protect (R2P) and military intervention for humanitarian purposes

This article assesses the extent to which the recently formulated Chinese concept of “Responsible Protection” (RP) offers a valuable contribution to the normative debate over R2P’s third pillar following the controversy over military intervention in Libya. While RP draws heavily on previous proposals such as the original 2001 ICISS report and Brazil’s “Responsibility while Protecting” (RwP), by amalgamating and re-packaging these earlier ideas in a more restrictive form the initiative represents a new and distinctive interpretation of R2P. However, some aspects of RP are framed too narrowly to provide workable guidelines for determining the permissibility of military intervention for civilian protection purposes, and should therefore be clarified and refined. Nevertheless, the Chinese proposal remains significant because it offers important insights into Beijing’s current stance on R2P. More broadly, China’s RP and Brazil’s RwP initiatives illustrate the growing willingness of rising, non-Western powers to assert their own normative preferences on sovereignty, intervention and global governance.

The rise and fall of the international law of maritime terrorism : the ghost of piracy is still hunting!

Maritime terrorism is a serious threat to global security. A major debate in this regard is the treating of acts of maritime terrorism as piracy by some scholars and a rejection of this view by others. Moreover, the international law of maritime terrorism suffers from fundamental definitional issues, much like the international law of terrorism. This article examines the current international law of maritime terrorism with a particular emphasis on the debate regarding the applicability of the international law of piracy in the case of maritime terrorism. It argues that the international law of piracy is not applicable in the enforcement and prosecution of maritime terrorists on the high seas. International treaties on terrorism and the post-September 11 developments relating to international laws on terrorism have created a workable international legal framework for combating maritime terrorism, despite some bottlenecks.

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.

LexisNexis Study Guide: International Law

"This book provides a contemporary and accessible foundation for the study of all key aspects of international law. It covers the fundamentals of theory and practice and highlights issues of particular relevance to Australia."-- publisher website

The accountability of transnational armed groups under international law

Terrorist attacks by transnational armed groups cause on average 15,000 deaths every year worldwide, with the law enforcement agencies of some states facing many challenges in bringing those responsible to justice. Despite various attempts to codify the law on transnational terrorism since the 1930s, a crime of transnational terrorism under International Law remains contested, reflecting concerns regarding the relative importance of prosecuting members of transnational armed groups before the International Criminal Court. However, a study of the emerging jurisprudence of the International Criminal Court suggests that terrorist attacks cannot be classified as a war crime or a crime against humanity. Therefore, using organisational network theory, this thesis will probe the limits of international criminal law in bringing members of transnational armed groups to justice in the context of changing methods of warfare. Determining the organisational structure of transnational armed groups, provides a powerful analytical framework for examining the challenges in holding members of transnational armed groups accountable before the International Criminal Court, in the context of the relationship between the commanders and the subordinate members of the group.

Cases, Materials and Text on National, Supranational and International Non-Discrimination Law

This casebook, the result of the collaborative efforts of a panel of experts from various EU Member States, is the latest in the Ius Commune Casebook series developed at the Universities of Maastricht and Leuven. The book provides a comprehensive and skilfully designed resource for students, practitioners, researchers, public officials, NGOs, consumer organisations and the judiciary. In common with earlier books in the series, this casebook presents cases and other materials (legislative materials, international and European materials, excerpts from books or articles). As non-discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. The result is a comprehensive textbook with materials from a wide variety of EU Member States. The book is entirely in English (i.e. materials are translated where not available in English). At the end of each chapter a comparative overview ties the material together, with emphasis, where appropriate, on existing or emerging general principles in the legal systems within Europe.
The book illustrates the distinct relationship between international, European and national legislation in the field of non-discrimination law. It covers the grounds of discrimination addressed in the Racial Equality and Employment Equality Directives, as well as non-discrimination law relating to gender. In so doing, it covers the law of a large number of EU Member States, alongside some international comparisons.
The Ius Commune Casebook on Non-Discrimination Law
- provides practitioners with ready access to primary and secondary legal material needed to assist them in crafting test case strategies.
- provides the judiciary with the tools needed to respond sensitively to such cases.
- provides material for teaching non-discrimination law to law and other students.
- provides a basis for ongoing research on non-discrimination law.
- provides an up-to-date overview of the implementation of the Directives and of the state of the law.
This Casebook is the result of a project which has been supported by a grant from the European Commission's Anti-Discrimination Programme.