scholarly journals Biodiversity Beyond National Jurisdiction: Regimes and Their Interaction

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 123-128 ◽  
Author(s):  
Margaret A. Young ◽  
Andrew Friedman
Keyword(s):  
International Law ◽  
Biological Diversity ◽  
The South ◽  
East Atlantic ◽  
Adaptive Approach ◽  
Customary International Law ◽  
Marine Biological ◽  
National Jurisdiction ◽  
Fragmentation Of International Law ◽  
Law Making

International efforts to better conserve the marine biological diversity of areas beyond national jurisdiction (BBNJ) through a new international legally binding instrument1 are developing in a context of established norms and institutions. Existing regimes already address specific marine sectors (such as shipping), regions (such as fishing in the South East Atlantic), species (such as whales), and even underlying customary international law and territorial concepts (including the boundaries of the “high seas”2). States have agreed that they will not “undermine” these existing frameworks.3 We seek to contextualize this commitment within the fragmentation of international law and the interaction between regimes.4 We argue that international law-making should not be overly restricted by deference to existing competencies and mandates, which are fluid and asymmetrically supported. An inclusive and adaptive approach to existing and future institutions is vital in the ongoing quest for integrated and effective oceans governance.

Marine Protected Areas on the High Seas: Some Legal and Policy Considerations

2004 ◽  
Vol 19 (1) ◽  
pp. 1-17 ◽  
Author(s):  
Tullio Scovazzi
Keyword(s):  
Protected Areas ◽  
International Law ◽  
Marine Protected Areas ◽  
Biological Diversity ◽  
Customary International Law ◽  
National Jurisdiction ◽  
The Subject ◽  
Consultative Process ◽  
Specially Protected Areas ◽  
High Seas

AbstractThe 2003 meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea made a call to explore a range of tools for the protection and management of vulnerable and threatened marine ecosystems and biodiversity beyond national jurisdiction. To achieve this aim, the establishment of marine protected areas (MPAs) on the high seas not only fully complies with customary international law, but is also the subject-matter of specific obligations arising under a number of treaties (starting from UNCLOS Art. 194, para. 5). Today the time-honoured concept of freedom of the sea is to be understood in the context of the present range of marine activities and in relation to all the potentially conflicting uses and interests, such as the protection of the marine environment and the sound exploitation of marine living resources. The 1995 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean is an interesting precedent on the issue of MPAs on the high seas.

The Idea of International Human Rights Law

2019 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Moral Concept ◽  
Customary International Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Fragmentation Of International Law

International Human Rights Law has emerged as an academic subject in its own right, separate from, but still related to, International Law. This book explains the distinctive nature of the new discipline by examining the influence of the moral concept of human rights on general international law. Rather than make use of moral philosophy or political theory, the work explains the term ‘human rights’ by examining its usage in international law practice, on the understanding that words are given meaning through their use. Relying on complexity theory to make sense of the legal practice in the United Nations, the core human rights treaties, and customary international law, The Idea of International Human Rights Law shows how a moral concept of human rights emerged, and then influenced the international law doctrine and practice on human rights, a fact that explains the fragmentation of international law and the special nature of International Human Rights Law.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

scholarly journals The Process of International Law— Making: The Relationship Between the International Court of Justice and the International Law Commission

2015 ◽  
Vol 15 (1) ◽  
pp. 7-57 ◽  
Author(s):  
Marija Đorđeska
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
International Law Commission ◽  
The Relationship ◽  
Law Making ◽  
Law Commission

Abstract Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

scholarly journals PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Ashley Charles Moorhouse ◽  
David Abrahams
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Subject Matter ◽  
Review Process ◽  
The State ◽  
The South ◽  
Customary International Law ◽  
National Implementation ◽  
The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause. 

scholarly journals Unity or Fragmentation in the Deep Blue: Choices in Institutional Design for Marine Biological Diversity in Areas Beyond National Jurisdiction

2021 ◽  
Vol 8 ◽  
Author(s):  
David S. Berry
Keyword(s):  
Biological Diversity ◽  
Institutional Design ◽  
Sustainable Use ◽  
Institutional Structure ◽  
Global Ocean ◽  
Management Tools ◽  
Marine Biological ◽  
Deep Blue ◽  
Environmental Impact Assessments ◽  
National Jurisdiction

Delegations are in the final stages of negotiating the proposed Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement or Agreement). The Agreement will have tremendous scope. Geographically it covers all ocean areas beyond national jurisdiction, meaning approximately 60 percent of the earth’s surface. Substantively it deals with a range of complex topics necessary for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including marine genetic resources, sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology. Existing scholarship primarily explores the substantive choices for the Agreement; little examines its proposed institutional structure. This article critically assesses the competing positions advanced during negotiations for the Agreement’s institutional structure – the ‘global’ and ‘regional’ positions – and reviews the middle, or ‘compromise’ position adopted by the draft text. It suggests that both global and regional actors will be necessary to conserve and sustainably use marine biological diversity of areas beyond national jurisdiction, and that some form of coordinating mechanism is required to allocate responsibility for particular tasks. Two principles are proposed for use in combination to provide a mechanism to help coordinate Agreement organs (global) and regional or sectoral bodies, namely, the principles of subsidiarity and cooperation. These principles are found in existing international and regional structures but are advanced here in dynamic forms, allowing for temporary or quasi-permanent allocation of competences, which can change or evolve over time. This position is also grounded in the international law of treaties and furthers dynamic views of regional and global ocean governance by offering practical coordinating principles that work with the existing Agreement text.

scholarly journals Ocean Floor Grab: International Law and the Making of an Extractive Imaginary

2019 ◽  
Vol 30 (2) ◽  
pp. 573-600
Author(s):  
Surabhi Ranganathan
Keyword(s):  
International Law ◽  
Economic Value ◽  
State System ◽  
Ocean Floor ◽  
Law Of The Sea ◽  
National Jurisdiction ◽  
The Law ◽  
Post War ◽  
Political Solidarity ◽  
Law Making

Abstract In this article, I argue for a critical recognition of the law of the sea, as it developed from the post-war period, as fostering a ‘grab’ of the ocean floor via national jurisdiction and international administration. I discuss why we should view what might be discussed otherwise as an ‘enclosure’ or ‘incorporation’ of the ocean floor within the state system as its grab. I then trace the grounds on which the ocean was brought within national and international regimes: the ocean floor’s geography and economic value. Both were asserted as givens – that is, as purely factual, but they were, in fact, reified through law. The article thus calls attention to the law’s constitutive effects. I examine the making of this law, showing that law-making by governments was influenced by acts of representation and narrative creation by many non-state actors. It was informed by both economic and non-economic influences, including political solidarity and suspicion, and parochial as well as cosmopolitan urges. Moreover, the law did not develop gradually or consistently. In exploring its development, I bring into focus the role played by one influential group of actors – international lawyers themselves.

Part I Context, Ch.5 Fragmentation

2021 ◽  
Author(s):  
Young Margaret A
Keyword(s):  
International Law ◽  
Trade Liberalization ◽  
Environmental Law ◽  
Environmental Agreements ◽  
Multilateral Environmental Agreements ◽  
Investment Protection ◽  
Environmental Institutions ◽  
International Adjudication ◽  
Fragmentation Of International Law ◽  
Law Making

This chapter examines fragmentation within the field of international environmental law. There is long-standing scholarly engagement with the fragmentation of international law into largely self-contained ‘regimes’ such as trade, investment, the law of the sea, and human rights. Such regimes are of fundamental importance to the governance of environmental matters. Multilateral environmental agreements (MEAs) covering specific issues and sectors now number in the hundreds, and at times their aims and methods may be in opposition, while gaps remain especially in implementation. The chapter begins with a discussion of the functional conception of law-making within ‘regimes’, which has origins in both international relations and international law, and argues that the governance of environmental matters does not always (or even most often) happen in the context of environmental treaties and environmental institutions but also within norms and institutions that are constituted to pursue other functions, such as trade liberalization or investment protection. It then considers how international adjudication and the proliferation of international courts and tribunals have special salience for environmental matters. The chapter also looks at coordinating initiatives, including the proposal for a Global Pact for the Environment.

International Law, Informal Law-Making, and Global Governance in Times of Anti-Globalism and Populism

2019 ◽  
pp. 242-264
Author(s):  
Jan Wouters
Keyword(s):  
International Law ◽  
Global Governance ◽  
First Century ◽  
Public International Law ◽  
Customary International Law ◽  
Twenty First Century ◽  
The Impact ◽  
Law Making

The chapter focuses on the impact of globalization on public international law in times of anti-globalism and populism, where globalization itself has increasingly become contested. It submits that traditional public international law has been dangerously unreceptive in capturing new transnational regulatory actors and normative dynamics, which makes it more vulnerable to anti-globalist and populist attacks. It looks into the corresponding rise and certain features of ‘informal international law-making’ and ‘global governance’, as they may offer some responses to, or at least some defences against, anti-globalist and populist politics. It also addresses the current challenges which traditional forms of international law-making, like treaties and customary international law, are currently going through. It concludes that public international law will have to adapt to both the challenges of globalization and anti-globalism, if it is to remain relevant in regulating international life in the twenty-first century.

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