The use of private maritime guards as an innovative means to fulfil states’ duty to cooperate in the repression of maritime piracy. Part Two

2021 ◽  
Vol 02 (01) ◽  
Author(s):  
Katinka Svanberg ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Positivism ◽  
Soft Law ◽  
Maritime Piracy ◽  
Armed Robbery ◽  
Legal Rules ◽  
Clear Cut ◽  
Additional Layer

This article discusses the use of PCASPs as an alternative or additional layer of protection on board ships in the fight against maritime piracy and armed robbery at sea from an international law perspective based on legal positivism. A concern is that clear-cut, international legal rules are missing on PCASPs. A particular concern is the use of force by PCASPs. The IMO, the shipping- and PMSC industry have had to resort to soft-law instruments and self-regulations. The perceived lack of legal rules concerning PCASPs and PMSCs has resulted in a lot of criticism. But does international law on maritime piracy need to develop binding international legal rules’ that are directly applicable to PCASPs? My findings are that the existing legal framework, in the Law of the Sea, SOLAS Convention, customary international law on self-defence together with the non-binding IMO guidelines and the shipping industry’s and PMSC’s self-regulations, as implemented by national laws, gives the necessary framework to adequately address the issue of PCASPs as protection against maritime piracy. The article describes maritime piracy, piracy hotspots and how interventions against piracy differ according to regions. It analyses the current legal framework on maritime piracy and armed robbery at sea in UNCLOS and the SUA Convention, flag-state jurisdiction and national laws. It defines “soft-law” and goes through regulations on PCASPs from the Montreux Document and ICoC to regulations that directly address the use of PCASPs on board ships, as the IMO Guidelines, ISO Standards, the industries standard agreements and the Guidance on the use of force.

The use of private maritime guards as an innovative means to fulfil states duty to cooperate in the repression of maritime piracy. Part 1

2020 ◽  
Vol 01 (02) ◽  
Author(s):  
Katinka Svanberg ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Positivism ◽  
Soft Law ◽  
Maritime Piracy ◽  
Armed Robbery ◽  
Legal Rules ◽  
Clear Cut ◽  
Additional Layer

This article discusses the use of PCASPs as an alternative or additional layer of protection on board ships in the fight against maritime piracy and armed robbery at sea from an international law perspective based on legal positivism. A concern is that clear-cut, international legal rules are missing on PCASPs. A particular concern is the use of force by PCASPs. The IMO, the shipping- and PMSC industry have had to resort to soft law instruments and self-regulations. The perceived lack of legal rules concerning PCASPs and PMSCs has resulted in a lot of criticism. But does international law on maritime piracy need to develop binding international legal rules’ that are directly applicable to PCASPs? My findings are that the existing legal framework, in the Law of the Sea, SOLAS Convention, customary international law on self-defence together with the non-binding IMO guidelines and the shipping industry’s and PMSC’s self-regulations, as implemented by national laws, gives the necessary framework to adequately address the issue of PCASPs as protection against maritime piracy. The article describes maritime piracy, piracy hotspots and how intervention against piracy differs according to regions. It analyses the current legal framework on maritime piracy and armed robbery at sea in UNCLOS and the SUA Convention, flag-state jurisdiction and national laws. It defines “soft law” and goes through regulations on PCASPs from the Montreux Document and ICoC to regulations that directly address the use of PCASPs on board ships, as the IMO Guidelines, ISO Standards, the industries standard agreements and Guidance on the use of force.

Mandated to Protect

2016 ◽  
Author(s):  
Haidi Willmot ◽  
Ralph Mamiya
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Legal Framework ◽  
Human Rights Law ◽  
Peacekeeping Operations ◽  
Un Peacekeeping ◽  
Un Security Council ◽  
Republic Of The Congo ◽  
Peacekeeping Missions

This chapter focuses on the conception and evolution of the UN Security Council mandate to protect civilians during peacekeeping operations from 1960 to the present. The chapter examines the normative and legal framework of the use of force to protect civilians in UN peacekeeping operations, with reference to Security Council resolutions and other bodies of international law such as humanitarian and human rights law. It considers Security Council practice between 1960 and 1999 and its emphasis on the concept of self-defence; Security Council practice from 1999 to 2007 regarding the inception and development of the explicit ‘protection of civilians’ mandate by the Council; Security Council practice from 2007 to 2011; and prioritization of the mandate in certain peacekeeping missions, specifically UNAMID (Sudan (Darfur)), MONUC (Democratic Republic of the Congo), UNOCI (Côte d’Ivoire), and UNMISS (South Sudan). Finally, the chapter describes Security Council practice from 2011 onwards and draws conclusions on impact that the protection of civilians mandate in peacekeeping operations has had on the evolution of the legitimate use of force under the UN Charter.

Money laundering

2016 ◽  
Vol 19 (4) ◽  
pp. 346-375 ◽  
Author(s):  
Emmanuel Ebikake
Keyword(s):  
International Law ◽  
Money Laundering ◽  
Legal Positivism ◽  
Soft Law ◽  
Content Type ◽  
Advantages And Disadvantages ◽  
Hard Law ◽  
The Law ◽  
Law Making

Purpose The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC). Design/methodology/approach This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area. Findings Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically. Research limitations/implications The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study. Practical implications The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law. Social implications The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law. Originality/value The research perspective to the study of ML is theoretical and focuses on the nature of the law.

Prevalence of Soft Law in the Arctic

2021 ◽  
Vol 12 (1) ◽  
pp. 285-307
Author(s):  
Hema Nadarajah
Keyword(s):  
International Relations ◽  
International Law ◽  
Domestic Politics ◽  
Legal Framework ◽  
The Arctic ◽  
Soft Law ◽  
Dynamic Changes ◽  
Binding Forms ◽  
National Jurisdiction ◽  
Definition Of

Soft law has been observed to be increasing within the frontiers – regions and issue-areas that extend beyond national jurisdiction, and where governance substantively integrates scientific and technological knowledge. The often-used assumption for the prevalence of such instruments has been the uncertainty of scientific knowledge. This paper takes this facile analysis further by examining the dynamic changes to the number and diversity of state and non-state actors as well as their relative influence. Using a revised definition of soft law which encompasses both binding and non-binding forms, this article shows that this has not been the case. Through analysis of the legal framework within which the region is governed and a mixed methodology drawing from the fields of international relations and international law, this research confirms that soft law is prevalent within the Arctic and that it is an outcome of domestic politics, as well as geopolitical tensions among the relevant states.

International Law and the Exploration and Use of Outer Space

2017 ◽  
Author(s):  
Steven Freeland
Keyword(s):  
International Law ◽  
Space Debris ◽  
Outer Space ◽  
Legal Framework ◽  
Soft Law ◽  
The Law

The 1957 launch of Sputnik I challenged humankind’s perceptions of what was possible in space, and necessitated the development of a legal framework for the exploration and use of outer space. However, these rules emerged at a time when the development of space-related technology was principally directed towards military objectives. As the possibility of a military confrontation in space increases, uncertainty coalesces with other risks, particularly with respect to the dangers posed by space debris, revealing lacunae in the law, the further evolution of which has largely stalled due to geopolitical factors. Emerging ‘soft’ law principles are neither entirely clear nor sufficiently comprehensive to meet the increasing complexity associated with attempting to regulate outer space. This chapter assesses the uncertainties arising from the existing international legal framework and their correlation to significant risks pertaining to the exploration and use of outer space.

1 Introduction

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Use Of Force ◽  
Armed Conflicts ◽  
Important Distinction ◽  
Legal Rules ◽  
Arms Trade ◽  
Law Of Armed Conflict ◽  
The Law

This relatively brief chapter introduces the book as a whole. It positions weapons law within the framework of international law in general, and of the law of armed conflict in particular, noting the important distinctions between international and non-international armed conflicts, and between the law on the resort to the use of force and that which regulates the conduct of hostilities. The logical flow of the book is presented, and certain terms that are vital to the ensuing discussion, namely weapons, means of warfare and methods of warfare are explained. The all-important distinction between weapons law and the legal rules that regulate targeting is noted. A concluding section addresses the recently-adopted Arms Trade Treaty.

We Need to Cut Off the Head of the King: Past, Present, and Future Approaches to International Soft Law

2012 ◽  
Vol 25 (2) ◽  
pp. 335-368 ◽  
Author(s):  
MATTHIAS GOLDMANN
Keyword(s):  
International Law ◽  
Public Authority ◽  
Legal Positivism ◽  
Soft Law ◽  
International Treaties ◽  
The Public ◽  
Legal Studies ◽  
Functional Equivalent ◽  
Public Character ◽  
The Concept Of Law

AbstractThis article surveys contemporary approaches to international soft law, such as various types of legal positivism, legal realism, critical legal studies, and global administrative law. It scrutinizes to what extent the concept of law endorsed by each of these approaches is able to tackle two challenges caused by the spread of soft law as a means of governance: (1) the fact that international soft law is today often the functional equivalent of international treaties and (2) the contestations of the legitimacy of soft law. It concludes that discursive approaches that stress the public character of international law appear very promising, because they link broad concepts of law with considerations of legitimacy. However, since international institutions today exercise public authority not only through soft law or hard law, but also through non-legal instruments like information, the article argues that one ultimately needs to conceptually dissociate the concept of international law from the concept of public authority.

Shades of Grey: Soft Law and the Validity of Public International Law

2012 ◽  
Vol 25 (2) ◽  
pp. 313-334 ◽  
Author(s):  
JAYE ELLIS
Keyword(s):  
International Law ◽  
Soft Law ◽  
Perceived Benefits ◽  
Public International Law ◽  
Legal Rules ◽  
Law And Politics

AbstractSoft law is often seen as a way to overcome certain problems of legitimacy in international law, notably the weaknesses of a voluntaristic conception of international law's validity. Other perceived benefits of soft law include flexibility, speed of adoption and modification, and even effectiveness. Yet, soft law is seen by others as a threat to law, because it effaces the border between law and politics. This paper explores different approaches to the boundary between law and not-law that seek both to maintain this boundary and to reconceptualize it in a way that better anchors the validity of international legal rules.

Conclusions

2020 ◽  
pp. 288-318
Author(s):  
J.F.R. Boddens Hosang
Keyword(s):  
International Law ◽  
Conceptual Model ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Aspects ◽  
Central Question ◽  
Military Operations ◽  
Applicable Law ◽  
Introductory Discussion

This study has sought to contribute to the communication between the academic analysis of the legal aspects of the use of force and the realm of pragmatic application of the rules on the use of force during the conduct of military operations, presenting the case for the need, indeed necessity, for both these realms to remain connected. This chapter presents a conceptual model of rules of engagement (ROE) on the basis of the constituent chapters of the book, drawing on the introductory discussion of the classic ROE model in Chapter 1. It re-examines the influence of political, operational, and legal considerations on ROE and describes the overall function of ROE in terms of applicable law and in the context of the international law of military operations. Drawing on the underlying conclusions from this study, the main questions discussed in the Introduction will be addressed in order to answer the central question: what is the function of ROE and derivative (or similar) rules on the use of force in the context of the legal framework governing the use of force during military operations.

Codification of Private International Law in Israel?

1977 ◽  
Vol 12 (2) ◽  
pp. 129-154
Author(s):  
Edoardo Vitta
Keyword(s):  
International Law ◽  
Legal Framework ◽  
Private International Law ◽  
District Courts ◽  
Legal Rules ◽  
Exclusive Jurisdiction ◽  
Personal Status ◽  
The Law ◽  
Set Up ◽  
Civil Courts

In the field of Private International Law, as well as in other branches of the law, Israeli legislation reflects the inheritance of the past. The situation is particularly complex in relation to matters of personal status, where the principle of the personality of the law, characterising the legal set-up of the former Ottoman Empire, still prevails, although modified in various ways by enactments of the Mandatory period and the legislature of Israel. Yet the bulk of conflict rules are drawn from the common law as applied in England, a subsidiary source of legal rules under art. 46 of the Palestine Order-in-Council, 1922–47.The details of the P.I.L. system actually in force in the State of Israel will not be dealt with in this paper. Our discussion will be limited to the main trends.The rules concerning personal status in Israel have their basis in Ottoman law according to which the national law of foreigners was applied to them by the consular courts of their own States. This, the well-known system of the Capitulations, was maintained until the Treaty of Montreux of 8 May 1937.When the British Mandate was set up in Palestine, the pattern obtaining in other territories under British administration was followed: the existing legal framework was retained and merely adapted to the new situation. The relevant Mandatory legislation consisted of the Palestine Order-in-Council 1922 and the Succession Ordinance, 1925. Under these enactments matters of personal status affecting foreigners (other than Moslem foreigners belonging to States who required them to submit in such matters, to the exclusive jurisdiction of the Moslem Religious Courts) were to be tried by the civil courts (the District Courts) according to their national law; if, however, the national law referred the matter to the law of their domicile, such latter law was to be applied.

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