scholarly journals The Tallinn Manuals and the Making of the International Law on Cyber Operations

2019 ◽  
Vol 13 (1) ◽  
pp. 67-86
Author(s):  
Papawadee Tanodomdej
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Political Activism ◽  
Customary International Law ◽  
State Practice ◽  
The Right ◽  
International Experts

The Tallinn Manuals (the Manuals) attempted to clarify how to apply existing international law to cyber operations. Though the Manuals are non-binding instruments, the Group of International Experts claimed that they reflected the lex lata applicable to cyber operations. However, this claim is questionable due to the dominating role of a few Western states in the drafting process and the linked neglect of the practice of “affected states” in cyber operations. This article examines the quality of the Manuals’ drafting process and the composition and impartiality of the experts involved. It focuses on the issue of the prohibition of the use of force. The aim of this examination is not to discuss whether the Manuals provided the right answer to the question of how international law applies to cyber operations. Rather, they function as a case study of how legal scholarship may affect the making of international law. The article concludes that certain rules in the Manuals are marked by NATO influence and overlook the practice of other states engaged in cyber operations. Therefore, the Manuals disregard the generality of state practice, which should be the decisive factor in the formation of customary international law. As far as “political activism” may be involved, the article argues that the role of legal scholars as assistants to the cognition of international law could be compromised.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

Sources of International Law in Domestic Law

2018 ◽  
Author(s):  
Cedric Ryngaert
Keyword(s):  
International Law ◽  
Social Relationships ◽  
Court Decisions ◽  
International Courts ◽  
Customary International Law ◽  
Legal Norms ◽  
State Practice ◽  
Municipal Court ◽  
Domestic Law

This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

The Persistent Objector Rule in International Law

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Detailed Understanding ◽  
Customary International Law ◽  
Binding Force ◽  
Conceptual Role ◽  
State Practice ◽  
The Way

The persistent objector rule is said to provide states with an ‘escape hatch’ from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallises into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this book provides a detailed understanding of how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.

Part III The Limitations and Role of the Persistent Objector Rule, 8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Actual State ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Customary International Law ◽  
State Practice ◽  
The Face ◽  
Jus Cogens

A notable minority critique of the persistent objector rule is that the rule is not supported by actual state practice. The first part of this book dismissed these critiques. This chapter explores the ‘softer’ versions of the persistent objector rule. The first is that persistent objection is not permissible in relation to particularly ‘fundamental’ customary international law norms, even those that have not attained jus cogens status. This claim has most commonly been made with regard to norms of customary international human rights law. The chapter then turns to a related claim made by critics of the persistent objector rule, which is that it is commonly unavailing, not just in the face of especially ‘fundamental’ norms, but in general.

Part III The Limitations and Role of the Persistent Objector Rule, Conclusion

2016 ◽  
Author(s):  
Green James A
Keyword(s):  
International Law ◽  
Detailed Account ◽  
Customary International Law ◽  
State Practice ◽  
Key Questions

This concluding chapter looks back at the issues outlined here. This book has presented a detailed account of the persistent objector rule seeking to assess the rule's existence and limitations and value in depth. However, this investigation can only go so far. This is because, like customary international law itself, the persistent objector rule has inherent uncertainties at its core. We cannot provide precise answers to at least some of the key questions concerning how the rule functions — for example, exactly how persistent and consistent the objection needs to be — because, in relation to these sorts of questions, there are no precise answers to give. It is hoped, however, that this book has helped to increase the general understanding of this often misunderstood rule. The book, the conclusion states, has aimed to go beyond the scholarly examinations of the rule and to focus on persistent objection ‘in action’ in state practice.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

scholarly journals THE ROLE OF THE CJRAE SOCIAL WORKER IN PREVENTING ADDICTION IN CHILDREN FROM THE CLUJ COUNTY SCHOOLS

2019 ◽  
Vol 11 (3) ◽  
pp. 97-107
Author(s):  
Ramona PURA
Keyword(s):  
Social Worker ◽  
Access To Education ◽  
Job Description ◽  
Qualitative Research Design ◽  
Addiction Prevention ◽  
The Social ◽  
The Right

The CJRAE institution is designed to ensure the quality of specific educational services provided to childern, teachers, parents and to allow everyone’s access to education by providing the necessary assistance. This article’s purpose is to determin the role of the social worker in addiction preventing programs of The Institution of Resourses and Educational Asistence of Cluj county (CJRAE Cluj). The study adopted a qualitative research design using the case study of an addiction preventing program runned in the Cluj county schools, between years 2017 and 2018. The social worker can have an important impact in school and social integration of children, as he has the abilities and competencies to identify the right resources for intervention; more than this, the job description of social worker empolyee in CRJAE, shows that they have the attribution to develop together with other educational partners useful programs for children, schools and comunity. That’s why, we have to know if and how the social worker contributes in these addiction prevention programs.

Restrictivist Reasoning on theRatione PersonaeDimension of Armed Attacks in the Post 9/11 World

2016 ◽  
Vol 29 (1) ◽  
pp. 19-42 ◽  
Author(s):  
ANDRÉ DE HOOGH
Keyword(s):  
International Law ◽  
Customary International Law ◽  
State Practice ◽  
State Actors ◽  
The Right ◽  
Self Defence

AbstractThis contribution investigates restrictivist reasoning on the origin of armed attacks, and concentrates on the interpretation of Article 51 of the UN Charter and the use of state practice. One particular aspect is examined: the linkage of the armed activities of non-state actors to a state required for an exercise of the right of self-defence to be justified in relation to that state. Many authors have moved away from a restrictive interpretation of Article 51 of the Charter and customary international law, and have proposed various legal constructs –complicity, aiding and abetting, harbour and support, unwillingness or inability to act– to allow for the invocation of self-defence even when armed activities of non-state actors cannot be attributed to a state and its substantial involvement is doubtful. Noticeable among authors generally, with certain exceptions, is a certain lack of concern to account for whatever method of interpretation or analysis they employ.

1 Law and force

2018 ◽  
Author(s):  
Gray Christine
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Crimes Against Humanity ◽  
Legal Questions ◽  
Legal Constraints ◽  
The Government ◽  
Repressive Regime ◽  
The Right ◽  
Second World

This introductory chapter provides a background to the renewed debate about the legal constraints on the use of force imposed by the UN Charter after the Second World War. The increasing conflicts within states have raised legal questions, first, as to whether there can be a right of unilateral humanitarian intervention to protect citizens from their own governments, second, as to the content of the more recent doctrine of Responsibility to Protect (R2P)—the responsibility of the ‘international community’ to protect a population from war crimes, genocide, and crimes against humanity by the government, and third as to the existence of a right to intervene to overthrow a repressive regime. Even more controversially, the conflict in Syria has brought renewed debate about the scope of the right to self defence in counter terrorism operations. This chapter discusses the problems with the identification of international law on the use of force, the role of international law in this area, and the complexities of any inquiry into its effectiveness.

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