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No authoritative definition of a “sanction” exists in international law, yet the term is frequently used to describe unfriendly measures short of war, particularly those of economic nature. One commonly used definition is the “deliberate, government-inspired withdrawal or threat of withdrawal of customary trade or financial relations” (Hufbauer, et al. 2007, p. 3; cited under Effectiveness of Sanctions). Discussions of sanctions typically focus on economic sanctions, which involve prohibiting economic transactions with sanctioned persons. Reasons for the imposition of sanctions vary, and governments frequently target officials of unfriendly regimes or individuals suspected of involvement in crime or terrorism. Sanctions can also include export/import or investment restrictions and can be directed against a sector of the economy that is deemed to facilitate harmful behavior (e.g., arms industry or research related to weapons of mass destruction) or be a lucrative funding source (e.g., trade in high-value goods such as diamonds, oil or timber). Travel sanctions, which preclude sanctioned individuals from entering the sanctioning state, are also common. In contrast, the original form of international sanctions, i.e., embargo on the totality of trade with another country, is now rarely used due to its far-reaching humanitarian consequences. Purely diplomatic or political measures, such as breaking off diplomatic relations, are not normally viewed as “sanctions” in the sense discussed here; the same applies to military action. The characterization of international sanctions as being “between words and wars” is thus a helpful cliché (Wallensteen and Staibano 2005, cited under General Overviews). Conversations about international sanctions generally concern two sets of issues: their objectives and effectiveness on one side, and their legality and human rights impact on the other side. These are related in that sanctions are at their most potent when applied by powerful states or international organizations, and it is also then that the issues of accountability loom large. Some sanctions, particularly those against suspected terrorists, are adopted by the UN Security Council and are thus binding on all UN members. Others are enacted by individual states or the European Union (EU), a uniquely integrated regional organization with a common foreign policy. Sanctions taken outside the UN framework are known as “unilateral,” and the United States and EU are major economic powers that make active use of unilateral sanctions.
Conciliation and mediation have great potential to resolve investor-State disputes. Nonetheless, arbitration has significantly overshadowed these two forms of amicable dispute settlement processes. This disparity is slowly changing, and, in recent times, interest has grown in conciliation and mediation, particularly given the duration, complexity, and cost of investor-State arbitrations, as well as concerns as to the substantive content of investor-State arbitral decisions. No clear consensus has emerged regarding the precise definition of either conciliation or mediation. Given the substantial overlap between the two processes, they have often been referred to as functionally equivalent and interchangeable. The best way to identify conciliation or mediation is through close examination of the particular set of rules and practices at issue. But the two dispute settlement mechanisms are generally distinguishable. At its core, conciliation involves a sole conciliator or conciliation commission considering the respective positions of the disputing parties and making nonbinding recommendations for settlement. Conciliation rules typically have flexibility to accommodate other mediation techniques that share the same purpose and may require a conciliator or conciliation commission to produce a written evaluation of the parties’ respective legal positions. In comparison, mediation is a process in which a mediator (1) assists the parties to focus on their real interests rather than legal rights, (2) generally avoids making any merits-based evaluation of parties’ positions, and (3) facilitates a meaningful dialogue between the parties to reach an amicable settlement. Unlike arbitration, in which the disputing parties have no certainty over the arbitrators’ binding decisions, the success of both conciliation and mediation depends on the willingness and cooperation of the parties to reach a voluntary and agreed settlement. A settlement agreement resulting from a mediation or conciliation process may potentially be enforced under domestic laws or in states that have ratified the Singapore Convention on Mediation, an innovation in international dispute resolution that may increase interest in investor-State conciliation and mediation. The UNCITRAL Working Group III is presently considering whether and how to promote conciliation, mediation, and other alternative dispute resolution (ADR) mechanisms in reforms to the present system of investor-State dispute settlement.
Geographically situated in the juxtaposition of East and West, peace among nations is the zeal of Iranian people. As a founding member of both the League of Nations and the United Nations, Iran was seen as a great supporter of multilateralism. Iran voted in favor of the Universal Declaration of Human Rights in 1948 and hosted the first UN Human Rights Conference in its capital in 1968. Following the 1979 Islamic Revolution and the crisis of the US diplomatic and consular staff in Tehran, the United States put in place embargoes against the newly elected Iranian government and instituted proceedings against Iran before the International Court of Justice (ICJ). Iran did not participate in the proceedings to defend itself and the court ruled that Iran has violated its international obligations. Since then, Iran has faced many challenges in its international relations especially with the Western powers. For example, neither Iraq’s aggression against Iran nor the use of chemical weapons against Iranian civilians was recognized by the UN Security Council; different types of unilateral, regional, and international sanctions have been imposed on Iran; and the human rights situation in Iran has been repeatedly criticized by individual Western states and the UN mechanisms. Furthermore, Iran’s nuclear program was considered by the Security Council under Chapter VII of the UN Charter, while the US officials have emphasized that military options against Iran remain “on the table.” Iranian academics and international lawyers have extensively discussed the last four decades of Iran’s presence on the international plane as a thought-provoking issue in the fields of international responsibility, diplomatic and consular law, state immunity, arbitration, judicial adjudication, human rights, humanitarian law, use of force, law of the sea, fight against terrorism, and nonproliferation, just to name a few. This long list, however, has created its own negative impact internally: doubts about the effectiveness and efficacy of relevant rules of international law which found more basis after the United States announced its withdrawal from the Iran nuclear deal and reimposed some further tough sanctions against Iran. Seeking to use international law as a tool to protect its national interests, the Iranian government has brought this case to the ICJ and is still making efforts to preserve the nuclear deal. This contribution introduces the different Iranian resources and institutions in the field and also deals with some of the above-mentioned topics as the most important subjects for Iran in the context of international law.
The Hashemite Kingdom of Hijaz attracted little notice in the Western international legal history during its brief lifetime, and has not been much covered in the historical literature since. However, the Hijazi state is critical for international law because it stands at the intersection of Arab self-determination and Islamic statehood. Its birth in 1916 was, understandably perhaps, overshadowed by the military significance of the Arab Revolt against the Ottomans, and the role played in it by Colonel T.E. Lawrence. Its demise, formally declared in 1932 but inevitable after the Saudi invasion of 1924–1925, was met by silence from the members of the League of Nations despite the fact The Hijaz was one of its founding members. This neglect of the Hijazi state is unfortunate for a number of reasons. Firstly, it was the earliest attempt at Arab statehood in modern international legal history, the first ethnocentric expression of Arab self-determination to be recognized by the European powers after the Great War and, as home to the holy cities of Mecca and Medina, it had significance for Islamic governance that is disproportionate to its economic or geopolitical value. Secondly, it presents a test for one of the most fiercely contested areas of international law: how to understand and apply national self-determination to the formation and recognition of states. In this case, the claim for self-determination is bound up with the ethnocentric awakening of Arabs, the struggle over the political and institutional forms that a collectivity should take, and what balance could be struck between Western, Westphalian views of the state and Islamic governance traditions and principles. Thirdly, it provided an early example of how small states would fare in the new international order, and the extent to which they could expect great powers to abide by international law, as it emerged from the Great War. As it turned out, Sharif Hussein’s refusal to acquiesce in the League of Nations’ mandate system, itself based on the Sykes–Picot agreement between Britain and France, coupled with his support for Arab aspirations to control Jerusalem, made the fledgling state vulnerable to imperial Realpolitik. Fourthly, the fall of The Hijaz was bound up with the fall of the Caliphate in 1924, with repercussions that are still being felt. Finally, the historical events, which did much to determine the map of the Middle East today, present a telling example of how international law functions in regions where great powers are actively competing for influence and control. This bibliography collects readings that cast light on how ideas of the nation and the state have been understood and applied, with particular reference to the Islamic collectivity, the Arabs, and The Hijaz. It is divided into two general areas. The first looks at the national aspects of self-determination and the second looks at the state as understood by international law and by Islamic jurisprudence, again with special reference to The Hijaz.
Cold War International Law has conventionally been structured around a historiography of hiatus. A “gap” is posited as inhering in international law sometime between 1948 and 1989. In this gap, there is very little international law—or there is an international law of suspension or crisis or deferral. Some of the present editors (Craven, Pahuja, Simpson) are constructing an alternative vision of Cold War international law as law of improvisation, of committed nonalignment, of ideational power, of responsibility, of complicity, of imagination, and of co-constitution. The Cold War needed international law, and the international law we have now is a product of the Cold War. Given all this, compiling a bibliography of Cold War international law raises some difficulties. A first, overarching challenge is how to relate two amorphous things: “international law,” with its many meanings, subfields, instruments, and writers, to “Cold War” in its many forms, locations, experiences, and legacies. This is a problem of breadth and depth for “international law” and “Cold War” alike, but it is also a problem about the Cold War being, paradoxically, both everywhere and nowhere in postwar international law. There is no treaty, case, or juristic text from 1945 to 1991 that does not have some political and global dimension and thus a connection to the Cold War, and yet the term “Cold War” rarely appears within these texts. How to connect them? A second difficulty is about fields. Those interested in Cold War international law cannot avoid becoming well versed in the historical and political events of the era. These events are recounted and debated by scholars in new, complex ways. Cold War historiography, international relations, economics, culture, and sociology are each important, extensive, and indispensable fields, but they are also not often directed to questions of law. Third is the problem of newness. We may be on the cusp of new histories of Cold War international law, but a significant shift to thinking about Cold War international law as a subject in itself has not yet occurred. Evaluations of the Cold War’s “effect” on international law at the time tended to see impasse instead of development, a law subsumed under politics. Now it is clear enough that there is a morass of complex materials waiting to be examined, contextualized, and understood. But we are only just beginning to do that, and there are few major works to guide us. Against these challenges, this article is, then, a first guide. We acknowledge its limits. It is primarily an English-language bibliography, skewed toward writers and perspectives from the Western side of the Cold War. It favors materials that show clear connections between Cold War and international law, meaning many sources relevant to or revealing of the Cold War in more nuanced ways may be missed. Readers of these sources, then, must always take care to consider the partialities, worldviews, contexts, and projects of their authors, a task central to good source interpretation in its legal and historical meanings. This care will be at the foundation of any good work on Cold War international law. But we should also press beyond ideologies and conflicts to other kinds of engagements and understandings.
Africa’s experience with constitution making in general and constitutionalism in particular is quite short and dates from the immediate postindependence period. The independence constitutions were virtually imposed by the departing colonial powers with minimal participation in their making by the people and their leaders. They were essentially transplants of the constitutional traditions of the main colonizers—namely the British, the French, and the Portuguese. For the inexperienced Africans assuming the role of leadership, these constitutional documents were simply too complex, and perceived as too badly adapted to address the immediate postindependence problems of underdevelopment. Under the pretext of promoting national unity among the diverse communities which had been artificially forced together as states during the partition of Africa in 1884, and to promote a sense of political identity and thus facilitate nation building and development, many of the liberal principles contained in the independence constitutions were progressively repealed. By the end of the 1980s the independence constitutions had not only become emasculated but had given rise to repressive, corrupt, and incompetent authoritarian regimes along with political instability and the collapse of most economies. However, since the 1990s, there has been a revival of constitutionalism in Africa. A new generation of ‘made in Africa’ constitutions have emerged after new or substantially revised constitutions were adopted. While all these constitutions have retained the strong imprint of their colonial roots they also reflect the adoption of many other features of transnational constitutionalism. Many African constitutions also reflect the considerable efforts at the supranational level by the African Union (AU), influenced by contemporary ideas of transnational constitutionalism, to promote constitutionalism on the continent. Perhaps one of the most significant developments has been the growing influence of an intra-African cross-fertilization of constitutional ideas centered around the South African 1996 Constitution that has influenced the direction and content of the constitution of other African countries such as the 2010 Kenyan and 2013 Zimbabwean Constitutions. Nevertheless, appreciating the extent of transnational constitutionalism in Africa must be understood in the context of the historical heritage of the different African countries. Accounts must also be taken of the complex history of these countries, the ethnic and religious diversity of the population, and the challenges encountered in the continuous attempts to entrench a culture of constitutionalism, good governance, and respect for the rule of law in the face of ominous threats of an authoritarian revival.
The recognition of individual criminal responsibility under international law is relatively recent. The commission of mass atrocities during the 20th century prompted the international community to recognize that individuals can be criminally responsible directly under international law and to work for the establishment of an international criminal court having jurisdiction on international crimes committed by individuals. Thus, after World War II, the principle was established that individuals—and not only states—can be the addressee of obligations, commit crimes, and therefore bear criminal responsibility directly under international law. As affirmed by the judges sitting in Nuremberg: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” As a consequence, it is now undisputed that individuals shall be punished for the commission of crimes under international law (or “international crimes”) that seriously damage the interest of the international community as a whole, so that the goals of prevention and deterrence can be achieved. This principle is now well expressed in the Preamble of the Rome Statute of 1998, where it affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that the International Criminal Court aims “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” The attribution of criminal responsibility to individuals does not exclude that states can be held responsible for the violations of international law that also potentially amount to international crimes; however, individual criminal responsibility under international law possesses the same legal nature as the criminal responsibility under domestic law, whereas the responsibility of states is of an international/civil nature. Given the macro-criminal dimension of the crimes at stake, which normally involve the state apparatus and are committed by an organized group or in a systematic manner, the process of “individualization” of the responsibility encounters more than one challenge. First, the issue of immunities for heads of states and other subjects under international law; second, the regulation of the modes of liability, which need to take into account the collective dimension of commission of international crimes. To overcome some of the difficulties, the rules of attribution of criminal liability to individuals had been partly reinterpreted and new modes of liability developed. Moreover, the principle of personal culpability excludes collective and strict liability. As a consequence, several grounds to exclude criminal responsibility are recognized. Finally, the enforcement of individual criminal responsibility for international crimes is the real challenge in a context of collective commission and macro-dimension of the crimes, where, moreover, the mechanisms of enforcement are not homogeneous.
The means to ensure compliance with international law differ considerably from those applying in internal law. The latter rely primarily on enforcement by the authority of the state which imposes obedience. Such superior authority does not exist in international relations; international law rather relies on voluntary compliance. But means and methods to ensure such voluntary compliance exist, and over the centuries, they have undergone considerable changes and refinements. As there is a certain strand of opinion denying the character of international law as law because of the (alleged) lack of effective enforcement, a first area of discussion relates to this question, namely whether or why international law, in the light of the compliance problem, is really law. There are classical texts on this issue, which have triggered, and are the basis of, a profound theoretical discussion where the theory of international relations meets with legal theory, including a historical dimension. This leads to an empirical look on circumstances favoring compliance (compliance pulls) of different types: norm internalization, concern for a state’s reputation, sanctions (organized and regulated value deprivation), and withholding certain benefits from a state unless the states complies with certain norms (conditionality). To address the question of compliance only for international law as a whole would be an oversimplification. There are various types of internationally relevant acts to be complied with (standards of compliance) involving particular problems (treaties, customary law, judgments, decisions of international organizations, “soft law”). Various subjects of compliance, i.e., actors or entities whose compliance is at stake, namely states, international organizations, non-state actors, have to be distinguished. All this is the basis for a closer look at means to ensure compliance which have indeed undergone a notable development. Traditional means were, and still are, bilateral in character: bilateral dispute settlement and value deprivation in the relation between a state acting unlawfully and another state trying to make the former state respect the law, traditionally called “reprisal” (or, as the case may be, “retortion”), in the modern terminology “countermeasures.” This traditional tool is still practiced, but it is to a large extent replaced or supplemented by a wide array of other means designed to ensure compliance: individual remedies at the national or international level, international criminal law, special compliance procedures. In connection with all these means, ascertaining facts plays a major role. An important method for this purpose is the so-called reporting system, used in various contexts. In these different procedures, different actors play a role. These are not only the genuine parties to the procedures, but also third parties. Guardians of the public interest, in particular intergovernmental organizations, guide or perform these procedures. The fragmentation of international law has also led to a fragmentation or multiplication of area-specific compliance procedures, i.e., specialized procedures for certain areas of international law, most often for single treaty regimes. These specific procedural set-ups relate inter alia to human rights, arms control and disarmament, the law of armed conflict, environmental law, cultural relations (UNESCO), the law of the sea, and international economic relations.
Cyberspace gives rise to risks as well as opportunities, and a prominent threat emerging from this domain is cyber espionage. Because no internationally and legally recognized definition of cyber espionage exists, the following definitions of espionage will be used only to frame the subject under examination. “Cyber espionage” describes the exploitation of cyberspace for the purpose of accessing and collecting confidential data. It can occur via close or remote access. “Close access cyber espionage” involves the collection of confidential data through the installation of hardware or software by malicious actors in close physical proximity to the targeted computer network or system. In contrast, “remote access cyber espionage” is launched some distance from the targeted network, usually by exploiting pathways created by the Internet. Cyber espionage takes different forms depending upon the type of confidential data targeted, the actor undertaking this activity, and the context in which it occurs. “Political” cyber espionage is usually state-sponsored (although it can be undertaken by nonstate actors such as terrorist groups) and describes the appropriation of political and military information belonging to state and nonstate actors during times of peace or armed conflict. “Economic” cyber espionage is also state-sponsored but instead involves the theft of confidential business information from foreign companies. “Industrial” cyber espionage entails the theft of confidential business information, but, unlike economic cyber espionage, it is carried out by companies against foreign rivals without the support or assistance of a state. The dawn of cyberspace has heralded an exponential increase in political, economic, and industrial espionage for several reasons: first, cyberspace is used to store huge amounts of confidential information, and is therefore a resource-rich environment for cyber spies to target; second, the instantaneous nature of cyberspace means that cyber spies can access confidential information quickly, cheaply, and efficiently; and third, cyberspace is a virtual and interconnected domain, meaning that espionage can be conducted remotely and anonymously, thus making it a relatively risk-free enterprise. Peacetime espionage is not specifically regulated by international law, and thus there is no “international law of espionage” that can be applied to cyber-enabled espionage. But this does not mean that cyber espionage exists in an international law vacuum. In fact, there is an array of general principles of international law as well as specialized regimes that are potentially applicable to cyber espionage. Unlike peacetime espionage, cyber espionage committed during times of armed conflict is directly regulated by international humanitarian law.
According to a 2018 count, there are twenty-two states that claim archipelagic state status. It was only after the independence of the Philippines and Indonesia at the end of the Second World War, when both countries made unilateral claims during the 1950s, that the demand for a specific regime for archipelagic states became articulated. Third states wanted to retain their navigational rights in archipelagic waters for economic and military purposes, while the archipelagic states wanted to claim these archipelagic waters as internal waters, following the swift development of the concept of coastal archipelagos after the 1951 judgement of the International Court of Justice through the creation, and codification a few years afterward, of the notion of straight baselines. The concept of an archipelagic state was only incorporated in the 1982 United Nations Convention on the Law of the Sea (1982 LOSC), after nine years of negotiations on this issue during the Third United Nations Conference on the Law of the Sea (UNCLOS III, 1973–1982), of which the first session was totally devoted to procedural matters. At the First United Nations Conference on the Law of the Sea (UNCLOS I, 1958) and during its preparatory work undertaken by the International Law Commission (ILC, 1949–1956), the Special Rapporteur J. P. A. François already developed the concept of a group of islands or archipelagic states in 1953. States were, however, unable to find common ground because the concept at that time. Especially the legal nature of the waters on the inside of the archipelago proved to be elusive. It was consequently deleted from the ILC draft and even though specific proposals were introduced during UNCLOS I and II (1960) on this issue, neither conference reached any conclusion on the matter. The issue was picked up again during the work of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction (Sea-bed Committee) in 1971, which prepared the agenda for UNCLOS III. At UNCLOS III, the debate after a while (1976) totally narrowed down to mid-ocean archipelagic states, dashing the hopes of continental states, sometimes referred to as mixed states, to see their mid-ocean “archipelagos” included in the system being elaborated at that time. In the early 21st century, the provisions of Part IV of the 1982 LOSC determine the regime of archipelagic states in international law of the sea and can be considered as progressive development of international law. Never before had such a concept been written down in an international treaty. Due to the package-deal approach, a balance of interests can clearly be found in these provisions. New concepts are created such as archipelagic states, archipelagic baselines, and archipelagic sea-lanes passage, all of which are being carefully defined in the 1982 LOSC.
