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Articles 1 - 30 of 38
Full-Text Articles in Law
Some Reflections On The “New Law Of The Sea”, Philippe Gautier
Some Reflections On The “New Law Of The Sea”, Philippe Gautier
International Law Studies
The fortieth anniversary of the opening for signature of the UN Convention on the Law of the Sea provides an opportunity to offer some reflections on the “new law of the sea”; that is, the comprehensive set of rules that was the result of an unprecedented multilateral negotiation process: the Third United Nations Conference on the Law of the Sea (1973–1982). The focus of this article is on the adjudication of sea-related disputes in the “new law of the sea.” In an international legal order where access to a judge or an arbitrator requires the consent of both parties to …
Assessing The Legal Framework For Potential U.S. Conflict With China Over Taiwan, Shawn W. Brennan
Assessing The Legal Framework For Potential U.S. Conflict With China Over Taiwan, Shawn W. Brennan
International Law Studies
The People’s Republic of China has clearly stated the importance of resolving the Taiwan question and realizing China’s complete “reunification” to end their century of humiliation. As China grows as the most significant strategic competitor to the United States and develops the military capability to force the issue, understanding what legal authorities the President may exercise in ordering a response is increasingly urgent. This article reviews the legal authorities for the use of force by the United States and examines the contours of the President’s authorities and where they intersect with Congress’s authorities. Through various hypothetical scenarios involving attempts by …
Article 76 Of The Un Convention On The Law Of The Sea: Parties And Non-Parties, Kevin A. Baumert
Article 76 Of The Un Convention On The Law Of The Sea: Parties And Non-Parties, Kevin A. Baumert
International Law Studies
One of the foremost contributions of the UN Convention on the Law of the Sea is its Article 76 pertaining to the continental shelf. Article 76 defines the continental shelf and sets forth detailed rules for determining its outer limits. It also introduces the Commission on the Limits of the Continental Shelf, one of the three institutions created by the Convention. This article addresses the universality of Article 76, in particular the degree to which its provisions are legally applicable to all States, including non-parties to the Convention. In doing so, the article considers the recent jurisprudence of the International …
The Impacts Of Sea Level Rise And The Law Of The Sea Convention: Facilitating Legal Certainty And Stability Of Maritime Zones And Boundaries, Davor Vidas, David Freestone
The Impacts Of Sea Level Rise And The Law Of The Sea Convention: Facilitating Legal Certainty And Stability Of Maritime Zones And Boundaries, Davor Vidas, David Freestone
International Law Studies
It seems clear that the impacts of sea level rise were not contemplated by the drafters of the 1982 Law of the Sea Convention during UNCLOS III. Legal scholars began to identify these issues in the early 1990s but the establishment and work of the International Law Association (ILA) Committee on International Law and Sea Level Rise has drawn increased attention to the importance of this issue that is now being considered by a Study Group of the International Law Commission. This article traces the remarkable and swift evolution over the last decade of State practice on the interpretation of …
Reflecting On Unclos Forty Years Later: What Worked, What Failed, Raul (Pete) Pedrozo
Reflecting On Unclos Forty Years Later: What Worked, What Failed, Raul (Pete) Pedrozo
International Law Studies
The United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature on December 10, 1982, after nine years of painstaking debate. Hailed as “A Constitution for the Oceans,” the Convention was immediately signed by 119 States, a remarkable number given the contentious and complex nature of the negotiations, and today has 168 parties. The intent of the Conference that drafted the treaty was to produce a comprehensive and universally accepted convention covering every aspect of the uses and resources of the oceans that would stand the test of time. This article analyzes the various provisions of …
The Fortieth Anniversary Of The United Nations Convention On The Law Of The Sea, Bernard H. Oxman
The Fortieth Anniversary Of The United Nations Convention On The Law Of The Sea, Bernard H. Oxman
International Law Studies
The UN Convention on the Law of the Sea opened for signature on December 10, 1982. In commemoration of this important date, International Law Studies opens its 40th Anniversary Forum with this keynote compendium essay from Bernard Oxman.
"The most basic object of the U.N. Convention on the Law of the Sea was to replace a system of conflicting unilateral claims of right with global agreement on the rules of the law of the sea and the process for their implementation, interpretation, and application. That remains the Convention’s most significant contribution to the rule of law in international affairs. Its …
The Legal Framework Applicable To Intrusive Intelligence, Surveillance, And Reconnaissance Operations In The Air And Maritime Domains, Raul (Pete) Pedrozo
The Legal Framework Applicable To Intrusive Intelligence, Surveillance, And Reconnaissance Operations In The Air And Maritime Domains, Raul (Pete) Pedrozo
International Law Studies
The validity of intrusive intelligence, surveillance, and reconnaissance (ISR) operations in the maritime and air domains depends on the location from which the operation is conducted. Intrusive ISR conducted beyond the territorial sea and national airspace is considered an internationally lawful use of the sea that is not subject to coastal State jurisdiction or interference. Efforts by a handful of States to regulate ISR operations in and over the exclusive economic zone are clearly inconsistent with a plain reading of the United Nations Convention on the Law of the Sea and the Convention on International Civil Aviation (and their negotiating …
Manual On International Humanitarian Law For The Armed Forces Of The Russian Federation (2002)
Manual On International Humanitarian Law For The Armed Forces Of The Russian Federation (2002)
International Law Studies
A translation of the Manual on International Humanitarian Law for the Armed Forces of the Russian Federation, 2002, by Aleksei Romanovski. This translation was originally published as Appendix 1 in Evan J. Wallach, The Law of War in the 21st Century (2017).
Human Rights Of Conscientious Objectors Vis-À-Vis Armed Non-State Actors And De Facto Authorities, Michael Wiener, Andrew Clapham
Human Rights Of Conscientious Objectors Vis-À-Vis Armed Non-State Actors And De Facto Authorities, Michael Wiener, Andrew Clapham
International Law Studies
This article aims at elucidating the human rights of conscientious objectors to military service and offers detailed substantive guidance for protecting their rights vis-à-vis armed non-State actors and de facto authorities. Persons who live in territory controlled by armed groups or de facto authorities often face human rights protection gaps, for example their freedom of conscientious objection may not be recognized or fully implemented. This article analyzes the practice by international human rights mechanisms in their engagement with de facto authorities in Afghanistan (Taliban), Cyprus (northern part), the Republic of Moldova (Transnistrian region), and Azerbaijan (Nagorno-Karabakh region), along with the …
Some Reflections On The Threshold For International Armed Conflict And On The Application Of The Law Of Armed Conflict In Any Armed Conflict, T.D. Gill
International Law Studies
This essay discusses the threshold of application of international humanitarian law (IHL) in both international (IAC) and non-international armed conflicts (NIAC). In relation to IAC it questions whether the International Committee of the Red Cross (ICRC) “first shot” approach is the most appropriate, since it opens the way for the intensification of conflicts beyond what is necessary in relation to relatively minor armed incidents and argues that the humanitarian protection clauses of IHL should be separated from the rules governing hostilities and makes a case for the application of ad bellum considerations of necessity and proportionality to act as a …
Proportionality: Reconsidering The Application Of An Established Principle In International Law, Rüdiger Wolfrum
Proportionality: Reconsidering The Application Of An Established Principle In International Law, Rüdiger Wolfrum
International Law Studies
Traditionally, the principle of proportionality is defined as limiting State action to rational and reasonable means with the view to achieve a goal permissible under international law without unduly encroaching on the protected rights of another State, States, or individuals. The principle applies to the planning, as well as the implementation, of State activities. The application of the principle of proportionality is common in national constitutional and administrative law. A vast national jurisprudence exists in this regard. However, due to the plurality of approaches in the various national legal systems, it is hardly possible to draw any general legal conclusions …
The Legal Requirement For Command And The Future Of Autonomous Military Platforms, Rain Liivoja, Eve Massingham, Simon Mckenzie
The Legal Requirement For Command And The Future Of Autonomous Military Platforms, Rain Liivoja, Eve Massingham, Simon Mckenzie
International Law Studies
Technologically advanced armed forces extensively use platforms that can be controlled remotely and do not require an on-board crew. Increasingly, these systems have the capacity to function with some degree of autonomy. The use of autonomous functionality is not specifically prohibited or regulated by the law of armed conflict but the use of autonomous functions in military systems remains governed by the general principles and rules of international law.
One existing international law concept may constrain the use of autonomous capabilities in military vessels and aircraft. This is the notion that military units must be “under the command” of an …
Intelligence Collection And The International Law Of The Sea, James Kraska
Intelligence Collection And The International Law Of The Sea, James Kraska
International Law Studies
This article explores the legal implications of intelligence collection operations at sea. It concludes that in terms of the international law of the sea, intelligence collection that occurs outside of the territorial sea is lawful. Furthermore, even intelligence collection by a foreign ship inside the territorial sea, while a violation of State sovereignty, may not violate the law of the sea, per se. Additionally, within the territorial sea, coastal States are limited in the measures they may take against foreign-flagged submarines and surface warships collecting intelligence since those activities do not constitute an armed attack or even the use of …
International Child Law And The Settlement Of Ukraine-Russia And Other Conflicts, Diane Marie Amann
International Child Law And The Settlement Of Ukraine-Russia And Other Conflicts, Diane Marie Amann
International Law Studies
The Ukraine-Russia conflict has wreaked disproportionate harms upon children. Hundreds reportedly were killed or wounded within the opening months of the conflict, thousands lost loved ones, and millions left their homes, their schools, and their communities. Yet public discussions of how to settle the conflict contain very little at all about children. This article seeks to change that dynamic. It builds on a relatively recent trend, one that situates human rights within the structure of peace negotiations, to push for particularized treatment of children’s experiences, needs, rights, and capacities in eventual negotiations. The article draws upon twenty-first century projects that …
Neutral State Access To Ukraine’S Food Exports, James Kraska
Neutral State Access To Ukraine’S Food Exports, James Kraska
International Law Studies
This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, May 18, 2022, https://lieber.westpoint.edu/neutral-state-access-ukraines-food-exports/.
The Attack On The Vasily Bekh And Targeting Logistics Ships, James Kraska
The Attack On The Vasily Bekh And Targeting Logistics Ships, James Kraska
International Law Studies
This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, July 11, 2022, https://lieber.westpoint.edu/attack-vasily-bekh-targeting-logistics-ships/.
Can Turkey Legally Close Its Straits To Russian Warships? It’S Complicated, James Kraska
Can Turkey Legally Close Its Straits To Russian Warships? It’S Complicated, James Kraska
International Law Studies
This article originally appeared in Foreign Policy, March 1, 2022, https://foreignpolicy.com/2022/03/ 01/turkey-black-sea-straits-russia-ships-ukraine-war/.
Maritime Exclusion Zones In Armed Conflicts, Raul (Pete) Pedrozo
Maritime Exclusion Zones In Armed Conflicts, Raul (Pete) Pedrozo
International Law Studies
This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, Apr. 12, 2022, https://lieber.westpoint.edu/maritime-exclusion-zones-armed-conflicts/.
War Sanctions Steadily Degrade The Russian Maritime Sector, James Kraska
War Sanctions Steadily Degrade The Russian Maritime Sector, James Kraska
International Law Studies
This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, June 7, 2022, https://lieber.westpoint.edu/war-sanctions-steadily-degrade-russian-maritime-sector/.
Closing The Turkish Straits In Times Of War, Raul (Pete) Pedrozo
Closing The Turkish Straits In Times Of War, Raul (Pete) Pedrozo
International Law Studies
This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, Mar. 3, 2022, https://lieber.westpoint.edu/closing-turkish-straits-war/.
Arctic Navigation And Climate Change: Projections From Science For The Law Of The Sea, Charles H. Norchi, Amanda H. Lynch
Arctic Navigation And Climate Change: Projections From Science For The Law Of The Sea, Charles H. Norchi, Amanda H. Lynch
International Law Studies
The most variable climate conditions on the planet are observable in the Arctic. These conditions affect all forms of life, including the human interactions and social processes that generate law. Among the critical activities affected by climate is navigation, which is subject to national regulations, general maritime laws, and the international law of the sea. As a result of anthropogenic climate change, Arctic climate variability is already moving the system into states that humans in the Industrial Era have not experienced. Most critically, while the end point of unfettered climate change as manifest in the Arctic – an ice-free ocean …
International Law Considerations For 21st Century Engagements At Sea, Vice Admiral Darse E. “Del” Crandall Jr.
International Law Considerations For 21st Century Engagements At Sea, Vice Admiral Darse E. “Del” Crandall Jr.
International Law Studies
Keynote address by the Judge Advocate General of the U.S. Navy at the Alexander C. Cushing International Law Conference at the U.S. Naval War College, Newport, Rhode Island, May 16, 2022.
Enhancing The Security Of Shipping In Southeast Asia: The Relevance Of International Law, Robert Beckman
Enhancing The Security Of Shipping In Southeast Asia: The Relevance Of International Law, Robert Beckman
International Law Studies
This article outlines the principles of international law governing the right to exercise jurisdiction over ships. It then explains the relevance of UN international crimes conventions to the security of commercial ships. These conventions give States parties jurisdiction to arrest persons present in their territory who are alleged to have committed such crimes and an obligation to either prosecute or extradite them. It then explains the measures that have been taken by the International Maritime Organization to enhance the security of commercial shipping, including its Code of Practice on preventing piracy and “armed robbery against ships” and its measures to …
Double Classification Of Non-Consensual State Interventions: Magic Protection Or Pandora’S Box?, Pauline Lesaffre
Double Classification Of Non-Consensual State Interventions: Magic Protection Or Pandora’S Box?, Pauline Lesaffre
International Law Studies
The classification under international humanitarian law of certain cross-border armed conflicts against an organized armed group remains controversial. More specifically, cross-border armed conflicts resulting from a non-consensual State intervention, such as the United States’ intervention in Syria (without Syrian consent) against the Islamic State, still divide legal scholarship regarding their appropriate classification. One theory argues for a single classification of non-international armed conflict between the intervening State and the organized armed group; another theory relies on a double classification of non-consensual State interventions, adding to the non-international armed conflict an international armed conflict between the intervening State and the territorial …
Australia’S Maritime Security Challenges: Juggling International Law And Informal Agreements In An International Rules-Based Order, Natalie Klein
Australia’S Maritime Security Challenges: Juggling International Law And Informal Agreements In An International Rules-Based Order, Natalie Klein
International Law Studies
Australia has voiced its commitment to the “rules-based order” since 2008 and the rules-based order has become a touchpoint of both Australian defense and foreign policy. Australia has also voiced its commitment to international law, particularly the UN Convention on the Law of the Sea, to meet challenges to the maritime rules-based order, including in the South and East China Seas. References to international law have often been bundled in or left adjacent to the rules-based order and the two terms are not synonymous. This article discusses the role of international law in the rules-based order as it relates to …
Transit Rights Through The Panama Canal, Office Of The Staff Judge Advocate
Transit Rights Through The Panama Canal, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Venezuela’S Excessive Maritime Claims, Office Of The Staff Judge Advocate
Venezuela’S Excessive Maritime Claims, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Maritime Counter-Narcotics Agreements, Office Of The Staff Judge Advocate
Maritime Counter-Narcotics Agreements, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
China’S Iuu Fishing Fleet: Pariah Of The World’S Oceans, Raul (Pete) Pedrozo
China’S Iuu Fishing Fleet: Pariah Of The World’S Oceans, Raul (Pete) Pedrozo
International Law Studies
The leading global maritime security threat today is illegal, unreported, and unregulated (IUU) fishing. Left unchecked, IUU fishing exacerbates the depletion of fish stocks, thereby contributing to global geo-political instability by increasing tension among competing distant water fishing fleets, threatening the sustainability of coastal States’ fisheries, and damaging fragile ecosystems. This article reviews the regulatory framework applicable to IUU fishing. It then discusses China’s predatory fishing practices in various regions of the world. The article then examines the principle of exclusive flag State jurisdiction on the high seas and suggests that Chinese distant water fishing vessels that change their name …
Command Responsibility, Australian War Crimes In Afghanistan, And The Brereton Report, Douglas Guilfoyle, Joanna Kyriakakis, Melanie O’Brien
Command Responsibility, Australian War Crimes In Afghanistan, And The Brereton Report, Douglas Guilfoyle, Joanna Kyriakakis, Melanie O’Brien
International Law Studies
This article examines the question of command responsibility for war crimes under international and Australian law, and how far such responsibility extends. It uses the results of the Brereton Report, an Australian investigation into alleged crimes committed by its special forces in Afghanistan, as its starting point. While this is very much an Australian case study, the concerns it raises should be of interest to all professional militaries. The article also provides an important case study of the implications when national legal standards adopted for war crimes prosecutions differ from the provisions of international law.