International Law Commons^™

The “External Element” Of The Obligation To Ensure Respect For The Geneva Conventions: A Matter Of Treaty Interpretation, Marten Zwanenburg

International Law Studies

In Common Article 1 of the 1949 Geneva Conventions, States Parties undertake to “respect and ensure respect” for the Conventions. This article focuses on the question whether an interpretation of that provision leads to the conclusion that it contains an external element. The term “External element” refers to an obligation for States to ensure respect for the Conventions not only internally (i.e., by their nationals as a whole), but also by other States, and possibly even by organized armed groups involved in extraterritorial non-international armed conflicts. The article applies the rules of treaty interpretation, as codified in Articles 31 – …

Protection Of Data In Armed Conflict, Robin Geiss, Henning Lahmann

International Law Studies

This article presents a novel way to conceptualize the protection of data in situations of armed conflict. Although the question of the targeting of data through adversarial military cyber operations and its implications for the qualification of such conduct under International Humanitarian Law has been on scholars’ and states’ radar for the last few years, there remain a number of misunderstandings as to how to think about the notion of “data.” Based on a number of fictional scenarios, the article clarifies the pertinent terminology and makes some expedient distinctions between various types of data. It then analyzes how existing international …

Legal Reviews Of War Algorithms, Tobias Vestner, Altea Rossi

International Law Studies

States and scholars recognize legal reviews of weapons, means or methods of warfare as an essential tool to ensure the legality of military applications of artificial intelligence (AI). Yet, are existing practices fit for this task? This article identifies necessary adaptations to current practices. For AI-enabled systems that are used in relation to targeting, legal reviews need to assess the systems’ compliance with additional rules of international law, in particular targeting law under international humanitarian law (IHL). This article discusses the procedural ramifications thereof. The article further finds that AI systems’ predictability problem needs to be addressed by the technical …

Ukraine V. The Russian Federation: Navigating Conflict Over Sovereignty Under Unclos, NilüFer Oral

International Law Studies

Following Russia’s annexation of Crimea in 2014, or according to Russia, its accession following a referendum, Ukraine brought several international cases against the Russian Federation, including two cases under Annex VII of UNCLOS: The Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait in 2016 and The Detention of Three Ukrainian Naval Vessels in 2019. At the center of these disputes is the conflict between Ukraine and Russia over sovereignty of Crimea. Russia contested jurisdiction in all cases invoking different exceptions under UNCLOS, including the argument that the dispute concerns sovereignty over Crimea and …

Maritime Police Law Of The People’S Republic Of China, Raul (Pete) Pedrozo

International Law Studies

China’s new Maritime Police Law (MPL) purports to regulate the duties of China’s maritime police agencies, including the China Coast Guard, and safeguard China’s sovereignty, security, and rights and interest. The MPL has potentially far-reaching application, as China claims extensive maritime areas off its mainland and in the South China Sea. This expansive application of maritime law enforcement jurisdiction is problematic given that most of China’s maritime claims are inconsistent with international law. To the extent that the MPL purports to assert jurisdiction over foreign flagged vessels in disputed areas or on the high seas, it contravenes international law. Numerous …

Nuclear Terrorism: Statutory Shortcomings And Prosecutorial Opportunities, Rohan Mishra

International Law Studies

In 2016, President Barack Obama warned that “[t]he danger of a terrorist group obtaining and using a nuclear weapon is one of the greatest threats to global security.” Thus far, however, U.S. and international efforts to address nuclear terrorism have faced a fundamental dilemma: While the importance of preventing this threat is unquestioned, there has been limited opportunity or need to conduct prosecutions that hinge on nuclear terrorism charges. This dilemma reflects the current piecemeal approach to nuclear terrorism, which prioritizes policies that address the “back-end” risk of nuclear terrorism (i.e., the detonation of nuclear weapons or attack of nuclear …

Command Accountability For Ai Weapon Systems In The Law Of Armed Conflict, James Kraska

International Law Studies

The use of artificial intelligence (AI) in weapon systems enhances the ability of operational forces to fuse multispectral sensors to understand the warfighting environment, positively identify, track, and select targets, and engage them with the most appropriate effects. The potential for AI to help close the “kill chain” has raised concern that this creates a gap in accountability between the decisions of humans and the acts of machines, with humans no longer accountable for decisions made during armed conflict. This study suggests that there is no gap because the military commander is always directly and individually accountable for the employment …

Israel’S Perspective On Key Legal And Practical Issues Concerning The Application Of International Law To Cyber Operations, Roy Schöndorf

International Law Studies

The speech given by the Israeli Deputy Attorney General (International Law) at the Naval War College’s event on “Disruptive Technologies and International Law” sets out, for the first time, Israel’s position on the application of international law to cyber operations. Consistent with the position taken by the vast majority of States thus far, Israel considers that international law applies to such operations. The speech stresses that questions pertaining to the identification and application of relevant legal rules remain, given the profound differences between the cyber domain and traditional domains of warfare—land, sea, and air. Therefore, in Israel’s view, a cautious …

Encirclement, Deprivation, And Humanity: Revising The San Remo Manual Provisions On Blockade, Tom Dannenbaum

International Law Studies

Among the most pernicious trends in contemporary armed conflict is the return of mass starvation in war, in some cases as its primary source of human suffering. This has prompted a renewed focus on the relevant rules of international humanitarian law (IHL). On some issues, there is relative consensus. On the issue of deprivation by encirclement, however, there is confusion.

Some have questioned whether the prohibition on the starvation of civilians as a method of warfare applies to encirclements at all, particularly in the naval context. Others have interpreted the prohibition vanishingly narrowly. In contrast to the more extreme of …

Maritime Autonomous Surface Ships: New Possibilities—And Challenges—In Ocean Law And Policy, Joel Coito

International Law Studies

Landmark developments in autonomous vessel technology have the potential to deliver economic, environmental, and security benefits on the world’s oceans. Tempering the promise of that future is the stark reality that maritime autonomous surface ships (MASS) challenge the existing international order of the seas. This article examines the promise and perils of MASS in three areas of enduring significance to commercial vessels, naval forces, and industry regulators: search and rescue (SAR), maritime counterdrug operations, and navigational safety. This article concludes that autonomous vessel technology will lead to a superior global regime for maritime SAR operations, enhanced detection and interdiction of …

Questions Relating To The Continental Shelf Beyond 200 Nautical Miles: Delimitation, Delineation, And Revenue Sharing, Helmut Tuerk

International Law Studies

Article 76 UNCLOS provides a new definition of the legal continental shelf, which grants coastal States sovereign rights and jurisdiction extending to the outer edge of the continental margin. The broad-shelf States had to make two compromises to have that provision accepted, that is revenue-sharing for the benefit of the international community with respect to the continental shelf beyond 200 nautical miles, enshrined in Article 82 UNCLOS, and the delineation of the outer limits of the continental shelf beyond that distance “on the basis of” recommendations by the CLCS, in order that these limits may become “final and binding.” In …

Armed Conflicts In Outer Space: Which Law Applies?, Frans G. Von Der Dunk

International Law Studies

So far, outer space has merely become involved in terrestrial armed conflicts as part of the supportive infrastructure for military activities. Unfortunately, the risk that this changes is considerably growing, and it can no longer be excluded that (armed) force will become used in outer space, either directed towards Earth or within outer space itself.

This raises serious issues in the legal context, where space law so far has been premised on the hope that armed conflicts in outer space could be avoided whereas the law of armed conflict was not required so far to deal with the use of …

The Value And Viability Of The South China Sea Arbitration Ruling: The U.S. Perspective 2016–2020, Jonathan G. Odom

International Law Studies

In 2016, an international arbitral tribunal issued a landmark ruling addressing a number of international law issues in the South China Sea. Yet more than four years have passed since that ruling, and the South China Sea situation remains unresolved. The South China Sea arbitration ruling was a positive step in applying a rules-based approach to framing, managing and resolving some of these international disputes. Thus, the international community should reflect upon the value and viability of the arbitral tribunal’s ruling, to include viewing it from the current perspectives of individual States. This article provides a more detailed review and …

Responding To Hostile Cyber Operations: The “In-Kind” Option, Michael N. Schmitt, Durward E. Johnson

International Law Studies

Facing hostile cyber operations, States are crafting responsive strategies, tactics and rules of engagement. One of the major challenges in doing so is that key aspects of the international law governing cyber responses are vague, unsettled or complex. Not surprisingly, therefore, international law is markedly absent from strategies and operational concepts. Rather, they tend to take on a practical “tit-for-tat” feel as policymakers logically view “in-kind” responses as “fair play.” For them, responding in-kind surely must be lawful notwithstanding any challenges in discerning the precise legal character of the initial hostile cyber operation.

Testing that sense, this article examines the …

U.S. Freedom Of Navigation Program, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

China's Excessive Maritime Claims, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

U.S. Policy On The South China Sea, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Introduction To The Indo-Pacific Command Paper Series, Raul (Pete) Pedrozo

International Law Studies

No abstract provided.

Air Defense Identification Zones, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Archipelagic States, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

General Principles Of The Law Of The Sea, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

International Straits, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Military Activities In The Exclusive Economic Zone, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Navigational Regimes, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

The South China Sea Arbitration Award, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

U.S. Position On The U.N. Convention On The Law Of The Sea, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

U.S. Protests China's Maritime Claims In The South China Sea, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Sailor-Scholar: Remembering Rear Admiral Horace B. Robertson Jr., Jagc, U.S. Navy (Ret.)

International Law Studies

This volume is dedicated to the memory of

Rear Admiral Horace B. Robertson Jr.,

JAGC, U.S. Navy (Ret.)

November 13, 1923 – November 19, 2020

Common Article 1 And The Duty To "Ensure Respect", Michael N. Schmitt, Sean Watts

International Law Studies

Common Article 1 to the four 1949 Geneva Conventions requires Parties to those instruments to “respect and to ensure respect for the present Convention in all circumstances.” The provision is a corollary to the general international legal obligation of States to honor their treaty commitments, expressed classically in the maxim pacta sunt servanda.

Yet, academics and private organizations now use Common Article 1 as a vehicle to reimagine States’ enforcement obligations under the Geneva Conventions. Reinterpreting the article beyond its original meaning, they claim the article includes an “external” obligation—a duty on the part of all States to use …

Autonomous Cyber Weapons And Command Responsibility, Russell Buchan, Nicholas Tsagourias

International Law Studies

Autonomous cyber weapons have made their way onto the battlefield, raising the question of whether commanders can be held criminally responsible under command responsibility when war crimes are committed. The doctrine of command responsibility has a long history in international criminal law and comprises three core elements: the existence of a superior-subordinate relationship, the commander’s knowledge of the crime, and the commander’s failure to prevent or repress the subordinate’s criminal actions. This article unpacks the content of these elements and applies them to autonomous cyber weapons by treating them as being analogous to soldiers since they operate within an organized …