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42. The Emotional Backdrop of Legal Discourses in South China Sea Disputes
- Author:
- Eric Pomes and Jean-Marc Coicaud
- Publication Date:
- 01-2021
- Content Type:
- Journal Article
- Journal:
- Polish Political Science Yearbook
- Institution:
- Polish Political Science Association (PPSA)
- Abstract:
- The China Sea connects as many coastal states as it divides due to the economic and strategic challenges it represents. It also embodies an area of confrontations between the Great American and Chinese strategies. Identifying with precision the differences that arise requires an interest in the symbolic dimensions that surround them. This angle of analysis provides an opportunity to observe the functioning of international law and inevitably leads to a discussion of the emerging international order. The literature on the situation in the China Sea abounds. The paper’s singularity is to approach it under the prism of international law as revealing the psychology of an actor. To carry out this research, the authors use a pragmatic and critical approach to international law. The thesis defended shows that, contrary to a positivist and judicial approach to international law, elements exogenous to the law, the history, and the psychology of an actor, influence the interpretation of existing norms.
- Topic:
- International Law, Territorial Disputes, Maritime, and Conflict
- Political Geography:
- Asia and South China Sea
43. Integrated Space Situational Awareness Systems: SDA and SSA – Advantages and Limitations
- Author:
- Malgorzata Polkowska
- Publication Date:
- 01-2021
- Content Type:
- Journal Article
- Journal:
- Polish Political Science Yearbook
- Institution:
- Polish Political Science Association (PPSA)
- Abstract:
- SDA (Space Domain Awareness) and SSA (Space Situational Awareness – SSA) have been defined as comprehensive knowledge of space objects and the ability to track, understand, and predict their future location. The purpose of the article is to present SSA initiatives to protect space systems, which are now recognized as fundamental assets of the sustainable development of each country. The destruction of even a part of the space infrastructure can have severe consequences for the security of citizens and economic activity. These systems assume the combination of all data obtained by various entities operating in space and Earth to create a common database. The SSA system was created based on the US military programme SDA (Space Domain Awareness); SSA and SDA are almost similar, but SDA is a new term replacing SSA, which existed previously. SDA is a better and improved SSA. Increasingly, the SSA programme is part of national and EU space strategies, but it is not yet possible to include it in international space law.
- Topic:
- International Cooperation, International Law, European Union, and Space
- Political Geography:
- Europe
44. Moral Imperatives and Legal Realities: The Perennial Conundrum of Humanitarian Intervention
- Author:
- Chris O'Meara
- Publication Date:
- 09-2021
- Content Type:
- Journal Article
- Journal:
- Brown Journal of World Affairs
- Institution:
- Brown Journal of World Affairs
- Abstract:
- Article 1 of the UN Charter embodies a well-known tension that exists in international law. On the one hand, it sets out perhaps the most fundamental purpose of the UN: the maintenance of international peace and security. This principle underpins the operation of the post-World War II rules-based inter- national order. It is reflected in Article 2(4) of the UN Charter, which prohibits the “threat or use of force against the territorial integrity or political indepen- dence of any state.”1 Such prohibition, while routinely flouted by states, stands as an intransgressible rule of international law.2 On the other hand, Article 1 establishes what appears to be an equally foundational principle: promoting and encouraging respect for human rights and fundamental freedoms. Indeed, the burgeoning body of international human rights law that has arisen since the signing of the Charter has increasingly placed human rights and human security at the center of international concern.
- Topic:
- Human Rights, International Law, Humanitarian Intervention, and International Humanitarian Law (IHL)
- Political Geography:
- Global Focus
45. Annexation of Crimea from the Perspective of Offensive Realism | Ofansif Realizm Bağlamında Kırım’ın İlhakı
- Author:
- Oğuzhan Çakır and Ayça Eminoğlu
- Publication Date:
- 09-2020
- Content Type:
- Journal Article
- Journal:
- Novus Orbis: Journal of Politics & International Relations
- Institution:
- Department of International Relations, Karadeniz Technical University
- Abstract:
- The main purpose of this study is to understand what motives the Russian Federation, a regional power, uses military force against its neighbor, Ukraine, and annexes Crimea. As a result of the literature review conducted for this purpose, this approach of Russia was generally interpreted from two different theoretical perspectives. Some of the critics evaluated Russia's attitude during the crisis process under the name of defensive realism, while the other group, on the contrary, evaluated Russia's attitude under the name of offensive realism. The work is addressed in the context of these two theories, with a deductive approach. The great powers do not refrain from using hard power when it comes to their security. The answer has been searched to the arguments that the Revisionist movement that Russia displayed in this crisis was caused by international developments rather than domestic political developments and that there is no sanctioning power against the great powers that have become a chronic problem of international law. When the relevant study concluded, and the previous crisis experiences of Russia taking in the consideration, it is observed that Russia has similar characteristic features in this crisis as well. It has been concluded that Russia has not been able to get rid of the sense of the siege it experienced during the Cold War and has pursued aggressive policies when it feels such a threat in its nearby geography. On the other hand, what happened in Crimea has clearly shown that the great powers do not refrain from using force and ignoring international law when it comes to their benefits and security. | Bu çalışmanın temel amacı, bölgesel bir güç olan Rusya Federasyonu’nun, komşusu olan Ukrayna’ya karşı hangi saiklerle askeri güç kullandığı ve Kırım’ı ilhak ettiğidir. Bu amaç doğrultusunda yapılan literatür çalışması sonucunda, Rusya’nın bu yaklaşımı genel olarak iki farklı teorik perspektiften yorumlanmıştır. Düşünürlerin bir kısmı Rusya’nın kriz sürecindeki tutumunu defansif realizm bağlamında değerlendirmekteyken diğer grup ise tam aksine Rusya’nın tutumunu ofansif realizm bağlamında ele almışladır. Çalışma, bu iki teori bağlamında, tümdengelimci bir yaklaşımla ele alınmıştır. Büyük güçler, güvenlikleri söz konusu olduğunda sert güç kullanmaktan kaçınmamaktadırlar. Rusya’nın bu krizde sergilemiş olduğu revizyonist hareketin, iç politik gelişmelerden ziyade uluslararası gelişmelerden kaynaklandığı ve uluslararası hukukun kronik sorunu haline gelen büyük güçlere karşı bir yaptırım gücünün olmadığı argümanlarına cevap aranmıştır. İlgili çalışma sonuçlandığında, Rusya’nın geçmişte yaşadığı krizler de ele alındığında, bu krizle benzer karakteristik özelliklere sahip olduğu gözlemlenmiştir. Rusya’nın, Soğuk Savaş dönemi yaşadığı kuşatılma algısından kurtulamadığı ve yakın coğrafyasında bu şekilde bir tehdit hissettiği zaman saldırgan politikalar izlediği sonucu varılmıştır. Öte yandan Kırım’da yaşananlar, büyük güçlerin kendi menfaatleri ve güvenlikleri söz konusu olduğunda güç kullanmaktan ve uluslararası hukuku hiçe saymaktan kaçınmadıklarının açıkça göstermiştir.
- Topic:
- International Law, Territorial Disputes, Realism, and Annexation
- Political Geography:
- Russia, Ukraine, and Crimea
46. South China Sea Dispute: China’s Role and Proposed Solutions
- Author:
- Mubeen Adnan and Fakhara Shahid
- Publication Date:
- 07-2020
- Content Type:
- Journal Article
- Journal:
- Journal of Political Studies
- Institution:
- Department of Political Science, University of the Punjab
- Abstract:
- South China Sea (SCS) is a part of Pacific Ocean and is the most strategic and important waterway in the world containing large deposits of hydrocarbons and fossil oil. Due to its unquestioned importance it has become bone of contention among many East Asian nations and China regarding its sovereignty and control of the territory. Two Islands Parcel and Spratly in the SCS are the flashpoints of the dispute because countries like, Philippine, China, Vietnam, Brunei and Malaysia are claiming their rights over some parts or sovereignty over all the above mentioned Islands. Primary concern of the dispute lies in U shaped nine- dashed demarcation line by China in the SCS. A decision of international court of Arbitration in “Philippines v. china arbitration case” showed that China U-shaped nine dash line demarcation is uneven with UNCLOS 1982. This verdict has been rejected by China on the grounds that it has no binding forces because China controls 90% area of the SCS through nine dashed line by having historical claim of the sea and this line was drawn in 1946 by the help of USA prior to the 1982 UNCLOS. China wants to solve the dispute bilaterally without any third party interference while due to the importance of the region many other actors are getting involved in to the dispute. A permanent and lasting solution of the dispute is a dire need of the time to solve the complex issue.
- Topic:
- Foreign Policy, International Law, and Territorial Disputes
- Political Geography:
- China, Asia-Pacific, and South China Sea
47. Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft Principles of the International Law Commission and Beyond
- Author:
- Britta Sjostedt and Anne Dienelt
- Publication Date:
- 07-2020
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- n 2011, the UN International Law Commission (ILC) took up the topic Protection of the Environment in Relation to Armed Conflicts.1 The decision was triggered by a joint report issued by the UN Environment Programme and the Environmental Law Institute in 2009 recommending the ILC to “[...] examine the existing international law for protecting the environment during armed conflicts [...] [including] how it can be clarified, codified and expanded [...]”.2 Since the inclusion of the item on the ILC’s agenda, the Commission has published five reports3 by the two special rapporteurs, Dr. Marie Jacobsson (2011-2016) and Dr. Marja Lehto (2017-). In 2019, the plenary adopted 28 Draft Principles on first reading.4 The ILC has touched on highly controversial issues such as reprisals,5 corporate liability,6 indigenous peoples’ rights,7 among others. Nevertheless, it was clear from the beginning that the ILC would not be able to exhaustively deal with the topic for two main reasons. First, the Commission has a limited mandate that is restricted to “[...] initiate studies and make recommendations for the purpose of [...] encouraging the progressive development of international law and its codification [...]”.8 Enhanced legal protection of the environment, as one of the purposes of the Draft Principles,9 must therefore be based on existing customary international law and its progressive development. The Commission decided to also include recommendations to account for the uncertain legal status of some of the Draft Principles.10 Second, some related issues touch upon controversial and political matters, as mentioned earlier. Consequently, the ILC has been reluctant to include some of these issues in its workflow.11 Therefore, the adoption of the Draft Principles should be regarded as a starting point for shaping and developing the legal framework for environmental protection in relation to armed conflicts. As a part of that process, Hamburg University and Lund University organized an international workshop in March 2019 in Hamburg. Several members of the ILC, including two special rapporteurs, academic legal experts, and practitioners, attended the workshop to discuss the Draft Principles. The discussion also focused on some issues not covered by the ILC, such as the implications for gender and climate security. The engaging dialogue in Hamburg has inspired the publication of this Special Issue of the Goettingen Journal of International Law (GoJIL) to ensure that the outcomes and ideas of the workshop reach a wider audience. It has also contributed to maintaining the momentum of this topical area of international law by inviting contributions from researchers not present during the workshop in Hamburg.12
- Topic:
- Environment, International Law, and Non State Actors
- Political Geography:
- Global Focus
48. Reflections on the Legality of Attacks Against the Natural Environment by Way of Reprisals
- Author:
- Stavros-Evdokimos Pantazopoulos
- Publication Date:
- 07-2020
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- The paper examines the concept of belligerent reprisals and assesses the legality of attacking the environment by way of reprisals. The law of belligerent reprisals, which is linked to the principle of reciprocity, allows one belligerent State unlawfully injured by another to react by means of what under normal circumstances would constitute a violation of the jus in bello, so as to induce the violating State to comply with the law. The instances of lawful recourse to reprisals have been considerably limited, since their application is either explicitly prohibited against certain protected persons and objects, including against the natural environment, or is subject to stringent conditions according to customary International Humanitarian Law (IHL). Despite its narrowing scope, the doctrine of reprisals remains a valid concept under the existing legal framework. For one, the state of affairs under customary international law with respect to reprisals directed at civilian objects (including against parts of the environment), subject to certain rigorous conditions, remains unclear. To complicate matters even further, any proposition on the status of reprisals in the context of a non-international armed conflict (NIAC) is shrouded in controversy, as there is no relevant treaty provision. In this regard, the present author endorses the approach espoused in the International Committee of the Red Cross (ICRC) Study on Customary IHL, namely to altogether prohibit resort to reprisals in the context of a NIAC. Turning to the status of reprisals against the natural environment under customary IHL, it is argued that a prohibition of attacks against the natural environment by way of reprisals is in the process of formation with respect to the use of weapons other than nuclear ones. All things considered, the International Law Commission (ILC) was confronted with an uncomfortable situation in the context of its work on the ‘Protection of the Environment in Relation to Armed Conflicts’. By sticking to the verbatim reproduction of Article 55(2) of Additional Protocol I, the ILC chose the proper course of action, since any other formulation would not only undercut a significant treaty provision, but might also result in the normative standard of conduct being lowered.
- Topic:
- Environment, International Law, Humanitarian Intervention, and Red Cross
- Political Geography:
- Global Focus
49. Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC
- Author:
- Daniella Dam-de Jong and Saskia Wolters
- Publication Date:
- 07-2020
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- Corporate activities take place in a variety of social contexts, including in countries affected by armed conflict. Whether corporations are physically present in these regions or merely do business with partners from conflict zones, there is an increased risk that their activities contribute to egregious human rights abuses or serious environmental harm. This is especially so for corporations active in or relying on the extractives sector. It is against this background that the ILC included two principles addressing corporate responsibility for environmental harm in its Draft Principles on the protection of the environment in relation to armed conflict. Both principles explicitly call on the home States of these corporations to give effect to their complementary role in regulating and enforcing corporate social responsibility. Draft Principle 10 addresses the responsibility of home States to regulate multinational corporations under the heading of “corporate due diligence”, while Draft Principle 11 addresses the responsibility of home States to hold multinational corporations liable for environmental damage caused in conflict zones. The current contribution engages with the potential normative foundations underpinning extraterritorial responsibilities for the home States of multinational corporations with respect to the prevention and remediation of environmental harm in conflict zones, focusing on international humanitarian law and international human rights law. It concludes that the Draft Principles are certainly indicative of the direction in which the law is evolving, but that no firm obligations beyond treaty law can be discerned as of yet. It was therefore a wise decision to phrase the respective Draft Principles as recommendations instead of obligations. At the same time, there are sufficient indications to conclude that it seems a matter of time before it is accepted that States have distinct obligations under customary international law for which their responsibility may be engaged. It is argued that the ILC Draft Principles provide an important impetus to these developments, not in the least because they provide a reference to States regarding the state-of-the-art and guidance for future action.
- Topic:
- International Law, Conflict, and Multinational Corporations
- Political Geography:
- Global Focus
50. Business, Armed Conflict, and Protection of the Environment: What Avenues for Corporate Accountability?
- Author:
- Marie Davoise
- Publication Date:
- 07-2020
- Content Type:
- Journal Article
- Journal:
- The Goettingen Journal of International Law
- Institution:
- The Goettingen Journal of International Law
- Abstract:
- In July 2019, the International Law Commission (ILC) provisionally adopted, on first reading, a series of draft principles on the protection of the environment in relation to armed conflict (the Draft Principles). The role of businesses in armed conflict is addressed in Draft Principle 10 and Draft Principle 11. The latter, in particular, requires States to implement appropriate measures to ensure that corporations operating in or from their territories can be held accountable for environmental harm in the context of armed conflict. The inclusion of those two Draft Principles reflects increasingly vocal calls for corporate accountability, which has been the focus of the growing field of Business and Human Rights (BHR), an umbrella term encompassing a variety of legal regimes from tort law to criminal law. This contribution will look at the link between businesses, the environment, and armed conflict. Using the newly adopted Draft Principle 11 as a starting point, it explores three major liability regimes through which businesses could be held accountable for damage to the environment in armed conflict: State responsibility, international criminal law, and transnational tort litigation. Using case studies, the article discusses some of the challenges associated with each of those regimes, before concluding that the cross-fertilization phenomenon observed in this article (between public/private law, domestic/international level, and across various jurisdictions) is making BHR an increasingly salient discipline and useful tool in the fight against impunity for corporate environmental harm in armed conflict.
- Topic:
- Human Rights, International Law, Business, and Conflict
- Political Geography:
- Global Focus