Search

In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States ('i.e.', States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts’ reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.

The contribution aims at demonstrating that the traditional divide between public and private international law, whereby the former only regulates State conduct, while the latter is meant to take care of the interests of private parties (both natural and legal persons) is as old-fashioned as it is unsatisfactory. Every exercise of jurisdiction on the part of national judges, be it in the domain of public international law issues or in the realm of dispute settlement involving private parties, is always a symptom of State jurisdiction. Hence, it is regulated under the rules and principles of public international law. Even the exercise of jurisdiction in civil matters, accordingly, may be subject to public international law constraints, as the concerns surrounding transnational tort litigation involving corporations suggest and as the ECtHR seems to have clarified in the Naït-Liman jurisprudence, by requiring that the resort to the forum necessitatis jurisdiction be required or permitted either by customary international law or by international treaties.

This article shows that between the drafting of the Universal Declaration of Human Rights in 1948 and the Tehran conference in 1968, international human rights law and international humanitarian law and their respective guardian institutions, the United Nations (UN) and the International Committee of the Red Cross (ICRC), were not so conceptually far apart as is sometimes suggested. Its purpose is to give further legitimacy to the role of human rights law in armed conflict and show that cooperation between the UN and the ICRC has a long history.

Abstract This article examines the current and prospective roles of the Arctic Council System (ACS) within the context of the (international) law of the sea. Its first part focuses on the role of regional cooperation under the law of sea, with special attention to the way in which the pacta tertiis principle has shaped some regional regimes. The second part examines current features of the Arctic Council, including its mandate and main approaches, participation and institutional structure. The new concept of the ACS is offered to clarify the connection between the Arctic Council and the 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic and future legally binding instruments negotiated under the Council’s auspices, but not adopted by it. The article concludes with a synthesis of the current and prospective roles of the ACS under the law of the sea.

Abstract There is a widely held view that there is a need to formulate a comprehensive set of general principles for the legal regime of maritime areas beyond national jurisdiction (ABNJ). On the basis of existing suggestions for a list of governance principles, the present report investigates how these principles might be formulated in more detail. The report concludes that most of the principles are already part of international law. The report submits that an advantage of drawing up an instrument on governance principles for ABNJ would be that it brings them together in one single document and would unequivocally recognize their relevance. To be effective, such an instrument should, in addition: contain commitments to apply and operationalize these principles; identify institutions and other actors which have a role in the implementation of these principles; and provide for reporting by these institutions and other actors to a global body allowing the assessment of the stage of implementation of the principles.

Abstract The main focus of this article is the regulation of fishing in the maritime zones of Svalbard in light of both the Spitsbergen Treaty and the international law of the sea. It examines the legal positions of Norway, other states and the European Commission/European Union on, inter alia, the spatial scope of the Spitsbergen Treaty and complements this with analyses of relevant (sub-)regional and bilateral fisheries instruments and Norwegian legislation. These analyses illustrate, inter alia, that the practice of many states and entities involved seeks to reconcile legal positions on the spatial scope of the Spitsbergen Treaty with a raft of other interests. The conclusions also devote attention to possible pathways to resolve diverging positions, as well as to the potential for Norway to address the issue of unregulated fisheries in the context of the rapid pace of climate change in the Arctic.

After a conceptual examination of global values and their role in international law, this article examines the role of the United Nations, especially the General Assembly, in the translation of globally shared values into legally binding international commitments. This process already commenced with the United Nations Conference on International Organization, held in 1945 in San Francisco, where the UN Charter was born. The way this process functions is illustrated by using the global value of social progress and development as an example. First, it is shown how this value ended up in the UN Charter in 1945. This is followed by a description of this value's evolution, especially the inclusion of a ‘sustainability element’, which took place at the General Assembly and various global conferences organized under the auspices of the United Nations.

Abstract Environmental impact assessment (EIA) has become widely accepted as an indispensable instrument to manage and control negative impacts of human activities on the environment. The present report analyzes the general legal framework for EIA in maritime areas beyond national jurisdiction (ABNJ) and also considers the regime for assessments in respect of specific activities in ABNJ. The report concludes that these existing frameworks will have to be taken into account if it were to be decided to develop a global instrument on EIA for all activities in ABNJ. The report provides a number of suggestions to move the current international debate on EIA in ABNJ forward.

This article deals with the fundamental evolution that the process of state recognition has gone through during the past few decades. Whereas the recognition of new states used to be subject to a relatively concise and clear-cut normative framework consisting of factual criteria, the dissolution of Yugoslavia marked the introduction of a new set of moral norms used to determine whether or not an entity should be recognized as a state. This evolution gave rise to a high level of uncertainty, among both authors and the state community, as was painfully shown by the international discord during the crises in Kosovo and South Ossetia/Abkhazia. A renewed normative framework for recognition that integrates both factual and moral criteria is needed if the international community wants to prevent each claim to statehood becoming a threat to international stability.

In this article, it is argued that Member States do not normally incur liability for damages caused by acts of the international organizations of which they are members. Deciding otherwise may endanger the autonomy and separate legal personality of the organization. Member State liability can only be found in cases in which some intervening state conduct can be established, as is laid down in Part V of the Draft Articles on the Responsibility of International Organizations, drawn up by the International Law Commission in 2009. A strict interpretation of the principle that the organizational veil should not be pierced may prevent Member State intervention in the affairs of the organization, and thus strengthen the latter's autonomy vis-a-vis its Member States. However, in order to do justice to the legitimate claims of third parties adversely affected by the conduct of the organization, and to rebuff attempts at making Member States liable for such conduct, it is highly desirable that the organization puts in place adequate claims commissions and dispute-settlement mechanisms that are easily accessible to third parties.

Abstract This report examines whether it is possible for the research and use of marine genetic resources in areas beyond national jurisdiction (ABNJ) to follow an approach based on the system that is being used with plant genetic resources in areas within national jurisdiction, as developed by the Food and Agriculture Organization. Part IV of the International Treaty on Plant Genetic Resources for Food and Agriculture contains the multilateral system of access and benefit-sharing. In addition, the report considers the implications of relevant provisions as contained in the Law of the Sea Convention, the Convention on Biological Diversity, the Antarctic Treaty System, as well as instruments on intellectual property rights. The report concludes with an assessment of the options within existing legal frameworks for accommodating an access and benefit-sharing system for marine genetic resources originating from ABNJ, and provides suggestions to move the international debate forward.

There is a tendency among the judiciary to apply the standard of ‘effective control’ as the applicable yardstick for apportioning responsibility for wrongful acts between the United Nations and the member states contributing troops to UN peace-support operations. This is evidenced by recent decisions in the cases of Srebrenica (Dutch Court of Appeal, 2011), Al Jedda (European Court of Human Rights, 2011) and Mukeshimana (Belgian First Instance Court, 2010), which appear to repudiate the ‘ultimate authority and control’ standard espoused by the European Court of Human Rights in Behrami (2007). This process may have been set in motion by (the current) Article 7 of the ILC's Draft Articles on the Responsibility of International Organizations, which may in due course reflect customary international law. From a policy perspective, the application of an ‘effective control’ standard is highly desirable, as it locates responsibility with the actor who is in a position to prevent the violation.

Cette contribution examinera le statut juridique contemporain de l'Arctique. Etat donné que presque toutes les revendications territoriales dans la région ont été réglées - et ceci contrairement aux revendications maritimes dans la mesure où presque toutes les frontières maritimes dans la région sont en attente d'une délimitation définitive -, seulement les eaux arctiques retiendront notre attention. Parmi la multitude d'activités en mer possibles, seule la navigation sera abordée. Dans une première partie, le statut juridique des eaux arctiques sera déterminé à l'aune de la Convention des Nations Unies sur le droit de la mer de 1982 considérée de nos jours comme la pierre angulaire juridique en la matière (ci après « Convention de 1982 »). Ensuite nous examinerons le changement climatique en Arctique (partie 2) ainsi que l'impact dudit changement sur le régime juridique de la navigation en Arctique (partie 3). Par ailleurs, nous étudierons la vulnérabilité ainsi que l'adaptabilité de la Convention de 1982 àcet égard (partie 4). Enfin, nous indiquerons comment le système juridique actuel peut mieux répondre aux nouveaux défis que les changements climatiques ont provoqués pour les eaux arctiques (partie 5).

TBA

TBA