International and Comparative Law Review最新文献

{"title":"Evaluating Arms Transfers in the Russia-Ukraine Conflict in the Light of the Arms Trade Treaty, State Responsibility, and the Law of Neutrality","authors":"Ashutosh Ghag, Mihir Govande, Shweta Shukla","doi":"10.2478/iclr-2023-0007","DOIUrl":"https://doi.org/10.2478/iclr-2023-0007","url":null,"abstract":"Summary Since the beginning of the Russia-Ukraine conflict, States worldwide have provided support, primarily through various weapon supplies to both parties. This paper analyses whether these arms transfers follow international law from three perspectives. The first perspective looks at treaties governing the trade of prohibited weapons before looking at the general trade of weapons under the Arms Trade Treaty and state obligations under its articles. The second perspective evaluates the derivative liability incurred by any State which makes such arms transfers under Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, and how it is impacted in light of humanitarian law violations by Ukraine. The third perspective accounts for the arms transfers and support provided in the eyes of the law of neutrality.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Kuwait to Ukraine: Conflict’s Implications on the Natural Environment and the Responses of International Humanitarian Law","authors":"Lucia Wirthová","doi":"10.2478/iclr-2023-0006","DOIUrl":"https://doi.org/10.2478/iclr-2023-0006","url":null,"abstract":"Summary The natural environment has long been the silent casualty of war according to the Guidelines on the Protection of the Natural Environment in Armed Conflict issued by the International Committee of the Red Cross (ICRC). As presented by the ICRC, International Humanitarian Law (IHL) does not reflect the reality of warfare today. Hence, this article builds on the ICRC recommendations with the aim of underlining changes that are essential for protecting the environment during war. Drawing on the experiences from the past and applying them to the current conflict in Ukraine, I propose four broader categories of change. First and foremost, the consensus within the international community is viewed as the basis for any further developments. Thus far politicization has prevented agreement, yet the events since February 24 th , 2022, show that there are lessons to be learned. Compromise on the standards and implementation is thus called for, particularly when it comes to the conditions severe, long-term, and widespread damage. From this point of view, international condemnation of environmentally harmful practices in warfare is limited by the conditions’ disproportionately broad scope which arguably needs to be narrowed. Secondly, I suggest that mainstreaming environmental protection during armed conflict is of great importance. Such mainstreaming might be most relevant among military personnel during non-international armed conflicts because of the individualistic approach of national military manuals. Nonetheless, mainstreaming could prove appropriate in international armed conflicts as well, given the limited number of rules relating to the environment in international customary and treaty law. Thirdly, the interconnectedness between energy and environment, and the dangers associated with the destruction of energy infrastructure must be made very clear. Bombings or destabilization of nuclear power plants might be even more catastrophic than the burning and spills of oil wells. The last point of this brief is the need for greater accountability for environmental destruction incurred during armed conflict, especially from a systematic point of view. From this standpoint, the past events such as the establishment of the United Nations Compensation Committee for Kuwait, which inter alia addressed the environmental impacts of the conflict, or the ICC decision to focus more on environmental issues could provide inspiration in relation to Ukraine. Besides, the situation in Ukraine could become a potential landmark case. Consequently, the aim of the four propositions presented here is to define the most pressing limitations of IHL related to the natural environment, and to outline potential recommendations for policy makers who address the crisis in Ukraine as well as any further conflicts to come.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"174 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ukrainian Women are Raped, Men are Killed: The Russian Federation Violates International Law","authors":"Inna Zavorotko","doi":"10.2478/iclr-2023-0010","DOIUrl":"https://doi.org/10.2478/iclr-2023-0010","url":null,"abstract":"Summary The large-scale use of rape against women and the murder of men by the Russian armed forces has been widely documented since it first invaded Ukraine in February 2022. Consequently, many Ukrainian families have been affected both physically and mentally by the use of sexual and gender-based violence as a method of war. This paper presents a detailed analysis of these ‘classical’ sexual and gender-based violence cases from the perspective of grave breaches of international humanitarian law. According to the Rome Statute of the International Criminal Court and case law, these cases constitute war crimes, crimes against humanity or genocide. Investigations have already commenced into cases of sexual and gender-based violence on both the national and international level. The first Russian soldier formally accused of raping a female (wife) and killing her husband, is already standing trial before the Ukrainian courts. The International Criminal Court, within the ad hoc jurisdiction given by Ukrainian authorities, as well as specially established mechanisms and law enforcement agencies of foreign states; have also begun investigations into cases of ‘classical’ sexual and gender-based violence on the international level.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evaluating the persisting relevance of the Uniting for Peace resolution for the maintenance of international peace and security: Russia’s invasion of Ukraine and Security Council Resolution 2623 (2022)","authors":"Graham Melling","doi":"10.2478/iclr-2023-0011","DOIUrl":"https://doi.org/10.2478/iclr-2023-0011","url":null,"abstract":"Summary This article will evaluate the question of the persisting relevance of the Uniting for Peace resolution (General Assembly resolution 377 A (V) (3 November 1950)) (henceforth U4P) to facilitating the United Nations’ role in the maintenance of international peace and security and responding to Russia’s invasion of Ukraine, February 2022. The United Nations’ principal organ tasked with primary responsibility for the maintenance of international peace and security is the United Nations Security Council. Where the Security is unable to fulfil this responsibility due to the exercise of the veto by one of its permanent members it may have recourse to the U4P resolution. In effect U4P enables the Security Council to side-step the restriction of the veto and, through a procedural mechanism, refer the matter to the General Assembly to convene an Emergency Special Session for its consideration. Alternatively, the General Assembly can initiate the procedure under the U4P resolution where the Security Council fails to take action. The Security Council’s utilisation of the U4P procedure in Security Council resolution 2623 (2022) in response to Russia’s invasion of Ukraine was only the eighth occasion since U4P’s conception in 1950 by the General Assembly. Moreover, the last time the SC resorted to U4P was in 1982. The General Assembly has invoked U4P on at least four occasions since 1997. Under U4P the General Assembly has the power to recommend measures that can be taken for the purposes of the maintenance of international peace and security. However, the power of recommendation that the General Assembly can exercise under U4P are powers derived from the United Nation’s Charter and not from the U4P resolution. Other than introducing the concept of ‘emergency special sessions’, the U4P resolution does not establish a procedural mechanism not already provided for in the UN Charter. Therefore, in responding to Russia’s invasion of Ukraine the General Assembly has the power to make recommendations with or without reference to the U4P resolution. In this article it will be argued that U4P does not give the General Assembly powers it does not already have under the Charter. It is clear from Resolution 377A (V) that a key premise for the resort to U4P is to empower the General Assembly to take ‘collective measures’ for the maintenance of international peace and security in lieu of the Security Council being able to do so due to the casting of the veto by one of the permanent members. However, U4P is not an independent source of the Assembly’s powers, it is merely an aspect of its practice and the General Assembly has the power to make such a recommendation for ‘collective measures’ in response to Russia’s invasion of Ukraine by virtue of the UN Charter, with or without reference to the U4P resolution.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The International Criminal Court: Whether the Crime of Aggression in Ukraine","authors":"Ovo Imoedemhe","doi":"10.2478/iclr-2023-0002","DOIUrl":"https://doi.org/10.2478/iclr-2023-0002","url":null,"abstract":"Summary Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"96 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135052764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ICC’s investigation into the situation in Ukraine on the basis of referrals by third states parties to the Rome Statute: A commentary","authors":"Bernard Ntahiraja","doi":"10.2478/iclr-2023-0001","DOIUrl":"https://doi.org/10.2478/iclr-2023-0001","url":null,"abstract":"Summary This commentary discusses the decision taken by the Prosecutor of the International Criminal Court (ICC) to open an investigation into the situation in Ukraine on the basis of referrals by a number of state parties to the Rome Statute. In particular, it is interested in the prior decision that the Prosecutor had to make and actually made for that move to be procedurally possible. Indeed, the Prosecutor had to renounce to his steps towards an investigation proprio motu, i.e. on his own initiative. The most important of these steps was the request of judicial authorisation by the ICC Pre-trial Chamber. This commentary argues that for that reason, the Prosecutor’s decision was ill-advised, despite being in conformity with the Rome Statute. It argues that in that specific situation where neither Ukraine nor the Russian Federation are parties to the Rome Statute and where the Security Council has not and could not play its Rome Statute role, judicial oversight was an important – arguably the most important – legitimising factor for the investigation. The Office of the Prosecutor (OTP) could therefore not have neglected it. Going into the details of the starting investigation, the commentary also weighs the pros and cons of the Prosecutor’s decision. In other words, it balances what was actually lost and what was supposed to be gained by way of that change of procedural paths to investigation.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"European Response to the Mass Influx of People Caused by the Russian Invasion of Ukraine: Testing the Limits of International Refugee Law","authors":"Věra Honusková","doi":"10.2478/iclr-2023-0003","DOIUrl":"https://doi.org/10.2478/iclr-2023-0003","url":null,"abstract":"Summary Russia’s invasion of Ukraine has forced millions of people to flee the erupting armed conflict. Some of them were displaced within Ukrainian territory, others crossed the border and sought refuge in neighbouring countries and others further abroad. This article explores the limits of international refugee law in addressing this situation, which are of two kinds. First, people fleeing armed conflict are not considered refugees under the Refugee Convention if they are ‘merely’ fleeing armed conflict. Furthermore, the large number of persons arriving is also a limit. These limitations of international refugee law are filled by regional protection statuses (including temporary protection in European Union law) and the procedural ways in which protection can be granted. This article focuses on whether the current legislation in EU law is a sufficient response to the situation created by the Russian invasion of Ukraine.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Game Over for Russian Athletes? Human Rights Aspects of Measures Adopted by International Sports Organisations as a Response to the Russian Aggression against Ukraine","authors":"Ayyoub Jamali, Alena Kozlová, Kelly Ann Whelan, Martin Faix","doi":"10.2478/iclr-2023-0008","DOIUrl":"https://doi.org/10.2478/iclr-2023-0008","url":null,"abstract":"Summary The Russian invasion of Ukraine has tested the mettle of the international community, prompting not only States but also non-state actors to take deterrent action in response. Indeed, international sports organisations, namely the Fédération Internationale de Football Association (FIFA) and the Federation of European Football Associations (UEFA), have been relatively successful in shifting the power dynamics by introducing a complete ban on the Football Union of Russia (FUR), i.e., the Russian national and club teams. This article investigates the human rights implications of such actions by international sports organisations. First, the article departs from an assessment of the legal status of FIFA and UEFA under international law. It reflects how a legal link could be established vis-à-vis their human rights obligations. Second, it examines the human rights aspects of the impugned measures by FIFA and UEFA on the part of the Russian athletes, further scrutinising them against the international human rights law principle of non-discrimination through a proportionality test. Finally, it draws basic pathways for how possible human rights violations committed in the context of measures adopted by such organisations could be remedied, outlining the challenges of arbitration and litigation in Switzerland.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053043","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Interplay between Neutrality, Qualified Neutrality and Co-belligerency in the Context of U.S. Intervention in the Russia-Ukraine War","authors":"Kritika Ramya","doi":"10.2478/iclr-2023-0004","DOIUrl":"https://doi.org/10.2478/iclr-2023-0004","url":null,"abstract":"Summary The United States of America (U.S.), and the European Union (EU) have supplied weapons to Ukraine in the ongoing Russian-Ukraine armed conflict. The Pentagon has pledged thousands of weapons to Ukraine as part of the security/military aid to worn-torn Ukraine. The supply of such weapons by a neutral/non- belligerent state stands in clear violation of the laws of Neutrality which casts a duty on the neutral states to refrain from participating in the hostilities and be impartial in their conduct towards the belligerents. However, the argument of the U.S. government in previous such instances has been that laws of neutrality have been overshadowed by the United Nations (UN) Charter and modern forms of warfare and the U.S. maintains that they fall under qualified neutrality after the 20 th century. However, Qualified Neutrality is not recognised either under treaty conventions or customary international law. Similarly, international laws in terms of co-belligerency are also governed by International Humanitarian Laws (IHL) under the Four Geneva Convention of 1949 which lays down rules where military assistance by a neutral state can result in co-belligerency. However, no existing treaty or international law lays down a clear threshold for crossing from a neutral state to a co-belligerent state which has also led to an ambiguity in terms of checks and balances of the lethal weapons supplied to Ukraine by the U.S. currently. This article attempts to define the threshold in terms of severity, effectiveness, and inertia of the intervention. It further argues that the U.S. has crossed its threshold and therefore the existing laws governing violation of neutrality and affixing of state responsibility are now applicable to the U.S.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053044","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Role and Impact of the OSCE Moscow Mechanism Reports Following the Russian Invasion of Ukraine","authors":"Vasilka Sancin","doi":"10.2478/iclr-2023-0009","DOIUrl":"https://doi.org/10.2478/iclr-2023-0009","url":null,"abstract":"Summary The OSCE Moscow Mechanism is one of the generally little-known mechanisms, established in 1991 to facilitate resolution of a particular question or problem relating to the human dimension of the OSCE. This article aims to highlight its role and significant potential to identify relevant patterns of behaviour supported by collected information and evidence on violations of international humanitarian and human rights law in situations that need urgent attention by the international community. Its flexibility and short reactionary time serves to promptly document developments and make them publicly available to inform further actions. At the same time, the mechanism in practice encounters a number of challenges, such as lack of cooperation from the States “under investigation”, very short missions’ deadlines for submission of their findings and rather limited (technical) support by the designated OSCE Institution, the ODIHR. This article discusses the mechanism as such and then looks into the two of its reports from 2022 concerning the situation following the Russian invasion of Ukraine and their impact within the OSCE and beyond. It provides some general conclusions and suggestions on possible improvements of the mechanism going forward.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135053048","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}