International Community Law Review最新文献

{"title":"Reflections on the Role of Fairness for the Sources of International Law","authors":"Roman Kwiecień","doi":"10.1163/18719732-bja10127","DOIUrl":"https://doi.org/10.1163/18719732-bja10127","url":null,"abstract":"The paper discusses the relationship between the sources of international law and fairness. The author addresses this issue within the framework the following main question: what is the role of fairness for the formal sources of international law? By analysing the relationship between fairness and the formal sources of international law, the author also responds to two other, substantively relevant, questions: is the typology of these sources listed in Article 38 of the Statute of the <jats:sc>ICJ</jats:sc> fair?; is soft law a means to fairness in the sources? The author claims that fairness is neither a material nor formal source of international law but it is a procedural value which supports the legitimacy of the making of international law. Thus, it is relevant to the formal, not material, sources of international law. The term ‘formal sources’ is used in the paper in the twofold meaning. First, as <jats:italic>instrumentum</jats:italic> or ‘containers’ for rules and principles (where the law can be found), and, second, as processes and forms by which rules and principles are made. The author’s proposition is that fairness is primary relevant to the latter meaning. When the international law-making processes are fair, then their results, i.e., the formal sources conceived as <jats:italic>instrumentum</jats:italic> or ‘containers’ are also fair, and the law may be known. Rules and principles of international law are fair when they satisfy the requirements of a fair international law-making process, in particular, certainty, transparency and authoritativeness/representativeness. That is why, fairness may be seen as a crucial criterion of the legitimacy of international law-making processes. There are close relationships between fairness, law-making, legal certainty, effectiveness of rules and principles and the rule of law. These relationships mark the place of fairness in the sources of international law. The author seeks to point out that fairness as a product of the constantly changing social and political environment, does not occur in its pure form in practice. As such, fairness is a ‘matter of degree’ in the international law-making. That is why, a realistic goal of the international legal order is neutralization of unfairness as much as possible.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"101 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142198080","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":"Government Recognition and the Dispute over the Venezuelan Gold Reserves in the Bank of England","authors":"Eliezer Sanchez-Lasaballett, Ybiskay Gonzalez T.","doi":"10.1163/18719732-bja10125","DOIUrl":"https://doi.org/10.1163/18719732-bja10125","url":null,"abstract":"Public international law cloaks the process of government recognition with neutrality. It does this by concealing its political, discretional nature and disregarding the far-reaching consequences for the citizens of the country concerned. The dispute over Venezuelan gold in the Bank of England provides a case study as the gold reserves or its proceeds remain out of the reach of the Venezuelan people. It presents unique features as the UK courts have to determine which of the two competing governments represents Venezuela’s legitimate interest. This article focuses on the relationship between government recognition and coloniality to illustrate how the law reproduces neocolonial rationalities under the guise of neutrality. It conceals a morally superior self-perception of those advancing an international political order dehumanising the lives of ‘the other’. Ultimately, government recognition has far-reaching implications for the international order since it risks becoming a discretionary practice to support or boycott regimes.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"210 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142198143","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 Imbalanced Geography of the Law on Use of Force in Self-Defence","authors":"Chloe Goldthorpe","doi":"10.1163/18719732-bja10124","DOIUrl":"https://doi.org/10.1163/18719732-bja10124","url":null,"abstract":"The most invoked justification for use of military force is the ‘inherent right’ to self-defence, enshrined in Article 51 of the UN Charter. This article examines efforts over the past two decades to reshape the scope of this right, arguing that attempts to permit defensive force in a wider range of situations than previously are symptomatic of structural bias that favours militarily powerful States more able and willing to use force. Building from <jats:sc>TWAIL</jats:sc> and feminist insights, the article reveals trends in instrumentalization and dominance of the law on self-defence, particularly within construction of customary international law, which operate to the detriment of populations living in areas converted into conflict zones. The analysis reinforces the imperative to explicitly acknowledge issues with universality and impartiality within the discussion on scope of self-defence, as well as consider alternative approaches to redressing structural bias and restricting the imbalanced impacts of defensive force.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"100 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142198142","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 of General Assembly Resolutions in the Identification of Customary International Law and the Chagos Archipelago Advisory Opinion","authors":"Sofia Neto Oliveira","doi":"10.1163/18719732-bja10122","DOIUrl":"https://doi.org/10.1163/18719732-bja10122","url":null,"abstract":"This article analyses how the <jats:italic>Chagos Archipelago Advisory Opinion (2019)</jats:italic> has contributed to the determination of the role of General Assembly resolutions in the identification of customary norms. By exposing, firstly, the many theories on the weight of these international organisations’ instruments and, secondly, which of these conclusions are considered customary (by the International Law Commission’s work on <jats:italic>Identification of Customary Law</jats:italic> and by the International Court of Justice’s jurisprudence); it defends that the Chagos advisory opinion has innovated in three main points. Firstly, the resolutions were not subsidiary evidence, but rather the central point of analysis for establishing the existence and scope of the right to self-determination. Secondly, the Court has offered more elements to be observed in these instruments than it ever did. Thirdly, although maintaining the focus on State practice, the Court acknowledged the role of the General Assembly, as one collective organ, on decolonisation as relevant.","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"72 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142198144","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":"Climate Change Litigation: General Perspectives and Emerging Trends","authors":"Agnes Viktoria Rydberg","doi":"10.1163/18719732-12341504","DOIUrl":"https://doi.org/10.1163/18719732-12341504","url":null,"abstract":"<p>This article provides an overview of the historical and current landscape of climate change litigation, highlighting its transformative impact on public perceptions and governmental policies globally. Ground-breaking cases have compelled States to adopt more ambitious greenhouse gas reduction targets, whilst emphasising a rights-based approach to climate change mitigation and adaptation measures. In fact, strategic climate change litigation is gaining momentum and is likely to continue in volume and importance. This allows for the targeting of a wider range of actors, not least within the private sector, which in turn can pose financial risks to fossil fuel firms. The article also discusses certain emerging trends in the context of climate change litigation, as well as the potential for a shift towards personal responsibility and inter-state arbitration in 2024. It concludes that climate change litigation emerges as a powerful strategy, capable of influencing policy, ensure accountability, and drive systemic change towards climate justice for present and future generations.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"21 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141552944","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":"International Criminal Law and the Environment: A Few Reflections","authors":"Pauline Martini","doi":"10.1163/18719732-12341505","DOIUrl":"https://doi.org/10.1163/18719732-12341505","url":null,"abstract":"<p>The article concludes the Special Issue by exploring the role that international criminal law (<span style=\"font-variant: small-caps;\">ICL</span>) could play in the protection of the environment in light of the three core issues covered in the Special Issue: the right to a healthy environment, climate change litigation and Indigenous peoples’ Earth-Centric vision. First, the paper argues that fora applying <span style=\"font-variant: small-caps;\">ICL</span>, including the International Criminal Court, could offer legal avenues to prosecute serious violations of the right to a healthy environment. Second, it alleges that whilst cases involving conducts leading to environmental degradation and destruction could be brought under <span style=\"font-variant: small-caps;\">ICL, ICL</span> could not address the broader impact of such conducts, including on climate change. Third, it discusses the extent to which <span style=\"font-variant: small-caps;\">ICL</span> could incorporate Indigenous peoples’ Earth-centric approach to enhance the protection of the environment.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"4 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141549473","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":"An Indigenous Cosmovision for Earth-Centric Governance: Deconstructing the Normative Structure of International Law?","authors":"Kamrul Hossain","doi":"10.1163/18719732-12341502","DOIUrl":"https://doi.org/10.1163/18719732-12341502","url":null,"abstract":"<p>The following article critically examines how the structure of international law falls short of embracing common global problems. In this context, the article focuses on the ecological aspects of governance that tend to go beyond state-centric interests. Putting forward an overview of how issues beyond the states’ national jurisdiction are addressed in the present structure of international law, the article examines the challenges of incorporating the Earth-centric approach reflected in the Indigenous cosmovision into that body of law. While the analysis does not attempt to provide any conclusive solutions, it argues that the Earth-centric approach cannot be incorporated into the current international legal framework. Although absolutely indispensable for a sustainable planetary process, the approach would require a complete deconstruction of the global legal order or a radical re-organization of the current structure of international law.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"24 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141549385","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":"Human Right to a Clean Environment: General Reflections","authors":"Malgosia Fitzmaurice","doi":"10.1163/18719732-12341503","DOIUrl":"https://doi.org/10.1163/18719732-12341503","url":null,"abstract":"<p>This article examines the substantive and procedural right to a clean environment. The universal right (based on the 2022 Resolution of the <span style=\"font-variant: small-caps;\">UNGA</span>) is critically analysed from the point of view of its universality in the context of Global North and Global South. The procedural environmental right is less controversial. In this article is analysed within the context of the <span style=\"font-variant: small-caps;\">ECHR</span> and the Aarhus Convention. Environmental Impact Assessment is dealt with from the points of view of environmental information and public participation in environmental matters.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"24 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-07-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141549463","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 Paradigm of the Protection of Aliens: Categorisation of Foreigners Seeking International Protection in the European Union","authors":"Elżbieta Karska, Bartłomiej Oręziak","doi":"10.1163/18719732-bja10123","DOIUrl":"https://doi.org/10.1163/18719732-bja10123","url":null,"abstract":"<p>This article aims to present an analysis of the categorization of foreigners (aliens) seeking international protection in the European Union from the perspective of the European paradigm of the protection of aliens. Firstly, semantic issues related to understanding the concept of ‘foreigners’ will be presented. This element of the analysis will be crucial for further considerations, as by delineating definitional boundaries, it will determine the picture of identifiable categories of foreigners. Secondly, an outline of European Union legislation forming the legal basis for the main analysis will be presented. Attention will be focused on legal acts from which general and specific categories of foreigners seeking international protection in the European Union can be interpreted. Thirdly, general categories will be presented along with an explanation of their functions in law. Fourthly, specific categories will be presented along with an explanation of their functions in law at the stage of qualification, reception, and procedure. This paper will conclude with a concise summary containing recommendations and other conclusions.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"31 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141153752","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":"Person on the Autism Spectrum on (the margin of) the Labour Market: The Nominal International Standard versus the Reality of a European Union Member State – (The Example of Poland)","authors":"Maciej Oksztulski, Maciej Perkowski, Wojciech Zoń","doi":"10.1163/18719732-bja10103","DOIUrl":"https://doi.org/10.1163/18719732-bja10103","url":null,"abstract":"<p>Autism is a spectrum disorder (abbreviated <span style=\"font-variant: small-caps;\">ASD</span> – autism spectrum disorder), which encompasses a variety of developmental challenges in communication, thinking, cognitive skills, interests, and forms of activity, as well as motor skills. Ensuring that people with autism spectrum disorder realise their right to work seems to be a problem in Poland, contributing to their discrimination. The aim of the paper is to present the issue of employment of adults on the autism spectrum in Poland as a member state of the European Union in the light of the international standard. The article discusses the objective and subjective approach to adults with <span style=\"font-variant: small-caps;\">ASD</span> in Poland, the legal conditions of their employment (including international law), as well as the results of empirical research and conclusions in this respect.</p>","PeriodicalId":43487,"journal":{"name":"International Community Law Review","volume":"46 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2024-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141151559","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}