Obligations of States in Disputed Areas of the Continental Shelf

Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves, which raises important issues as to how such States must conduct themselves prior to resolution of their dispute. This chapter advances eight basic rules that every State is expected to follow in such a situation. Inevitably, such rules are general in nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding their overall duty to resolve disputes peacefully

Codifying the Obligations of States Relating to the Prevention of Atrocities

Exactly what types of obligations of States fall within the realm of “prevention” of atrocities, such as genocide, war crimes and crimes against humanity? It could generally be thought that some types of obligations are directly connected to prevention (obligations of prevention), while others are of a different nature, though bearing upon the issue of prevention (obligations relating to prevention). Based on a review of major multilateral treaties, this essay identifies six key obligations of States that relate, directly or indirectly, to the prevention of atrocities. Such obligations were deemed essential for inclusion in the International Law Commission’s 2019 articles on prevention and punishment of crimes against humanity

The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission

This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, regarding a State’s power to remove non-nationals coercively from its territory. Work proceeded on the other topics already on the ILC’s agenda and two new topics were added to that agenda: the provisional application of treaties and customary international la

Book Review of the Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum, Ed., Oxford University Press, 2012)

In 2004, the Max Planck Institute launched yet another generation of its widely-used encyclopedia on public international law, this time entitled the Max Planck Encyclopedia of Public International Law (MPEPIL), under the direction of Rüdiger Wolfrum. As befits a new century, the MPEPIL was first unveiled in an online version in 2008, followed in 2012 by a print version in ten volumes plus an index volume. Even a cursory comparison with the previous version reveals that this compendium is a whole new ball game. In terms of content, only 12 of the prior edition’s articles were taken verbatim into the new version, while some 350 articles were dropped, the rest were rewritten, and more than 700 new articles were added, including in areas of considerable growth, such as international criminal law, international dispute settlement, trade law and environmental law. All told, this edition contains more than 1,600 articles, beginning with the AAPL v. Sri Lanka case and ending with “Zones of Peace.” Each article contains cross-references to related articles and concludes with a bibliography of the most significant primary materials and secondary sources on the topic. All told, there is little question that the MPEPIL lives up to its claim as the definitive reference work for international law, especially for a new generation of international law scholars who are more comfortable clicking rather than thumbing their way to answers

Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission

This essay analyzes the outcome of the sixty-ninth session of the U.N. International Law Commission held in the summer of 2017 in Geneva. The session was the first of a new quinquennium of the Commission, consisting of members who will serve from 2017 until 2021. Notably, the Commission completed on first reading a full set of draft articles with commentary on crimes against humanity. Progress was also made in developing draft guidelines on the provisional application of treaties; draft guidelines on protection of the atmosphere; draft articles on the immunity of state officials from foreign criminal jurisdiction; and draft conclusions on peremptory norms of general international law (jus cogens). The Commission did not make any significant progress with respect to its topic on protection of the environment in relation to armed conflicts, but did appoint a new special rapporteur to carry the work forward. Further, the Commission added a new topic to its agenda on succession of states in respect of state responsibility, and added two new topics to its long-term work program, namely on general principles of law and on evidence before international courts and tribunals. The Commission did not work on two topics that completed their first readings in 2016 and that, after receiving reactions from governments and others, will likely undergo their second readings in 2018: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties

The Utility and Limits of Canons of Construction in Public International Law

This draft chapter, for a volume that considers canons of construction and other interpretive principles in public international law, considers the utility and limits of such canons, drawing in part upon lessons learned from schools of American jurisprudence (formalism, realism, pragmatism) with respect to statutory interpretation. In international law, there are certain obligatory canons of construction that have been expressly incorporated in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. These canons are essential elements of the interpretive process; while in any given context, one or the other of these elements might be favored, they are all to be “thrown into the crucible” in order to arrive at a proper interpretation. By contrast, other canons of construction – such as “effet utile,” “ex abundante cautela,” or “in dubio mitius” – are regarded as less essential to the interpretive process, and hence of more limited value. They certainly should not be approached as providing a mechanical or decisive means for resolving cases, given the likely ability to pair any given canon with another canon that calls for a different outcome. Indeed, the invocation of a canon as requiring a particular outcome may be an attempt to mask with legal jargon the interpreter’s own policy preference. Even when invoked simply as an interpretive aide, such canons must be used with caution, taking full account of the context at issue. Over time, perhaps there will develop within international law a better understanding (if not theory) for when it is that such canons should be employed, making their use more consistent and legitimate. In the meantime, such canons have been found useful in international discourse, and hence are referred to and relied upon. A canon might provide assistance to an interpreter as a non-obligatory guide for how best to approach analyzing certain elements of Vienna Convention Article 31, such as understanding the context of a treaty provision. If application of the elements of Article 31 have led to an interpretive outcome that is problematic, a canon might provide an alternative path of reasoning, of the kind envisaged in Article 32, perhaps by suggesting a general approach for harmonizing the diverse system of international law. Indeed, since the canons might be viewed as expressing an interpretive code understood within the international legal community, a canon might help in divining what was likely intended by the drafters of a treaty (or of a unilateral declaration). In any event, at a minimum, a canon can serve as one tool in the international lawyer’s toolkit, providing a simple way of expressing a complex logical claim, even if susceptible to rebuttal by an opposing logical claim

Codification, Progressive Development, or Scholarly Analysis? The Art of Packaging the ILC\u27s Work Product

Over its life, the U.N. International Law Commission has developed various ways of “packaging” its work product. Multiple techniques are available for balancing the Commission’s roles in advancing the codification and progressive development of international law – choices about the format of the project, about how to characterize the project in the associated commentary, and about the recommendation to the U.N. General Assembly on what should be done with the completed project. While creative use of such techniques to suit the particular topics on the Commission’s agenda is to be welcomed, the Commission’s authority and legacy ultimately will turn on whether States and other relevant actors view the Commission as adhering to its statutory role or perceive it as aggregating to itself the role of legislator

\u3ci\u3eJus Ad Bellum,\u3c/i\u3e Values, and the Contemporary Structure of International Law

In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, to the relatively recent system of the UN Charter, particularly its relegation to the Security Council of the exclusive authority to determine when military force should be used for purposes other than self-defense. When the Cold War ended and the Security Council failed to act to protect human rights, the doctrine was born