The navigational rights of nuclear ships

Even though Article 23 of the 1982 Convention on the Law of the Sea explicitly acknowledges the right of innocent passage through the territorial sea to nuclear vessels, many coastal states have recently forbidden or submitted to authorization the passage of ships carrying radioactive materials: this reveals a trend towards a more restrictive concept of "innocent passage." As to straits used for international navigation and archipelagic sea lanes, the ius communicationis is still prominent and every measure that might prejudice the navigational rights of nuclear ships would not be consistent with the Montego Bay Convention

On the 'inherent' character of the right of states to self-defence

While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its 'inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions

Digital evidence as a means of proof before the International Court of Justice

This article discusses the use of digital evidence as a means of proof before the International Court of Justice (ICJ). The absence of specific Court rules and procedures for digital evidence (with the exception of Practice Direction IX bis) is not necessarily an obstacle to its production and evaluation before the ICJ, as the general evidentiary rules can also be applied to digital evidence. The article first looks at the rules on the production of documentary evidence and then examines the specific issues related to audiovisual evidence. Finally, it examines the admissibility of digital evidence unlawfully obtained by a litigant through unilateral transborder access to data. The article concludes that, even if specific regulation may be needed as to the specific way in which authenticity and accuracy of digital evidence are to be established, the particular facts of the case and the grounds of challenge can vary widely, and it is doubtful that any regulation could be sufficiently flexible to deal with this in advance

Threats of armed force and contemporary international law

The present article analyses threats of armed force by states against other states. After determining what conduct amounts to a ‘threat of force’, the current status of its prohibition is investigated. In particular, this article contends that the prohibition of the threat of force contained in Article 2(4) of the UN Charter reflects customary international law. The fact that only a few states have supported the legality of threats for certain law enforcement purposes prevents the prohibition of any threats of force from being qualified as jus cogens. This status should be limited to the prohibition of threats of aggression, which constitutes the common denominator of the practice and opinio juris of all states. The consequences of threats of force under the law of treaties, the law of state responsibility and international criminal law are then discussed, in particular treaties, the conclusion of which has been obtained by the threat of force in violation of the UN Charter are void ab initio. Article 41 of the ILC Articles on State Responsibility could also entail a duty of non-recognition of situations procured by the threat of aggression. On the other hand, threats of aggression (let alone threats of less serious forms of the use of force) cannot be qualified as international crimes entailing individual responsibility. As to remedies at the disposal of the victim state, armed responses to threats of force would be lawful only within the limits of self-defence, and only if the threatened armed attack is imminent enough to meet the Caroline requirements. On the contrary, coercive responses to non-imminent armed attacks are still prohibited under contemporary international law

Cyber operations as nuclear counterproliferation measures

Focusing on recent malware that allegedly targeted Iran’s nuclear programme, this article discusses the legality of inter-state cyber operations as measures to prevent the proliferation of nuclear weapons approaching the problem from the perspective of the law of State responsibility, in particular the circumstances precluding wrongfulness. After examining the role that cyber attacks and cyber exploitation can play in preventing nuclear proliferation, the article explores whether cyber operations can be justified as countermeasures in response to a possible breach by Iran of its non-proliferation obligations. It then discusses whether counterproliferation cyber operations amounting to a use of force are submitted to a more lenient legal regime than other more traditional forms of the use of force in international relations. Finally, the article explores the legality of counterproliferation cyber operations from the perspective of Chapter VII of the UN Charter, and in particular of the resolutions adopted against Iran by the Security Council. The article concludes that the legality of counterproliferation cyber operations must be assessed in the light of the general primary and secondary rules of international law: neither the means used (cyber instead of kinetic) nor the aim pursued (the non-proliferation of nuclear weapons) justify a special legal regime