Pub Date : 2022-08-19DOI: 10.1163/15718107-91030001
Elena Katselli Proukaki
This article argues that international criminal law has not adequately addressed the true dimensions and effects of forced displacement. Often protracted in time, forced displacement extends well beyond the conduct of coercively expelling individuals out of territory from which they are lawfully present. Preventing those forcibly displaced from returning is an essential element of forced displacement as a crime against humanity and as such, it requires the full reprehension of international criminal law. This means that the crime continues for as long as prevention from returning is sustained with significant ramifications on the temporal and territorial jurisdiction of the International Criminal Court. This is particularly so in relation to crimes elements of which are committed in the territory of a state not party to the icc Statute, such as in the situation concerning the alleged deportation of the Rohingya before the icc, and crimes which were initiated before the binding force of the icc Statute. The article concludes that recognition of prevention from returning as a continuing element of forced displacement does not infringe state consent, nor does it compromise the principle of legality which are central to the exercise of icc jurisdiction.
{"title":"Forced Displacement, Prevention from Returning and the Jurisdiction of the International Criminal Court","authors":"Elena Katselli Proukaki","doi":"10.1163/15718107-91030001","DOIUrl":"https://doi.org/10.1163/15718107-91030001","url":null,"abstract":"\u0000 This article argues that international criminal law has not adequately addressed the true dimensions and effects of forced displacement. Often protracted in time, forced displacement extends well beyond the conduct of coercively expelling individuals out of territory from which they are lawfully present. Preventing those forcibly displaced from returning is an essential element of forced displacement as a crime against humanity and as such, it requires the full reprehension of international criminal law. This means that the crime continues for as long as prevention from returning is sustained with significant ramifications on the temporal and territorial jurisdiction of the International Criminal Court. This is particularly so in relation to crimes elements of which are committed in the territory of a state not party to the icc Statute, such as in the situation concerning the alleged deportation of the Rohingya before the icc, and crimes which were initiated before the binding force of the icc Statute. The article concludes that recognition of prevention from returning as a continuing element of forced displacement does not infringe state consent, nor does it compromise the principle of legality which are central to the exercise of icc jurisdiction.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45932299","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030005
Bernard Ntahiraja
Universal jurisdiction in criminal matters has been a hot topic for many decades already. In discussions on its legality and scope, waters are usually muddied by the inclusion of unrelated issues or by the use of inappropriate methodologies. The purpose of this article is to discuss the legality and scope of universal jurisdiction, mainly by clarifying the concept and addressing the main misunderstandings characterising the discussions on its legality. The main claim is that objections to the legality and to the extended (unlimited) scope of universal jurisdiction in criminal matters are based on two confusions/conflations of notions. Firstly, this paper demonstrates that the so-called conflicts between the exercise of universal jurisdiction and general norms of international law are only imaginable in a framework that misrepresents/misunderstands the concept of jurisdiction itself by conflating the notions of jurisdiction to prescribe and jurisdiction to enforce. Secondly, it argues that the view which limits the scope of universal jurisdiction to a few crimes fails to clearly distinguish states’ international duties and rights in criminal law matters. In terms of methods, the paper takes the (traditional) view that states are allowed to do everything international law does not prohibit.
{"title":"The Legality and Scope of Universal Jurisdiction in Criminal Matters","authors":"Bernard Ntahiraja","doi":"10.1163/15718107-91030005","DOIUrl":"https://doi.org/10.1163/15718107-91030005","url":null,"abstract":"\u0000 Universal jurisdiction in criminal matters has been a hot topic for many decades already. In discussions on its legality and scope, waters are usually muddied by the inclusion of unrelated issues or by the use of inappropriate methodologies. The purpose of this article is to discuss the legality and scope of universal jurisdiction, mainly by clarifying the concept and addressing the main misunderstandings characterising the discussions on its legality. The main claim is that objections to the legality and to the extended (unlimited) scope of universal jurisdiction in criminal matters are based on two confusions/conflations of notions. Firstly, this paper demonstrates that the so-called conflicts between the exercise of universal jurisdiction and general norms of international law are only imaginable in a framework that misrepresents/misunderstands the concept of jurisdiction itself by conflating the notions of jurisdiction to prescribe and jurisdiction to enforce. Secondly, it argues that the view which limits the scope of universal jurisdiction to a few crimes fails to clearly distinguish states’ international duties and rights in criminal law matters. In terms of methods, the paper takes the (traditional) view that states are allowed to do everything international law does not prohibit.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42501707","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030008
Nicolas Ojeda-Zavala
The recognition of indigenous peoples’ right to participate in decision-making is one of the most important developments in international law, enabling them to use their knowledge and influence the adoption of measures that could affect them. However, due to a narrow approach to indigenous participation, states often disregard this knowledge, thus moving forward without having full certainty about potential effects on indigenous peoples’ environment and livelihood. In this context, there is a role for the precautionary principle, by which states must avoid the materialisation of non-negligible harm in situations of scientific uncertainty. Yet, this principle has been shaped by a conventional understanding of ‘science’, inadequate to deal with these risks and uncertainties involving socio-cultural aspects beyond conventional sciences. Considering this, I argue that the adoption of effective precautionary measures requires relying on another relevant form of knowledge, traditional knowledge, expanding this notion of ‘science’ and strengthening indigenous peoples’ participatory rights.
{"title":"Erring on the Side of Indigenous peoples","authors":"Nicolas Ojeda-Zavala","doi":"10.1163/15718107-91030008","DOIUrl":"https://doi.org/10.1163/15718107-91030008","url":null,"abstract":"\u0000 The recognition of indigenous peoples’ right to participate in decision-making is one of the most important developments in international law, enabling them to use their knowledge and influence the adoption of measures that could affect them. However, due to a narrow approach to indigenous participation, states often disregard this knowledge, thus moving forward without having full certainty about potential effects on indigenous peoples’ environment and livelihood. In this context, there is a role for the precautionary principle, by which states must avoid the materialisation of non-negligible harm in situations of scientific uncertainty. Yet, this principle has been shaped by a conventional understanding of ‘science’, inadequate to deal with these risks and uncertainties involving socio-cultural aspects beyond conventional sciences. Considering this, I argue that the adoption of effective precautionary measures requires relying on another relevant form of knowledge, traditional knowledge, expanding this notion of ‘science’ and strengthening indigenous peoples’ participatory rights.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43520269","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030006
Oğuzhan Öztürk
{"title":"Pablo Kalmanovitz, The Laws of War in International Thought. Oxford: Oxford University Press 2020","authors":"Oğuzhan Öztürk","doi":"10.1163/15718107-91030006","DOIUrl":"https://doi.org/10.1163/15718107-91030006","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42680895","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030004
Rosa M. Manzo
{"title":"Van Doorn, Erik, Legal Implications of the “Common Heritage” Principle for Atlantic Bluefin Tuna, 2021, pp. 242","authors":"Rosa M. Manzo","doi":"10.1163/15718107-91030004","DOIUrl":"https://doi.org/10.1163/15718107-91030004","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43440708","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030003
S. Machado
While there is a growing jurisprudence in the field of art (aesthetics) and international law, there is still space to theorise about the philosophical approach that we choose when we decide to engage the discipline as an artistic endeavour. In this article I argue that an aesthetic conception of international law can help go past the limitations imposed by rationalist accounts of legal order by thinking of it as an experience rather than a social science. This subjective shift in emphasis does not have to commit to a preordained theory of how international law is meant to look like, but rather focuses on the manner in which international lawyers engage with their discipline. I conclude by arguing that international law is not a naturally occurring phenomenon which exists in the empirical world and which we pick out by our senses – it is a human artefact constructed through our involvement with reality. This allows for many argumentative possibilities, and it is by the action of choosing these possibilities that we define the boundaries of what international law is.
{"title":"Towards an Aesthetic Epistemology of International Law","authors":"S. Machado","doi":"10.1163/15718107-91030003","DOIUrl":"https://doi.org/10.1163/15718107-91030003","url":null,"abstract":"\u0000 While there is a growing jurisprudence in the field of art (aesthetics) and international law, there is still space to theorise about the philosophical approach that we choose when we decide to engage the discipline as an artistic endeavour. In this article I argue that an aesthetic conception of international law can help go past the limitations imposed by rationalist accounts of legal order by thinking of it as an experience rather than a social science. This subjective shift in emphasis does not have to commit to a preordained theory of how international law is meant to look like, but rather focuses on the manner in which international lawyers engage with their discipline. I conclude by arguing that international law is not a naturally occurring phenomenon which exists in the empirical world and which we pick out by our senses – it is a human artefact constructed through our involvement with reality. This allows for many argumentative possibilities, and it is by the action of choosing these possibilities that we define the boundaries of what international law is.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41953234","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}
Pub Date : 2022-08-19DOI: 10.1163/15718107-91030002
Astrid Kjeldgaard-Pedersen, R. G. Nielsen
This case note accounts for and comments on the Supreme Court of Denmark’s recent judgment in the Green Desert case. The Court held that the Ministry of Defence was not liable under Danish tort law for the Danish troops’ participation in the Green Desert operation in 2004 in Iraq, during which a number af Iraqis were detained and later subjected to inhuman treatment by the Iraqi police and military. Moreover, the Supreme Court found that the Iraqis were not within the jurisdiction of Denmark under Article 1 echr. The judgment did not address the general rules on state responsibility or international humanitarian law.
{"title":"Case Note on the Supreme Court of Denmark’s Judgment in Green Desert","authors":"Astrid Kjeldgaard-Pedersen, R. G. Nielsen","doi":"10.1163/15718107-91030002","DOIUrl":"https://doi.org/10.1163/15718107-91030002","url":null,"abstract":"\u0000 This case note accounts for and comments on the Supreme Court of Denmark’s recent judgment in the Green Desert case. The Court held that the Ministry of Defence was not liable under Danish tort law for the Danish troops’ participation in the Green Desert operation in 2004 in Iraq, during which a number af Iraqis were detained and later subjected to inhuman treatment by the Iraqi police and military. Moreover, the Supreme Court found that the Iraqis were not within the jurisdiction of Denmark under Article 1 echr. The judgment did not address the general rules on state responsibility or international humanitarian law.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47227470","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}
Pub Date : 2022-05-09DOI: 10.1163/15718107-91020001
P. Hilpold
Human rights are perceived more and more as a set of norms of all-encompassing effects determining all international action, in particular also those by the United Nations. The recent icj Opinion in the Chagos case seems to suggest, however, that the field of self-determination is not yet really affected by this development. The icj has dealt with this case in a very traditional manner declaring, as it was foreseeable, that the de-colonisation process of the Chagos Islands has not been lawfully completed. At the same time, the icj widely ignored the direful lot of the Chagossians. This article investigates whether it is still tenable to deal with a decolonisation case exclusively from the perspective of ‘classic colonial self-determination’ while barely considering the lot of the people directly affected by these events. The main proposition of this article is that the process of humanization of international law must not stop short from affecting also the law of self-determination. It is suggested, on the contrary, that in the 21th century the law of self-determination has to set the individuals composing the people in the forefront.
{"title":"‘Humanizing’ the Law of Self-Determination – the Chagos Island Case","authors":"P. Hilpold","doi":"10.1163/15718107-91020001","DOIUrl":"https://doi.org/10.1163/15718107-91020001","url":null,"abstract":"\u0000Human rights are perceived more and more as a set of norms of all-encompassing effects determining all international action, in particular also those by the United Nations. The recent icj Opinion in the Chagos case seems to suggest, however, that the field of self-determination is not yet really affected by this development. The icj has dealt with this case in a very traditional manner declaring, as it was foreseeable, that the de-colonisation process of the Chagos Islands has not been lawfully completed. At the same time, the icj widely ignored the direful lot of the Chagossians. This article investigates whether it is still tenable to deal with a decolonisation case exclusively from the perspective of ‘classic colonial self-determination’ while barely considering the lot of the people directly affected by these events. The main proposition of this article is that the process of humanization of international law must not stop short from affecting also the law of self-determination. It is suggested, on the contrary, that in the 21th century the law of self-determination has to set the individuals composing the people in the forefront.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43555631","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}
Pub Date : 2022-05-09DOI: 10.1163/15718107-91020004
J. Mazur, Magdalena Słok-Wódkowska
The sharing of data between States, particularly during a transnational public emergency, is essential for, e.g., monitoring adequate responses. Yet, in the digital economy, it is the private sector that leads in the collection and processing of huge amounts of data on a global scale, while the public sector often lags behind. We begin the article by examining the shortcomings of the solutions developed in human rights law and in international economic law concerning access to public sector information and data. Afterwards, we propose three possibilities to provide adjustments of the regulatory framework governing data sharing in the era of big data: sectoral approach to data sharing, establishment of common standards for public sector information re-use, and the idea of ‘data altruism’ introduced in the Data Governance Act. We indicate how these solutions could facilitate the development of an international regulatory framework for data sharing on an international level.
{"title":"Access to Information and Data in International Law","authors":"J. Mazur, Magdalena Słok-Wódkowska","doi":"10.1163/15718107-91020004","DOIUrl":"https://doi.org/10.1163/15718107-91020004","url":null,"abstract":"\u0000The sharing of data between States, particularly during a transnational public emergency, is essential for, e.g., monitoring adequate responses. Yet, in the digital economy, it is the private sector that leads in the collection and processing of huge amounts of data on a global scale, while the public sector often lags behind. We begin the article by examining the shortcomings of the solutions developed in human rights law and in international economic law concerning access to public sector information and data. Afterwards, we propose three possibilities to provide adjustments of the regulatory framework governing data sharing in the era of big data: sectoral approach to data sharing, establishment of common standards for public sector information re-use, and the idea of ‘data altruism’ introduced in the Data Governance Act. We indicate how these solutions could facilitate the development of an international regulatory framework for data sharing on an international level.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47914319","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}
Pub Date : 2022-05-09DOI: 10.1163/15718107-91020007
Rémi Fuhrmann
{"title":"Anne Orford, International Law and the Politics of History","authors":"Rémi Fuhrmann","doi":"10.1163/15718107-91020007","DOIUrl":"https://doi.org/10.1163/15718107-91020007","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45240931","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}
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