Pub Date : 2021-12-01DOI: 10.1163/15718107-90040009
Asbjørn Møller-Christensen, David Michael Kendal
With a primary focus on civil law, the article provides a general overview of the most important legislation, court decisions and other state practice in explaining how international law on state immunity applies in Denmark today. Although Danish court practice has been quite sparse, there have been a number of important decisions effectively implementing international state immunity law into Danish law. The article also reflects on the application and development of customary international law in Danish law outside Danish courts with a particular focus on the 2004 UN Convention on Jurisdictional Immunity of States and Their Property, which Denmark has signed, but not ratified. Other examples of Danish practice are briefly highligthed, underscoring the conclusion that Denmark has broadly embraced the restrictive approach to international law on state immunity.
{"title":"State Immunity in Danish Law","authors":"Asbjørn Møller-Christensen, David Michael Kendal","doi":"10.1163/15718107-90040009","DOIUrl":"https://doi.org/10.1163/15718107-90040009","url":null,"abstract":"\u0000With a primary focus on civil law, the article provides a general overview of the most important legislation, court decisions and other state practice in explaining how international law on state immunity applies in Denmark today. Although Danish court practice has been quite sparse, there have been a number of important decisions effectively implementing international state immunity law into Danish law. The article also reflects on the application and development of customary international law in Danish law outside Danish courts with a particular focus on the 2004 UN Convention on Jurisdictional Immunity of States and Their Property, which Denmark has signed, but not ratified. Other examples of Danish practice are briefly highligthed, underscoring the conclusion that Denmark has broadly embraced the restrictive approach to international law on state immunity.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43001162","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 : 2021-12-01DOI: 10.1163/15718107-90040006
T. Paige
Within the ideological confines of Western liberal democracies, two ‘truths’ are held to be self-evident: that Russia and China are opportunistic in their behaviour, and that this behaviour is strategic rather than sincere. This article is a short, empirical analysis of the justifications of Russia and China when determining a ‘threat to the peace’ in accordance with Article 39 of the Charter of the United Nations. Examining how Russia and China have justified their decisions where this concept was significantly under debate, I find that their behaviour is not as opportunistic as believed. Rather, it is consistent with ideals of pragmatism and state-centric interpretations of international law. I further suggest that the consistency of their approaches means it is of little consequence if their arguments are strategic in nature.
{"title":"The Bear and the Dragon","authors":"T. Paige","doi":"10.1163/15718107-90040006","DOIUrl":"https://doi.org/10.1163/15718107-90040006","url":null,"abstract":"\u0000Within the ideological confines of Western liberal democracies, two ‘truths’ are held to be self-evident: that Russia and China are opportunistic in their behaviour, and that this behaviour is strategic rather than sincere. This article is a short, empirical analysis of the justifications of Russia and China when determining a ‘threat to the peace’ in accordance with Article 39 of the Charter of the United Nations. Examining how Russia and China have justified their decisions where this concept was significantly under debate, I find that their behaviour is not as opportunistic as believed. Rather, it is consistent with ideals of pragmatism and state-centric interpretations of international law. I further suggest that the consistency of their approaches means it is of little consequence if their arguments are strategic in nature.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43279744","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 : 2021-12-01DOI: 10.1163/15718107-90040005
Andreas Motzfeldt Kravik
The article seeks to clarify the scope of state immunity in civil proceedings before Norwegian courts based on recent jurisprudence and other sources of law, both domestic and international. While the concept of restrictive state immunity is now widely seen as settled law, determining the boundaries between government and private acts, and thus the precise scope of state immunity, is inherently challenging. The article examines recent Norwegian case law on state immunity, highlighting commonalities and inconsistencies in the jurisprudence, including with respect to the courts’ reliance on the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which Norway has ratified. The article concludes that the 2004 Convention has, in whole or in part, achieved customary law status and represents a major step forward towards a truly global framework within which national courts can adjudicate state immunity. The article concludes that future cases on state immunity before Norwegian courts should be adjudicated on the basis of the 2004 Convention.
{"title":"State Immunity in Norwegian Courts","authors":"Andreas Motzfeldt Kravik","doi":"10.1163/15718107-90040005","DOIUrl":"https://doi.org/10.1163/15718107-90040005","url":null,"abstract":"\u0000The article seeks to clarify the scope of state immunity in civil proceedings before Norwegian courts based on recent jurisprudence and other sources of law, both domestic and international. While the concept of restrictive state immunity is now widely seen as settled law, determining the boundaries between government and private acts, and thus the precise scope of state immunity, is inherently challenging. The article examines recent Norwegian case law on state immunity, highlighting commonalities and inconsistencies in the jurisprudence, including with respect to the courts’ reliance on the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, which Norway has ratified. The article concludes that the 2004 Convention has, in whole or in part, achieved customary law status and represents a major step forward towards a truly global framework within which national courts can adjudicate state immunity. The article concludes that future cases on state immunity before Norwegian courts should be adjudicated on the basis of the 2004 Convention.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42042954","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 : 2021-12-01DOI: 10.1163/15718107-90040002
M. Bogdan
{"title":"Peter Mankowski (ed.), Research Handbook on the Brussels I bis Regulation","authors":"M. Bogdan","doi":"10.1163/15718107-90040002","DOIUrl":"https://doi.org/10.1163/15718107-90040002","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42943477","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 : 2021-10-12DOI: 10.1163/15718107-bja10015
Sondre Torp Helmersen
This article examines the International Court of Justice’s methodology in cases where it interprets its own decisions under the procedure in Article 60 of the Statute. The Court is constrained by respect for the res judicata of the previous decision. When interpreting the decision the Court and its judges strive to find the intention behind a decision, and emphasise elements that include wording, context, and object and purpose. A comparison with how the Court interprets treaties, resolutions from the United Nations Security Council, and unilateral declarations by States show that the instruments have important different but that their interpretation nonetheless have some basic similarities. On this basis it may be possible to formulate general principles of interpretation in international law.
{"title":"The Methodology of Formal Interpretations of Judicial Decisions by the International Court of Justice","authors":"Sondre Torp Helmersen","doi":"10.1163/15718107-bja10015","DOIUrl":"https://doi.org/10.1163/15718107-bja10015","url":null,"abstract":"\u0000This article examines the International Court of Justice’s methodology in cases where it interprets its own decisions under the procedure in Article 60 of the Statute. The Court is constrained by respect for the res judicata of the previous decision. When interpreting the decision the Court and its judges strive to find the intention behind a decision, and emphasise elements that include wording, context, and object and purpose. A comparison with how the Court interprets treaties, resolutions from the United Nations Security Council, and unilateral declarations by States show that the instruments have important different but that their interpretation nonetheless have some basic similarities. On this basis it may be possible to formulate general principles of interpretation in international law.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49207689","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 : 2021-10-12DOI: 10.1163/15718107-90030001
Yoshifumi Tanaka
In the Costa Rica v. Nicaragua judgment of 2 February 2018, the International Court of Justice (icj), for the first time in its jurisprudence, explicitly accepted the compensability of environmental damage. Nonetheless, the valuation of environmental damage is less easy. Since conditions concerning the environment and its natural resources may change with the passage of time, there is a need to take the dynamics and variability of the environment into account in the valuation of environmental damage. In this regard, considerations of temporal elements, including the time necessary for recovery of the environment and ecosystem, are key. Thus this article aims to consider the issues of the valuation of environmental damage in the Costa Rica v. Nicaragua Compensation case focusing particularly on temporal elements. In particular, this article critically analyses the icj’s methodology for the valuation of environmental damage. This article also examines the issues of climate change and use of experts in the valuation of environmental damage.
{"title":"Temporal Elements in the Valuation of Environmental Damage: Reflections on the Costa Rica v. Nicaragua Compensation Case before the International Court of Justice","authors":"Yoshifumi Tanaka","doi":"10.1163/15718107-90030001","DOIUrl":"https://doi.org/10.1163/15718107-90030001","url":null,"abstract":"\u0000In the Costa Rica v. Nicaragua judgment of 2 February 2018, the International Court of Justice (icj), for the first time in its jurisprudence, explicitly accepted the compensability of environmental damage. Nonetheless, the valuation of environmental damage is less easy. Since conditions concerning the environment and its natural resources may change with the passage of time, there is a need to take the dynamics and variability of the environment into account in the valuation of environmental damage. In this regard, considerations of temporal elements, including the time necessary for recovery of the environment and ecosystem, are key. Thus this article aims to consider the issues of the valuation of environmental damage in the Costa Rica v. Nicaragua Compensation case focusing particularly on temporal elements. In particular, this article critically analyses the icj’s methodology for the valuation of environmental damage. This article also examines the issues of climate change and use of experts in the valuation of environmental damage.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46241606","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 : 2021-10-12DOI: 10.1163/15718107-90030002
Monica Naime
{"title":"C. De Stefano. Attribution in International Law and Arbitration","authors":"Monica Naime","doi":"10.1163/15718107-90030002","DOIUrl":"https://doi.org/10.1163/15718107-90030002","url":null,"abstract":"","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49645450","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 : 2021-10-12DOI: 10.1163/15718107-bja10029
E. Winter
Non-international armed conflict between States and organised armed groups is a reality of warfare. Since the emergence of the 1949 Geneva Conventions, this form of conflict has been regulated by international humanitarian law. However, a subset of this category known as ‘transnational armed conflict’ has seen aggressive proliferation over recent decades as groups such as the Islamic State of Iraq and Syria have taken advantage of the internet and other technologies to expand their reach beyond national frontiers and strike States around the world. This phenomenon has left the geographical extent of international humanitarian law – which has historically relied on State boundaries to determine its ambit – unclear. This article examines the main options for delimiting the geographical reach of the regime in transnational armed conflict. It considers approaches based on international boundaries; ‘hot battlefields’; ‘global application’ and ‘territorial control’ before ultimately concluding that a method based on ‘military presence’ would be the most suitable standard.
{"title":"The Geographical Reach of International Humanitarian Law in Transnational Armed Conflict","authors":"E. Winter","doi":"10.1163/15718107-bja10029","DOIUrl":"https://doi.org/10.1163/15718107-bja10029","url":null,"abstract":"\u0000Non-international armed conflict between States and organised armed groups is a reality of warfare. Since the emergence of the 1949 Geneva Conventions, this form of conflict has been regulated by international humanitarian law. However, a subset of this category known as ‘transnational armed conflict’ has seen aggressive proliferation over recent decades as groups such as the Islamic State of Iraq and Syria have taken advantage of the internet and other technologies to expand their reach beyond national frontiers and strike States around the world. This phenomenon has left the geographical extent of international humanitarian law – which has historically relied on State boundaries to determine its ambit – unclear. This article examines the main options for delimiting the geographical reach of the regime in transnational armed conflict. It considers approaches based on international boundaries; ‘hot battlefields’; ‘global application’ and ‘territorial control’ before ultimately concluding that a method based on ‘military presence’ would be the most suitable standard.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43695466","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 : 2021-10-12DOI: 10.1163/15718107-bja10030
Alexander Lott
It is widely believed that international law does not enable to protect effectively the wreck of the ms Estonia against looting. The protection regime established under the 1995 ms Estonia Treaty is binding and violations against it can be effectively sanctioned in respect of only the nationals of its few States Parties, resulting in numerous jurisdictional gaps. This study argues that the law of the sea and administrative law provide the means for safeguarding the ms Estonia wreck against pilferers. Estonia has repeatedly designated tiny buffer zones around relatively modern shipwrecks outside its territorial sea. Finland can follow this practice in relation to the ms Estonia wreck that lies less than 19 nm from its baselines. In effect, Finland would be entitled to regulate and authorize activities directed at the shipwreck with the right to exercise its enforcement jurisdiction against persons that disturb the peace of the mass grave.
{"title":"The ms Estonia Shipwreck Revisited: New Developments in the Protection of Underwater Cultural Heritage in the Northern Baltic Sea","authors":"Alexander Lott","doi":"10.1163/15718107-bja10030","DOIUrl":"https://doi.org/10.1163/15718107-bja10030","url":null,"abstract":"\u0000It is widely believed that international law does not enable to protect effectively the wreck of the ms Estonia against looting. The protection regime established under the 1995 ms Estonia Treaty is binding and violations against it can be effectively sanctioned in respect of only the nationals of its few States Parties, resulting in numerous jurisdictional gaps.\u0000This study argues that the law of the sea and administrative law provide the means for safeguarding the ms Estonia wreck against pilferers. Estonia has repeatedly designated tiny buffer zones around relatively modern shipwrecks outside its territorial sea. Finland can follow this practice in relation to the ms Estonia wreck that lies less than 19 nm from its baselines. In effect, Finland would be entitled to regulate and authorize activities directed at the shipwreck with the right to exercise its enforcement jurisdiction against persons that disturb the peace of the mass grave.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48159940","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 : 2021-10-12DOI: 10.1163/15718107-90030003
Ulf Linderfalk
Concepts are an important element of the way international lawyers think and talk about international law. They materialise as conceptual terms, such as ‘jurisdiction’, ‘self-defence’ and ‘abuse of rights’. To enable a critical evaluation of international law and legal discourse, it is important that single instances of use of such terms be fully understood. This task presupposes a full recognition of the social meaning of legal utterances. Conceptual terms are uttered not only to describe the law, but also to affect the beliefs, attitudes and behaviour of readers and listeners. International lawyers are acquainted with this social side of legal meaning but lack a theory firmly grounded in pragmatic research that can help them systematically describe and investigate it. This article provides precisely such a theory. Crucially, it also explains how the suggested theory of meaning may promote the rationality of international legal discourse and the work of legal scholars.
{"title":"Concepts as Tools of Legal Reasoning – How Pragmatics May Promote the Rationality of International Legal Discourse and the Work of Legal Scholars","authors":"Ulf Linderfalk","doi":"10.1163/15718107-90030003","DOIUrl":"https://doi.org/10.1163/15718107-90030003","url":null,"abstract":"\u0000Concepts are an important element of the way international lawyers think and talk about international law. They materialise as conceptual terms, such as ‘jurisdiction’, ‘self-defence’ and ‘abuse of rights’. To enable a critical evaluation of international law and legal discourse, it is important that single instances of use of such terms be fully understood. This task presupposes a full recognition of the social meaning of legal utterances. Conceptual terms are uttered not only to describe the law, but also to affect the beliefs, attitudes and behaviour of readers and listeners. International lawyers are acquainted with this social side of legal meaning but lack a theory firmly grounded in pragmatic research that can help them systematically describe and investigate it. This article provides precisely such a theory. Crucially, it also explains how the suggested theory of meaning may promote the rationality of international legal discourse and the work of legal scholars.","PeriodicalId":34997,"journal":{"name":"Nordic Journal of International Law","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45017857","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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