Russia’s invasion of Ukraine again proves the essential role of collective non-recognition against unlawful situations, despite contentious debates concerning the status of the principle of non-recognition in the international legal system. However, an old but unsettled question also resurfaces: How should we perceive the relationship between the practice of non-recognition and economic sanctions? Some scholars contend that the practice of non-recognition must entail economic punishments and isolation and be ‘as oppressive as possible’. For quite some time, the economic language has dominated as the only language that matters facing any unlawful situations. Unfortunately, this tendency also undermines a long history of innovative development of other forms of declaratory and institutional non-recognition. This article, by examining the current non-recognition campaign in the case of Ukraine, together with case studies of Manchuria and of the South African apartheid regime, endeavours to provide more perspectives concerning the relationship between non-recognition and economic sanctions. The article argues that, compared to other forms of non-recognition, economic sanctions have never been a reliable factor in demonstrating international attitudes and the legal beliefs of the international community.
{"title":"The practice of non-recognition and economic sanctions: The case study of Ukraine, Manchuria and South Africa","authors":"Quoc Tan Trung Nguyen","doi":"10.1093/jcsl/krad012","DOIUrl":"https://doi.org/10.1093/jcsl/krad012","url":null,"abstract":"\u0000 Russia’s invasion of Ukraine again proves the essential role of collective non-recognition against unlawful situations, despite contentious debates concerning the status of the principle of non-recognition in the international legal system. However, an old but unsettled question also resurfaces: How should we perceive the relationship between the practice of non-recognition and economic sanctions? Some scholars contend that the practice of non-recognition must entail economic punishments and isolation and be ‘as oppressive as possible’. For quite some time, the economic language has dominated as the only language that matters facing any unlawful situations. Unfortunately, this tendency also undermines a long history of innovative development of other forms of declaratory and institutional non-recognition. This article, by examining the current non-recognition campaign in the case of Ukraine, together with case studies of Manchuria and of the South African apartheid regime, endeavours to provide more perspectives concerning the relationship between non-recognition and economic sanctions. The article argues that, compared to other forms of non-recognition, economic sanctions have never been a reliable factor in demonstrating international attitudes and the legal beliefs of the international community.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43383132","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}
For the last five decades, the states parties to the Nuclear Non-Proliferation Treaty (NPT) have come together every 5 years at Review Conferences to explore how they can advance the Treaty’s goals, including the pursuit of nuclear disarmament. Despite lengthy negotiations, the Review Conferences have failed to reach a consensus final document as many times as they have succeeded and even when a final document has been agreed it has contained few tangible gains for those working towards a nuclear weapon free world. This state of affairs played out again in 2022 when the NPT’s 10th Review Conference ended without agreement and with many states decrying the weakness of the disarmament provisions that had been under discussion. It has been common in the aftermath of Review Conferences for academics to consider the contemporary political issues that stymied progress. While such studies are important, it is also necessary to consider what deeper structural issues may be at play in preventing the goal of nuclear disarmament from being advanced in the NPT context. To this end, this article identifies and analyses three key structural issues with the NPT and NPT Review Conferences that create difficulties for those pursuing a nuclear disarmament agenda. First, it explores issues with the scope and content of Article VI and how it has been interpreted by the nuclear weapon states. Secondly, it looks at the difficulties that arise from the commitment to achieving consensus outcomes at the Review Conferences and, thirdly, it considers the limitations of who actually attends and contributes to Review Conferences.
{"title":"Roadblocks to Disarmament in the Nuclear Non-Proliferation Treaty System","authors":"A. Hood","doi":"10.1093/jcsl/krad011","DOIUrl":"https://doi.org/10.1093/jcsl/krad011","url":null,"abstract":"\u0000 For the last five decades, the states parties to the Nuclear Non-Proliferation Treaty (NPT) have come together every 5 years at Review Conferences to explore how they can advance the Treaty’s goals, including the pursuit of nuclear disarmament. Despite lengthy negotiations, the Review Conferences have failed to reach a consensus final document as many times as they have succeeded and even when a final document has been agreed it has contained few tangible gains for those working towards a nuclear weapon free world. This state of affairs played out again in 2022 when the NPT’s 10th Review Conference ended without agreement and with many states decrying the weakness of the disarmament provisions that had been under discussion. It has been common in the aftermath of Review Conferences for academics to consider the contemporary political issues that stymied progress. While such studies are important, it is also necessary to consider what deeper structural issues may be at play in preventing the goal of nuclear disarmament from being advanced in the NPT context. To this end, this article identifies and analyses three key structural issues with the NPT and NPT Review Conferences that create difficulties for those pursuing a nuclear disarmament agenda. First, it explores issues with the scope and content of Article VI and how it has been interpreted by the nuclear weapon states. Secondly, it looks at the difficulties that arise from the commitment to achieving consensus outcomes at the Review Conferences and, thirdly, it considers the limitations of who actually attends and contributes to Review Conferences.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47887992","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}
The national implementation of the Biological Weapons Convention (BWC) has long been a point of discussion. One aspect of this national implementation concerns the enactment of penal legislation addressing the prohibitions of the BWC. There has been a clear increase in the past 18 years of penal legislation addressing biological weapons. This coincides with the adoption of UN Security Council Resolution 1540. Through a comprehensive assessment of the adopted national legislation it is possible to see trends and consider the extent to which such legislation seeks to address the BWC or Resolution 1540. The assessment clearly indicates that there is a divergence between the legislation addressing biological weapons in a general manner and legislation specifically seeking to address biological weapons in a terrorism context. This analysis will recognize potential avenues to increase national implementation of the BWC by looking at the progress made in the context of Resolution 1540.
{"title":"Recent Developments in the National Implementation of Biological Weapons Convention: What Happened Since Resolution 1540?","authors":"Barry de Vries","doi":"10.1093/jcsl/krad010","DOIUrl":"https://doi.org/10.1093/jcsl/krad010","url":null,"abstract":"\u0000 The national implementation of the Biological Weapons Convention (BWC) has long been a point of discussion. One aspect of this national implementation concerns the enactment of penal legislation addressing the prohibitions of the BWC. There has been a clear increase in the past 18 years of penal legislation addressing biological weapons. This coincides with the adoption of UN Security Council Resolution 1540. Through a comprehensive assessment of the adopted national legislation it is possible to see trends and consider the extent to which such legislation seeks to address the BWC or Resolution 1540. The assessment clearly indicates that there is a divergence between the legislation addressing biological weapons in a general manner and legislation specifically seeking to address biological weapons in a terrorism context. This analysis will recognize potential avenues to increase national implementation of the BWC by looking at the progress made in the context of Resolution 1540.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46204588","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}
The idea that aggression can and maybe should be prosecuted in some instances as a crime against humanity is a marginal one that has nonetheless been floated for a while. This article revisits the idea in the context of efforts to prosecute the leaders of the Russian aggression in Ukraine. It argues that the case that aggression is a crime against humanity has been framed along excessively reductionist lines focusing on ‘other inhumane acts’ as a predicate offence. Instead, the article suggests that there can be a deep overlap between the notion of an armed attack against a state as defining aggression, and the notion of a ‘widespread or systematic attack against a civilian population’ as the chapeau of crimes against humanity. Working at this intersection, it is suggested, makes sense of the special place of aggression as an offence generative of many others, as well as the particular sovereign deliberateness involved in launching an attack. The article explores some of the concerns that such a prosecution might trigger, including that it misses the opportunity to prosecute aggression as such, is in bad faith, or does not cover significant portions of what is rightly considered wrong about aggression. The article concludes in favor of an imaginative take on the substantive law resources that are there rather than the search for new jurisdictional solutions.
{"title":"Why Prosecuting Aggression in Ukraine as a Crime Against Humanity Might Make Sense","authors":"Frédéric Mégret","doi":"10.1093/jcsl/krad009","DOIUrl":"https://doi.org/10.1093/jcsl/krad009","url":null,"abstract":"\u0000 The idea that aggression can and maybe should be prosecuted in some instances as a crime against humanity is a marginal one that has nonetheless been floated for a while. This article revisits the idea in the context of efforts to prosecute the leaders of the Russian aggression in Ukraine. It argues that the case that aggression is a crime against humanity has been framed along excessively reductionist lines focusing on ‘other inhumane acts’ as a predicate offence. Instead, the article suggests that there can be a deep overlap between the notion of an armed attack against a state as defining aggression, and the notion of a ‘widespread or systematic attack against a civilian population’ as the chapeau of crimes against humanity. Working at this intersection, it is suggested, makes sense of the special place of aggression as an offence generative of many others, as well as the particular sovereign deliberateness involved in launching an attack. The article explores some of the concerns that such a prosecution might trigger, including that it misses the opportunity to prosecute aggression as such, is in bad faith, or does not cover significant portions of what is rightly considered wrong about aggression. The article concludes in favor of an imaginative take on the substantive law resources that are there rather than the search for new jurisdictional solutions.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47821340","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}
This article seeks to examine how various theories, which have been designed to determine the end of non-international armed conflicts (NIACs), have been applied in practice. As international humanitarian law is temporal in its application, determining when a conflict legally concludes is vital to assess the rights and duties of parties involved during the final stages of conflict. In order to examine how international law approaches the issue of conflict termination, three case studies are undertaken (Afghanistan, Solomon Islands and Sierra Leone) to examine the practice of the parties involved in the transition out of a NIAC paradigm and into the jus post bellum (law after war). While the article does not seek to identify a clear definition in customary international law as to the nature of a NIACs termination, through an analysis of practice and theory implementation, it is hoped that an improved picture as to how NIACs may conclusively end as a matter of international law can be brought to light.
{"title":"From Theory to Reality: A Definition for the Termination of Non-International Armed Conflicts","authors":"Stefan Robert McClean","doi":"10.1093/jcsl/krad008","DOIUrl":"https://doi.org/10.1093/jcsl/krad008","url":null,"abstract":"\u0000 This article seeks to examine how various theories, which have been designed to determine the end of non-international armed conflicts (NIACs), have been applied in practice. As international humanitarian law is temporal in its application, determining when a conflict legally concludes is vital to assess the rights and duties of parties involved during the final stages of conflict. In order to examine how international law approaches the issue of conflict termination, three case studies are undertaken (Afghanistan, Solomon Islands and Sierra Leone) to examine the practice of the parties involved in the transition out of a NIAC paradigm and into the jus post bellum (law after war). While the article does not seek to identify a clear definition in customary international law as to the nature of a NIACs termination, through an analysis of practice and theory implementation, it is hoped that an improved picture as to how NIACs may conclusively end as a matter of international law can be brought to light.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47558772","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}
The present essay intends to provide for an in-depth analysis concerning the enactment of new legislative resolutions by the UN Security Council with a view to dealing with foreign terrorist fighters and Islamic State of Iraq and the Levant as well. It will be argued that, instead of voicing unweavering concerns about the Council’s increasing tendency to resort to this specific tool, UN Member States have widely welcomed these resolutions, deeming them necessary and proportionate response to urgent threats faced by the International Community as a whole. Accordingly, this has generated a clear distinction between the previous legislative resolutions and the recent ones. As a result, by dwelling more specifically on States’ utterances made during the meetings devoted to discuss these new general resolutions, it is argued that such resolutions are to be looked upon as subsequent practice pursuant to Article 31, paragraph 3(b) of 1969 Vienna Convention on the Law of Treaties (VCLT), which means that they are relevant in order to interpret Article 41 of the UN Charter. Ultimately, and based on the assumption that States are now more inclined to accept general obligations in the counter-terrorism’s domain, the manuscript addresses the topic of how the UN Security Council should legislate in order to secure the widest acceptance possible and be in accordance with several International Law’s requirements.
{"title":"Taking Stock: Assessing the Current Status and Evolution of the United Nations Security Council’s Legislative Resolutions","authors":"Daniele Musmeci","doi":"10.1093/jcsl/krad006","DOIUrl":"https://doi.org/10.1093/jcsl/krad006","url":null,"abstract":"\u0000 The present essay intends to provide for an in-depth analysis concerning the enactment of new legislative resolutions by the UN Security Council with a view to dealing with foreign terrorist fighters and Islamic State of Iraq and the Levant as well. It will be argued that, instead of voicing unweavering concerns about the Council’s increasing tendency to resort to this specific tool, UN Member States have widely welcomed these resolutions, deeming them necessary and proportionate response to urgent threats faced by the International Community as a whole. Accordingly, this has generated a clear distinction between the previous legislative resolutions and the recent ones. As a result, by dwelling more specifically on States’ utterances made during the meetings devoted to discuss these new general resolutions, it is argued that such resolutions are to be looked upon as subsequent practice pursuant to Article 31, paragraph 3(b) of 1969 Vienna Convention on the Law of Treaties (VCLT), which means that they are relevant in order to interpret Article 41 of the UN Charter. Ultimately, and based on the assumption that States are now more inclined to accept general obligations in the counter-terrorism’s domain, the manuscript addresses the topic of how the UN Security Council should legislate in order to secure the widest acceptance possible and be in accordance with several International Law’s requirements.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47992281","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}
As a result of Russia’s invasion of Ukraine in February 2022, we are sitting at a crossroads where one path further weakens the prohibition of the use of force and another helps restore its integrity. In this context, this article argues it is imperative that we take all available steps to reinforce the prohibition, and that holding President Putin to account for the crime of aggression holds the key in this regard. The article explains why it is necessary to establish an ad hoc international tribunal to prosecute crimes of aggression committed against Ukraine given the International Criminal Court lacks jurisdiction over any crime of aggression involving a State not party to the Rome Statute, the impossibility of amending the Statute in this instance, and the impediments that will stand in the way of a successful domestic prosecution of the crime of aggression, including immunities enjoyed by those most responsible. Finally, the article addresses the principal objections to the proposed tribunal including its cost (which is overstated and pales in comparison to the mounting cost of the ongoing conflict); its supposed redundancy given efforts to prosecute other serious international crimes committed in Ukraine (which undersells the challenge of holding leaders to account and discounts the value of separately prosecuting aggression); and the concern that the tribunal would represent selective justice (which overlooks the fact that a prosecution of the leaders of one of the world’s most powerful States would help end, rather than exacerbate, international criminal justice’s selectivity problem).
{"title":"The Imperative of Prosecuting Crimes of Aggression Committed against Ukraine","authors":"C. McDougall","doi":"10.1093/jcsl/krad004","DOIUrl":"https://doi.org/10.1093/jcsl/krad004","url":null,"abstract":"\u0000 As a result of Russia’s invasion of Ukraine in February 2022, we are sitting at a crossroads where one path further weakens the prohibition of the use of force and another helps restore its integrity. In this context, this article argues it is imperative that we take all available steps to reinforce the prohibition, and that holding President Putin to account for the crime of aggression holds the key in this regard. The article explains why it is necessary to establish an ad hoc international tribunal to prosecute crimes of aggression committed against Ukraine given the International Criminal Court lacks jurisdiction over any crime of aggression involving a State not party to the Rome Statute, the impossibility of amending the Statute in this instance, and the impediments that will stand in the way of a successful domestic prosecution of the crime of aggression, including immunities enjoyed by those most responsible. Finally, the article addresses the principal objections to the proposed tribunal including its cost (which is overstated and pales in comparison to the mounting cost of the ongoing conflict); its supposed redundancy given efforts to prosecute other serious international crimes committed in Ukraine (which undersells the challenge of holding leaders to account and discounts the value of separately prosecuting aggression); and the concern that the tribunal would represent selective justice (which overlooks the fact that a prosecution of the leaders of one of the world’s most powerful States would help end, rather than exacerbate, international criminal justice’s selectivity problem).","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47493118","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}
The Fourth Geneva Convention provides the main protection regime for civilians in the hands of a party to an international armed conflict. Yet its application is limited to non-nationals, and conditional upon states’ belligerent and legal relations. This article historicises and problematises the so-called nationality requirement for the treatment and protection of civilians. The significance of nationality for international humanitarian law has changed considerably since the late nineteenth century. The complex delineation of civilian protected persons under the Fourth Geneva Convention was, therefore, not inevitable. The article challenges the common perception of the treaty as a humanitarian achievement designed to safeguard innocent and vulnerable civilians. This detailed study of nationality provides insights into the changing perception of civilians as war victims and the role of international humanitarian law in protecting them.
{"title":"The Changing Significance of Nationality for the Protection of Civilians in the Hands of a Party to an International Armed Conflict","authors":"Sarina Landefeld","doi":"10.1093/jcsl/krad005","DOIUrl":"https://doi.org/10.1093/jcsl/krad005","url":null,"abstract":"\u0000 The Fourth Geneva Convention provides the main protection regime for civilians in the hands of a party to an international armed conflict. Yet its application is limited to non-nationals, and conditional upon states’ belligerent and legal relations. This article historicises and problematises the so-called nationality requirement for the treatment and protection of civilians. The significance of nationality for international humanitarian law has changed considerably since the late nineteenth century. The complex delineation of civilian protected persons under the Fourth Geneva Convention was, therefore, not inevitable. The article challenges the common perception of the treaty as a humanitarian achievement designed to safeguard innocent and vulnerable civilians. This detailed study of nationality provides insights into the changing perception of civilians as war victims and the role of international humanitarian law in protecting them.","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41252530","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":"Alexander Gilder, Stabilization and Human Security in UN Peace Operations","authors":"M. Longobardo","doi":"10.1093/jcsl/krad001","DOIUrl":"https://doi.org/10.1093/jcsl/krad001","url":null,"abstract":"","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2023-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42777677","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":"Correction to: Overlap Between Complicity and Positive Obligations: What Advantages in Resorting to Positive Obligations in Case of Partnered Operations?","authors":"","doi":"10.1093/jcsl/krac034","DOIUrl":"https://doi.org/10.1093/jcsl/krac034","url":null,"abstract":"","PeriodicalId":43908,"journal":{"name":"JOURNAL OF CONFLICT & SECURITY LAW","volume":null,"pages":null},"PeriodicalIF":0.8,"publicationDate":"2022-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47401464","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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