Search Results (14)

Malaysia intercepts and turns back Rohingya vessels in the Andaman Sea while party to neither the 1951 Refugee Convention, its 1967 Protocol, the Convention against Torture, nor the International Covenant on Civil and Political Rights, and the doctrinal literature on non-refoulement at sea, being largely European and Australasian, leaves this non-party setting under-examined. The article makes three contributions. First, through doctrinal analysis ordered under Article 38(1) of the Statute of the International Court of Justice, it establishes that the customary prohibition of refoulement binds Malaysia and that its return-to-torture core is best treated as peremptory, admitting no persistent-objector defence. Second, it shows that the prohibition reaches conduct at sea through effective-control jurisdiction and that the rescue duty under Article 98 of the United Nations Convention on the Law of the Sea reinforces rather than displaces it, because a place of safety read in good faith cannot be a place of persecution. Third, it develops good faith, through pacta sunt servanda, systemic integration, and the prohibition of abuse of rights, as an anti-evasion principle. Assessed against these standards, the provide-and-send-away pattern documented from 2015 to January 2025, on a route that remained in use into 2026, is irreconcilable with Malaysia’s obligations. Full article

This article examines in detail Advisory Opinion No. 32, issued by the International Court of Justice (ICJ) in July 2025. The analysis examines how the decision of the International Court of Justice establishes the principle of intergenerational equity as an interpretative criterion for climate obligations, consolidating specific duties of prevention, due diligence, cooperation, mitigation, and adaptation to the consequences of climate change that directly affect present and future generations. This Opinion also designates the 1.5 °C threshold as a central legal benchmark for assessing States’ due diligence in climate mitigation and adaptation and extends state obligations to the regulation of private actors, characterizing climate protection as an erga omnes duty based on human rights and customary international law. Through a doctrinal and institutional legal method, supported by systematic documentary analysis of treaties, case law and soft-law instruments, this study situates the ICJ’s reasoning within the broader evolution of intergenerational equity and explores its implications for state responsibility and climate litigation. It also analyzes the potential of the Advisory Opinion to foster new institutional mechanisms, such as ombudsmen, fiduciary management mechanisms, and intergenerational impact assessments, to represent future generations in climate governance. The main conclusion is that the Advisory Opinion inaugurates a new stage in global climate governance, in which intergenerational equity ceases to be a purely aspirational vision and instead operates as a binding interpretative standard guiding the interpretation and review of existing climate obligations, rather than serving as an autonomous source of new duties. However, its transformative effect will depend primarily on the political will and institutional capacity of states to implement effective mechanisms. Full article

South Africa’s democracy turned 30 years old in 2024. At the same time, its constitutional order and jurisprudence marked three decades since the Interim Constitution and its successor, the 1996 Constitution, came into operation. Coincidentally, the Universal Declaration of Human Rights (UDHR) turned 75 years old in the previous year, 2023. The confluence of these facts is quite poignant in the context of a constitutional text that is often lauded for its commitment to the protection of human rights and the eradication of the injustices of the past, which were firmly entrenched by the segregationist policies of the apartheid regime. At the centre of this hype about South African constitutional jurisprudence is the centrality of international law to the interpretation of the Bill of Rights as well as the development of the common law, customary law, and statutory law. With the UDHR being such a central pillar in the human rights sector, this study set out to determine the extent to which the Constitutional Court of South Africa relied on the UDHR and other international instruments in carrying out the mandate set out above. The study analysed cases delivered by the Court in two separate years, spaced ten years apart. The study did not necessarily attempt to determine a correlation, but simply to use descriptive statistics to determine how often, in those two years, the Court relied on international law in general, and on the UDHR in particular, in its interpretive and legal development mandate. Full article

The Nigerian legal system is diverse in that it recognizes several established legal systems that regulate how Nigerians conduct themselves. These legal frameworks include the civil law that was passed down from the British during and after colonization, pre-colonial customary laws and cultural practices, and religious laws (Christian and Islamic laws). Different kinds of norms and laws have subjected Nigerian women to violations of their rights depending on the woman’s cultural or religious affiliation. Such cultural and/or religious practices are usually in opposition to civil law and the Nigerian constitution, which is a custodian of these rights. Moreover, despite the supremacy of the constitution and expected compliance with international human rights treaties that Nigeria has ratified, the fact is that today there are impediments to the effective protection of women’s rights in Nigeria. For instance, although the Nigerian constitution outlaw’s discrimination on the grounds of gender, customary and religious laws continue to restrict the effective implementation of women’s rights, making it extremely difficult to harmonize domestic legislation with international human rights conventions, and also remove discriminatory measures. This article, thus, examines the issues of gender inequality as the basis for agitation for women’s empowerment and women’s rights while also proposing a re-alignment of domestic legislation in compliance with international human rights conventions and treaties, in order to combat cultural and religious norms that flout human rights considerations for Nigerian women. Therefore, the main objective of this paper is to highlight the challenges that may arise when these legal systems clash, and how that affects the protection of women’s rights, particularly in view of international human rights treaties which Nigeria has signed and ratified. The article will therefore propose that women’s rights should be protected by seeking to eradicate cultural and religious practices that are discriminatory. This can be achieved by adopting laws which can be interpreted by domestic courts in line with constitutional requirements protecting the rights of women. It is noteworthy that the Nigerian judiciary has declared certain customs and traditions contrary to natural justice, equity and good conscience. Some of the case laws and judicial pronouncements will also be examined in this paper to enable implementation for the protection of women’s rights. The methodology adopted is desk-top legal research where judgments of courts and legislative enactments will form the basis of the findings of this paper. Full article

Since the global crises in the 2000s, many foreign and domestic actors have acquired large tracts of land for food and biofuel crop cultivation and other purposes in Africa, often leading to the displacement of the African people living on customary land. The weak customary land rights of ordinary African people have been viewed as one of the main factors making it possible for various land-grabbers to exploit customary land with different purposes. However, it would be insufficient to conclude that the weak customary land rights are the only factor leading to land grabbing in Africa as such land rights give the inheritors the rights to use the land permanently. Therefore, the main objective of this research is to identify a more specific factor leading to land grabbing in Africa, which this article refers to as a ‘land-grabbing-friendly legal environment’. To achieve the main goal, by considering the case of Zambia, this research aims to: (1) analyze the main areas and regions where land grabbing occurs in Zambia and the land-grabbers involved; and (2) analyze the main uses of customary land and changes in tenure systems applied to customary land from the colonial era up to the present day, through a legal history research approach. The main findings of this research are as follows: (1) land-grabbing incidences have often been linked to the government-led agricultural program, involving both internal and external land-grabbers, and (2) the creation of the dual-tenure system during the colonial era and its continuation to the present day have led to the poor financial status of ordinary Zambians living on customary land, contributing to their weak customary land rights. By examining the main results, this research concludes that it is crucial for the Zambian government to bring about reasonable fees for land-titling registration for the ordinary Zambians living on customary land, as well as to separate development aspects from land laws. These steps will strengthen the land rights of the ordinary Zambians and prevent land grabbing. Full article

Environmental impact assessment (EIA) has been widely recognized as a crucial instrument for sound decision-making that will promote environmental conservation and sustainable development. International jurisprudence has clarified the obligation of EIA under customary international law, especially concerning its legal status, threshold standards, and procedural requirements, as well as the issue of State responsibility. As suggested by this article, international tribunals tend to adopt a procedural-oriented and State-based approach regarding the obligation of EIA, leaving more discretion to the States pursuing the proposed activities. This approach is insufficient to realize the role of EIA in fostering sound decision-making. As for the BBNJ negotiations, in light of the legal status of the Area in international law and the established rules governing the issues of EIA, especially the three Regulations and Recommendations adopted by ISA, the future implementation agreement should reinforce international regulations regarding the substance and implementation of EIA obligations. Full article

Articles 27 and 34 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) recognise Indigenous Peoples’ laws. Art. 34 gives Indigenous Peoples the right to maintain their juridical systems or customs in accordance with international human rights standards. Although the UNDRIP is soft law, its core is arguably customary law and, therefore, a binding source of law. For States with Indigenous People, such as Norway, the UNDRIP is of paramount importance, from a legal, political, and not least moral perspective. This paper discusses norm hierarchies and tensions that are created in the meeting between the Indigenous customary law of the Sámi and statutory domestic Norwegian law. The introduction of customary, commonly unwritten, Indigenous rules into the judicial portfolio of a State creates an obvious challenge: what is their legal status? Can Indigenous law set aside domestic statutory norms? Some might argue that due to historical wrong, Indigenous law should always take precedence when domestic law conflicts with it. While Norwegian domestic law acknowledges the precedence of certain core human rights treaties over domestic laws, the same is not valid for Indigenous rights. How then should Indigenous custom be dealt with before a court of law, and how do the different legal systems relate to each other? This paper is foremost based on theoretical, to a lesser degree also on empirical material. It discusses on a general level the relationship between different legal systems within the same State and, on a specific level, the dealing of the Norwegian courts with Sámi Indigenous laws and customs. Full article

Bangladesh is recently prosecuting and punishing the perpetrators of crimes against humanity and genocide committed in the Liberation War of 1971 via a domestically operated tribunal, namely the International Crimes Tribunal Bangladesh (ICTB). Though the Tribunal is preceded under municipal law, its material jurisdiction, i.e., crimes against humanity and genocide, originated from international criminal law. Therefore, this study examines several legal obligations of the ICTB in defining crimes against humanity and genocide as the core international crimes. First, I discuss several legal flaws of the Tribunal by defining crimes against humanity and genocide under the ICTB Statute and jurisprudence. Second, I scrutinize the legal status of international (treaty and customary) laws in Bangladesh’s legal system. Third, by applying international criminal law standards, I focus on the idea that it is one of the obligations of Bangladesh to apply international criminal law definitions of genocide under the treaty obligation as the contracting parties to Genocide Convention 1948, and the ICC Statute 1998. Fourthly, I also discuss whether Bangladesh has any obligation to apply customary international law definition of crimes against humanity because crimes against humanity are considered jus cogens offenses in general international law, from which no derogation is permitted. Lastly, I conclude that Bangladesh Tribunal failed to fulfill its legal obligation to define international crimes under the treaty and customary laws and forward a way to be implemented to improve the legislative system of Bangladesh and harmonize it with international legislation. Full article

Although universal jurisdiction over piracy has long existed in customary international law and international conventions, such as the Convention on the High Seas (HSC) and the United Nations Convention on the Law of the Sea (UNCLOS), the piracy situation has been changing. The subsidence of Somali piracy provides an opportunity for rethinking how to strengthen universal jurisdiction for maritime piracy trials to enhance a sustainable anti-piracy legal system. The incidents of Somali piracy have resulted in some new developments in exercising universal jurisdiction: the separation of seizing, prosecuting, and imprisoning States; the consideration of creative piracy prosecution mechanisms; the increased focus on land-based facilitation of piracy; enhanced international cooperation; and expanded universal jurisdiction. This leads to several main challenges in existing legal frameworks, including weaknesses in UNCLOS, the disharmony among international instruments, and defects in domestic piracy legislation. In order to sustain and improve the anti-piracy legal system, universal jurisdiction over piracy should be incrementally strengthened to support the prosecution of pirates by States. To address the trends and challenges, this article explores how the legal system can be enhanced in two respects: adjusting the basic provisions of universal jurisdiction over piracy and refining the relevant measures in exercising that jurisdiction to prosecute pirates. Full article

Under Article 9 of the Vienna Convention on Diplomatic Relations, a receiving state may “at any time and without having to explain its decision” declare any member of a diplomatic staff persona non grata. A person so declared is considered unacceptable and is usually recalled to his or her home nation. If not recalled, the receiving state “may refuse to recognize the person concerned as a member of the mission.” However, despite the codification of the above rules, which is largely based on pre-existing customary international law, the opportunity for diplomatic protection is not free of issues and controversies. In recent times, unfortunately, there has been a growing tendency amongst diplomats to abuse their diplomatic status, in order to commit acts prohibited by law and claim immunity from the legal process. This paper addresses the problem of abuse of immunities and privileges and its adverse implications on the balance between immunities and the duty to respect the local laws and regulations. We analyze several past cases of declaration of persona non grata involving various countries. Full article

This article takes a closer look at the scientific, policy and catalytic functions of the United Nations Environment Programme (UNEP) and its Assembly (UNEA) and UNEA’s role in addressing emerging issues in international environmental policy and law by examining two concrete examples. The first shows how UNEA was able to contribute to the international environmental law on mercury: UNEA played a catalytic policy role by contributing to the development of international soft law, customary law, and treaty law. Further, UNEA played a policy shaping role by influencing the further development of key international environmental law principles in the negotiations of new environmental norms in other fora. The second example describes UNEA’s unsuccessful attempt to address geoengineering. Building on the two examples, the article identifies factors that support or impede the fulfilment of UNEA’s role in addressing emerging issues of international environmental policy and law. Full article

This paper analyzes the due diligence obligations with regard to transboundary harm in international water law and their application to cybersecurity by clarifying the definition of due diligence in light of the procedural duties in recent International Court of Justice (ICJ) cases. The paper explores whether states have responsibilities to prevent transboundary harm caused by nonstate actors. The existing literature on due diligence obligations in international water law and cybersecurity was reviewed, along with ICJ cases relating to procedural duties (international co-operation, environmental impact assessments, and information sharing). The findings confirm that, although procedural duties may be less onerous in cyberspace than in the environment, such duties indeed exist, albeit to a lesser degree. The differences may be accounted for by the fact that customary law related to the environment is already well developed. This study clarifies the concept of due diligence by focusing on procedural duties and examining the definition of due diligence in cyber operations. Due diligence obligations are crucial for states seeking to prevent transboundary harm and are an evolving principle of international law. Full article

The capacity of the Democratic Republic of Congo (DRC) forests to sequestrate carbon has attracted interest from the international community to protect forests for carbon storage and alleviate rural poverty by establishing REDD+ (Reduced Emissions from Deforestation and Forest Degradation). Using information gathered from interviews, focus groups, field observations, and policy document analysis, this paper demonstrates that REDD+ is not well adapted to the institutional structures of forest governance in the DRC, including both statutory and customary tenure. The lack of harmonization between these systems has created a situation of competition between state and customary authorities. This has created opportunities for powerful actors to ‘shop’ between the two systems to attempt to legitimize their expanded use and control over forest resources. As the REDD+ process evolves from the preparation to the implementation phase, competing institutional structures may negatively impact the effectiveness of REDD+, as well as the distribution of costs and benefits. While the newly enacted community forest law provides an opportunity to recognize customary rights to forestland, the lack of functional local government at the district and village levels has prompted REDD+ pilot project organizers to establish new village organizations for REDD+. Full article

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is the principal international law document, which regulates the establishment of the maritime economic zones, namely the Continental Shelf (CS) and the Exclusive Economic Zone (ΕΕΖ) as well as any issues that may come up during their delimitation. Maritime delimitation issues are settled either through state agreements or through legal redress before the respective international tribunals. In this context, the aim of this paper is to elaborate on the delimitation prospect concerning a Greek CS/EEZ based on contemporary conventional and customary international law of the sea, in addition to contemporary judicial decisions. More specifically, the analysis focuses on dispute issues in the region of the Aegean Sea and the Eastern Mediterranean, between Greece and its neighboring country Turkey, concerning the CS/EEZ delimitation. An attempt is made to critically compare this case to the outcome of recent relevant international judicial decisions by highlighting not only the common points but also any differences and complexities. The main purpose is to render the reader aware of the special treatment needed for the case in question, with the expectation for a fair future delimitation of the Greek maritime economic zones. Full article