Stuxnet: State Jurisdiction and Cyberspace

Evangelia Linaki, University of Leiden

To begin with, imagine a nuclear power plant composed of a vast number of centrifuges used for the enrichment of uranium being attacked by a missile. It is fairly easy for someone to play out the scene of what would happen immediately after the attack. What would happen, however, were the same nuclear power plant to be targeted by an electronic worm? There is no need to speculate on that, since in 2010 Stuxnet – the most sophisticated worm ever built – hit the nuclear power plant in Natanz, Iran.  This seems to be a case in which technological advancement has crept up on most of us unawares with regard to what mankind can do with the use of a computer and on the virtual dimension. At the same time, though, technology has long been testing several fields of Public International Law, including the notion of State jurisdiction. Thus, it will be interesting to see in the next lines whether Iran would have jurisdiction over the persons who launched the abovementioned worm.

Factual Background

In 2010 an unprecedented cyber operation took place against Iran’s nuclear power plant with the deployment of a worm called Stuxnet. Stuxnet constitutes a unique piece of malware, due to its never-seen-before structure and features ((Shearer, Jarrad, W32.Stuxnet, available at http://www.symantec.com/security_response/writeup.jsp?docid=2010-071400-3123-99 (accessed 20/12/2012).)). What is unique about Stuxnet is that it can be activated only when a number of specific circumstances are present and its objectives are more than explicit: on the one hand, it instructs uranium centrifuges to run at a different pace, a fact which damages the centrifuges themselves and the process of uranium enrichment, and, on the other hand, it sends false signals that the system works properly through the usage of certificates of two widely known companies ((For more details see Richmond, Jeremy, Evolving Battlefields: Does Stuxnet Demonstrate a Need For Modifications to the Law of Armed Conflict?, 35 Fordham International Law Journal 613, at 849-852 (2012).)). It should be mentioned that it is uncertain whether this worm was launched via the Internet or transmitted through a USB stick or any other removable device, whereas there is no consensus as to the damage caused. However, it is estimated that around 1000 centrifuges were destroyed and needed to be replaced ((Broad, William J. et al., Israeli Test on Worm Called Crucial in Iran Nuclear Delay, The New York Times, 15 January 2011, available at http://www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html?pagewanted=all (accessed 20/12/2012).)). As for the perpetrators, several clues, such as the time and resources needed for such a complex worm to be created ((Stahl, Julie, Cyber Warfare Against Iran? Worm May be First Strike, CBN News, 14 October 2010, available at http://www.cbn.com/cbnnews/insideisrael/2010/October/Cyber-Warfare-Against-Iran-Worm-May-be-First-Strike/ (accessed 20/12/2012).))and statements of State officials ((Lappin, Yaakov, Barak: Israel won’t outsource its security to anyone, The Jerusalem Post, 31 October 2012, available at http://www.jpost.com/Defense/Article.aspx?id=290012 and Sanger, David E., Obama Order Sped Up Wave of Cyberattacks Against Iran, The New York Times, 1 June 2012, available at http://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?pagewanted=all (both accessed 20/12/2012).)), did point to the US and Israel as the ones responsible for the attack. However, it now seems to be almost certain that the abovementioned States were responsible for this incident ((Lubold, Gordon, Obama’s Favorite General Stripped of His Security Clearance, Foreign Policy, 24 September 2013, available at http://thecable.foreignpolicy.com/posts/2013/09/24/obamas_favorite_general_stripped_of_his_security_clearance?wp_login_redirect=0 (accessed 12/10/2013).)).

Jurisdiction in Public International Law

In 1968, a Model Plan Classification of Documents concerning State Practice in the Field of Public International Law was produced by the Council of Europe and treated, among others, the issues of Personal Jurisdiction of the State and State Territory and Territorial Jurisdiction ((Evans, Malcolm D., International Law, at 315 (2010) and Council of Europe Resolution (68) 17, dated 28 June 1968.)). According to the 1997 revised Model Plan and Part Eight dedicated to State Jurisdiction, there are three recognized types of jurisdiction ((Council of Europe Recommendation  No. R (97) 11, dated 12 June 1997, at 64.)):

  1. Jurisdiction to prescribe or legislative jurisdiction, namely to whom a State can extend its laws ((See Evans, supra note 7, at 318.)).
  2. Jurisdiction to enforce which is related to the capacity of a State to compel compliance or enforce punishment ((Wilske, Stephan, Schiller, Teresa, International Jurisdiction in Cyberspace: Which States May Regulate the Internet?, 50 Federal Communications Law Journal 117, at 171 (1997).)).
  3. Jurisdiction to adjudicate which refers to the right of a State’s courts to receive and try cases, as well as deliver judgments upon these cases ((See id., at 144-145 and Evans, supra note 7, at 317.)).

It should be pointed out that the last two types of jurisdiction do not usually exist if the jurisdiction to prescribe has not been established ((See id. Wilske and Schiller, at 145 and 171.)).

However, one would reasonably wonder how it can be established that a State has the right to exercise its jurisdiction? According to the 1997 revised Model Plan, the widely accepted bases of jurisdiction consist of ((See CoE Recommendation, supra note 8.)):

  1. Territoriality
  2. Nationality
  3. Protective principle
  4. Universality
  5. Other bases

Stuxnet and Iranian Jurisdiction

As a first step, it has to be highlighted that the analysis to follow will focus on whether Iran would have jurisdiction to prescribe, enforce or adjudicate under the principles of territoriality, nationality, universality and the protective principle. Such jurisdiction would be exercised upon individuals and, thus, no reference or speculation will be made upon State involvement. That is due to the fact that the very purpose and reasons of existence of the notion of jurisdiction itself refer to the extent to which a State can regulate the conduct of persons ((See Evans, supra note 7, at 313.)). In any other case, were a State to be found involved and responsible, this would lead to a dispute between States, the triggering of the mechanism of settlement of disputes between States and the invocation of State responsibility.

Territoriality

This principle is strictly interrelated to the right of a State to be sovereign over its territory, which in turn consists of its land and sea territory, as well as the airspace above this land and sea territory ((See id., at 320.)). What is important is that a State’s laws are wholly applied throughout its territory ((See id., at 321.))and, as it was recognised by the Permanent Court of International Justice in the Lotus case, “the first and foremost restriction imposed by international law upon a State is that […] it may not exercise its power in any form in the territory of another State ((The Case of the S.S. “Lotus”, Judgment No. 9, PCIJ, Series A, No. 10, at 18-19 (1927).)).” It should also be mentioned that two relevant notions have emerged within the notion of territoriality ((See Evans, supra note 7, at 321)):

  1. Subjective territorial jurisdiction (the State can exercise its jurisdiction with regard to incidents that were initiated within its own territory but completed outside its borders)
  2. Objective territorial jurisdiction (the State can exercise its jurisdiction with regard to incidents initiated elsewhere but completed within its own territory).

With regard to Stuxnet, it is undisputable that the nuclear power plant is situated on Iranian territory and the effects of the cyber incident were produced on Iranian soil. In this case, one could assume that, if the perpetrator (i.e. a person transmitting the worm through a removable device) were found on Iranian territory, regardless of his nationality, Iran would have the jurisdiction both to extend its laws to that person and enforce them, even by conducting investigation and ultimately arresting the person. On the other hand, had the perpetrator launched the worm outside Iran, and then the Iranian jurisdiction could be established under the concept of the objective territorial jurisdiction. The Stuxnet case seems to resemble that of a terrorist attack, during which the bomb is usually planted on an airplane on the territory of State A but it explodes in the territory of State B. Therefore, it could be easily argued that, since the worm was launched outside Iranian territory and the damage was experienced in Iran and in the real world, the objective territorial jurisdiction of Iran is established.

Nationality

This principle refers to the extension of a State’s laws to those persons that hold this State’s nationality, regardless of the place where they might be. It is also important to point out that it is up to the State to lay down the conditions according to which nationality is granted ((Constitution of Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, ICJ Reports 1969, at 150))and that nationality can be established and become effective only when a genuine and close link between the person and the State exists ((Nottebohm, Second Phase, Judgment, ICJ Reports 1955, at 4.)).

With regard to the given case, there are two scenarios that can be followed under the principle of nationality: the person responsible for the launching of the worm either was an Iranian national or he was not. The second case seems to be straightforward, as a non-Iranian national would not be subject to Iranian laws and jurisdiction. If, however, he holds the Iranian nationality, then Iran would be entitled to exercise its jurisdiction over this person with no obstacles in the case in which this individual is located within Iranian territory. However, the situation would not be so simple in case this person was located outside Iranian territory. Under the nationality principle, a State can in theory exercise its jurisdiction over its nationals but, once they are found in foreign territory, the territorial principle comes into play. As mentioned above, the State can only exercise jurisdiction within its borders and not on the territory of a foreign State. Thus, in the given scenario, it would need to acquire the prior consent of the foreign State to apply its laws extraterritorially or require the extradition of the individual.

Universality

The principle of universality refers to the capacity of all States to exercise their jurisdiction over certain heinous crimes, which it is in the interest of the entire international community to repress and address ((See Evans, supra note 7, at 326)). Although there is not a full list of such crimes upon which universal jurisdiction could be exercised, genocide, crimes against humanity, war crimes and even piracy (which might otherwise not be addressed and suppressed) constitute some tangible examples ((See id.)). In the given case, none of the abovementioned crimes is present but, nevertheless, one could put forward the question of whether the possibility of an explosion of the nuclear power plant, which would be equated with a nuclear incident, could constitute a heinous crime. It is, though, not the purpose of this paper to explore whether such incident could be considered as a heinous crime.

Protective Principle

This principle is invoked and justifies the exercise of jurisdiction on the part of a State whenever its vital interests are in jeopardy ((See id., at 325)). According to this principle, a State could exercise jurisdiction even in the case in which non-nationals of that State acting outside its territory are responsible for a situation threatening its vital interests ((See id., at 326.)). The term “vital interests” has not been defined and no list of such interests can be found. Within this framework, once again one could pose the question of whether Iran could invoke such principle in order to protect the vital interest of citizens against destruction, environmental degradation and pollution and health deterioration in case the Stuxnet incident had led to lethal consequences.

Concluding remarks

Technology and cyberspace have at a large scale raised questions with regard to many an issue in Public International Law and especially State jurisdiction. The Stuxnet case is a very useful example not only of what technology is capable of achieving but, most importantly, it is a cyber incident which resulted in tangible consequences in the real world. Therefore, it serves as a perfect example which combines the virtual and the real dimension. At first sight, it does not seem to pose serious threats to the notion of jurisdiction. However, one should not be misled by such fact, but, instead, be reminded that the identity of the individual perpetrators is not known. Such fact in turn renders the problem of attribution even more acute, as the virtual world constitutes the best place for anonymity and without the identity of the perpetrator any kind of attempt of exercise of jurisdiction becomes impossible or even the substance of this notion is put under serious question and doubt as to its adequate capability to accommodate and respond to the new challenges.

Goldstone Report and Libya FFM-Report

Identification and comparison of methodological approaches in two fact-finding mission reports

Dmytro Tupchiienko, Institute of Criminology, University of Cambridge (UK)

A UN fact-finding mission, headed by Judge Richard Goldstone, was established in April 2009 with the aim “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” (Guardian, 2009).

The Independent Civil Society Mission to Libya was established by the Arab Organization for Human Rights (AOHR), in cooperation with the Palestinian Centre for Human Rights (PCHR). The Mission was established in response to allegations of widespread violations of international law, including international human rights law, international humanitarian law, and international criminal law, committed in Libya since 15 February 2011, and in light of the State’s current transition away from authoritarian rule (Pchrgaza, 2012).

The analytical objectives and goals of in two fact-finding mission reports: Goldstone Report and Libya FFM-Report were to garner relevant and adequate data in situations of violations of human rights and to provide an insight into the nature of the human rights-related issues in order to  investigate alleged violations of international law and highlight attention to unlawful incidents. Evidence gathered can help to assess appropriate post-conflict accountability and reconciliation measures. These mechanisms also can serve a preventive function by drawing attention to and verifying cases of abuses, thereby increasing pressure on government actors to stop committing crimes. International law is meant to protect all people and put the international community’s commitment in question to peace and human rights.

Methodology and consept

The normative framework adopted by both Missions was international humanitarian law, international human rights law, and international criminal law.

Libya FFM  report was based on an independent and impartial analysis of all parties’ compliance with their obligations under international human rights law and international humanitarian law. All conclusions whish were made by members of the commission were based on first- hand gathered information. Secondary sources were used to corroborate findings, and as supporting evidence indicating potential patterns of behaviour. Libya Mission adopted an inclusive approach to gathering information and seeking views. Information gathering methods included: interviews with victims, witnesses, and other individuals with relevant information; site visits to specific locations where violations of international law were reported as having occurred; meetings with a variety of interlocutors; and a review of public information, including UN and NGO reports, related to the conflict (Pchrgaza, 2012).

Goldstone mission based its work on analysis of compliance by the parties with their obligations under international human rights and humanitarian law in the context of the recent conflict in Gaza, and on international investigative standards developed by the United Nations. The Mission adopted an inclusive approach in gathering information and seeking views. Information-gathering methods included:

(a) the review of reports from different sources;

(b) interviews with victims, witnesses and other persons having relevant information);

(c) site visits to specific locations in Gaza where incidents had occurred;

(d) the analysis of video and photographic images, including satellite imagery;

(e) the review of medical reports about injuries to victims;

(f) the forensic analysis of weapons and ammunition remnants collected at incident sites;

(g) meetings with a variety of interlocutors;

(h) invitations to provide information relating to the Mission’s investigation requirements;

(i) the wide circulation of a public call for written submissions;

(j) public hearings in Gaza and in Geneva (Guardian, 2009).

The Goldstone Mission conducted 188 individual interviews. It reviewed more than 300 reports, submissions and other documentation either researched of its own motion, received in reply to its call for submissions and notes verbales or provided during meetings or otherwise, amounting to more than 10,000 pages, over 30 videos and 1,200 photographs.

In order to provide the parties concerned with an opportunity to submit additional relevant information and express their position and respond to allegations, the Mission also submitted comprehensive lists of questions to the Government of Israel, the Palestinian Authority and the Gaza authorities in advance of completing its analysis and findings. The Mission received replies from the Palestinian Authority and the Gaza authorities but not from Israel.

Main findings

The Mission’s investigation in Libya revealed significant evidence concerning possible violations of international law: war crimes and possibly crimes against humanity. The Mission reiterates finding the local and national courts in Libya were not functioning. The rule of law, and respect for human rights, must be re-established. Public scrutiny, or public awareness, is an essential component of this process.

The Goldstone report accused Israel of violating international humanitarian law, human rights, and the blockade of the Gaza defined as a tactic of collective punishment prohibited by the Geneva Convention. The Goldstone Mission finds that in a number of cases Israel failed to take feasible precautions required by customary law, that the different kinds of warnings issued by Israel in Gaza cannot be considered as sufficiently effective. The Mission found numerous instances of deliberate attacks on civilians and civilian objects. The weapons used by the Israeli armed forces during military operations the Mission accepts that white phosphorous, flechettes and heavy metal (such as tungsten) what is not currently proscribed under international law. The Mission investigated several incidents in which Israeli armed forces used local Palestinian residents to enter houses which might be booby trapped or harbour enemy combatants. The Mission found that the following breaches: wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.

Validity, weaknesses and deficiencies

Most of the criticism and praise of the Goldstone report has been based on its highly publicized and controversial conclusions that the purpose of the operation must have been to kill civilians, not combatants (Jpost, 2010).

More, the Commission relied extensively on mediating agencies, especially UN and NGOs, which have a documented hostility to Israel. The report contains numerous gratuitous digressions into issues beyond the purview of a fact-finding commission that are inaccurate and profoundly hostile to Israel and Jews (Goldstonereport, 2010).

What is even more telling than its erroneous conclusions, however, is its deliberately  skewed methodology, particularly the manner in which it used and evaluated similar evidence very differently, depending on whether it favored the Hamas or Israeli side (Jpost, 2010).

It is far more accusatory of Israel, far less balanced  in its criticism of Hamas, far less honest in its evaluation of the evidence, far less responsible in drawing its conclusion, far more biased against Israeli than Palestinian witnesses, and far more willing to draw adverse inferences of intentionality from Israeli conduct and statements than from comparable Palestinian conduct and statements  (israel-palestina.info, 2010).

There was no effort is made to evaluate the credibility of these allegations. The sole function is to gather the accusations and make them public so that the other side can respond. To conduct such an evidence-gathering investigation requires that the investigators have the trust of those who they are interviewing. It also requires a degree of neutrality in making certain that a fair sampling of accusations is gathered and that the information is not skewed in one way or another (bulk.resource, 2010).

To assess the credibility of those making the accusations it is requires cross examination of the accusers and subjecting the accusations to crosschecking against other evidence. It also requires that those evaluating credibility be absolutely neutral and objective and have no predisposition to believing one side over the other (ngo-monitor, 2010).

To gather evidence of the intentions of the various actors. This is an extremely difficult task that requires access to statements both public and private of both sides. This function does not require assessment of credibility of the evidence but rather merely its gathering to present publicly so that the other side can respond.

Had the Goldstone report limited itself to the first function—gathering testimony and physical evidence of the actions of both sides without assessing credibility—it would have performed a useful function. The factual allegations in the report include serious charges against both sides that require serious investigations and responses.

The report goes well beyond simply gathering testimonies. It purports to assess credibility, determine intentions and arrive at both legal and political conclusions. The members of this commission not only lack the expertise to engage in these latter assessments, but even more important they lack the neutrality and objectivity. As Goldstone himself has acknowledged, if this were a court of law, “there would have been nothing proven,” and at least one of its members would have been disqualified as a result of pre-existing bias (Jpost, 2010).

The report, is one-sided and wrong in its fundamental conclusions. The methodology employed in this report is fundamentally flawed.

References

  1. (15 September 2009). Retrieved September 28, 2013 from http://image.guardian.co.uk/sys-files/Guardian/documents/2009/09/15/UNFFMGCReport.pdf
  2.  (2010). Retrieved September 28, 2013 from http://www.jpost.com/Israel/The-Case-Against-Goldstone-Report-Study-in-Evidentiary-Bias
  3. (2010). Retrieved September 28, 2013 from http://www.goldstonereport.org/cgi-sys/suspendedpage.cgi
  4. (2010). Retrieved September 28, 2013 from http://www.israel-palestina.info/modules.php?name=News&file=print&sid=1141
  5.  (2010). Retrieved September 28, 2013 from https://.org/gpo.gov/hearings/106s/74735.txt
  6.  (2010). Retrieved September 28, 2013 from http://www.ngo-monitor.org/data/images/File/The%20Goldstone%20Report%20Reconsidered.pdf
  7. (January 2012). Retrieved September 28, 2013 from http://www.pchrgaza.org/files/2012/FFM_Libya-Report.pdf

Is it still possible to differentiate between the state, citizens, criminals, rebels etc. in Syria?

Dmytro Tupchiienko, Institute of Criminology, University of Cambridge (UK)

In order to understand the Syrian conflict, it is worth noting, that Syrian civil war is by all means not a recent invention or recent event. This will give us a more thorough understanding of its roots, continuation and climax, if any.

An ongoing conflict in Syria started shortly after World War I, as an offshoot of the ‘Great Game’, upon the post-war division of the Ottoman Empire into respective zones of influence by the Sykes-Picot Agreement – that the British would control most of Ottoman Mesopotamia (modern Iraq) and the southern part of the Ottoman Syria ( Jordan and modern Israel incl.Palestine), while the French would control the rest of Ottoman Syria [modern Syria and  Lebanon] ((Fromkin, David (1989). A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East. New York: Owl. pp. 286, 288)). It witnessed several rebellions, most notably the Druze ((Betts, Robert Brenton (2010). The Druze. Yale University Press. Also See Miller, Joyce Laverty (October 1977). “The Syrian Revolt of 1925”. International Journal of Middle Eastern Studies 8 (4): 545–563. doi:10.1017/S0020743800026118))and continued all the way through French mandate until just after the World War II, when the French Forces left in 1946 ((“Background Note: Syria”. United States Department of State, Bureau of Near Eastern Affairs, May 2007)), before the World War II and culminated in 1960’s after the pan-Arabist Ba’ath party rose to power (together with Assad family) through several coup d’etat ((Hopwood, Derek (1988). Syria 1945–1986: Politics and Society. Routledge. ISBN 978-0-04-445046-7)).

Apart of historical background, however, the conflict has several other layers, most notably the sectarian divide ((“Syria – International Religious Freedom Report 2006”. U.S. Department of State. 2006. Retrieved 2009-06-28))[eg between Moslems themselves (Sunnites, Shiites (incl. e.g. Houthis from Yemen), Isma’ilis and Alawites) and Christians themselves (Druzes, Catholics and Maronites); refugee issue ((“World Refugee Survey 2008”. U.S. Committee for Refugees and Immigrants. 19 June 2008))[there are hundreds of thousands of militant refugees in camps in Syria, themselves divided e.g. between the supporters of PLO and those of Hamas].

On the other hand, the Syrian opposition is definitely not an unified movement. Supreme Military Council (SMC) itself consists of such diverse factions as Muslim Brotherhood, Assyrian Democratic Organization, and various Kurdish factions ((CNN Wire Staff (23 August 2011). “Syrian activists form a ‘national council'”. CNN. Retrieved 24 August 2011)), with factional clashes between e.g. Farouq Battalions and Jabhat al-Nusra). Its main militant arm, the Free Syrian Army, is a thing in itself, consisting from such diverse agents as defectors from the Syrian army ((Landis, Joshua (29 July 2011). “Free Syrian Army Founded by Seven Officers to Fight the Syrian Army”. Syria Comment. Retrieved 7 August 2011))as well as foreign combatants ((“Foreign militants fighting in Syria battlefields”. Agence France-Presse. 7 March 2012. Retrieved 2 April 2012))which include mercenaries from various wars ((“Protiv Asada se bore i hrvatski plaćenici” (in Croatian). Tportal.hr. 16 August 2012. Retrieved 18 August 2012)).

It is far from being a united movement against an evil suppressor – although Assad’s ruling style is far from being democratic ((“2010 Country Reports on Human Rights Practices – Syria”. United Nations High Commissioner for Refugees. 8 April 2011)). However, it escalated during the so-called Arab Spring ((‘It Will Not Stop’: Syrian Uprising Continues Despite Crackdown”. Der Spiegel. 28 March 2011. Archived from the original on 10 June 2011. Retrieved 12 June 2011)).

The UN Commission of Inquiry on Syria states in its recent report ((Report of the independent international commission of inquiry on the Syrian Arab Republic. http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A.HRC.22.59_en.pdf))that both parties to the conflict are equally responsible for civilian casualties, mass displacement and destruction of property, including destruction of UNESCO historical treasure of Aleppo by Syrian rebels. It further states that both parties committed war crimes and gross violations of international human rights and humanitarian law, the crimes against humanity of hostage-taking, murder, torture, rape, enforced disappearance and other inhumane acts including arbitrary arrest and detention, unlawful attack, attacking protected objects, and pillaging and destruction of property ((Syrian rebels accused of war crimes. The Telegraph, Saturday 27 July 2013, http://www.telegraph.co.uk/news/worldnews/middleeast/syria/9467657/Syrian-rebels-accused-of-war-crimes.html)).

Syrian rebels endanger the civilian population by positioning military objectives inside civilian areas which in turn has the effect of spreading error and demand for retaliation. Both parties violated the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict using children under the age of 18 in direct hostilities ((Free Syrian Army accused of recruiting children. Al Jazeera, 12 Jun 2012 , http://blogs.aljazeera.com/topic/syria/free-syrian-army-accused-recruiting-children-read-more)).

At the same time, US prepares $130m military aid package for Syrian rebels, and EU lifts its arms embargo to Syria [albeit with some reservations] ((The Guardian, Saturday 20 April 2013. http://www.guardian.co.uk/world/2013/apr/20/us-syria-130m-military-aid-package)), which, as UN Commision states, will only cause a further increase in war crimes ((UN: More arms for Syria mean more war crimes. Jerusalem Post, 21 June 2013, http://www.jpost.com/Middle-East/UN-expert-More-arms-for-Syria-mean-more-war-crimes-317338))and make the US taking sides in a civil war ((Boehner Backs Military Aid to Syrian Rebels. The Wall Street Journal, July 23, 2013, http://blogs.wsj.com/washwire/2013/07/23/boehner-backs-aid-to-syrian-rebels/)).

Therefore, my conclusion is that it is impossible to differentiate between the state, citizens, criminals, rebels etc. in Syria, as this conflict become a fully-fledged civil war – a Hobbesian Bellum omnium contra omnes – which can not be ended by military means, as either party committed war crimes and is now equally guilty. As the US Secretary of State Kerry said, ‘there is no military solution to Syria. There is only a political solution, and that will require leadership in order to bring people to the table ((Syrian rebels press US to send weapons fast, Kerry sees no military solution to crisis. Russia Today, July 26, 2013, http://rt.com/news/syria-rebels-us-weapons-617/)).’

Indigenous Knowledge in Environmental Protection and Intellectual Property: Striking a balance

Evangelia Linaki, Research Associate

In view of the International Day of the World’s Indigenous Peoples on 9 August, it is a good opportunity to reflect on the contribution of Indigenous Peoples and the major current challenges they have to face. One hotly debated issue is that of the protection of indigenous knowledge under the Intellectual Property (IP) regime. In other, words, is IP law capable of providing the holders of indigenous knowledge with the required protection and, if not, is it flexible enough to accommodate the new challenges? Within this framework, this research paper will try to deal with such question within the context of environmental protection. As a first step, there will be an effort to identify the characteristics of the term “indigenous knowledge”, whereas an overview of the contribution of Indigenous Peoples to the effort of protecting the environment will be given. Subsequently, the several tendencies as to the role of IP with regard to the protection of indigenous knowledge will be outlined and, instead of a conclusion, speculations on the possible conflict between indigenous knowledge protection and the human right to a healthy environment will be provided.

Indigenous knowledge

The definition of indigenous knowledge, sometimes referred to as “traditional knowledge”, is nowhere to be found and even within the context of IP can have several interpretations ((Brush, Stephen B., Indigenous Knowledge of Biological Resources and Intellectual Property Rights: The Role of Anthropology, 93 American Anthropologist 653, at 660 (1993).)). For the purposes of IP, it is important, though, to decide what kind of products of the mind would fall within this term and for this reason one should bear in mind the definition enshrined in the Draft Articles on the Protection of Traditional Knowledge, in which the 24th session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) resulted. According to draft Article 1, traditional knowledge should encompass “know-how, skills, innovations, practices, teachings and learning” developed by indigenous communities ((Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, The Protection of Traditional Knowledge: Draft Articles Rev. 2, 26 April 2013, available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_24/wipo_grtkf_ic_24_facilitators_document_rev_2.pdf (accessed 18/8/2013).)). Indigenous knowledge is considered to be dynamic, evolving, intergenerational, in codified, oral or other forms, associated with fields such as agricultural, environmental, healthcare, indigenous and traditional medical knowledge, biodiversity, traditional lifestyles, natural and genetic resources, know-how of traditional architecture and construction technologies ((See id.)).

Indigenous knowledge and the environment

One of the features that compose the identity of Indigenous Peoples is their connection with their land to the point that the environment itself can demonstrate the kind of relationship and interaction that exist between the environment and such peoples ((Mwaura, Peter (ed.), Indigenous Knowledge in Disaster Management in Africa, at 29 (2008), available at http://www.icsu.org/icsu-africa/news-centre/news/Appendix9IndigenousBookletUNEP.pdf (accessed 18/8/2013) and Drahos, Peter, When Cosmology meets Property: Indigenous People’s Innovation and Intellectual Property, 29 Prometheus (Routledge) 233, at 236-239 (2011).)). Even one of the few legally binding instruments concerning Indigenous Peoples Rights – the International Labour Organisation Convention No. 169 on Indigenous and Tribal Peoples – obliges States-parties to respect the relationship of those peoples with their lands or territories ((International Labour Organisation (ILO), Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), Article 13 (1989), available at  http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_ILO_CODE:C169 (accessed 18/8/2013).)). However, the non-binding but of great importance Declaration on the Rights of Indigenous Peoples incorporates in its preamble the recognition of the urgent need to respect and promote the rights of Indigenous Peoples, especially those stemming from their lands, territories and resources ((A/61/L.67 and Add.1 (2008), Para. 7 of the Preamble, available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf  (accessed 18/8/2013).)).

Due to such close relationship with the environment, Indigenous Peoples have developed several practices and methods, which aim at the preservation of specific resources but have wider positive repercussions on the holistic protection of ecosystems ((See Mwaura, supra note 4, at 33-34)). The contribution of Indigenous Peoples can only be clarified through examples. A first example is that of a technique of fire management in the Arnhem Land, Australia. In short, the Indigenous Peoples of the area tend to burn several patches throughout the dry season, when the moisture of the grass has fallen, with the aim of stimulating the further growth of the grasses without posing any fire danger to people, trees or insects ((See Drahos, supra note 4, at 240.)). It has been estimated that such practice contributes to the overall preservation of the environment, such as in terms of biodiversity and rare fauna ((See id., at 240-241)).

The knowledge held by Indigenous Peoples has proved to be valuable for the isolation of specific compounds within biological resources ((An example is the identification by the Bela community of the special resistance to diseases of a specific kind of wild rice growing in Mali, which in turn helped researchers isolate and clone a gene conferring this kind of resistance to rice plants (World Intellectual Property Organisation (WIPO), Intellectual Property and Traditional Knowledge, Booklet No. 2, at 6, 9, available at http://www.wipo.int/export/sites/www/freepublications/en/tk/920/wipo_pub_920.pdf (accessed 18/8/2013).)), whereas knowledge on sustainable irrigation can be found in Oman and Yemen through the aflaj traditional water system, as well as on migration patterns of several species in the Hudson Bay region ((See id., at 5.)). Additionally, the simple tools used in cultivation and land clearing contributes to the preservation of large forests and protects against soil erosion in several parts in Africa, whereas the method of controlled grazing ensures that vegetation is not overexploited ((See Mwaura, supra note 4, at 35-36, 40.)).

What is certain is that the well-being and existence of Indigenous Peoples is dependent upon the environment in which they live and conduct their activities and, for this reason, they are highly interested in sustainable development and environmental preservation for the present and future generations ((Jones, G’Nece, The Importance of Indigenous Knowledge and Good Governance to Ensuring Effective Public Participation in Environmental Impact Assessments, International Society of Tropical Foresters, Special Report March 2012, at 6, available at http://www.istf-bethesda.org/specialreports/Jones/Indigenous_Knowledge_and_EIAs.pdf (accessed 18/8/2013).)).

Indigenous knowledge and IP

In a nutshell, what is sought from indigenous populations consist is the recognition and respect of the rights of the holders of indigenous knowledge ((See WIPO, supra note 10, at 11)), as well as the prevention of unilateral and non-consensual exploitation and appropriation of such knowledge by third parties ((Zerda-Sarmiento, A. and Forero-Pineda, C., Intellectual Property rights over ethnic communities’ knowledge, 54 International Social Science Journal  99, at 103 (2002).)). Moreover, especially within the context of environmental protection, Indigenous Peoples are concerned with the potential misinterpretation of the information they provide ((Stevenson, Marc G., Indigenous Knowledge in Environmental Assessment, 49 Arctic 278, at 283 (1996).)). The core problem was concisely articulated by an Aboriginal artist in Australia, Wandjuk Marika, in 1976, who saw his art reproduced on towels without his permission: “We are only asking that we be granted the same recognition, that our works be respected and that we be acknowledged as the rightful owners of our own works of art ((Anderson, Jane, The Making of Indigenous Knowledge in Intellectual Property Law in Australia, 12 International Journal of Cultural Property 1, at 7 (2005).)).”

Indeed, IP law does not make any reference to Indigenous Peoples and it was only in 1998-1999 that WIPO carried out fact-finding missions in several parts of the world to report on all the relevant issues on Traditional Knowledge and IP ((World Intellectual Property Organisation (WIPO), IP Needs and Expectations of Traditional Knowledge: WIPO Report on Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), at 16-17 (2001).)). Within this report, it is acknowledged that IP law is not capable of protecting several forms of traditional knowledge for the most fundamental reason that “knowledge or information is not per se protectable under IP ((See id., at 215-216.)).”

Within the same spirit, it has been suggested that IP law is not the most suitable regime to provide the required protection to indigenous knowledge, because IP rights concern commodities, whereas indigenous knowledge refers to practices and innovations that take place at the open environment, produce intangible results, such as the preservation of biodiversity and the environment, and are, thus, difficult to be measured in terms of economical revenues ((See Drahos, supra note 4, at 243.)). Moreover, this issue, in general terms, reflects, is owed to and brings to the surface the conflict between the subjective character of indigenous knowledge and the objective standards of protection that IP law aims at promoting and consolidating ((Maskus, Keith E., Reichman, Jerome H., International Public Goods and Transfer of Technology under a Globalised Intellectual Property Regime, at 541 (2005).)).

At a more practical level, as far as patents are concerned ((A patent is an exclusive right granted for an invention, being a product or process that offers a new technical solution to a problem. (See WIPO Report, supra note 18, at 35-38).)), it has been suggested that this system does not seem to benefit Indigenous Peoples in view of the fact that it does not allow co-extensive ownership over a resource ((See Drahos, supra note 4, at 244-245.))and exclusiveness over a resource might not be feasible within an indigenous community, where everything is usually shared or, for example under the method of shifting cultivation, farmers move from one part of land to another. Furthermore, from an income perspective, the patentees receive only minor revenues ((See id.)). In addition, it has been pointed out that the patent system fails to provide indigenous knowledge with the long-term protection it requires due to the fact that such system, on the one hand, was not created to protect forms of intellectual products whose value cannot be measured in terms of money and, on the other, because the protection lasts for a certain time ((Marinova, Dora, Raven, Margaret, Indigenous Knowledge and Intellectual Property: A Sustainability Agenda, 20 Journal of Economic Surveys 587, at 592 (2006).)). Lastly, patents can even pose a danger to indigenous knowledge in the case in which such knowledge has been used and made public, disguised in scientific or other terms, since patent protection cannot be provided once knowledge is found in the public domain ((See id., at 594.)).

As far as copyright system is concerned ((Copyright provides the author of literary, musical, architectural, artistic, audiovisual works and maps drawings with the right not to allow reproduction, adaptation, translation, broadcasting or performance of his work. The rights are vested in the author automatically and subsist for a period of 50 years after the death of the author. (See WIPO Report, supra note 18, at 34-35).)), it should be mentioned that it was India who proposed at the 1967 Stockholm Diplomatic Conference for the revision of the Berne Convention for the Protection of Literary and Artistic Works the inclusion of folkloric works within the list of items to be protected by the Convention, but due to the inability of agreement on the definition of the term “folklore” this idea was abandoned ((Zografos, Daphne, Intellectual Property and Traditional Cultural Expressions, at 12-14 (2010).)). It has been pointed out that, just as with patents, copyright cannot provide protection for intellectual works that have already been published and can be found in the public domain ((Ricketson, Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, at 315 (1987).)), whereas the Berne Convention itself does not provide the chance to Indigenous Peoples to exercise their rights directly ((See Zografos, supra note 28, at 14.)).

However, there have been suggestions regarding the possible adjustment of IP laws or the use of existing IP frameworks. As for copyright, it has been suggested that the copyright duration should be adapted, as well as the notion of ownership, in order to recognise collective ownership – which could become possible through the abatement of the requirements for joint authorship ((Carpenter, Megan M., Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community, 7 Yale Hum. Rts. & Dev. L.J. 51, at 63, 67-68, 70-71 (2004).)). Additionally, trademarks seem to provide a good solution, as their acquisition costs less, does not require scientific expertise and there is no exclusive use of a resource or a spot ((See Drahos, supra note 18, at 246.)). Lastly, another alternative could be that of voluntary accreditation or certification of indigenous knowledge ((See id., at 247.)), with the tangible example of the multinational cosmetics company Aveda Corporation and the exporter of Australian sandalwood oil Mt. Romance, who agreed to grant $50.000 each to the Kutkabubba Aboriginal community for sharing their knowledge and land ((See Marinova & Raven, supra note 25, at 599-600.)).

Any analysis on this issue would remain incomplete without reference to the works of the WIPO IGC. After the conduct of fact-finding missions in 1998-1999, the IGC was created in 2000 with the aim of hosting and promoting negotiations, which will culminate in the adoption of one or more legal instruments on the protection of Traditional Knowledge ((WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), available at http://www.wipo.int/tk/en/igc/ (accessed 18/8/2013).)). Since 2000, negotiations are still ongoing with regard to the the Draft Articles on the Protection of Traditional Knowledge. In a nutshell, the direction embraced so far is that of positive and defensive protection, where the former refers to the recognition and right of the holders of traditional knowledge to exercise rights with regard to action or remedies against misuse of such knowledge and the latter to the prevention of illegitimate IP rights on traditional knowledge ((See WIPO Handbook, supra note 10, at 12.)). Criticism, though, has come from the indigenous representatives, who requested further enhancement of their participation in the procedures; the definition of traditional knowledge has been criticised for lack of clarity, whereas ownership by Indigenous Peoples is thought to create implications with regard to the notion of public domain and the right to knowledge ((Janke, Terri, Iacovino, Livia, Keeping Cultures Alive: Archives and Indigenous Cultural and Intellectual Property Rights, 12 Arch Sci 151, at 157 (2012).)).

Final Remarks: A Human Rights Perspective

One of the aims of IP law is to balance the authors’ rights and the rights of the public ((See WIPO Report, supra note 18, at 32.)). Within the given context, does the protection of indigenous knowledge interfere with the right of every individual to a healthy environment?

It should be mentioned that such human right cannot be found in any of the legally binding international human rights instruments, such as the International Covenant on Civil and Political Rights ((UN A/HRC/22/43 (2012), at 6.)). However, this should not mean that such a right does not exist, since it was first formulated on an international level with Principle 1 of the 1972 Stockholm Declaration on Human Environment and it is established under many regional instruments, such as the African Charter and the Additional Protocol to the American Convention on Human Rights ((See id. For more information on the right to a healthy environment see also UN A/HRC/19/34 (2011), Giorgetta, Sueli, The Right to a Healthy Environment, Human Rights and Sustainable Development, 2 International Environmental Agreements: Politics, Law and Economics 173 (2002), Boyd, David R., The Implicit Constitutional Right to Live in a Healthy Environment, 20 RECIEL 171 (2011) and Postiglione, Amedeo, Human Rights and the Environment, 14 The International Journal of Human Rights 524 (2010).)).

With regard to the abovementioned question, it is suggested that such conflict cannot be presumed, as the Indigenous Peoples are highly interested in preserving an environment upon which their survival and everyday life is dependent. Since such peoples already conduct their activities with due caution to environmental preservation, they simultaneously contribute to the enjoyment of the human right to a healthy environment by every individual. As it was mentioned, this happens exactly because their practices have a holistic impact on the environment. In conclusion, from this perspective, there does not seem to be a real need for balancing between authors’ rights and public interests, since indigenous knowledge, even when accredited to an indigenous population, has immediate impact on environmental preservation.

The issue encompasses a number of complex questions and the solution to indigenous knowledge protection should not only be sought in IP regimes but under other branches of international law, such as International Human Rights Law.

The Legacy of International Law: Sources

Author: Pankhuri Agarwal, Research Associate

Theories as to the Origin of International Law     

Rules and norms of any legal system derive its authority from their authentic and certain sources. The source of domestic legislations can be legitimated from the mechanical system of constitution, legislature, executive and judiciary which effectuate such laws backed by sanctions. The arena becomes dwindled in the international scenario for the deficiency of specific codified text, body or institution for the purpose. Many raised their eyebrows upon its authority due to complete uncertainty about the origin of International Law. The doctrine of positivism teaches that International Law is the sum of rules by which states have consented to be bound, and that nothing can be law to which they have not consented to be bound ((Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations, Oxford University Press, 7th ed., 2012, p. 49.)). The positivists believe that International Law can in logic be reduced to a system of rules depending for their validity only on the fact that states have consented to them ((Joseph Gabriel Starke & Ivan Anthony Shearer, International Law,  Butterworths Law, 1st ed., 1994)). Anzilloti, Triepel, and Oppenheim, the proponents of ‘consent theory’, believe that the states are bound to follow customary rules of International Law because they have given their implied consent for its acceptance ((David J. Bederman, Spirit of International Law, University of Georgia Press, 2002)). This theory is untenable for when a rule, formulated by an impressive number of acts of consent emerges as a customary rule, it becomes as such, a rule of law applicable to all, regardless of whether a state accepts or rejects it thereafter ((Bernard Kishoiyian, The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law, 14(2) Northwestern Journal of International Law & Business, 1993, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1384&context=njilb)). If consent is all that required then custom will be another name for unwritten treaties ((Ibrahim F.I. Shihata, The Treaty as a Law-Declaring and Custom Making Instrument, 22 Revue Egyptienne De Drorr International  51 (1966).)). There are rules which are applicable on states even though they had not given their consent for them. The theory breaks down in the case of a new state being admitted to the family of nations becomes bound by the body of rules in force without expressing its consent thereto except for the customary law where again all nations expect the new state to comply with the existing rules, thus leaving no choice for that new State ((S.K.Verma, An Introduction of Public International Law, PHI Learning Pvt. Ltd., 1998.)). According to Article 2(6) of the UN Charter, the Organization shall ensure that non-Members also act in accordance with its principles ((Repertoire of the practice of the Security Council, United Nations, http://www.un.org/en/sc/repertoire/principles.shtml#rel4)). The positivists restrict the sources of International Law only to customs and treaties. This view is unsustainable in light of the Article 38 of the Statute of the International Court of Justice.

International Court of Justice: Article 38

While the debates were on the peak, the commendable job of International Court of Justice in lieu of specifying the methodological approach to the disputed before it, Article 38 has been construed as giving the direction to the definition of sources of International Law. It identifies five sources, which can be classified under two broad categories:-

A. Formal Sources: (What is the Law?)-

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

B. Material Sources: (Where the Law is?)-

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

The present discussion aims to comprehend the different sources of International Law in light of their content, purpose, and validity and applicability.

Treaties

The Article does not mention the term ‘treaty’ but, the same has been deduced from the term ‘conventions’. There is a rule of customary International Law of pacta sunt servanda which requires all States to honor their treaties ((Christopher Greenwood,  Sources of International Law: An Introduction, United Nations, http://untreaty.un.org/cod/avl/pdf/ls/greenwood_outline.pdf)). The scholarly analysis and experiences has divided treaties into two types: a) traite lois, b) traite contracts. The former being the multi party treaty bears the law making characteristic and the later tends to bear the contractual feature as it is between relatively few parties. The ‘law making treaties’ may be of two kinds:

a) enunciating rules of universal International Law;

b) laying down general or fairly general rules ((J. G. Starke, Introduction to International Law, Butterworths Law, 10th  ed., 1989)).

The traditional perception of the treaty being only restricted to its parties, now needs to be modified with the inclusion of the modern treaties which

1) establish a special international regime or

2) establish an international organization.

A good example is the Vienna Convention on the Law of Treaties, 1969. Less than half the States in the world are parties to it but every court which has considered the matter has treated its main provisions as codifying customary law and has therefore treated them as applying to all States whether they are parties to the Convention or not. The law making treaties have the tendency to merge into the customary International Law and hence enjoys the preferential treatment over the customs.  Treaties are not intended to derogate from customary law, and a treaty which seemingly modifies or alters established custom should be construed so as to best conform to, rather than derogate from, accepted principles of International Law ((Rebecca Wallace & Olga Martin-Ortega, International Law, Sweet & Maxwell, 6th ed.)). A treaty will not however prevail over prior customary law if the latter is jus cogens ((League of nations Official Journal (1920), Sp. Supp. No. 3, p. 45)). The perfect example is the Article 53 of Vienna Convention on the Law of Treaties, 1969 ((Article 53: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general International Law”)).

Custom

Custom in International Law is a practice followed by those concerned because they feel legally obliged to behave in such a way or due to a feeling that non-compliance would produce legal consequences imposed by other members of the international community ((supra at 10)). The factum of a custom can be analyzed in the light of the excerpt by ICJ in North Sea Continental Shelf Case ((I.C.J. Rep. 1969, p.3)):

“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary International Law… an indispensable requirement would be that within the period in question, short though it might be, State practice … should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved ((ibid)).”

Further, the psychological element of custom to be considered as the source of International Law can be understood in following excerpt:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it ((Military and Paramilitary activities in and against Nicaragua (Nicaragua v The United States) (Merits) I.C.J. Rep. 14, p. 98.)).”

The opinion juris or belief that a state activity is legally obligatory, is the factor which turns the usage into a custom and renders it part of the rules of International Law.

General Principles of Law Recognized by Civilized Nations

Mere presence of certain treaty obligations and customs creates a tricky situation for the International Courts to decide variety of issues involved in a dispute. This creates non liquet situation and thereby the gaps were resorted to be filled through referral to the general principles of law recognized by civilized nations. The general principles are those which are common to the major legal systems of the world for example, the civilian legal system, the common law system and a hybrid system ((supra at 10)). At this juncture, the intricacies involved due to overlapping of equity and general principles lead to an assumption that equity might be a source of law. But the closer analysis of the proposition unveils the fact that equity in itself cannot be a source of law for it does not contribute to substantive law, however it can, nevertheless, affect the way substantive law is administered and applied ((ibid.)).

Judicial Decisions

Judicial decisions may be applied subject to the provisions of Article 59 which mandates that the decision of the court has no binding force except between the parties and in respect of that particular case. It must be noted that though ICJ does not prescribe the compulsory rule of stare decisis, but the court in normal parlance owing to the jurisprudential concept of ‘legitimate expectation and certainty has tried to follow its past decisions to the extent possible and applicable. The non exclusion of the rulings of the national court in Article 38, national decisions can be used as a persuasion while the international judgments being delivered by ICJ. There are two ways in which the decisions of the state court may lead to the formation of rules of International Law ((supra at 9.));

a) decision may be treated as weighty precedents, or even as binding authorities

b) decision dictate the formation of custom leading directly to the growth of customary rules of International Law.

Unfortunately, the biasedness towards the powerful developed countries is being showcased for the decisions of US, UK etc are given primary importance. Writings are a subsidiary means of determining what the law is on a certain issue at a particular point in time and have a continuing role to play given the absence of stare decisis in International Law ((supra at 10.)).

Conclusion

The above direction as to the definition of International Law though exclusively stated in the ICJ, the experts have also included other aspects within the ambit of sources of International Law. Acts of International Organizations forms soft law for the purpose of International Law whereby the non-legally binding international instruments are collected in the written form. Some examples of it are: Universal Declaration of Human Rights, 1948, the Charter of New Paris for a New Europe, United Nations General Assembly Resolutions. Regional organizations like Council of Europe, The European Union, The Organization of American States, and The African Union represent what a particular regional grouping of States consider to be the law. The International Law Commission, a subsidiary organ of the General Assembly was established in 1946 with the task of progressive development and codification of law according to Art.13 of the UN Charter. The article 15 of Statute of the International Law Commission states that “the expression “progressive development of International Law” is used for convenience as meaning the preparation of draft conventions on subjects which have not yet been regulated by International Law or in regard to which the law has not yet been sufficiently developed in the practice of States. Similarly, the expression “codification of International Law” is used for convenience as meaning the more precise formulation and systematization of rules of International Law in fields where there already has been extensive State practice, precedent and doctrine.” Jus cogens is a body of peremptory principles or norms from which no derogation is permitted and which may therefore operate to invalidate a treaty or agreement between states to the extent of the inconsistency with any of such principles or norms ((E.Suy, The Concept of Jus Cogens in Public International Law, 1967 in, Lagonissi Conference on International Law, Papers and Proceedings, Vol. II: The Concept of Jus Cogens in International Law, (Geneva 1967).)). Article 53 of Vienna Convention on Law of the Law of Treaties is a perfect example of it. The Article 38 of ICJ in absence of any such authoritative pronouncement has assumed so much of importance that the sources are being preferred in the hierarchical form as prescribed in it, even though no such provision or clause is present to that effect. The tremendous horizontal and vertical expansion of International Law dispels the aura of doubts as to its legality and authority, serving the greater purpose behind the institution of International Law. The International Criminal law and International Humanitarian law have emerged as separate branches of International Law for the protection of the humanity. The silence as to the repeated questions of the sources of International Law will be applauded for then the larger humanitarian interests can be served better.

Judicial Decisions: What kind of Source of International Law?

Author: Evangelia Linaki, Research Associate

It seems to be a fact that there has been a great increase in the number of specialized international courts ((E.g. International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court, International Tribunal for the Law of the Sea, Special Tribunal for Lebanon etc.)), raising, on the one hand, concerns as to whether such evolution will benefit the international legal order and, reinforcing, on the other,the ongoing controversy on several issues, such as the sources of International Law. It is evident, nowadays, that the core of formal sources, namely treaties, custom and general principles of law, is being highly contested by the emergence of new forms that could play the role of a formal source ((E.g. Judicial decisions and soft law instruments (United Nations General Assembly Resolutions, Declarations, Guidelines etc.).)).

Judicial decisions are one of the many elements which have long casted shadow on the monopoly of the established formal sources. Therefore, in the next few pagesa short presentation of the contradicting views on the legal status of judicial decisions, the existence and the role of judicial precedent and the contribution of international judges to the promotion of International Law will be provided. It should be noted that, since it is not possible to cover all international courts and tribunals, the International Court of Justice (ICJ) will be the point of referenceas it is regarded as the most influential forum which is likely to affect the nature and evolution of general Public International Law.

Legal status of judicial decisions and judicial lawmaking

The legal status of judicial decisions and whether international judges contribute to the making of International Law or not seem to be highly interrelated, since there is a tendency to relate the law-making potential of judges with the legal status that judicial decisions should enjoy in International Law.

It is claimed, on one hand, that judicial decisions do not constitute a primary source of International Law, like treaties, custom or general principles of law, but they serve only as subsidiary means for the determination of rules of law. Such claim is derived from Article 38(1)(d) of the ICJ Statute, which states that the Court shall apply judicial decisions as subsidiary means ((Statute of the International Court of Justice (1945) at Chapter II, Article 38(1)(d) available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 (accessed 7/8/2013).)). In reinforcement of this argument, special attention must be paid to the travauxpréparatoires of the Statute of the Permanent Court of International Justice (PCIJ), which was bequeathed to ICJ itself ((Donilenko, G.M., Law-Making in the International Community, at 254 (1993).)). During the drafting of the PCIJ Statute and the determination of the Court’s mission, there was general consensus among the members of the responsible for the Court’s establishment 1920 Advisory Committee on Juriststhat a law-making task should not be appointed to the World Court with its chairman, Baron Descamps noting that “doctrine and jurisprudence no doubt do not create law, but they should serve only as an elucidation ((See id., at 254-255 andvan Hoof, G.J.H., Rethinking the Sources of International Law, at 169-170 (1983).)).”

Evidently, the drafters of the ICJ Statute did not envisage the Court to become a law-making organ but rather one that will only apply existing rules of law for the settlement of disputes ((See Donilenko, supra note 4.)). At this point, attention must be drawn upon Article 59 of the ICJ Statute, which states that a Court’s decision is binding only on the parties involved in the dispute ((See Statute of the International Court of Justice, supra note 3, at Chapter II, Article 59)). Hence, this provision does not create legal obligations for any other State and, subsequently, no precedent necessary for the enrichment of the corpus of International Law ((McWhinney,E.,The World Court and the Contemporary International Law-Making Process, at 2 (1979).)). Oppenheim’s remark that the judges’ role is of inferior importance due to a lack of lawmaking capability ((Swart, M., Judges and Lawmaking at the International  Criminal Tribunals for the forner Yugoslavia and Rwanda, at 79 (2006).))has been confirmed by the ICJ itself in the South West Africa Cases by underlining that “its duty is to apply the law as it finds it, not to make it ((South West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa), Second Phase, Judgmentof18 July 1966, 1966 ICJ Rep. 6, at 48, para.89)).”

On the other hand, there are authors who claim that judges do contribute to the development of International Law and, therefore, judicial decisions should be regarded as a source of International Law ((See Donilenko, supra note 4, at 260, Swart, M., Judicial Lawmaking at the ad hoc Tribunals: The Creative Use of the Sources of International Law and ‘Adventurous Interpretation’, 70ZaöRV, issue 3 (2010), available at http://www.zaoerv.de/70_2010/70_2010_3_a_459_486.pdf (accessed 7/8/2013), Boyle, A., &Chinkin, C., The Making of International Law (2007) and Guillaume, G., Le precedent dans la justice et l’arbitrage international, 137 Journal du droit international, issue 3 (Juillet – 2010).)). Firstly, it is possible that, despite the provisions of Article 59 of the ICJ Statute, a judgment can have an effect on the interests of a Third State and, that fact is confirmed by Article 62 of the ICJ Statute, which provides a Third State with the right to intervene ((See id.,Donilenko,at 256)). Moreover, the Court’s judgments can contribute to the creation of new customary rules through the interpretation process of a treaty; the elucidation of customary rules; the reformulation and application of rules ((See id.,at 256-257 and Swart,supranote 11, at 478)); and the formulation of a new rule which will bring about the indispensable-to-the-creation-of-custom state practice ((See Boyle&Chinkin,supranote 11,at 283)). The same evolution has been observed in the field of jus cogens, since it was the judges and the arbitrators that crystallised such norms ((SeeGuillaume,supranote 11, at 702)). Lastly, judicial decisions are of paramount importance in case of lacunae in the law, such as in International Criminal Law, since judges will have to fill any gaps and respond to the vagueness or ambiguity of certain rules ((See Swart,supranote 9, at 65-66)).

Taking all of the above into account, in the author’s opinion, the subsidiary nature of judicial decisions does not pose a threat to the law-making potential of judges, rather it serves to maintain the balance between courts and States. In other words, it is the States’ sovereign right to develop law at will and it is widely accepted that they would not have accepted a World Court with law-making duties ((See Donilenko,supranote 4)). Nevertheless, the contribution of the judges to the promotion of International Law is evident, should one take into account cases, such as theCorfu Channel Case and the Armed Activities Case ((In the Corfu Channel case the ICJ ruled that every State’s obligation not to allow its territory to be used for acts which will violate the rights of the other States constitutes a well-recognised principle (Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, 1949 ICJ Rep. 4, at 22). In the Armed Activities Case the ICJ characterised Article 2(4) of the Charter of the United Nations on the prohibition of the use of force as “a cornerstone of the United Nations Charter” (Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment of 19 December 2005, 2005 ICJ Rep. 168, para. 148).)), through which customary rules and general principles of International Law have been crystallised.

One could assess the contribution of judges by comparing the impact they have when acting in their official capacity as judges rather than as international lawyers. In other words, judicial decisions have much greater influence exactly because States have recognized the official jurisdiction of the Court, whereas the judgment creates legal obligations for the parties and the “Court’s pronouncements are taken into account by governments arguing before the Court and in extra-judicial contexts ((See Donilenko,supranote 4,at 256)).” Additionally, it is of utmost importance that judges not only seek and apply law but they also exchange views, concentrate on the issues at hand and reach a decision knowing they have a collegiate responsibility ((See Boyle&Chinkin, supra note 11, at 269 and Wickremasinghe, C. (ed.), The International Lawyer as Practitioner, at 137 (2000).)). As Fitzmaurice has put it, “when an advocate before an international tribunal cites juridical opinion, he does so (…) because it contains a particularly felicitous or apposite statement of the point, and so on. When he cites an arbitral or judicial decision (…) hecites it as something which the tribunal cannot ignore, which it is bound totake into consideration and (by implication) which it ought to follow unlessthe decision can be shown to have been clearly wrong (…) ((Jennings,R.Y.,The judiciary, international and national, and the development of international law, 45 International and Comparative Law Quarterly, issue 1, at 9 (1996).)).”

Precedent in International Law?

There has been great controversy on whether a doctrine of precedent exists in International Law, having, on the one hand, those who focus on the constraints imposed to the Court by Articles 38(1)(d) and 59 of the ICJ Statute. It is claimed that since judicial decisions bind only the States involved in the dispute, no obligations are created for Third States or for previous decisions to be applied in future litigations ((See Donilenko,supranote 4, at 253)). Consequently, no doctrine of precedent exists ((See id.))and each case should be treated as special ((vonBogdandy, A. &Venzke, I. (eds.), International Judicial Lawmaking: On Public Authority and Democratic Legitimation in Global Governance, at 40 (2012).)). Moreover, it is claimed that, since judicial decisions are not formal sources of law, they do not bear any real effect on International Law ((See id., at 43)).

It is, nevertheless, believed that previous cases are more influential in reality, since invaluable legal reasoning can be found in older judgments ((See von Bogdandy&Venzke,supranote 24, at 44)), a fact which in turn may contribute to the crystallization or resolve the ambiguity of a customary rule, jus cogens or bring about the existence of an obligation ergaomnes ((See Boyle &Chinkin, supra note 11, at 295-296)).  Furthermore, by referring to previous cases, the impression that judges apply and do not create law is created ((See von Bogdandy&Venzke,supranote 24, at 45)), whereas precedent assures that all litigants are equally treated ((See Guillaume,supra note 11, at 703)). Additionally, “precedents can save time and work ((See von Bogdandy&Venzke, supra note 24)),” a fact especially important for the international courts that have to deal with a multitude of cases. Lastly, precedent can also lend a sense of predictability, security and order in a highly decentralized international community ((See Guillaume, supra note 29.)).

From the author’s point of view, notwithstanding the inexistence of a precedential doctrine, judicial decisions influence greatly the international legal order, since many a case constitute a landmark in International Law and have never ceased being cited both by the International Courts and international lawyers ((See Boyle&Chinkin, supra note 11, at 293)). As it has been mentioned, past decisions can have strong law-making potential, since they contribute to the creation of custom, jus cogens or obligations ergaomnes. It should be highlighted, nevertheless, that strong adhesion to past cases is not advised, rather they should be treated with caution so as not to preventfurther development of International Law ((See Guillaume, supra note 29))and the adaptation of law to the needs of the international community.

Conclusion

It has been shown that judicial decisions are confronted in two different ways: they are either considered as subsidiary means for the determination of rules of law, an argument based on the ICJ Statute itself, or as having the potential to be elevated at the sphere of formal sources. This controversy is highly interconnected with and affected by both the force of precedent and the role of international judges as law-makers. It is claimed, on the one hand, that precedent does not exist in the international legal order, since judgments are binding only upon the parties to dispute; on the other hand, practice has shown that past cases are highly cited both by the Courts themselves and the international community and they can have a multiple role to play. Consequently, it is thought, on the one hand, that judges only apply law and, on the other end of the scale, that they contribute to the promotion of law in generating or crystallizing custom,juscogensnorms and general principles. It is incontestable that International Courts have long contributed to the evolution of the international legal order and it is expected that they will continue to do so, a fact that foretells that controversy on the place judicial decisions should have is about to be continued and reinforced

An Introduction to Sources of International Law

Author: Donia Joevion Fuller, Research Associate

The clearest exposition on what one may consider as a source of law is to be found in Article 38(1) of the Statute of the International Court of Justice (ICJ), which states:

  • The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a)      international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b)     international custom, as evidence of a general practice accepted as law;

c)      the general principles of law recognized by civilized nations;

d)     subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Put succinctly, sources of law fall into four categories, international treaties, customary international law, general principles of law and judicial decisions coupled with teachings of the most highly qualified publicists. This Article aims to show the operation of each source of law and how they may of potential benefit to any international tribunal called upon to settle disputes.

International Conventions and the theory of Pacta Sunt Servanda

The Vienna Convention on the Law of Treaties, 1969 (VCLT) stands as the authoritative position on the operation of international conventions, more commonly called treaties.  The Convention defines a treaty as, “ an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation ((Article 2 (1) (a) VCLT, 1969)).” Central to the operation of treaties, and arguably in keeping with the notion of State sovereignty is that states may contract themselves to any term; consequently, a treaty may have its own mechanism for enforcement and dispute resolution. In the absence of such clear provisions, the VCLT may act as a guide on how to operate.

The issue of state sovereignty also features in the discourse of why states adhere to their treaty obligations. In this regard, the principle of pacta sunt servanda is of utmost importance. Article 26 of the VCLT stipulates that, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Despite the fact that there is no way to manually coerce states into performing their international obligations as against another state, one must recognize that the operation of international politics is such that economic pressure by one party brought to bear on another may be a viable mechanism to secure compliance. In addition, particularly as it relates to developing countries that rely on aid from the European Union and other international organizations, compliance with human rights treaties such as the International Covenant on Civil and Political Rights features largely in the decision whether or not grants will be meted out to various territories. In recent months, Refugees International (RI), a Washington based international advocacy group for lifesaving assistance and protection for displaced people, urged the Obama administration to withhold assistance to the government of South Sudan over alleged human rights abuses by its army (SPLA) in Jonglei state. Similarly, the European Parliament threatened to halt funds to Egypt, citing Port Said death sentences, human rights violations, and lack of political consensus in Egypt.

Customary International Law- Opinio Juris and State Practice  

By virtue of being a treaty itself and having been widely accepted by the international community as the authority on the interpretation of treaties, the principles enshrined in the document illustrate the operation of customary international law ((Frederic L. Kirgis, “Reservations to Treaties and United States Practice,” ASIL Insights (May 2003), available at http://www.asil.org/insights/insigh105.htm.)). Customary international law as defined by the ICJ Statute is a general practice accepted as law. The ICJ itself stated in the North Sea Continental Shelf Case: “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States ((ICJ, Continental Shelf case (Libyan Arab Jamahiriya v. Malta), Judgement, 3 June 1985, ICJ Reports 1985, pp. 29–30, para. 27.)).” This profound statement is taken by many scholars to mean that in order to establish that there is a principle or rule of customary international law, there are two facets that must be observed. Firstly, there must be evidence of State practice (usus) as well as  a belief that such practice is required, prohibited or allowed, depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).

Reverting to the opening statement relating to the VCLT, for a fact, less than half of the recognized States of the international community are actually parties to the treaty. Yet, the Courts have consistently considered its provisions as codifying customary law ((Anthony Aust, Modern Treaty Law and Practice (2nd edn. CUP, Cambridge 2007) 7–8 and n7))and have therefore treated them as being of general application to all states irrespective of their status in relation to the treaty. For instance, in the Kasikili/Sedudu Island Case the ICJ held that Article 31 of the VCLT relating to the interpretation of treaties reflected customary international law. Consequently, it was applicable to the case notwithstanding that neither Botswana nor Namibia was parties to the VCLT ((Case concerning Kasikili/Sedudu Island. (Botswana / Namibia). Judgment of 13 December 1999. para 18)).

For this reason, it is understandable that a fairly high threshold must be met when asserting that both elements are met and two cases from the ICJ in particular illustrates this proposition. On the hand the Case of the SS Lotus expressly showed that State practice in the absence of opinion juris will not suffice and the Advisory Opinion on Nuclear Weapons ((Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, available at: http://www.refworld.org/docid/4b2913d62.html [accessed 7 August 2013]))shows the converse to be true ((France. v. Turkey, 1927)). Despite the general acceptance of this definition however, it remains problematic when one considers that some international rules are permissive and reflect a belief in a right more so than an obligation. For this reason, the better view may be to consider opinion juris as an expression , assertion and acknowledgment of a legal right or obligation as opposed to a belief in one.

General Principles

It is submitted that in time, general principles of law may assume more importance than even international conventions and principles of customary law. The reason for this bold assertion is that in several areas, the law is being outstripped by technological developments. For instance, in the use of unmanned weapons or drones to combat acts of terrorism along a state’s border, the UN Charter and in particular Articles 2(4) and 51 may become problematic in their application.

On the one hand, the Charter outlaws the unlawful use of force, yet recognizes the inherent right of self-defence in respect of an armed attack. Where the latter is concerned, the there are certain procedures to be carried out before an act of self-defence is affected. The nature of unmanned weapons is such response to any such attack is immediate and would bring such a response outside the scope of the Charter. Yet, in the face of the 9/11 Terrorist Attack, is it reasonable to warrant that a State potentially compromise its security by following these procedures? Similarly, based on the principles enshrined in the Nicaragua Case it is doubtful whether the use of such technology fulfils the criteria laid out where anticipatory self defence is concerned. These questions are of course beyond the scope of this Article which merely aims to delineate the content of what are broadly considered sources of international law.  Nonetheless, to the extent that as Sir Gerald Fitzmaurice observed, a principle of law, as opposed to a rule, underlies a rule and explains the reasons for its existence. A rule answers the question ‘what’ whereas a principle answers the question ‘why ((Sir Gerald Fitzmaurice, ‘The General Principles of International Law’ (1957) 92 Collected Courses of the Hague Academy of International Law, p. 7.)), it is submitted that a principle may be more readily applied to emerging problematic areas of law, than a rule of for instance customary international law.

An apt example of the application general principles may be found in the Lena Goldfields Company Case where arbitrators recognized and indeed applied principles governing unjust enrichment as a general principle of law recognized by civilized nations ((H. C. Gutteridge, Transactions of the Grotius Society Vol. 38, Problems of Public and Private International Law, Transactions for the Year 1952 (1952), pp. 125-134- The Meaning and Scope of Article 38(1)(c) of the ICJ Statute)). In the landmark Chorzow Factory Case the Court categorically observed that, it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.  Whilst a comprehensive analysis of the precise scope and use of general principles supersedes the scope of the article, it may suffice to say that these principles essentially provide a mechanism to address international issues not already subject either to treaty provisions or to binding customary rules. Such general principles may arise both from municipal law and international law, and many may actually be described as procedural or evidential principles as well as those which affect with the machinery of the judicial process ((A; Bassiouni, M. Cherif, A Functional Approach to General Principles of  International Law,  Mich. J. Int’l L. 768 (1989-1990).)).

Judicial Decisions and Teachings of the Most Qualified Publicists

It is not surprising that the ICJ should recognize the utility of judicial decisions as a source of international law. In so far as there is no operation of binding precedent in international law, dissimilar to the operation of common law jurisdictions. Further, it is just as well that no distinction is made between judicial decisions of municipal and international courts. In relation to the latter, it is submitted that these too can be evidence of what is accepted as a general principle of law and even a customary practice.

In light of the growing problem of technology outstripping international customary principles and even broadly applicable treaties, the writings of qualified publicists are insightful on the dynamics that bring to bear on particular issues, and may also be reflective of the sentiment of that writer’s country on the issue. The benefits to an international tribunal are obvious, though such writings would never be seen as declaring the law. In view of the foregoing, an question which often emanates from these discussions is whether there is a hierarchy of sources of law.

A Hierarchy of Sources?

A simple answer to the question proposed would be in the negative. However such a sparse response would not adequately explain the matrices within which sources of law operate. To that end it is submitted that cognizance must be taken of rules of jus cogens which may be defined as customary international rules of the highest order. So much so, that Article 3 of the VCLT, 1969 explicitly states that even a treaty that seeks to enforce a practice contrary to such rules is void. Examples of such rules include the rule against torture, genocide and slavery.

However, if a rule of customary international law has not attained this status, nothing precludes States from contracting in a manner that contradicts such a customary rule. How the Court will deal with any dispute where treaty and custom conflict is another matter, but presumably the principle of pacta sunt servanda would prevail, particularly as a State may find itself bound by a customary practice that it arguably had no part in solidifying to the detriment of a treaty obligation. The latter, it is submitted is one of the ultimate expressions of State sovereignty, indeed at least theoretically, a State cannot be forced to subject itself to the terms of a treaty.  The extent to which a definitive hierarchy is even useful may be at best academic. Thus, it is respectfully submitted that for States, the best resolution in this case is not necessarily to try to find a hierarchy, but merely to attempt to discover the international rules and principles governing the legality or lack thereof of proposed state action coupled with an attempt to abide by them.

IPR & Human Rights: Consonance or Dissonance?

Author: Pankhuri Agarwal, Research Associate

Long ignored by both the human rights and intellectual property, the co-existential puzzle of the two still remains. Laurence Heifer has famously observed that – while intellectual property and human rights “were once strangers,” and have “for decades…developed in virtual isolation from each other,” they are now becoming “increasingly intimate bedfellows” as “international standard setting activities have begun to map previously unchartered intersections between intellectual property laws on the one hand and human rights law on the other ((Are Intellectual Property Rights Human Rights? Patent Protection and the Right to Health, 93 J. Pat. & Trademark Off. Soc’y 339 (November 2011).)).”

The Window of Human Rights

The international law of human rights as we know it today is a post World War II phenomenon ((Thomas Buergenthal, International Human Rights Law and Institutitons: Accomplishments and Prospects, 63 Wash. L. Rev. 1 (1988).)). The United Nations Charter is both the constitution of the Organization and a legally binding multilateral treaty. The Universal Declaration of Human rights is considered to be the centerpiece of the international human rights revolution and gradually has attained the status of international obligation. The International Covenant on Human Rights consists of three separate treaties- The International Covenant on Civil and political Rights, the optional protocol to The International Covenant on Civil and political Rights and The international Covenant on Economic, Social and Cultural rights. According to the Vienna Declaration of the World Conference on Human Rights of 1993, “all human rights are universal, indivisible, interdependent and interrelated”. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms ((Vienna Declaration and Program of Action, adopted by the United Nations World Conference on Human Rights, para 5, June 25, 1993.)). Article 27 (2) of the UDHR and Article  15 (c) of  International Covenant on Economic, Social and Cultural Rights  recognizes  everyone’s right ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. The implication is that human rights put the emphasis on societal benefits which is opposed to that of intellectual property rights instruments, which focus mainly on the rights of authors, inventors and other legal entities to claim exclusive rights over an intellectual creation ((Philippe Cullet, The Relationship between TRIPS and the Human Right to Health, International Affairs (Royal Institute of International Affairs 1944-), Vol. 79, No. 1(Jan., 2003), pp. 139-160.)).

Delving into Intellectual Property Rights

Intellectual property is a form of knowledge which societies have decided can be assigned specific property rights ((Final Report of the Commission on Intellectual Property, Integrating Intellectual Prperty Rights and Development Policy, U.K. Commission on Intellectual Property Rights (2002).)). Taking cue from the final report of the Commission on Intellectual Property, the rationale for IP Protection can be summarized as:

1. Intellectual property creates a legal means to appropriate knowledge as it has the character of non-rival public good.

2. Difficulty in preventing others from using or copying it.

3. By conferring temporary market exclusivities, patents allow producers to recoup the investment in R&D and reap a profit in return for making publicly available the knowledge on which the invention is based.

4. The monopoly pricing is being compensated by the promotion to invention and innovation.

The right to the protection of interests in intellectual creations is a “fundamental, inalienable and universal” entitlement ((Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework, U.C. Davis Law Review, Vol. 40, pp. 1039-1149 (2007).)). The drive to protect the intellectual property of individuals has been well recognized by the international community as evident in Article 1, Section 8, Clause 8 of the US Constitution ((“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”)), Article 13 of The American Declaration on the Rights and Duties of Man ((“He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author.”))and Article 27 of The Universal Declaration of Human Rights ((“Everyone has the right to the protection and material interests resulting from any scientific, literary, or artistic production of which he is the author.”)). Because human rights “exist independently of the vagaries of state approval, recognition, or regulation,” the right to the protection of interests in intellectual creations exists regardless of the protection offered by current intellectual property laws and treaties ((Supra note 6.)). There had been much argument as to the possibility of inclusion of IPR within the class of human rights but, the Lockean labour theory and Mill’s Utilitarian theory were not strong enough to trump over the practical and overt difficulties of classifying it so. Unlike Human Rights, IPR are limited-duration statutory rights given by the State which can be curtailed in certain circumstances where they conflict with the larger interests of society ((Vandana Shiva , Agricultural Biodiversity, Intellectual Property Rights and Farmers’ Rights, Economic and Political Weekly June 22, 1996, pp. 1621-31.)).

Tussle between IPR & HR

There has been persistent debate about the co-existence of Human Rights and IPR in the international plane. The first approach sees strong intellectual property protection as undermining and therefore as incompatible with a broad spectrum of human rights obligations, especially in the area of economic, social, and cultural rights ((Laurence R. Helfer, Human Rights And Intellectual Property: Conflict Or Co-Existence?, Netherlands Quarterly of Human Rights, Vol. 22/2, 167-179, 2004.)). The second approach to the intersection of human rights and intellectual property sees both areas of law as concerned with the same fundamental question: defining the appropriate scope of private monopoly power that gives authors and inventors a sufficient incentive to create and innovate, while ensuring that the consuming public has adequate access to the fruits of their efforts ((Ibid.)).

The Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on Intellectual Property Rights and Human Rights which laid down the ‘actual or potential conflicts exist between the  implementation of the TRIPS Agreement and the realization of economic, social and cultural rights’ including;

(1) the transfer of technology to developing countries;

(2) the consequences for the right to food of plant breeders’ rights and patenting of genetically modified organisms;

(3) bio-piracy;

(4) control of indigenous communities’ natural resources  and culture; and

(5) the impact on the right to health from restrictions on access to patented pharmaceuticals ((Ibid)).

IPR shadow on Indigenous people right to Traditional Knowledge

Indigenous people due to them being associated with a certain region know the curing properties of herbs, leaves, and other treatments which are not known to the rest of the world. Multinational corporations, aware that folk medicines can be developed as medicines with worldwide market power ((David  Downes, ‘How  Intellectual Property Could Be  a Tool  to  Protect Traditional Knowledge’,  25  Colum.  J.  Envtl.  L. 253,  254-57 (2000).)), have sought to patent or acquire rights over forms of these treatments. The first attempt internationally to protect the rights of the indigenous people began when the International Labor Organization (ILO) convened a Conference Concerning the Protection of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957. In 1981 WIPO and UNESCO adopted a Model Law on Folklore. In 1989 the revised ILO Indigenous and Tribal Peoples’ Convention defined ‘indigenous people’ for the first time. The first notable development was the United Nations Conference on Environment and Development (The Rio Earth Summit), 1992 as its Chapter 26 of Agenda 21 is devoted to recognizing and strengthening the role of indigenous communities ((U.N. Doc. A/CONF/151/26 Vol IV, available at United Nations Environment Programme<http:// www.unep.org>.)). The concept of Farmers’ Rights was introduced in 1989 by the Food and Agricultural Organisation of United Nations (FAO) into its International Undertaking on Plant Genetic Resources and in 1992 the Convention on Biological Diversity highlighted the need to promote and preserve traditional knowledge ((Bernard O’Connor, ‘Protecting Traditional Knowledge: An Overview of a Developing Area of Intellectual Property Law’, The Journal of World Intellectual Property  Vol 6 Issue 5, p. 677)). In 1993, the Working Group on Indigenous Populations accepted the Draft Declaration on the Rights of Indigenous People ((Available at http://www.wipo.int/about-ip/en/studies/publications/genetic_resources.htm)). The Trade Related Intellectual Property Rights System (TRIPS), 1994 was the next major international development. Philippines was the first nation to legislate (Indigenous Peoples’ Rights Act, 1997) to “protect and promote the rights of indigenous cultural committees/indigenous people ((The Indigenous Peoples’ Rights Act of 1997.)).” In India, the momentum towards protection of the indigenous properties increased after the texmati, turmeric and neem disputes. The First Inter-Ministerial Committee on Protection of Rights of Holders of Indigenous Knowledge, Protection of Plant Varieties and Farmers Rights Bill, 1999 ((Protection of Plant Varieties and Farmers Bill, 1999)),and the Bio Diversity Bills of 1999 were drafted. To make the protection mechanism effective, the indigenous people should be made aware of the economic rights and the long term benefits which they could have if protected as a trade secret, or under any IP Laws. They can enter into term agreements with the users of their traditional knowledge indigenous knowledge short-term reciprocity addressing immediate needs of the community, indigenous knowledge public health, forest conservation, and medical care, the medium-term reciprocity consisting of benefits before profit sharing indigenous knowledge equipment, books, and other resources and the long term reciprocity involving profit sharing ((Donald E. Bierer, Thomas J. Carlson, and Steven R. King, ‘Shaman Pharmaceuticals: Integrating Indigenous Knowledge, Tropical Medicinal Plants, Medicine, Modern Science and Reciprocity into a Novel Drug Discovery Approach’, <http://www.netsci.org/science/special/feature11.html>.)).

Patents and Right to health

The figures describing the limited access to essential medicines in developing countries are staggering: almost two billion people, one-third of the global population, lack regular access to essential medicines ((Lisa Forman, Trade Rules, Intellectual Property, and the Right to Health, Ethics & International Affairs, (2007), < http://www.iatp.org/files/451_2_100411.pdf>.)). TRIPS does allow certain exceptions to patenting and limitations on exclusivity in the interests of public health and social welfare, including permitting parallel imports which allows countries to import cheaper versions of patented medicines without any restrictions and compulsory licensing authorizing the governments to manufacture generic versions of patented medicines without corporate consent in certain circumstances ((Ibid.)). The amendment to the “export solution” is intended to permit least-developed and other countries to import generic medicines made under compulsory licensing according to strict conditions ((Ibid.)).

The  International  Covenant  on Economic,  Social and Cultural Rights  (ESCR  Covenant) which recognizes  everyone’s  right to  the ‘enjoyment of  the highest attainable  standard  of physical and mental health ((Supra note 4.)).’ The Declaration on the TRIPS Agreement and Public Health, 2001 and Doha Ministerial Declaration are the efforts in the direction of protecting the human right to health. The steps taken by UN in pursuance of it are;

(1) three resolutions of the Commission on Human Rights on ‘Access  to Medication in the Context of Pandemics such as HIV/AIDS’

(2)  an analysis of TRIPS and public health by the High Commissioner for  Human Rights

(3)  an official  ‘statement’  by the Committee on Economic, Social and Cultural Rights that  ‘intellectual property regimes must be consistent with’ the rights in the Covenant and

(4) a report by the Special Rapporteurs on Globalization, which argues that intellectual property protection has undermined human rights objectives ((Laurence R. Helfer, Human Rights and Intellectual Property: Conflict or Coexistence?, (2003),

<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2635&context=faculty_scholarship>.)).

However, to our dismay persistent corporate and governmental threats of legal or economic sanctions and the complexity, cost, and limited duration and scope of the rules do not allow the export of patented medicines to poor countries causing the drug prices to remain at patent monopoly levels ((Supra note 22.)). This is in violation with the three primary duties of the domestic government: not to interfere with the enjoyment of this right, to prevent interference in the right by third parties, and to provide health care where people cannot secure access to goods on their own ((Ibid.)).

Farmers’ Rights, Plant Patent and other Sui Generis System

Modern technology makes possible the selective transfer of genetic material between organisms, and has allowed for the development of seeds and plants that tolerate herbicides, resist pests, have improved nutrition all profiles, grow in adverse conditions, and have better handling and processing characteristics ((Keith A. Zullow, Raivo A. Karmas, Protecting Intellectual Property in Plants and Seeds, <http://www.goodwinprocter.com/~/media/Files/Publications/Attorney%20Articles/2008/Protecting_Intellectual_Property_in_Plants_and_Seeds.ashx>.)). The breeders required protection for their varieties of Plants as huge investment was required for such procedures and the success rate for getting an intended and distinct variety of fruit plant or shrub was low. The Plant Patent Act,1930, The International Union for the Protection of New Varieties of Plants1961, 1978, 1991, Protection of Plant Varieties and Farmers’ Rights Act, Model law of the Organization of African Unity (OAU), The Thai Plant Variety Protection Act 1999. PGR legislation is a conflict between farmers and the seed industry and between the public domain and private profits, between an agriculture that produces and reproduces diversity and one that consumes diversity and produces uniformity ((Supra note 11.)). IPRs become a means of monopoly that wipe out farmers’ rights to save and exchange seed leading to TNC totalitarianism in agriculture granting them the authority to decide what to be grown, using what, when to sell, to whom and at what prices ((Ibid.)).

Conclusion

It has really become a serious concern for the humanity the ever increasing realm of IPR. The silver line in the cloud is the constant and dedicated efforts of the nations and international forum to mitigate the risks of danger to human rights by IPR by encompassing the neutralizing measures such as parallel imports, compulsory licensing, fair use, national emergency etc. The strive is to balance the IPR with HR so as to serve the interest of both communities. In her report, the High Commissioner of Human Rights identified three approaches;

(1) the just remuneration approach,

(2) the core minimum approach, and

(3) the progressive realization approach ((Supra note 6.)).

In fact, intellectual property rights further the extension of other human rights, such as political speech, health care and education ((Tom Giovanetti & Merrill Matthews, Intellectual Property Rights and Human Rights, The Institute for Policy Innovation, September 25, 2005, < http://www.ipi.org/ipi_issues/detail/intellectual-property-rights-and-human-rights>.)). It was copyright that took publishing out of the hands of governments and monarchs and enabled the free published expression of individual authors and publishers ((Ibid.)). The affirmation of human rights by IPR can be visualized for new pharmaceuticals improve health care, widespread creation and distribution of new pharmaceuticals and the expansion of publication or that expansive publication improves education ((Ibid)). The shift in the ideology of the international community can be experienced for the traditional notion of direct obligation upon the states has been convoluted to the states’ obligation to try to the best of its efforts to preserve the human rights and not allowing it to be trampled upon by the holders of intellectual property rights. The harmonization between the two is to be achieved for their coexistence.

International Humanitarian Law: From Mythological to Modern Times

Author: Amitabh Robin Singh, Research Associate

International humanitarian law can be defined as a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict ((What is International Humanitarian Law?, ICRC (July 21, 2013, 11:26 PM), http://www.icrc.org/eng/assets/files/other/what_is_ihl.pdf)).

The earliest form of International Humanitarian Law can be found in our mythological epic the Mahabharat where Krishna laid down the rules of war before the eighteen day long engagement at Kurukshetra. A few of the rules are as follows ((Mohit Jain, Narrative structure of three Mahabharata stories, (July 21, 2013, 11:47 PM), http://intranet.daiict.ac.in/~ganesh_devy/stories/200501088%20Mohit_Jain.pdf)):

  • The day’s battle was to end strictly at sunset. After sunset the two armies were allowed moments of camaraderie and were not to attack each other or indulge in any military engagements.
  • A horseman can only attack another horseman, not the one on elephant or on foot. Similarly, elephant troops, charioteers, etc. could only fight with their respective opposite ranks in the enemy army. Those who either left the field or surrender were not attacked.
  • To kill someone who was without arms, who was without armour, who was withdrawing or whose attention was somewhere else, was against the rules of war.
  • Single combats must only be between equals, and must be in accordance with dharma. One should not attack his enemy, when the enemy is engaged in single combat with another warrior.
  • Those who were involved in playing musical instruments or cheering the warriors should not be killed, i.e. no one attacked the non-battler.

Unfortunately even this earliest form of international humanitarian law in the war between the states of Hastinapura and Indraprastha proved to be futile. Most of the canons listed above were violated by the combatants during the war.

Arjun’s son Abhimanyu was killed alone by seven of the most powerful warriors, violating the single combat rule ((Mahabharata Book VII Drona Parva, Sacred-texts (July 21, 2013, 11:55 PM) http://www.sacred-texts.com/hin/m07/m07046.htm)). Karna was killed by Arjun on Krishna’s goading when he was trying to remove his chariots wheel from the marshy land that it had got stuck in ((Mahabharata Book X Karna-Badh, Sacred-texts (July 22, 2013, 2:20 PM), http://www.sacred-texts.com/hin/dutt/maha10.htm)). The great Kuru general Devvrat (also known as Bhishma Pitamah) was killed by Arjun while he used the body of Shikhandi (a eunuch) as his shield, seeing that Devvrat would never attack a non-warrior, especially a eunuch ((Mahabharata Book VI, Bhishma Parva, Sacred-texts (July 23, 2013, 12:15 AM), http://www.sacred-texts.com/hin/m06/m06120.htm )).

So as we can see warriors have been in contempt of International Humanitarian Law since the age of the great Indian epics.

The modern rules of warfare are actually rather similar to those laid down in the B.C. period. Some of them are as follows ((de Preux, Basic rules of the Geneva Conventions and their Additional Protocols, 1 (2nd Ed 1988).)):

  • Persons hors de combat (outside of combat), and those not taking part in hostilities, shall be protected and treated humanely.
  • It is forbidden to kill or injure an enemy who surrenders, or who is hors de combat.
  • The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. The emblem of the “Red Cross,” or of the “Red Crescent,” shall be required to be respected as the sign of protection.
  • Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief.
  • No-one shall be subjected to torture, corporal punishment, or cruel or degrading treatment.
  • Parties to a conflict, and members of their armed forces, do not have an unlimited choice of methods and means of warfare.
  • Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed solely against military objectives.

Islam also has its own conceptions of the rules of war which are strikingly similar to the ancient and modern rules enunciated above. Here the author would like to list a few of the rules to highlight the point that International Humanitarian Law is not susceptible to religion or time period. Hence a few of the Islamic rules of war are ((Sheikh Al-Zuhili, Islam and International Law, ICRC, (July 25, 2013, 1:13 PM), http://www.icrc.org/eng/assets/files/other/irrc_858_zuhili.pdf)):

  • A non-combatant who is not taking part in warfare, either by action, opinion, planning or supplies, must not be attacked;
  • The destruction of property is prohibited, except when it is a military necessity to do so, for example for the army to penetrate barricades, or when that property makes a direct contribution to war, such as castles and fortresses;
  • Principles of humanity and virtue should be respected during and after war;
  • It is permitted to guarantee public or private safety on the battlefield, to prevent as far as possible the continuation of warfare.

Carolyn Evans, senior lecture at the University of Melbourne is of the opinion that religion has a large role to play in the compliance of International Humanitarian Law. She opines that religion often treats treaties (like the Geneva Conventions) as sacred obligations ((Carolyn Evans, The Double-Edged Sword: Religious Influences on International Humanitarian Law, Melbourne Journal of International Law (July 23, 2013, 1:30 AM), http://www.austlii.edu.au/au/journals/MelbJIL/2005/1.html)). To support this contention, she cites a few examples from antiquity.

Now we shall have a look into the more modern form of modern International Humanitarian Law. Modern International Humanitarian Law can be divided into two sub-categories, one known as “Hague Law” which covers the regulation of arms and weapons and the selection of military targets, and “Geneva Law” which contemplates the treatment of non-combatants such as civilians and aid workers along with former combatants who are no longer part of the engagement such as prisoners of war and detainees ((Joan Policastri, Sergio D. Stone, International Humanitarian Law. American Society of International Law Electronic Resource Guide (July 23, 2013, 1:00 AM), http://www.asil.org/erg/?page=ihuml)).

It can also be said that International Law rules created to protect the human rights of individuals against state interference may be called a largely post-1945 phenomenon ((D.J, Harris, Cases and materials on International Law, 654 (6th ed. 2004).)). The United Nations Charter attempted to codify human rights law through Article 55 and 56. Then there is the Universal Declaration of Human Rights which declares all people to be born free and that no person shall be subjected to cruel or inhuman punishment ((Universal Declaration of Human Rights, Art.1, 5)).

However, before the Geneva Conventions laid down the present International Humanitarian Law in recent centuries, we had the “father of international law” Hugo Grotius who laid down standards for armed conflicts in De Jure Belli at Pacis (On the Law of War and Peace). Other prominent pre-Geneva convention European thinkers were Emmerich de Vattel in his Le Droit Le Gens and Alberto Gentili in his work De Jure Belli ((Policastri and Stone, Supra note 8 at 3)). The contemporary law of war began its development with Henry Dunant, best known as founder of the International Red Cross ((C. Moorehead, Dunant’s Dream, (1998).)). The codifications of the laws of war materialised at the Hague Conferences in 1899 and 1907 ((The Centennial of the First International Peace Conference (ed. F. Kalshoven), The Hague, 2000)). The conventions adopted then are still visible as the basis for the laws of today.

Now coming briefly to the Geneva conventions of which a few fundamental rules have been mentioned above during the comparative study, the First Geneva Convention deals primarily with the wounded and sick on land and says that members of armed forces and organised militias “shall be respected and protected at all costs ((Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949, (July 25, 2013, 8:09 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=4825657B0C7E6BF0C12563CD002D6B0B&action=openDocument)).”

The Second Geneva convention is very similar to the first one except that it deals with the sick shipwrecked member of armed forces at sea ((Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949, (July 25, 2013, 8:22 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=2F5AA9B07AB61934C12563CD002D6B25&action=openDocument)).

The Third Convention concerns Prisoners of War and lays down a comprehensive code for the humane treatment of prisoners and also establishes an elaborate definition for the term “prisoner” in Article 4.  It also enunciates who is a “combatant” in an armed conflict. This definition covers members of the armed forces, members of volunteer services, including those of organised resistance provided they fulfil the following four conditions:

(a) Being commanded by a person responsible for his subordinates

(b) Having a fixed distinctive sign recognisable at a distance;

(c) Carrying arms openly;

(d) Conducting operations in accordance with the laws and customs of war ((Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, (July 25, 2013, 8:30 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=77CB9983BE01D004C12563CD002D6B3E&action=openDocument)).

Hence, upon a reading of this convention, if the resistance group itself is not following the laws of war and conducting acts like killing of civilians, then it cannot avail the protection of the Third Geneva Convention.

The Fourth Convention takes upon the task of codifying the laws for the protection of civilians during wartime. It is invoked as soon as the war or occupation starts and rests at the general close of military operations ((Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, (July 25, 2013, 8:35 PM), http://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=AE2D398352C5B028C12563CD002D6B5C&action=openDocument)).

Since the Geneva conventions, one of the main deterrents to war crimes and one of the reasons that International Humanitarian Law is followed is due to the principle of reciprocity ((Evans, Supra note 7 at 3  )). This could be illustrated by the fact that armies tend to no longer hold cities to siege as they used to as late as in the American civil war (1861-1865) ((Kennedy Hickman, American Civil War: Siege of Vicksburg, (July 25, 2013, 10:45 PM), http://militaryhistory.about.com/od/CivilWarWest1863/p/American-Civil-War-Siege-Of-Vicksburg.htm))and this was occurring in a country as advanced and civilised as America. Such tactics are not used despite the fact that they may and probably will lead to significant tactical and military gains, because nobody wants their own citizens starved and shelled, hence states refrain from doing so under an assumption of reciprocity. Also having to build large detainee and prison camps is much more expensive and time consuming than simply shooting any prisoners of war. However once again we can see that this is not done because a state does not want its soldiers to suffer a similar fate and umberrima fide believes that the opposing state will reciprocate this adherence to the rules of war.

Therefore in conclusion, the author would like to submit that International Humanitarian Law is truly an International form of law as it has been customarily adhered to in many parts of the world even before the signing of the Geneva Conventions. It is also a universal and ageless discipline of law seeing that is has effectively been in use since times immemorial.

A glimpse of Lassa Oppenheim ’s Definition of International Law

Author: Evangelia Linaki, Research Associate

During the course of time, there have been many distinguished personae, such as Hugo Grotius, Jeremy Bentham and Hersch Lauterpacht, who not only contributed to the development of legal methodology and theory of International Law but also put a great deal of effort to define International Law.Nevertheless, herein the attention will be dedicated to Lassa Oppenheim and an effort will be made for a concise overview of his thoughts on the nature of International Law to be provided.

Lassa Francis Laurence Oppenheim ((Beatson, Jack & Zimmermann Reinhard (eds.), Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain, at 583-585 (2004).))was born near Frankfurt, Germany in 1858 and died in Cambridge, the United Kingdom in 1919. Born to a wealthy Jewish father, he had the opportunity to receive extensive education, as in 1878 he started studying not only law with the then most prominent German lawyers but also metaphysics, forensic medicine and psychology.It is quite admirable that in 1889, despite the fact that he was a Jew and could have suffered the discrimination most of the Jewish underwent in the academic environment during that time, he was appointed extraordinarius professor in Freiburg, Germany with criminal law as his major subject. However, as he was aiming for a full professorship, he moved to Basle, Switzerland, where he accomplished his ambition in 1893.Due to unknown reasons, though, Oppenheim decided to move to London, the United Kingdom in 1895 where he started studying International Law. Quickly becoming an expertise in the field, he started teaching, whereas especially after his naturalisation in 1900 he kept providing the Foreign Office with legal advice. The turning point in his career was the publication of his treatise named “International Law” in 1905-1906, which led to his appointment as a Whewell Professor at Cambridge University from 1908 until 1919. His famous treatise, although it has undergone major changes, has succeeded in remaining relevant, since it has been republished by Oppenheim’s successors nine times so far.

His treatise International Law begins with the definition of the Law of Nations or International Law. It has to be pointed out that herein the second edition of the treatise is relied upon and not one of the latest, since Oppenheim was in charge of the editing for the first three editions ((See id., at 585.)). In view of the fact that this piece of work has undergone major changes in the next editions, there is a need to stay close to the ones on which the creator had still a say.

According to Oppenheim, “Law of Nations or International Law (Droit des gens, Völkerrecht) is the name for the body of customary and conventional rules which are considered legallybinding by civilised States in their intercourse with each other ((Oppenheim, Lassa, International Law: A Treatise, Vol. I, at 3 (1912).)).” It is interesting that right after the definition he goes on to distinguish among universal, general and particular International Law, in which case the first is binding upon all civilised States without exception, the second is binding upon a considerable number of States including the leading powers and the last one refers only to a small number of States ((See id.)). Moreover, he accepts the existing distinction between privateand public International Law, highlighting that only the latter represents the Law of Nations, which is to be observed by States only and not individuals ((See id., at 4.)).

As it was highly contested whether International Law is truly law and, thus, legally binding, Oppenheim tries through defining the notion of “law” to prove that International Law itself is to be abided by. Before providing the definition of law, he dismisses the argument that there has to be a sovereign political authority which sets and enforces rules for human conduct ((See id., at 5.)). According to his train of thought, he first points out that on the international plane it is impossible to have a central authority over and above sovereign States, a fact which does not,however, deprive International Law of its legally binding character ((See id.)). According to him, those who claim the opposite imply that a body of rules which refers only to written law and that customary law is applied by courts of a State in the same way as the written one ((See id.)). However, he does not agree with such way of thinking since domestic courts do not have law-giving power and, thus, when they apply customary law, it is presumed that such law has already been recognised as such by States themselves ((See id.)).

He then goes on to draw a distinction between morality and law, claiming that the former refers only to one’s conscience, whereas the latter, though referring to one’s conscience, will in the end have to be enforced by an external power ((See id., at 6.)). Another remark consists of the dismissal of the need of the existence of a law-giving authority to ascertain the law, since, as in the primitive societies it was the community who endorsed or rejected a rule of law without laying down guidelines, in contemporary times law can also be of unwritten and customary nature ((See id., at 7-8.)).

Based on such assumptions, Oppenheim identifies three essential characteristics of law: the existence of a community, a body of rules for human conduct and their enforcement by an external power ((See id., at 8.)). As a subsequent step, he turns to examine whether these elements are present on the international plane. As to whether there exists a universal community of States, he strives to identify the nature of a community as a body of individuals who are generally dependent upon each other through the existence of common interests ((See id., at 10.)). According to Oppenheim, a community can refer not only to individuals but also to States and the existence of an international community should not be contested, in view of the fact that the civilised States are not only interconnected by common Christian religious ideas but also by common interests in fundamental fields, such as trade, agriculture and industry ((See id., at 11.)). It should be noted that the existence of the Family of Nations is fundamental for the existence and further development of International Law, although its composition seems to be static and limited to “civilised” States of Europe and the Americas ((Kingsbury, Benedict, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, 13 EJIL 401, at 409-412 (2002).)).

With regard to the second criterion, Oppenheim thinks that this can be settled with relatively no difficulty since an abundance of customary rules have been evolved, whereas written rules are more and more often created and steps have been taken towards the central organisation of the international community ((See Oppenheim, supra note 3, at 12.)). As far as the third condition is concerned, the mere inexistence of a central external authority with the mandate to enforce rules should not be considered as a defect, rather this criterion should be regarded as met since States themselves ensure the necessary enforcement through a self-help and intervention system by supporting those experiencing the effects of a rule violation ((See id., at 13-14.)). Within this context, it should be noted that the balance of power constitutes a prerequisite for the existence of International Law, since it is the mechanism through which the respect of International Law is guaranteed ((Kingsbury, supra note 15, at 16-21.)).

A basic notion within this context seems to be that of “common consent”. Once again Oppenheim starts from the community level, at which the majority of the community members by consenting on a specific legal issue at a given time create law which in turn endures time and binds next generations ((See id., at 16.)). Nevertheless, the international community’s composition does not alter so often and new States have to be admitted in the Family of Nations through recognition ((See id., at 17.)). Within this framework, the common practice that States have followed in response to a certain issue and their belief in the need for binding rules shows their consent to the creation of customary rules ((See id., at 17-18.)). According to Oppenheim, it is not necessary to prove that each State has concurred to the creation of a rule, but each one of them is to be bound by all settled rules with no possibility to deny compliance with specific rules in the future ((See id., at 18-19.)).

It should also be highlighted that, according to Oppenheim’s definition, only custom and treaties make up of the body of International Law. On the one hand, custom can be ascertained by State practice and the conviction of States that such practice is legally binding ((See id., at 22-23.)). On the other hand, the only treaties that should be taken into account when referring to International Law are those called by Oppenheim “law-making treaties”, which lay down new rules, confirm, define or abolish existing customary or other treaty rules ((See id., at 23-24.)).

In view of the overview of Oppenheim’s definition of International Law, it has been acknowledged that Oppenheim’s International Law “still is the outstanding and most frequently employed systematic treatise on the subject ((Nussbaum, Arthur, A Concise History of the Law of Nations, at 247 (1954).)),” that “the original book reveals only small traces of a national standpoint”and “its success is rather due to a clear systematic approach underlying Oppenheim’s legal theory ((Schmoeckel, Mathias, The Internationalist as a Scientist and Herald: Lassa Oppenheim, 11 EJIL 699, at 701 (2000).)).” Nevertheless, it has also been mentioned that the whole treatise relies only on very few examples of state practice, seems to simply reject arguments with regard to natural law and the empirical data is largely anecdotal ((Reisman, Michael W., Lassa Oppenheim’s Nine Lives, 19 Yale J. Int’l L. 255, at 264-265 (1994).)). Moreover, it has been pointed out that Oppenheim treats customary law as a system of clearly defined rules, whereas in reality the common law system is inherently vague ((Craven, Matthew, Fitzmaurice, Malgosia, Vogiatzi, Maria,Time, History and International Law, at 96 (2007).)).

What it could also be pointed out is that Oppenheim’s definition of International Law refers to States only, excluding the possibility for any other international actor, such as individuals and international organisations, to be bound by such body of rules. On the other hand, the rules to be observed derive only from custom and treaty law, thus, ruling out the possibility of extracting legally binding rules from other sources, such as courts judgments or soft law instruments. However, such remarks should not be considered as real defects of Oppenheim’s definition if one embarks on contextual speculations in a sense that international organisations were not a common feature of Oppenheim’s time, no rules referring specifically to individuals were present back then and no international court, as today’s International Court of Justice, existed upon whose judgments one could dwell and extract rules of law. What is certain is that Oppenheim’s treatise “gave a comprehensive, and yet detailed, overview of international law” ((Beatson& Zimmermann, supra note 1, at 586.))and constitutes one of the best introductions to International Law.