Specially-Affected States and the Formation of Custom

Heller, Kevin Jon

doi:10.1017/ajil.2018.22

Cited by 38 publications

(4 citation statements)

References 18 publications

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“…15 Furthermore, opinio juris is required, which is defined as the conviction that a rule has binding legal effects for the "specially affected states." 16 In certain cases, non-binding instruments that have widespread support from states can serve as evidence of customary international law. 17 One such non-binding instrument is the United Nations Declaration on the Rights on Indigenous Peoples.…”

Section: Free Prior and Informed Consent For Extractive Legislation A...mentioning

confidence: 99%

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

Guapizaca Jiménez

2024

AJIL Unbound

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Free, prior, and informed consent of Indigenous peoples (prior consent) is a principle of international law that requires states to consult and obtain the consent of Indigenous peoples before projects or legislation that may affect their rights are approved. This principle is applicable to land-based mining projects unfolding in lands titled to Indigenous peoples. The extractive industry's extension to the deep sea is imminent, with the promising but controversial prospect of critical minerals essential for the transition to renewable energy. The application of prior consent in deep seabed mining is open to question because these projects are being developed beyond Indigenous peoples’ territories and the impacts on their rights would primarily manifest indirectly. In this essay, I focus on the current plans to approve the new International Seabed Authority (ISA) mining code and to award grant exploration and exploitation contracts to mining companies. I put forward three arguments for why the consent principle applies to deep seabed mining projects. First, despite being developed outside lands titled to Indigenous peoples, mining projects can affect the rights of Indigenous peoples, and therefore, their consent is required. Second, the prior consent principle is applicable to deep seabed mining as a matter of treaty law under the International Labour Organization Indigenous and Tribal Peoples Convention No. 169. Finally, prior consent has the potential to qualify as a rule of international customary law applicable to the “specially affected states” with Indigenous populations under the United Nations Declaration on the Rights of Indigenous Peoples.

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Section: Free Prior and Informed Consent For Extractive Legislation A...mentioning

confidence: 99%

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

Guapizaca Jiménez

2024

AJIL Unbound

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“…In this process, UN agencies, particularly the ILC, have an important role to play, both in drafting treaties and in facilitating the formation of consensus. In addition, adjudging states that experience sea-level rise where maritime features are particularly threatened, as specially affected states, may help enhance the significance of their practice in the identification of customary international law, although the actual meaning and effects of the doctrine are still subject to contested opinions (Heller, 2018;Yeini, 2018).…”

Section: A Balanced Path Under the "Community" Initiativementioning

confidence: 99%

Mitigating effects of sea-level rise on maritime features through the international law-making process in the Law of the Sea

Chen

2022

Front. Mar. Sci.

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Sea-level rise is not only causing physical damage to maritime features but also posing challenges to the law of the sea. The United Nations Convention on the Law of the Sea lends legal significance to the relative position of the land and the sea. However, the ecological situation of maritime features and rising sea levels are changing these factors and placing the legal status of these features at risk of reclassification. This implies that islands with full rights may lose their exclusive economic zones, continental shelves, and even territorial seas due to sea-level rise. In addition to the physical enhancement of maritime features, legal solutions, as a more sustainable and affordable approach, are expected to contribute to mitigating adverse impacts of sea-level rise. However, most discussions are limited to the issue of baselines and maritime boundaries, while the legal status of maritime features has not received sufficient attention. In this paper, we examine in detail the limitations of existing laws, particularly the Convention, and present substantive and procedural options for the establishment of new rules to mitigate the effects of sea-level rise. The legal impacts of sea-level rise on maritime features can be categorized into three different aspects: dynamics of the relative position of land and sea, ecological degradation, and human interventions. It was found that the current international rules are insufficiently flexible in addressing the challenges posed by sea-level rise; thus, international law-making is therefore considered necessary. As far as the proposed rule is concerned, either legally “sustaining” the status of maritime features or allowing reclassification elicits complex issues, particularly considering the close connection between land and maritime zones under the law of the sea. Moreover, attempts to achieve new rules by applying any procedural option for international law-making in isolation may be impractical. In light of this, we explore a viable approach to the progressive development of relevant legal regimes, following the international community’s optimal consensus and shared interests.

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“…As Heller argued in a recent paper, if we take the 'specially affected states' doctrine seriously, we need to particularly consider not only states that engage in a practice but also 'states that are affected by a practice in a manner that other states are not'. 148 Yet, these smaller states in the Global South most affected by a potentially developing lawfulness of targeted killing are also the ones least able to speak, particularly in opposition to hegemonic actors. 149 Some economically disadvantaged states even lack the bureaucratic resources to monitor practices and publish their legal positions.…”

Section: The Political Contextmentioning

confidence: 99%

‘Targeted killing’ and the lack of acquiescence

Schweiger

2019

Leiden Journal of International Law

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Over the last decade, the concept targeted killing has received much attention in debates on the customary interpretation of the right to self-defence, particularly in the context of practices such as US armed drone attacks. In these debates, government silence has often been invoked as acquiescence to the jus ad bellum aspects of targeted killing. Focusing on the question of state silence on targeted killing practices by the Israeli and US governments in recent years, this article investigates over 900 UN Security Council and Human Rights Council debates and argues that there has been no tacit consent to targeted killing. The analysis firstly shows that the majority of states have condemned Israeli targeted killing practices and have raised concerns about armed drone attacks, while falling short of directly protesting against US practices. The article, secondly, applies the customary international law requirements for acquiescence and challenges the idea that silence on US armed drone attacks can be understood as a legal stance towards targeted killing. The article, finally, investigates the political context and engages with alternative interpretations of silence. Contextualizing acts of protest and lack of protest within an asymmetrical political context, the article posits that the invocation of silence as acquiescence in the case of targeted killing is problematic and risks complicity of legal knowledge production with the violence of hegemonic actors.

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Specially-Affected States and the Formation of Custom

Cited by 38 publications

References 18 publications

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

Mitigating effects of sea-level rise on maritime features through the international law-making process in the Law of the Sea

‘Targeted killing’ and the lack of acquiescence

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