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Samuli Haataja and Afshin Akhtar-Khavari

This article considers the Stuxnet cyberattack in the context of international law on the use of force below the armed attack threshold. With a focus on the concept of ‘force’ within Article 2(4) of the UN Charter, it is argued that international law embodies an anthropocentric and materialist view of violence. Violence, as traditionally understood in the context of Article 2(4), involves a state using kinetic weapons to damage or destroy physical property, or injure or kill human beings within another state. Using the Stuxnet incident as a case study and as a tool of critique, it is argued that the law's one-dimensional conception of violence, which focuses on physical damage, limits its ability to recognise the non-material harm Stuxnet caused to countless virtual entities and processes. As such, the law does not adequately account for the non-material ways in which states that are increasingly dependent on information and communication technologies can be harmed. As a means of overcoming the law's limited conception of violence, this article draws on Luciano Floridi's information ethics. This is a theory that extends its ethical concern beyond the material world to include all entities, whether natural or artificial, physical or virtual. In this article it is used both to critique the law's anthropocentrism and materialism and to provide an alternative account of the harm that Stuxnet caused.

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Michail Vagias

Can a state exercise criminal jurisdiction today for World War II war crimes, on the basis of a universal jurisdiction statute adopted in 1991? This is a question of retroactive state criminal jurisdiction, that is, the exercise of criminal jurisdiction on the basis of rules adopted subsequently to the time of the commission of the offence. The article assesses the complications arising from the intersection of time, state criminal jurisdiction and human rights under international law from the perspectives of the principle of legality, extradition law and the duty to prosecute past human rights violations. It concludes that in principle retroactive state criminal jurisdiction is permissible under international law. However, domestic legal standards may well vary and preclude it so as to offer a higher standard of protection for the accused, provided that they remain compatible with a state's eventual treaty-based duty to prosecute.

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Sacha Garben

Fundamental rights have been, and continue to be, pivotal in defining the relationship between the international, European Union (EU) and national legal orders. However, the position of fundamental social rights in this respect has remained slightly overlooked. This is all the more remarkable considering that over the past decade, a number of high-profile frictions have appeared between national, EU and international social rights, particularly concerning the European Court of Justice's case law in the Viking and Laval cases and as regards the austerity measures taken in the context of the eurozone crisis. The present article maps these frictions, considers to what extent they constitute problematic conflicts that challenge the international rule of law, and discusses the possibilities for resolving them. It is contended that it should not be necessary for the EU to accede to the European Social Charter or International Labour Organization Conventions, which would pose problems for the autonomy of the EU legal order. Instead, it is argued first that most problems can be avoided by underlining the individual and collective responsibility of the Member States more strongly; and second that the role of the judiciary, and of fundamental rights more generally, should be reconsidered with care to allow sufficient space for the democratic process to define the appropriate level of social protection in relation to other societal values and rights, including economic ones.

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Melissa Conway

This paper proposes a hierarchy of the modes of liability as a solution to the problem of inconsistency in international criminal law sentencing. By assessing the blameworthiness of each mode of liability and ordering them accordingly, the hierarchy makes it possible to individualise sentences within a standardised framework. This will improve adherence to the fair trial principles of legal certainty and proportionality. The paper also sets to one side the issue of principal/accessorial liability. In doing so, it avoids rigid distinctions and allows a plain text evaluation of the modes of liability. As a result, liability for ‘masterminds’ under the hierarchy is attributed using Article 25(3)(d) Rome Statute, rather than the textually unsupported ‘control over the crime’ theory.

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Edited by Richard Clements and Ya Lan Chang

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Clara Chapdelaine-Feliciati

This article engages in a semiotic analysis of the UN Convention on the Rights of the Child (CRC) to assess whether it addresses the issue of gendercide, more specifically female infanticide. It applies the science of semiotics and the doctrine of ‘significs’ devised by Victoria Welby to deconstruct the sense, meaning and significance of the phrasing of rights in the CRC. To begin, it examines the ‘sense’ of the terminology employed in the CRC, and studies the travaux préparatoires of the Convention which portray the deliberations of its drafters to uncover their ‘meaning-intention’. It thereafter explores the ‘significance’ of the wording of rights in the CRC as regards female infanticide. Finally, it applies the novel doctrine of ‘semioethics’ developed by Susan Petrilli and Augusto Ponzio to suggest amendments to the CRC for the purpose of strengthening the protection of infant girls under international law.

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Noam Zamir

The topic of classification of armed conflicts between non-state groups and occupying states in cases of belligerent occupation has not received enough scholarly attention despite its possible practical importance and the fact that this issue still requires further normative clarification. This paper seeks to fill this gap. The paper focuses on the different possible ways that such armed conflicts can be classified. Among other things, the paper analyses Article 1(4) of Additional Protocol I (API) and examines its customary status. The paper also analyses how to determine which armed groups should be regarded as acting on behalf of the occupied people and suggests a novel way to interpret the ‘belonging’ requirement of Article 4A(2) of the Third Geneva Convention. Finally, the paper provides an in-depth analysis of the argument that non-state armed groups, in the context of belligerent occupation, should be considered parties to an international armed conflict even when the occupying state is not a party to API and/or refuses to acknowledge the non-state group as a party to an international armed conflict.

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Collins C Ajibo and Ndubisi A Nwafor

The emergence of market and data exclusivity standards for new pharmaceuticals and biologics in such mega trade agreements as the TPPA, CETA and perhaps the TTIPA, will destabilize the inherent flexibilities relied upon for the maintenance of public health. The TPPA is particularly notable for provisions on data exclusivity for biologics, with the CETA subtly incorporating the same, effectively delaying the early entry of follow-on biosimilars despite the difficulties involved in recreation. Although exclusivity is required in recognition of the tremendous efforts involved in originating data as well as the value of the data, a trade-off is necessitated, especially for the poorer countries such as the Sub-Saharan African (SSA) countries. Consequently, the SSA countries’ efforts to safeguard future public health imperatives may have to be guided by the following. Firstly, market and data exclusivity provisions in future agreement should be consistent with and not distortive of public health flexibilities. Secondly, there should be monitoring, data collection, and impact assessment of market and data exclusivity provisions on access to medicines before a conclusion of future agreements. Thirdly, an investor-state dispute settlement (ISDS) provision should not be emasculative of public health imperatives. Fourthly, focus should be centred on capacity building that fosters skill reservoirs necessary for the development of pharmaceutical manufacturing capacities.

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Matthew Kennedy

The EU regulations on geographical indications for wines establish a scheme that provides GI-like protection for an assortment of non-geographical words, phrases and initials known as ‘traditional terms’. These terms may only be used with wines with a GI according to specified conditions and they constitute an absolute ground for refusal of a trade mark application. The European Union has shown flexibility in allowing identical terms to be used with different wines from different EU member states and from third countries that conclude a bilateral wine agreement, but it has ceased to consider applications for recognition of the same terms from other countries. The EU scheme is inconsistent with WTO obligations, not in TRIPS but rather in the TBT Agreement and GATT 1994, because it is discriminatory and administered in an unreasonable manner, and it may also create an unnecessary obstacle to trade. The United Kingdom may decide to abandon this scheme after Brexit.