Extractivism as a constitutional bind: a material analysis

Migrants to Japan have historically received few legal protections under domestic law. Without domestic resources to draw on when fighting discrimination, foreigners and their advocates have drawn extensively, and successfully, on a wide range of international social and legal norms. Specifically, three interrelated types of international norms and laws have been important. First, general, diffuse, non-codified social norms about what it means to be a modern state have been critical in shaping arguments about immigration and immigrant rights. Second, international legal norms, largely written into conventions signed by Japan, have had a direct impact by causing government changes in domestic laws to comply with international legal obligations. Finally, international law has had an indirect, or less direct, impact when lawyers and judges have used various unratified conventions, declarations, and acts of international organisations to interpret domestic law in favour of migrants, even when they do not actually find a practice illegal based on international law. These three types of international legal and social norms have been critical in extending rights to two groups of foreigners in Japan. Most of the Koreans now living in Japan immigrated, or were forced to immigrate, after the 1910 Japanese annexation of Korea. Koreans were then made citizens, but after the Second World War they were classified as aliens and stripped of their Japanese citizenship. Until the 1965 peace treaty between Korea and Japan, Koreans lived in a state of limbo with no official status and with few remedies for discrimination against them.

INTRODUCTION. The issue of implementation of international legal norms is extensive and multifaceted, and most importantly, it is always relevant. Despite the long-term development of questions of the operation of international law in national legal systems, the issue remains in the focus of researchers. Russian scholarship is quite rich in research of this area, and the practice of Russian courts is also rich in examples of the use and application of international law. Their presentation at the international level can significantly enrich the basis for analytical comparisons with the practice of other countries and further developments in this area. Nevertheless, the research of Russian authors is not well represented in the international legal discourse: the appearance of works by our compatriots in foreign editions is not so frequent. That is why monographic research papers by Russian authors published in major foreign publishing houses is of great interest to both Russian and foreign readers. At the same time, such publications implicitly set a high bar for expectations from their content.MATERIALS AND METHODS. The article presents a critical understanding of the monograph of Professor S. Marochkin, published in 2019 by one of the world's oldest publishers Brill-Nijhoff (Leiden, the Netherlands) – "the Operation of international law in the Russian legal system. Changing approach". The article highlights key elements of the study. Special attention is paid to the reflections and conclusions of the author of the monograph on the theory of international law. The analysis of the research is based on general and private scientific methods.RESEARCH RESULTS. Th reviewed monograph presents to our attention a wide range of Soviet and Russian general theoretical, discipline-specific and international legal doctrines. The work covers a significant period of theoretical, normative, institutional and practical development of the issue of implementation of international legal norms – more than three decades. This corresponds to the goal set out in the study – to show a changing approach to the issue in scholarship, judicial practice, and rule-making. The monograph consistently exposes the author's idea about the essence of national implementation of the principles and norms of international law, domestic legal and institutional mechanisms for such implementation, assessment and generalization of the practice of Russian courts related to the appeal to international law and the application of international legal norms. At the same time the monograph begs some questions: 1) on the author's understanding of the content of the concerned concepts in the theory of international law; 2) on the methods of law-formation in the national and international legal system; 3) on the constituent elements of the international legal system; 4) on the meaning and nature of self-executing international legal norms; 5) on the problem of international legal personality; 6) on the author's view of the state of modern legal scholarship in Russia.DISCUSSION AND CONCLUSIONS. Russianscholarship, as well as practice in the law-making, law-application and law-enforcement have gone a long way in mastering and ensuring the constitutional provision on the principles and norms of international law and international treaties of the Russian Federation as an integral part of the national legal system. The reviewed book emphasizes the importance of theoretical justification and competent application of theoretical theses on the place and role of norms and sources of international law within national jurisdiction, on the correlation of the legal force of international and domestic norms. Indeed, both legal scholars and public institutions that directly address questions about the operation of international legal norms need to have a complete understanding about the functioning of the regulatory and institutional mechanism for implementation of international legal obligations in the domestic sphere. In this light, it is reasonable to attach particular importance to the role of the judiciary branch in appealing to and applying international law. The research paper consistently demonstrates changes in the practice and approaches to the perception of international law over time with ups and downs in the estimation of its significance and role in the country's legal order. Although the study claims to offer an exhaustive fundamental analysis of all the problems raised, the author still makes some theoretical mistakes that complicate the correct understanding of his analytical work. Thereby the author challenges himself to continue the research of the issue in order to untangle some knots of doctrinal contradictions.

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

The author of the article analyses the legal status of a child during armed conflict. The above concept is considered through the allocation of three components, namely: ‘legal status of a person’, “child” and “armed conflict”. Attention is paid to the opinions of various legal scholars in this area. The author offers his own definition of the concept of ‘legal status of a child during an armed conflict’. In the article, the author focuses on the role and place of the legal status of the child during armed conflict at the level of international legal instruments. In particular, the author examines the international legal norms enshrined in the Universal Declaration of Human Rights, the Declaration of the Rights of the Child, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, etc. These norms are specific international legal norms that do not establish clear rights and obligations, but only indicate the general direction of behaviour of subjects of international law. Such international legal norms do not specify who in each individual state should determine and implement appropriate mechanisms to ensure the legal status of the child during armed conflict. The above-mentioned international legal norms define the general direction of behaviour of subjects of international law regarding the legal status of the child during armed conflict – all participants unanimously agree that the child during armed conflict has a special status and, accordingly, should have special protection. National legislation in this area is formed on the basis of international legal norms. The author examines the national legislation, namely the Law of Ukraine ‘On Protection of Childhood’ and the Resolution of the Cabinet of Ministers of Ukraine ‘On Approval of the Procedure for Granting the Status of a Child Affected by Military Operations and Armed Conflicts’. Key words: child, legal status, armed conflict, international legal norms.

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

Since the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.

In the mid-twentieth century, the jurist Hans Kelsen envisaged a new legal and political international order. His global thinking revolved around his idea of a ‘world state’ as a means to preserve peace. The article contends that Kelsen’s ideas on global legal and political order and a world state in the 1940s drew on his intellectual biography and on his earlier theoretical writings on order in the national scale. Another important source for understanding Kelsen’s global thinking is his critique of the Chicago World Constitution Draft, a mid-century project which proposed the establishment of a federal world state. As this study shows, Kelsen’s global thinking is characterised by a multi-scalar logic and an emphasis on positive law as the foundation of political and legal order. These elements render his ideas distinct in the historical trajectory of modern global thought, and deserve the attention of global historians today.

The relevance of this research is driven by the rapid development of information technologies and global digitalization processes, which have led to the emergence of virtual space as a new environment for social interactions. Virtual space has become an integral part of modern life, influencing various areas of society. However, despite its growing importance, the existing legal frameworks have not fully adapted to the specific characteristics of virtual space, such as its anonymity, global nature, and dynamic structure. The purpose of this article is to examine the peculiarities of legal regulation in virtual space and to propose effective mechanisms to ensure legal governance in the context of digitalization. This study addresses the gaps in the current legal system and explores ways to adapt legal norms to meet the demands of the digital environment. The study is particularly timely, given the increasing impact of digital technologies on social relations and the need for appropriate legal frameworks to regulate interactions within virtual space. The research methodology is based on an analysis of recent studies and publications, highlighting the growing interest of scholars in the legal regulation of digital technologies and virtual interactions. While there is a substantial body of work on virtual assets and digital rights, the issue of comprehensive legal regulation of virtual space remains underexplored. This article fills that gap by focusing on the development of cross-sectoral legal mechanisms and emphasizing the need for harmonization with international standards. The interdisciplinary nature of virtual space requires legal frameworks that can address the complexity of digital interactions, taking into account both national and international legal norms. The findings of the study show that for effective regulation of virtual space, it is essential to adapt existing legal mechanisms to the specific conditions of the digital environment. This includes the integration of international legal norms, the development of self-regulation tools, and the creation of a comprehensive legal system that can manage social relations in virtual space. The practical value of the article lies in its analysis of the challenges facing legal regulation in virtual space and the solutions proposed for improving the effectiveness of legal mechanisms. These recommendations can be used by policymakers and legal practitioners to develop a more robust regulatory framework for virtual interactions. Only through a comprehensive and flexible approach to regulation can legal systems ensure the orderly conduct of social relations in virtual space and protect the rights of individuals in the digital age.

It is indicated that in the modern conditions of globalization and European integration, the study of the interaction of constitutional and international law acquires special relevance. Constitutional law, being a fundamental branch of national law, is increasingly influenced by international legal norms and standards, which makes it necessary to rethink traditional approaches to understanding its place in the legal system. The article provides a comprehensive theoretical and legal analysis of the process of constitutionalization of international law and the formation of international constitutional law as an independent subfield. The main trends of the transformation of international law in the conditions of globalization are studied, in particular: increasing the role of non-state actors, rethinking the concept of state sovereignty, deepening the interaction of international and national law, forming a hierarchical structure of international legal norms. The concept of common values of the world community as a fundamental basis of the constitutionalization of international law is analyzed. Special attention is paid to human rights as a component of international constitutional law and their subsidiary function in relation to national legal systems. The phenomenon of transnational constitutionalism and its influence on the formation of a new global legal order are considered. The problem of the transformation of the subject composition of international law and the transition from the traditional theory of sovereignty to multi-level constitutionalism is studied. The need to develop a new methodology for the study of the international legal order, which combines the approaches of constitutional, administrative and international law, is substantiated. On the basis of the conducted analysis, the possibility of distinguishing international constitutional law as an independent sub­branch of international law is argued, given the uniformity of legal regulation and the formation of a specific methodology. Particular attention is paid to the relevance of the constitutional and legal dimension of international cooperation in countering aggression, terrorism and genocide in the context of russian aggression against Ukraine.

INTORDUCTION. The International Labour Organization (ILO) is a specialized Agency of the United Nations, established in 1919 on the basis of the Treaty of Versailles. The competence of this Organization, among other things, includes standard-setting activities for the development of labor standards at the international level. In 2019, the ILO celebrates 100 years since its creation. This article analyzes the current activities of the Organization to improve the existing international legal norms, as well as the prospects for the development of rulemaking planned for the upcoming years. In particular, special attention is paid to a set of measures aimed at solving urgent problems affecting profound changes in the sphere of labor at the international level. Among the tasks that the ILO plans to give priority to in the nearest future are the finalization and unification of the international legal norms adopted by the Organization, as well as the development of new conventions aimed at improving the international legal regulation of labor.MATERIALS AND METHODS. Present study is based on the analysis of the current legal framework of the Organization, aimed at improving the international legal norms on labor. In addition, the works of Russian and foreign scientists on the chosen subject were used. General scientific and special methods of cognition, including comparative legal and formal legal, are used as a method of research.RESEARCH RESULTS. The authors' analysis of the ILO's work on improving international legal norms on labour, showed that, at the present time clearly indicated the intention of the Organization to organize homogeneous in its content of norms regulating the issues of occupational safety, hygiene and security in the workplace. At the same time, the ILO has set itself the task of updating existing norms and abolishing those that are largely outdated and ineffective. In addition, the Organization's activities in the upcoming years will also focus on the audit of outdated standards and other regulatory issues. Also, taking into account statistical indicators, according to the authors, there is an urgent need for the adoption of a new ILO Convention aimed at combating violence and harassment in the workplace.DISCUSSION AND CONCLUSIONS. In accordance with the objectives and changes in the international legal regulation of labour relations, the ILO Global Commission on the Future of Work has identified the most acute problems and challenges, the overcoming of which will open up new prospects for future generations in the field of labour, namely: the revision of existing international labour standards, the abolition of obsolete, the codification of homogeneous rules governing occupational safety, security and hygiene. Great importance is also given to the improvement and progressive development of international labour law. In this regard, the authors believe that there is a need for the ILO to develop and adopt a Convention to combat violence and harassment in the workplace. The new international legal instrument should provide mechanisms for protection against violence and harassment, which could give greater weight to the problem by covering all workers and all forms of violence and harassment, and by addressing the issue in a comprehensive and integrated manner. The drafting and adoption of an international Treaty on the subject would be extremely important, since violence and harassment were unacceptable and were the opposite of the concept of "decent work" adopted by the ILO in 1999.

The advent of the principle of complementarity under the Statute of the International Criminal Court has shifted the focus on prosecuting international crimes to the national courts. One of the potential difficulties in this shift is that there is no uniform standard for incorporating and applying international legal norms in the national systems. This article examines how two very distinct national courts – the state Court of Bosnia and Herzegovina and the military courts of the Democratic Republic of Congo – have implemented and applied international legal norms. Despite the differences between these particular courts in the methods of implementation and application, international courts have had an impact on the national systems that have helped the latter to follow international criminal legal norms.

The purpose of the work of the RtoP & Indigenous Peoples Working Group is to offer recommendations for building regional resilience to prevent atrocity crimes in Latin America. Indigenous peoples have been the communities most vulnerable to atrocity crimes in the region's history, and are the focus of this project. Following the guidance of the UN Framework of Analysis for Atrocity Crimes, approaches to atrocity crime prevention pioneered in earlier scholarship have been tailored here to reflect and focus upon the variety of specific circumstances that have given rise to past atrocity crimes targeting indigenous peoples in Latin America. This starting-point is inspired by the UN Framework’s emphasis on the need for flexibility and openness regarding the identification of risk factors and the importance of situating such factors “within a broader political, contextual, historical and cultural analysis. This document aims to identify elements of indigenous peoples’ histories and circumstances that necessitate adaptations of the conventional atrocity crime prevention framework, including the distinctive body of regional and international legal norms that pertain to them. Further, it outlines the extent and characteristics of atrocity crimes as they are currently interpreted in international law, in order to establish that non-state actors are also potential perpetrators of atrocity crimes, and therefore appropriate subjects of the Final Report’s recommendations.

Enforced disappearance in Latin America is simultaneously an ongoing reality; an emblematic crime of past authoritarian regimes, and a significant component of the human toll of internal armed conflict in some Central American and Andean countries. Recent accountability developments in Latin America and beyond have called on forensic science to trace, unearth and restore the remains of the disappeared: as part of a judicial process, or as a humanitarian imperative in its own right. Some consider that a distinctive Latin American approach to forensic work as human rights work has emerged, with experts from the region increasingly called upon to assist international tribunals or perform exhumations of mass graves. Technical-scientific forensic interventions are however only part of the story. Efforts to bring perpetrators to justice require exploration of the intersection between international legal norms, regional human rights systems, and domestic criminal justice. While Latin America was a pioneer in originating a regional Convention against Enforced Disappearance, and the Inter-American Human Rights system has been active around the issue since the 1970s, the tensions inherent in retrospective application of those principles to historic crimes have been addressed in varied ways around the region. Activists, relatives’ associations, and cause lawyers have been key actors in navigating domestic impunity, reinterpreting domestic amnesty legislation, and attempting to establish individual accountability for collective, institutional criminality. Meanwhile, democratization and legal reforms have produced state structures at least theoretically more open to complying with ex officio duties in truth, justice, reparations and guarantees of non-repetition. Prosecutions of past perpetrators, both military and civilian, have however provoked social and political controversy. The entire enterprise of seeking remains is meanwhile inimical to historical demands for ‘aparicion con vida’. Some relatives’ associations, and associated political groups, accordingly refuse to recognize the search for remains or certification of death, whether by state or non-state actors. The existence in some countries of a generation of appropriated children, stolen from their forcibly disappeared parents and brought up under false identities, has added weight to these refusals and produced specific scientific innovation in the use of DNA mapping to trace even indirect biological relationships. Cultural, ethnic and religious cleavages that were often at the heart of conflict dynamics of conflict moreover complicate processes of truthtelling, reparation, and even physical identification. Attempts to trace and identify the disappeared therefore give rise to conflicts between ‘civic trust’ and scientific certainty, compounded by a legacy of mistrust between citizens and previously collusive or directly repressive states. This working paper collates and synthesises the results of three events stimulating dialogue between law, social science and forensic (natural) sciences around the issue of disappearance and enforced disappearance in contexts of past political violence. This dialogue, focused principally on Latin American experiences, took the form of two workshops and a set of academic panels carried out in January and April 2017, in Santiago de Chile and Lima, Peru. The events were designed, timed and targeted to contribute to ongoing policy processes in Chile and Peru, as both countries are in the process of designing national mechanisms or search plans in accordance with the terms of the 2006 International Convention against Enforced Disappearance. They also sought to inform ongoing academic and policy debates in and about El Salvador and Sri Lanka, to provide a platform for interaction with relatives’ associations - whose participation is key for successful national design processes - and to highlight the potential resource represented by key international and regional actors such as the International Committee of the Red Cross (ICRC), the Latin American Forensic Anthropology Association (ALAF), and the Inter-American Commission on Human Rights (CIDH). The events, and subsequent academic and policy publications, were supported by the Latin American Studies Association (LASA) through the LASA-Ford Special Grant ‘Caring for the Missing: Respuestas Humanitarias, Juridicas a la Desaparicion de Personas’, 2017; and in part through the Ulster University Research Challenge Fund project ‘Enforced and Involuntary Disappearance – Scoping Study’ (2017).

This paper explores Subsidiarity as a constitutional principle in international law. A principle of subsidiarity regulates how to allocate or use authority within a political or legal order, and holds that the burden of argument lies with attempts to centralize authority. In EU law, a principle of subsidiarity is explicitly part of EU law at least since the Maastricht Treaty. Principles of subsidiarity are also found in the constitutions of many federal states. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defenses of state centric aspects of international/ law by appeals to subsidiarity, and find them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US Federalists, Pope Leo XIII, and others. The choice among them has drastic implications for the appropriate authority of international law and institutions vs domestic authorities – and thus for what sorts of institutional or constitutional reconfiguration should be pursued. One upshot is that the Principle of Subsidiarity cannot provide normative legitimacy to the state centric aspects of current international law on its own. It stands in need of substantial interpretation, which must be guided by normative considerations. While some versions of subsidiarity may match current practices of public international law, these are more questionable than the accounts that grant states a less central role in a legitimate multi-level legal and political order. If subsidiarity is to serve as a ‘constitutional principle’ for public international law, many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

INTRODUCTION. When it comes to regulating cross-border relations, the rules of law of a given state, foreign national laws and international legal norms are/may all be applicable. In their entirety, these norms form a sort of buffer zone between existing legal systems, i.e. create a legal phenomenon that can be called a legal frontier. It is within the framework of this frontier that numerous legal phenomena occur, with the very concept of their existence in recent years being either challenged or blatantly denied.MATERIALS AND METHODS. The provisions of international treaties, the national legislation of Russia and other states, as well as numerous works of Russian and foreign researchers were used as materials for this study. The study relies on the general scientific and special methods as its methodological foundation.RESEARCH RESULTS. The study found that foreign laws do not coincide, applying them to regulate crossborder relations leads to cases where relations of the same category are managed differently even within a single state. All known sources of law serve as the generators of norms that govern cross-border relations, which is not the case for either domestic or international interstate relations. Additionally, new sources of international legal norms have emerged and their objective is to regulate cross-border public relations not specified in Art. 38 of the Statute of the International Court of Justice. The article states that significant changes in the theory of general international law (as well as in the general theory of law) are caused by the emergence of self-executing international legal norms designed to regulate cross-border social relations specifically.DISCUSSION AND CONCLUSIONS. The author comes to the conclusion that the emergence of self-executing international legal norms required a change in the very definition of international law, admitting the impossibility of the existence of any universal theory of the relationship between international and national law, as well as specifying the nature of the object and subject of an international treaty. The use of self-executing international legal norms as regulators of crossborder public relations does not transform these relations into international interstate relations and does not turn their subjects into subjects of international law. These relations remain as cross-border relations, and their subjects have an exclusively cross-border legal standing, regardless of which legal system norm was responsible for regulating them.