Comparative International Law Research Articles

Conjuring markets: valuation in comparative international economic law

Conjuring markets: valuation in comparative international economic law

From the National to the Comparative in International Law: Cold War Redux?

Abstract Recent years have witnessed greater attention to the ‘national’ dimension in international law and, in its wake, a move towards comparison. The first section of this article examines the early rise of ‘comparative’ approaches to international law with reference to the pioneering work of William E. Butler during the Cold War and contextualizes the coinage of the term ‘invisible college of international law’ at a time of relative ‘détente’ in the 1970s, suggesting, furthermore, that a pattern of repetition and renewal in engagement with constructions and international legal thought in the Cold War period is currently taking place. The second section examines a move to the national in international law and both the promises and perils of comparative international law, including because of the parallel introduction of the new divisive-prone descriptors of ‘authoritarian international law’ and ‘rules-based international system’. It also highlights the cyclical nature of the ‘comparative’ turn to the national in international law now that the war in Ukraine and the strongly divided reactions to Israel’s protracted military campaign in the Gaza Strip are crystallizing a new Cold War-like scenario in an emerging post-Western-centric and multi-polar order. The conclusion recaps the main findings of the article and suggests that comparative international law should be used to enhance, not to undermine, the language of international law as a two-way bridge between peoples and nations in times of turmoil.

Comparative international law: enhancing migration law enquiry

This article demonstrates what comparative international law (CIL) can contribute to the field of international migration law (IML). It is not an exhaustive overview of the value of a CIL approach; rather, through indicating some of the possibilities of CIL, it provokes thought as to how CIL could enhance IML enquiry. Before turning to the migration context, the key tenets of CIL are outlined. Then, I argue, using examples drawn from my ongoing research, that CIL can provide a more holistic and fine-grained understanding of IML. Moreover, CIL can offer insight into how discrete IML regimes interact within States. The assessment explores the possibilities and limitations of such an approach. I conclude by calling for increased reflection on the possibilities of CIL as a methodological approach within the field of IML.

State compulsion of smartphone security features and the privilege against self-incrimination

There is currently a lacuna in statutory and case law about the legal nexus between smartphone technology in the form of password/code or biometric-locked smartphone security features and the privilege against self-incrimination. This paper examines whether a recipient of a cyber-warrant, subpoena, or other compelling order, may invoke the privilege against self-incrimination in the face of a state order compelling the production of a security feature in order to unlock a smartphone and forensically access stored incriminating data files as admissible relevant evidence at trial. This paper examines the legal nexus by critical reference to relevant South African legislation, comparative international law, the Fifth Amendment privilege, and the foregone conclusion doctrine as described by the USA Supreme Court in Fisher v United States, Hubbell v United States and other federal courts.

Comparative International Law: State of the Art

Comparative International Law: State of the Art

Book Review: Non-Regression in International Environmental Law: Human Rights Doctrine and the Promises of Comparative International Law

Book Review: Non-Regression in International Environmental Law: Human Rights Doctrine and the Promises of Comparative International Law

The constitutional test of necessity: problem statement

The subject-matter of the research is the constitutional test of necessity. This element of proportionality could be found in doctrine and case-law in the form of metaphors. The necessity as a prong of proportionality consists in testing the available alternatives in comparison with the measures that the legislator has chosen to achieve public aims. The notion of a least restrictive means can be used as a synonym for this element of proportionality. Although this term is cumbersome, it more precisely defines the nature of constitutional litigation, where the admissibility of interference with fundamental rights is assessed.The purpose of the research is to argue that this element of proportionality implies the assessment of the least restrictive alternatives for the rights-holder in order to achieve the goal chosen by the legislator.The methodology of research includes the method of analogy. Accordingly, the analogical reasoning is used in constitutional adjudication when testing necessity of legislative measures, but not the methods of logical subsumtion or judicial balancing. The sources of such analogy can be the rules of international law, ordinary legislation and comparative legal materials.The main results of the research and the scope of their application. The expression necessity is widely used in international law and ordinary legislation. Such approaches are relevant to constitutional adjudication. Thus, the ultima ratio principle, which initially appears in criminal and administrative law, acquires universal application in constitutional justice. This criterion, which requires the use of the most severe legal measures only as a last resort, with the ineffectiveness of softer alternatives, can be extended to the constitutionalization of other branches of legislation.The test of necessity, which is often expressed in metaphors, in the case-law of constitutional justice is based on the method of analogy. In the decisions of the constitutional justice bodies, the least restrictive means are often mentioned in comparison with those which were originally chosen by the legislator. At the same time, the discovered alternatives should be equally or at least minimally suitable in comparison with the existing legislative solutions. Comparative law, international law, or ordinary legislation are often an auxiliary source for constitutional judges to identify and formulate least restrictive alternatives.Conclusions. The value of the analogical reasoning, including the appeal of constitutional justice to comparative law materials, lies in the possibility of identifying some experimental legal regimes. Moreover, the perception of specific alternatives, their clarification or modification remains within the discretionary powers of the legislature. Thus, avoiding the well-known counter-majoritarian difficulty, constitutional justice conducts a dialogue with the parliament, and in the end, contributes to the optimal implementation of fundamental rights.

Comparative international law: enhancing migration law enquiry

Comparative international law: enhancing migration law enquiry

BALANCING INVESTOR PROTECTION WITH A STATE’S REGULATORY AUTONOMY IN THE AMENDED SADC FIP

This article focuses on the 2016 Amended Annex 1 to the Southern African Development Community (SADC) Finance and Investment Protocol (FIP) (the Amended Annex), which entered into force on 22 August 2017. It aims at a comprehensive assessment of the adequacy of the Amended Annex in balancing investor protection with SADC member states’ quest for domestic policy space in the content of the treaty provisions. Prior to the amendment, the 2006 SADC FIP contained clauses that were considered challenging in the old international investment agreements (IIAs) – such as broad definitions of “investor” and “investment”, provision for international arbitration as a recourse, and according foreign investors fair and equitable treatment (FET) and most favoured nation (MFN) treatment. The challenges associated with bilateral investment treaties (BITs) (especially investor-state dispute settlement (ISDS) mechanisms, restrictions on sovereign policy space and regulatory autonomy) necessitated a review by the SADC member states of the 2006 SADC FIP. The purpose of this article is to reflect on the implications of the 2016 Amended Annex 1 to the SADC FIP with a view to finding a balance between protection enjoyed by investors and the host states’ right to regulate. The article adopts a comparative international law approach, which is useful in order better to understand a SADC member country’s approach to foreign investment protection.

Global constitutionalism: Asia-Pacific perspectives

AbstractThis special issue of Global Constitutionalism discusses how global constitutionalism influences Asia-Pacific jurisdictions and how they respond. This introductory article presents the theme and structure of this issue, explains the Asia-Pacific’s unique contribution to global constitutionalism and offers a synthetic argument. It conceptualizes global constitutionalism as the global diffusion of common constitutional ideas, institutions and doctrines rooted in comparative constitutional law and public international law. On that base, it argues that constitutional design, adjudication and discourse in many Asia-Pacific jurisdictions are influenced by global constitutionalism. The influence results in not only convergence but also resistance to global constitutionalism in the regions. The regional experience presents critical challenges for global constitutionalism, and hence its effective operation significantly depends on its situation within the region’s axiological, institutional and social contexts.

Wars of Conquest in the Twenty-First Century and the Lessons of History ‒ Crimea, Panama, and John Bassett Moore

This article uses history to explore how prominent international lawyers explain seemingly transgressive state behavior. It begins with the Russian annexation of Crimea in 2014. This seizure of another state’s territory by force of arms seems to violate everything that the UN Charter and the post-1991 settlement of the Cold War stood for. Surprisingly, the various steps employed by the Russians to give their actions a veneer of legality follow almost exactly the playbook used by the United States in 1903 to seize the Panama Canal Zone. In both instances, leading professors of international law ‒ Rein Mullerson, the Anglo-Estonian scholar, publicist, and stateman in the case of Crimea, John Bassett Moore, the most prominent U.S. international lawyer of the day, in the case of Panama ‒ sought to justify these acts in the face of what they both acknowledged was a general ban on wars of conquest. The details of these transgressions and the justifications offered by their prominent defenders shed light on the work that international law does. These events provide an opportunity to use the tools of comparative international law to uncover and assess claims about the validity of otherwise repugnant state behavior. This emerging field downplays the judgmental, project-oriented focus of contemporary international law in favor of striving for a better understanding of systematic differences in the way significant actors use international law. In a world riven with entrenched and unbridgeable differences, counting on states to agree to an extensive body of deep rules to govern their international behavior is utopian, but expecting them to understand their adversaries’ perceptions of their international interests and the ways they will explain themselves is not. The bipolar world of the Cold War required a tradeoff between consensus and comprehension. The contemporary multipolar world, with its challenges and conflicts, may do the same.

Concept of International Legal Policy in Foreign Comparative Legal Studies

INTRODUCTION. International legal policy is a new object in international legal studies, although this phenomenon exists as long as the external relations of States. International legal policy is a rare case of research subject, which remains unexplored. International legal policy as a Concept of State's policy towards legal aspects of international relations was formed in the 80-s of last century. Earlier the questions and their particular aspects now embraced by international legal policy were divided between international lawyers and international relations researchers. However international legal policy is an integral system of State's approaches to international legal matters, therefore its punctual research is relevant only from comparative point of view. It would be interesting to compare States' positions on concrete issues or States' tactics at different stages of realization of international legal norms. This article concerns the question whether comparative studies of international legal policy can be integrated into existing fields of comparative foreign relations law or of comparative research of international law.MATERIALS AND METHODS. The article surveys theoretic questions primarily on the base of doctrinal sources. The retrospective analysis of the comparative method in international law is based on works published by Russian and foreign experts during the XX century. Particular attention is drawn upon works of founders of comparative research in international legal studies. The concept of foreign relations law in the scholarship and practice of the U.S. is researched on the base of national case law, which formulated the principle of executive exceptionalism in State foreign policy. Research work is realized with the use of analysis, synthesis, systematisation, as well as methods of historical and comparative method.RESEARCH RESULTS. The Article consistently reveals meaning and the content of international legal policy as one of the authors of the concept, French lawyer and diplomat G. de Lacharriere, presented it. The Article examines the history of foreign relations law in the U.S. and presents its doctrinal estimations from viewpoint of American constitutional law. The research work specifies different points of view on content of foreign relations law and approaches to its justification. Indeed international legal policy and foreign relations law can be compared as two types of State’s approach to its legal position on the international scene. There are six parameters for comparison: sources, functions, subjects of both concepts, questions on allocation of foreign powers in the State, on relationship between international and national law, on the role of national courts in interpretation and application of international norms. In consideration of “national interest” concept the attribution of international legal policy to international organisations or supranational association is judged as incorrect. The article examines the question of applicability of comparative method in the international law within the discourse among scholars on how differently modern States evaluate international legal norms. Analysis of the tendency to contrasting States’ approaches to the international law encompasses its development from notions “international law of transitional period”, “international legal systems”, to notions “national approach”, “legal style”, “legal culture”. Brief survey of comparative international law gives perspective on diversity of approaches to comparable aspects of the international law. Comparative studies of international legal policy could get consolidated among them.DISCUSSION AND CONCLUSIONS. At first sight the comparative method is hardly applicable to the international law. However the universality of the international law doesn’t exclude variety of approaches to it. The research into international legal policy determined by national interests of every State allows to systemize positions of a State into a single strategy. At the same time comparative method doesn’t only provide classical comparison of States’ positions by issues, but also offers to compare inner-workings of the international legal policy and shaping factors. Nowadays in the context of trends on diversification of international relations (fragmentation, regionalisation), growing popularity of the comparative method translated into comparative foreign relations law and comparative international law. However international legal policy doesn’t correspond with categorial apparatus of comparative foreign relations law. International legal policy is nor able to apply methodological tenets of comparative international law due to its multivalued content. Most likely comparative studies of international legal policy can become a new approach within comparative international law, which should be based on the principles of concreteness and consistency.

Comparativism and Colonizing Thinking in International Law

AbstractComparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon, constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called comparative international law. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a thought-colonizing enterprise. The article ends with some reflective observations on the possibility of limiting colonizing thinking in international legal studies. In doing so, it argues that it must remain possible for international lawyers to engage with alterity in a way that does not unilaterally manufacture the “other,” silence it, and speak on its behalf. This approach is called counter-comparability.

Comparativism and Colonizing Thinking in International Law

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called Comparative International Law (‘the comparativist project’). The comparativist project has attracted enormous attention and enthusiasm in the international legal literature. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a dangerous thought-colonizing enterprise. The article ends with some observations on the need to promote counter-comparability thinking as a guarantee against colonizing thinking in international legal studies.

Keeping international law international, a reflection on Anthea Roberts’ “is international law international?”

INTRODUCTION. Occasionally a book appears which has a significant impact on the scholarly community. A fine example of this is the work considered here by the Australian international lawyer, Anthea Roberts. Until very recently, comparative studies on international law were rare. However, as international law further develops and widens, so special attention will need to be paid to ensure that international law students are, to a greater extent, taught the same material and in the same way. As municipal systems of law became more mature, so doctrine and jurisprudence began to diverge. International law has now entered such a phase in its development and, in this excellent book, Dr. Roberts asks a series of very important questions: exactly what is taking place, what are the factors that are driving these processes, is such to be welcomed, is it unstoppable and where do we go from here?MATERIALS AND METHODS. The article reflects on Anthea Roberts’ book “Is International Law International?” (Oxford, Oxford University Press, 2017). The authors of the article consider the contribution of the monograph to legal science, particularly with its interest in a revived Comparative International Law.RESEARCH RESULTS. The view of the authors of the article is that Anthea Roberts’ book is a work of profound significance, which will, hopefully, inspire additional research in the field of Comparative International Law in years to come.DISCUSSION AND CONCLUSIONS. Comparative International Law is a relatively neglected field in International Law. Without question, the international legal academy (from the elite law schools of the permanent members of the United Nations Security Council) emphasises different things both in its scholarly writings and pedagogy. This needs to be given greater attention, even if, at least for now, it cannot be entirely arrested; so that the much-feared fragmentation of international law into not only separate fields and standards, but also in terms of agreeing on its content and application, is minimised.

Study on Income Tax Enforcement of Family Trusts: Based on the Principle of Substantial Taxation

Family trust is an important innovation in the development of financial technology and digital economy. As an innovative method for family business wealth preservation, appreciation and inheritance, family trusts play an important role in financial markets and social safety nets. The healthy operation of family trusts is inseparable from a good tax collection and management system. This study is based on case analysis and international comparative law, combined with the particularity of family trusts, and analyzes the risks that may be faced in its income tax enforcement. The research found that the insufficient regulations of family trust policies make tax collection and administration face the risks of double taxation, tax loss, and high tax administration cost. Based on the substantive tax principles and the perspective of the sustainable development of family trusts, the research puts forward suggestions on the improvement of income tax collection and management in Chinese family trusts: The design of family trusts and taxation systems should insist on substantive taxation; combine the theory of trust conduit with the theory of trust entities; clarify the time, scope, beneficiary, and choice of accounting standards for family trust collection. In the era of digital economy, governments, enterprises, and educational institutions have formed partnerships to strengthen the education of family trust investors on financial, taxation, and digital economy requirements. Taking the sustainable development of family trusts as the starting point, build a new momentum and social safety net for China's economic and social development.

Discussion report: receivables and securities in private international law

Abstract Under the title Receivables and Securities in Private International Law, the conference, hosted by the Interdisciplinary Association of Comparative and Private International Law, was made topical by a proposal from the European Commission to regulate the applicable law on the third-party effects of assignment of claims (COM (2018) 96). The conference divided its focus into two panels: the first dealing with COM (2018) 96 from different perspectives, and the second discussing the law applicable to proprietary effects of transactions in securities.

Artificial Intelligence and Robotics: The Possibility of Invasion of Human Rights and Legal Regulation of these Processes in the EU and the World

The paper analyzes the dangers faced by man and modern society in the light of the development of artificial intelligence and robotics in the fourth industrial revolution. The author examines the areas of human rights that are threatened by these advances in science and technology in case they are not properly monitored and regulated through legal advances. The historical and regional aspects of legislative regulation of the use of artificial intelligence units and robotics are investigated. Prospects of collision of artificial intelligence units with interests of the person and mankind, and also possible legal mechanisms of the resolution of the conflicts arising between them are analyzed. Using the methodology of comparative law, integration law, international law, analysis and synthesis, the author considers the latest documents of the European Union, EU member States, the United States, Russia, China, South Korea and other most representative countries of the world aimed at effective legal regulation of this promising area of development of modern law. The paper provides an analysis of the main trends in the evolution of modern law of science and technology that affect the life and realization of human and civil rights at the national, supranational and international level and the peculiarities of their legal regulation. The research is carried out on the interdisciplinary combination of elements of comparative law, integration, international and national law with reference to philosophy, sociology, history and prognostics. Conclusions are drawn on the possibility of using the world scientific achievements for the long-term development of the law of the Russian Federation. It is also possible to apply positive foreign experience of legal regulation of artificial intelligence and robotics adapted to the conditions of integration organizations with the participation of the Russian Federation.

El daño moral como parte de la responsabilidad civil en el Derecho Internacional Comparado

Este trabajo deriva de la tesis de licenciatura intitulada: “El daño moral como parte de la responsabilidad civil en el Derecho Mexicano y el Derecho Internacional Comparado”, tema de una especial aridez, tanto práctico como doctrinariamente; esto derivado de las causas que especifica el legislador para determinar “razonablemente y en equidad” el “quantum numerarium” cantidad económica que tendría que resarcir afectaciones sentimentales, mentales o incluso pérdidas de vida. Labor encomiable del juzgador que tampoco puede ser pitonisa del oráculo de Delfos, para adivinar una reparación del daño moral tal indescifrable. En base al método del derecho comparado y adentrando en las diferentes teorías internacionales para la determinación del daño moral, se examinaron también diferentes instrumentos jurídicos mexicanos y del extranjero sobre la materia de estudio e Igualmente, se analiza diversas resoluciones judiciales dictadas por nuestros tribunales de justicia y algunas sentencias también emitidas en el derecho extranjero para darle una debida conformación al tema.

Comparative International Law: The Scope and Management of Public Participation Rights Related to CCS Activities

The paper proposes the presentation of the public participation item in the regulatory standards of CCS in Australia, Canada, the European Union, the United Kingdom and the United States and their possible relations with the Brazilian configuration. The choice of territories is due to the existence of the item in its legal norms and or regulations. The standards available from the International Energy Agency (IEA) database on Carbon Capture, Transport and Storage were used. The methodology used is the comparative, cumulatively with the deductive method, assuming that public participation is a fundamental issue for the governance of CCS activities and that Brazil, when inserting such activities into its code, should take into account the adoption of the best practices of public participation, which, in addition to being consultative, provides deliberative powers to citizens.