Concept Of International Law Research Articles

Normativnost međunarodnog prava

In The Nature of International Law, Miodrag Jovanović, generally speaking, tries to explain the concept of international law. He analyzes few typical characteristics of the prototype concept of law (institutionality, normativity, coercion and justice-aptness), and then he looks at contemporary international law through "the lenses" of these characteristics. The article pays special attention to his analysis of the normativity of (international) law. The main intention is not to criticize Jovanović's theses about the normativity of law, as such, but to point out that they are not the best possible framework for explaining the normativity of international law. Therefore, a different and more appropriate conceptual framework is presented than the one he offered in the key of Raz's idea of legal norms as exclusionary reasons for action and practical rationality. This framework is grounded on Hart's well-known idea of an internal point of view. The presented argumentation shows that within such a framework, the normativity of international law could be better explained and understood, and also it seems that certain ingrained intuitions about international law fit well into it.

Познавательная ситуация в науке международного частного права: критическое осмысление

The article deals with the issues related to the existing cognitive situation in the private international law science. The purpose of the work is to identify the defects of this situation and evaluate it on the basis of scientific criteria. The concept of a cognitive situation is given and it is noted that its study is significant not only for science of science, but also for any private science. The author analyzes the opinions expressed in the legal literature on the reasons for the controversial interpretation of the private international law concept, and reveals that these opinions defend far-fetched reasons that do not reflect the real situation. The analysis shows that the modern cognitive situation in the science of private international law is characterized by such defects as the lack of certainty in the subject of knowledge and the «clogging» of the scientific field with erroneous and pseudo-scientific interpretations and speculative constructions, and in general, the prevailing ideas about the subject of this science are irrelevant to the needs of its theory creation. The author defends the thesis according to which the tendency to move away from the canons of the disciplinary organization of scientific knowledge prevails in the science of private international law, and also justifies the conclusion that the existing cognitive situation in the science of private international law does not favor its progressive development.

ANALISA PENCEMARAN LAUT OLEH PTT EXPLORATION AND PRODUCTION (PTTEP) AUSTRALASIA TERHADAP LAUT TIMOR INDONESIA

<p><em>This study aims to analyze a blowout from an oil and gas leak owned by PTT Exploration and Production (PTTEP) Australasia in the Montara oil field in the Indonesian Timor Sea, and how to resolve disputes between Australia and Indonesia. A qualitative approach was used in this study, whilst the data collection technique was through library research. The theory of state responsibility, the concept of human security, and the concept of international maritime law are used to analyze disputes between Indonesia and Australia. The study found that the Montara oil spill had not only damaged the marine ecosystem but also polluted Indonesian waters. It also found that although the Australian government had formed a special commission to resolve cases and even used dispersant, it had not satisfied all parties. Several points are summarized. First, the Montara oil spill in Australia is a transnational study because the impact has crossed national borders. Secondly, UNCLOS has a weakness in the settlement of the Montara case because the Convention only provides a description related to ‘Responsibility of Each Country’ and does not specifically arrange material compensation mechanisms to countries that cause sea pollution. Third, the Montara oil spill has caused huge losses for Indonesian seaweed farmers, especially 13 districts in NTT. The recommendations are that the Indonesian government along with the Montara Victim Peoples’ Advocacy Team should continue to follow up the case of oil spills from the Montara platform and continue to fight for compensation to the Australian government and the PTTEP as the responsible party.</em></p>

Autonomy or Sovereignty: the Case of the European Union

Summary Sovereignty is a key concept in international law and international relations. First defined and discussed by Jean Bodin, sovereignty is considered to be an inherent attribute of any state. However, the changes that international society has undergone since the Treaty of Westphalia, including the emergence of different state and non-state actors vying for power and authority, have called into question the position of the state as the main actor in the modern world. This in turn has given rise to the following questions: how should the very concept of sovereignty be understood today? Given the growing importance of international organizations and regional integrational arrangements can the concept of sovereignty be extended to cover entities other than states; and in case of the European Union, what makes us think in terms of sovereignty rather than autonomy? This analysis is an attempt to apply the concept of sovereignty to contemporary international organizations. The main thesis is as follows: in the case of international organizations, especially a new type of organization, it is also legitimate to consider a narrative in terms of sovereignty, not just autonomy. The example studied here is the European Union as an international organization-cum-regional integrational arrangement.

World Peace and World Unity: A Most Emergent Need of the Present and Future

The world peace and world unity are the most embryonic need of the modern society in order to protect our habitat earth. Lots of efforts have been made to ensure the world peace and unity in the past and several international organizations have been made for the purpose. Several meetings of the representatives of different nations have also been organized time to time in the past history as well as in the present time. However still we are very far away from a united world or united earth with peace and prosperity and the risk of war that may be minor aggression between neighboring countries (cold war) or a big war like the world war with use of nuclear/chemical weapons still and always hang over the mankind. Now with technological advancement of the world and development of nuclear and chemical weapons and newly emerging nano engineered and biological weapons which if used for small aggression between countries will greatly pollute the atmosphere on earth and can ruin the whole world and the modern civilization. Due to the development of these drastic weapons which are highly dangerous to the society and the environment it has become big threat to the life on earth. Therefore, now it has become utmost important to find a solution to counterbalance this problem and hence we need to make potential and innovative efforts for the complete elimination of the war between countries and search for a peaceful solution to resolve the disputes among countries by establishing a powerful international law and order. A critical review of the present and past efforts made by various researchers, peace organizations and societies has been presented here. The key suggestions by various researchers include moving from divided world to unified world, development of world culture system, development of peace-based curriculum, religious harmony, interreligious cooperation, global citizenship etc. It has been concluded that the inner willingness among national and religious leaders of the various countries, religious & cultural organizations and all the human being need to be developed that will surely realize the world peace and world unity. The concept of unified world and powerful international law and order to resolve all the political, religious and other kind of issues and aggressions between countries and religions has to be established.

State’s Responsibility over Forest and Land Fires Causing Transboundary Haze Pollution in the Frame of ASEAN Agreement

This article aims to analyze the state’s responsibility over forest and land fires causing transboundary haze pollution according to the Asean Agreement on Transboundary Haze Pollution. A normative legal method is applied to help answer the problems of transboundary pollution which has been an international concern. The impact of haze pollution resulted from forest and land fires has triggered protests against Indonesian government and urged the sate’s liability as long as the impact of the haze pollution is concerned. Forest and land fires which caused transboundary haze pollution has infilcted losses and damage not only in Indonesia but also in other neighbouring countries, such as Malaysia and Singapore. State responsibility is a fundamental principle in international law applied when a country has violated boundaries, either directly or indirectly, which is harmful to other countries. In international environmental law, tansboudary air pollution caused by forest and land fires is contrary to the principles of international environmental law resulting in a state responsibility responsibility or liability. While responsibility refers to a legally regulated responsibility and the concept of international law, the liability refers to the indemnification of the other party’s loss. As a result of forest and land fires causing transboundary haze pollution, ASEAN member countries have agreed to form an AATHP (ASEAN Agreement on Transboundary Haze Pollution) agreement aiming at preventing and mitigating transboundary haze pollution

The Concept of International Law in an Era of Populism

Nowadays, the world is experiencing a populist trend that is enhancing a nationalist viewpoint, which has contributed to the perception that international law is currently in a state of crisis. Populists attack international law calling it a device used by global elites to dominate policymaking and designed benefit themselves at the expense of the common people. This essay must be understood against this current trend and will explore how state behaviour that originates from a populist attitude affects international law. It attempts to answer the following questions: Why and how does populism challenge the very idea of international law? What are the effects of populist governments on international law? And what role would international law play in a populist era? This essay concludes that populists attack international law because the international legal system, as it developed after the 1990s, is based on values and concepts such as international solidarity which go against the identity and nationalistic politics of populists. Populist governments’ attitude towards international law ranges between an instrumental approach and a rhetoric-based principled opposition that if enacted in practice, would significantly change international law’s nature as it has developed after 1990. In general, populists promote a concept of international law as a law of coordination and aim to reduce it to an instrument for furthering national interests.

The Versailles Peace Treaty Before the Permanent Court of International Justice: Tracing the Legalism of the Paris Settlement

The concept of international law underlying the Versailles Peace Treaty is marked by a complex and ambivalent combination of references to just peace and the use of the legal form. This article analyses the concept of law and the use of legal techniques and institutions in the Paris settlement, and connects it to various contemporaneous strands of ‘legal-ism’ and to the transformation from (classical) nineteenth-century to (modern) twentieth-century international law. In a second step, the article turns to how the ambivalent legalism in the Versailles Peace Treaty impacted on the respective case law of the Permanent Court and how this case law connects to ‘modern’ approaches to international law. While, in sub-stance, the cases involving the Versailles Peace Treaty raised issues of both post-war settlement and international organization, in doctrinal terms, the Court tentatively developed a concept of international law that squares with modern approaches. This can be demonstrated by examination of the case law, which contributed to the law of international organizations, redefined sovereignty, and developed the humanitarian dimension of international law.

Facing the Future: The Case for A Right to a Healthy Environment for Future Generations under International Law

This paper seeks to examine whether the current framework of international human rights law formally grants the right to a healthy environment to future generations. There has been much debate regarding the effectiveness of international human rights law in guaranteeing environmental sustainability in particular without the consideration of future generations. The right to a healthy environment was specifically chosen both as a means of narrowing the scope of this research and given that future generations are a fundamental concept of international law relating to environmental sustainability. In Section II, all relevant concepts, including ‘future generations’, ‘intergenerational justice and ‘environmental sustainability’ will be defined and explored. In addition, a link will be established between intergenerational equity and sustainable development in light of current literature and scholarly discussion. The following section discusses how the link drawn between environmental protection, human rights protection and environmental sustainability provides for a common approach to fully handling current environmental issues. Subsequently, a positive analysis of present day international legal instruments, customary international law and case law will be conducted, to determine the current status of future generations regarding the right to a healthy environment. Use will also be made of academic literature on the subject, including extensive research carried out by scholars such as Edith Brown Weiss and Bridgit Lewis. To conclude, the findings of each section will be summarised, and a final conclusion will be drawn as to the state of future generations in international law and the potential for the right to a healthy environment to be accorded to them.

Cosmopolitismo em Habermas: com Kant para além de Kant

Este estudo pretende mostrar como Habermas baseado no projeto de Immanuel Kant de uma ordem mundial pacífica restrita ao direito à hospitalidade universal e a uma estrutura jurídica federativa voluntária termina desenvolvendo uma concepção de direito internacional muito mais robusta que inclui uma estrutura quase estatal, embora ele seja enfático em afirmar que é um regime de governança mundial sem um Estado global. Habermas desenvolve sua concepção não apenas num debate com o esboço de uma paz perpétua de Kant, mas também considerando as inovações normativas que ocorreram nos mais de duzentos anos que se passaram desde a formulação original em 1795.

A Trillion Dollar Question: Who Should Pay for COVID-19?

Who should bear the costs of the COVID-19 pandemic? While multilateral institutions are beginning to consider how to distribute them, President Trump and others have suggested suing China for damages. This “lawsuit approach” draws on a deep-seated conception of international law: States have a sovereign “right to be left alone”; the only limit to this right is a correlative duty to avoid harming others. Those harmed can, then, sue for damages. In this view, who should pay for the costs of the pandemic (and how much) is not a normative question about justice, but rather one about factual causes and actuarial calculations.In this Article, we explore this lawsuit approach—not for its legal viability, but for its conceptual implications. We exhaustively and critically assess the doctrinal discussion on China’s international liability for the pandemic while also pointing at deep theoretical implications that this novel crisis has for international law more broadly.Specifically, we make three novel claims. The first is that the arguments made using the lawsuit approach (based on the International Health Regulations and the no-harm principle), when meticulously analyzed under existing international norms, run into unexpected obstacles. On top of the jurisdictional and evidentiary hurdles noted by many, we argue that the lawsuit approach faces difficulties stemming from the lack of deep normative agreement in international law on how to deal with unprecedented challenges such as COVID-19.Our second claim draws on the first. Given the need to fill these normative voids, the lawsuit approach leads back to the global conversation about the allocation of losses that it carefully tries to avoid. This normative dependence cannot be spared by analogy with domestic law. Domestic law builds upon thick cultural understandings that fill empty legal concepts (such as “harm” or “causation”), making them readily operative. International law, however, lacks an equivalent thick culture to fill these voids and therefore requires complex reconstructions of what states owe to one another.Our third claim further extends the foregoing reasoning. The lawsuit approach relies on international law as a means to achieve corrective justice while denying its implications for distributive justice. We argue that this is conceptually impossible. Allocating responsibility for the pandemic implicates inherently distributive concepts: To decide, an adjudicator would need to rely on a Pretorian rule detailing how much effort and resources countries should dedicate to avoiding harm to other countries. That rule is conceptually distributive, independent of its content. The misfortunes derived from the pandemic are not conceptually different from the misfortunes of poverty, financial breakdowns, or climate change. Those going down the road of the lawsuit approach might be unpleasantly surprised by where that road leads them.

Defining war crimes: a look to the prosecution by international criminal judicial bodies

The article is dedicated to the overview of the scope and application of international prosecution on war crimes. Although theterm “war crimes” is not a new concept in international law, different approaches exist in defining the precise limits of it. War crimesare always considered as one of the primary challenges and pecularities minimizing the whole efficiency of international law. Nevertheless,not all known prosecutions on war crimes ended with success. In traditional international law war crimes are always related tomilitary or armed conflicts what may be international or non-international conflict. History of international humanitarian law demonstratesthat almost all of the military conflicts were associated with war crimes. However, international law was not able to buil upstrong judicial mechanisms for the prosecution of war crimes for a long time. Modern type of international prosecution over war crimescan be linked to military tribunals established after World War I. At the same time, we should not forget that most of war crimes committedbefore and during WWI still remain unpunished. These problems demand new conceptual approach to the understanding of warcrimes as well as methodology of international prosecution. We know that first military tribunals were of quasi-international character.Although modern international law contains fully international military tribunals, still there are a lot of cases of failure to punish warcrimes. We need to understand that being a type of international crimes against peace and humanity, war crimes can be committed outsidethe active period of war. Thus, there is a need to re-define again the scope and subject matter of war crimes. On the other hand,prosecution of war crimes should be studied apart from other international law violations, human rights in particular.

Globalization and standards of constitutional interpretation

The article examines the problems of constitutional interpretation through the prism of globalization and modern world modelsof constitutional interpretation. Emphasis is placed on the fact that the main trend in the implementation of constitutional interpretationin modern conditions is the use of the case law of the European Court of Human Rights and reference to the decisions of the constitutionalcourts of foreign countries. This is the result of globalization, the practice of modern constitutionalism and dialogue betweenjudges of constitutional courts in the world. Such a constitutional combination of practices is not only a tool for improving judicial decisions,but also for building a “global legal system”. The globalization of constitutional law means that constitutionalism is no longerthe privilege of the nation-state, but a world concept and standard. The use of international law in the constitutional interpretation isjust one example of the migration of constitutional ideas through legal systems, which also includes the use of foreign constitutions asmodels in the process of adopting a constitution.It is concluded that Ukraine, like the countries of Eastern and Central Europe, has no choice but to adopt liberal-democratic constitutions.These are common constitutional values and constitutional rapprochement. Therefore, the constitutional interpretationthrough a comparative reference to international (and foreign) law and soft law acts of the Council of Europe is part of the modernimplementation of the concept of international law, the concept of friendly attitude to international law and the migration of constitutionalideas.

When Perpetual Persecution Becomes Ottoman Genocide

Abstract A review of Benny Morris and Dror Ze'evi's The Thirty-Years Genocide deals with the experience of Armenian, Assyrian, and Greek minorities in late Ottoman and early Republican Turkey. The thesis of a long genocide challenges the international law concept of genocide while reopening a line of interpretation of long-standing persecution that is close to Christian memory, but far from contemporary historians' emphasis on political decision-making. The review specifically deals with the Assyrians who were less of a passive victim than Morris and Ze'evi maintain.

Evolución histórica de la responsabilidad internacional por hecho ilícito, desde los clásicos hasta la Sociedad de Naciones

El presente artículo es una presentación del desarrollo doctrinario en materia de responsabilidad internacional del Estado. En este sentido, aborda especialmente la mirada de los autores y comentaristas jurídicos destacados de su tiempo, a lo largo de la breve historia del derecho internacional. Desde las percepciones embrionarias de los primeros especialistas del siglo XVI hasta la primera codificación seria del derecho internacional, llevada a cabo por el Comité de Expertos de la Sociedad de Naciones en 1925, este trabajo acompañará la transformación de este concepto fundamental del derecho internacional contemporáneo. Asimismo, estos connotados juristas que plasmaron en sus escritos la realidad material de la comunidad internacional, habilitan al lector la comprensión de cómo las naciones moldearon su responsabilidad, los contornos que adquirió con el paso del tiempo y el cambio en la práctica de los Estados.

Indicators of Sustainable Use of Wildlife: Problems of Formation and Implementation in the Russian Federation

This article examines the legal category sustainable use of wildlife as a process of realization of rights and obligations by the subjects, based on the provisions of the Concept of Sustainable Development, International law and National legislation on wildlife. This process is aimed at ensuring biological diversity, achieving a balance of economic, environmental and social interests of the citizens, society and the state as a whole, the process, as well as to preserve the reproductive ability of the animal world. Based on the analysis of certain provisions of the legislation on wildlife and law enforcement practice, the author makes a conclusion that Russia lacks a complex system of legal support measures for the sustainable use of wildlife. Legal, economic, ideological, organizational measures, proposed by the author of the article will make it possible to use wildlife in such a way, that will preserve and increase the number of wildlife populations, maintain an ecological balance, and ensure the needs in favorable environment for life and health for the present and future generations. The measures proposed by the author can create the legal basis for sustainable management of wildlife. The author suggests, that these measures can be useful in developing national programs for sustainable use of wildlife; providing incentives for the transition to sustainable use; strengthening the dialogue between the authorities and the population in order to involve them into the process of sustainable use of wildlife, so that to ensure a balance of economic, environmental and social interests.

『萬國公法』에서의 동·서 관념 번역과 절합 - ‘公’ 관념을 중심으로

There still seems to be a kind of temperature difference in terms of understanding and interpreting the concepts of international law in international relations in East Asia. It may be due to different political and diplomatic stances of each country in different situations. But even more fundamentally, it may be because they can be understood or conceptualized in different ways in a unique linguistic and cultural field, that is, in a semantic network connected by Rhizome. Moreover, with the introduction of the concepts of international law by the translation of Wanguogongfa, when new ideas of modern Western world system began to be introduced, even though the same text was accepted, it was accepted and internalized in different ways in each country of East Asia.<BR> The different process surrounding the understanding and interpretation of ‘Gong(公)’ in the process of acceptance of the Wanguogongfa in China, Japan, and Korea provides an important clue to understanding the internalization and discoursive process of international law in East Asian countries.<BR> In this paper, I analyze statistically the vocabulary related to ‘Gong’, which can be considered as the most essential concept of Wanguogongfa, and the context of them in each language field. Through this, I investigate the conceptual articulation that occurred in the process of accepting the concepts and discourse of international law order from the West to China, Japan and Korea.

“Best Interests of the Child”, Australian Refugee Policy, and the (Im)possibilities of International Solidarity

“Best interests of the child” is a key concept in international law, developed by and through institutions which maintain a stake in international solidarity. This article explores the quality of that solidarity, working to understand the modes of interrelationship between peoples and institutions which it instantiates, and which it could possibly be imagined to instantiate. Focusing on one context—the way that “best interests of the child” has developed within international politics and domestic Australian politics, through an examination of the discourses produced by policy-makers working within child refugee and asylum-seeker realms—this article examines the ways that this concept has relied on, and produced, racialized hierarchical ideas of what “best interests” entails. Looking through a history of Australian settler-colonial governmentality, this article explores the tensions between discourses of security and discourses of “best interests of the child,” historicizing the figure of the refugee child and reimagining the relationships of dependency and solidarity which could be produced.

Water security: A litmus test for international law

While water security is now being discussed at the highest political level, the debate on how the concept should actually be implemented to improve the management of our transboundary freshwater resources is still in its infancy. Further, the absence of law in much of this debate impedes efforts to utilize water security as a change agent for international water law and diplomacy – an unsatisfactory situation threatening global stability and international security. This article demonstrates that a fresh conceptualization of water security is not only required to bring about the desperately needed change in the underlying perceptions of sovereignty, but that it is also possible. However, this will only work if international law plays its part in turning the buzzword into a meaningful concept. By supporting the contemporary understanding of water security through strengthening normative developments regarding the concepts of common concern and cooperative sovereignty, these concepts of international law could simultaneously be better employed to tackle other increasingly complex global challenges.

Let’s talk about tax, baby

This Brief introduces Picture Human Rights, an initiative which seeks to explain international human rights law concepts through illustration. The inaugural series for this initiative was tax and human rights, based on the author’s interpretations of editors Philip Alston and Nikki Reisch’s 2019 book, Tax, Human Rights, and Inequality. The Brief selects some highlights from this series and explains the relevance of Picture Human Rights to modern human rights practice and advocacy.