Dimension Of International Law Research Articles

International Organizations and World Making Practices: Some Notes on Method

Abstract In 2013, the International Law Commission (ilc) embarked on a codification project on identification of customary international law, including the role that international organizations (ios) might play in the formation of customary norms. Parallel discussions in the international law academy surrounding the role of ios reflected similar disciplinary anxieties as older debates on ios and law making. In this piece, I argue that the path to understanding ios’ governance passes neither doctrines of ios’ powers nor restrictive categories such as law making. A shift to ‘worldmaking practices’ and alternative approaches can help us diversify our subjects of enquiry and the ways in which we understand the ‘institutional’ dimension of international law. Here, I specifically focus on International Relations constructivism, Foucauldian ‘governmentality’, and critical political economy approaches. I then conclude with a discussion of international institutional law, interdisciplinarity and critique.

Choral intervention: reimagining international law pedagogy in Africa through music

ABSTRACT The idea of establishing a link between music and international law is not a topic that typically excites scholars and practitioners. In its Eurocentric/colonial or critical/decolonial posture, scholarly engagement with international law is often devoted to the so-called “hard” issues such as global security, global warming, poverty, reforms of international institutions, global governance architecture, etc. As such, the notion that music, in its expressive and aesthetic manifestations, can be deployed in the better understanding of and finding solutions to the so-called “hard issues” of international law remains a peripheral subject. At the heart of this article is the question of how music could serve as an effective instrumental tool for rethinking the pedagogical process of international law in Africa. The article argues that socially conscious songs provide a beneficial lens and gateway to the popular understanding of the problematics of international law. Such knowledge further engenders the possibility of repurposing the applicative dimensions of international law on the continent.

Attribution of Conduct to a State

Abstract This article examines the application of ARSIWA’s provisions on attribution of conduct to a State in international investment law and arbitration. In particular, it critically analyses the rules of attribution of conduct codified in ARSIWA Articles 4 (conduct of organs of a State), 5 (conduct of persons or entities exercising elements of governmental authority), 7 (excess of authority or contravention of instructions) and 8 (conduct directed or controlled by a State). A central message of the present contribution pertains to the methodological demand for an inclusive perspective by adjudicators as to the public international law dimension of investor-State dispute settlement and the direct applicability therein of ARSIWA’s customary rules on attribution.

Кризис международного права: диагноз

The question of the crisis of law presupposes not only the question of the regularity and seriousness of its violations, but a much broader problem affecting the issues of legitimation and goal-setting of law, its development, the state of a professional corporation, and so on. The diagnostics of these dimensions gives grounds for stating: yes, international law is in crisis. The symptoms of the crisis can be reduced to the following main manifestations. First, the prohibition on the use of force enshrined in the UN Charter is not backed by the necessary guarantees. Secondly, the order created by the UN Charter contributes to the observance of international law to a lesser extent than previous regimes. Third, the existing foundations of the international order have been devalued; the new foundation seems to be destruction and division. Fourthly, the idea of state (sovereign) will remains the foundation of the theory of international law, but is being squeezed out of international legal practice, which is increasingly oriented towards the use of non-consensual mechanisms (technologies).Fifth, the discourse of international law looks exhausted and incapable of generating new meanings. Sixthly, the judicial (adversarial) dimension of international law, which is currently dominant, presupposes a disregard for the broader social context; ignoring historical, cultural and other dynamics makes many decisions ineffective. Seventh, the scientific corporation (the community of international lawyers) is gradually removed from decision-making and abandons its claim to independence and intellectual depth. The crisis of international law is not accidental and spontaneous, but is a natural result of the historical process — the next, but perhaps the last stage in the development of international law. Critical studies in international law are developed to a much greater extent than in national law: this allows us to hope, if not for overcoming the crisis, then for its explanation.

La acumulación de solicitudes de reconocimiento del estatuto de persona refugiada en los sistemas de asilo de América Latina

La región latinoamericana ha comenzado a posicionarse como un actor protagónico a la hora de recibir solicitudes de protección internacional por parte de personas desplazadas forzadas. El incremento de demandas de asilo exige de los Estados un aumento en su capacidad de procesarlas y de dar respuesta en un plazo razonable. Asimismo, los Estados tienen el desafío adicional de adecuar su estructura y burocracia a una situación sin precedentes, el COVID-19, que alteró y seguirá afectando el curso de los trámites relativos a la petición de asilo. Identificando crecientes demoras en dar respuesta a las solicitudes, la propuesta de este artículo ronda en torno a la cuestión del respeto del plazo razonable, apunta a señalar los mayores riesgos que se desprenden de su incumplimiento, así como también rastrear soluciones que ya estén en marcha y esbozar otras propuestas posibles.

(R)evolution of the Axiology of Human Rights, Political Freedom and Security as a Determinant of UN Pragmatism

The state, under the Westphalian order, was both the creator and product of international law which determined its position as the central actor of this system. The norms of international law defined the normative content of the internal security regime, where state security was identical with security as such in international relations. The reality that laid the foundation for this logical syllogism has been subject to gradual transformation that had its climax in the early decades of the 21st century. The states, previously holding monopoly of using force in international relations, which allowed for prevention of wars by means of intergovernmental agreements or maintenance of peace through institutionalized intergovernmental cooperation, lost their exclusive authority to use force. Stipulating ‘non-war’ by means of an (intergovernmental) international treaty became impossible since the non-state actors who apply force pursue counter-systemic goals and reject the international (and internal) order based on the rule of law. The state sovereignty, whose significant albeit not exclusive referent was autocracy and total power, has been transformed from the title of claim to cease the violation by the state into the personal right to protection (vested in an individual or minority/people/mankind in general). International law, which did not constitute a system until as late as the second half of the 20th century, not only obtained such character relatively quickly, but also has been subject to constitutionalization. The inherent unity of the international law as the common legal system of the international community is subject, along with this community, to fundamental divergence: into the law governing (internal) relationships between members of the, transatlantic, security community, which form a normatively and institutionally interrelated selfcontained regime on the one hand, and the international law that governs the relations between the countries of the Western Hemisphere and other subjects of the international law on the other hand. These factors determine the shift of the security paradigm: new actors, new normative content, different binding effect of the norms and, above all, new rules. The new paradigm of security in the international law dimension correlates with the shift in metaphors that build concepts significant to the international law such as state, sovereignty, security, and international treaty. These transformations set the stage for the legitimization of actions taken by the subjects of legal protection in the international law dimension.

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

Abstract: 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 ‘legalism' 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 substance, the cases involving the Versailles Peace Treaty raised issues of both post-war settlement and international organisation, 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 organisations, redefined sovereignty, and developed the humanitarian dimension of international law.

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.

Экономический анализ международного права: вопросы методологии

INTRODUCTION. The article is devoted to the methodology of economic analysis of international law which is a new approach to the study of international law. Its methodology has not been substantively explored in Russian scholarship of international law. Meanwhile, the economic dimension of international law has practical and theoretical perspectives according to the predominant opinion in foreign doctrines of international law. MATERIALS AND METHODS. The article is based on legal and economic doctrines of both Russian and foreign scholars. The methods used in the course of this study include general methods (analysis, synthesis, induction, deduction) and specific methods (the methods of formal logic, legal history). Methods of economic theory such as the method of positive analysis and the method of scientific abstraction are also used. RESEARCH RESULTS. The article explores the differences between legal and economic approaches. The basic categories and theories of economic analysis, such as rationality, externalities, transaction costs are revealed. The methodology is presented through the discussion of the main assumptions: the analogy between interstate system and economic market; rationality assumption with regard to the subject of international law, which can be considered as a unitary, collective or corporate actor. DISCUSSION AND CONCLUSIONS. Economic analysis of international law is intended to complement traditional methods of conducting legal research. The article highlights the basic economic theories and categories of economic analysis of international law, which allow Russian scientists to start studying one of the most popular theoretical approaches in foreign scholarship.

Expanding the feminisation dimension of international law: targeted anti-abortion protest as violence against women

International civil society has played a key role in shaping the international consensus which has facilitated the normative expansion of international law to accommodate abuses experienced by women. We examine this process of ‘feminisation’ with reference to the extent to which international law has accommodated women's lived experiences of violence and their struggle to secure the means to control their own fertility through access to reproductive health services, including abortion. While the movement to recognise violence against women as a human rights issue has garnered substantial support, the efforts of women's groups to advance consensus around reproductive rights, and particularly the right of safe access to abortion, have been highly contested. Conservative religious actors have mobilised to obstruct consensus at the international level and taken direct action at the local level to impede access to abortions. This direct action will be examined through a case study drawing on empirical research conducted in Australia. We will examine the activities of anti-abortion protest groups, their impact on the rights of others and the effectiveness of legislation put in place to restrict these activities within the radius of designated geographic zones. The consistency of these legislative regimes with international norms is evaluated within the framework of feminisation of international law.

The Sociological Perspective on International Law

Sociological analysis of international law begins from the premise that international legal rules and institutions are deeply embedded in the particular socio-cultural features of certain communities. Sociological factors and processes thus form an inseparable dimension of international law, and international law is both affected by and influences such factors and processes. Numerous international legal rules reflect and affect societal factors such as norms, socialization, identity, collective memories and social control. Existing sociological studies of international law essentially emphasize that socio-cultural factors are involved in two primary (and inter-related) dimensions of international law: behavior and knowledge. First, such factors influence the behavior of actors in the international legal system (e.g., via social norms). Second, sociological factors are involved in the production of collective knowledge shared by members of social groups (e.g., via collective memories regarding historical events) which also affect actors' legal behavior. Some eminent sociologists have relatively recently highlighted a third level of social behavior - the cognitive dimension. Cognitive sociology underscores that humans process information existing in our environment (e.g., filtering in/ out some items of information) also according to socio-cultural factors. Cognitive sociology literature generates significant insights regarding the link between socio-cognitive processes and international law; for example, with respect to the impact of culturally embedded categorizations on compliance with international treaties prohibiting racial or gender discrimination. The draft chapter is structured as follows: Section II exposes the central assumptions of the sociological perspective and introduces the core theoretical approaches in sociological literature. Section III discusses the sociological dimension of international law, highlighting the role of socio-cultural factors in three primary dimensions of international law relating to behavior, knowledge, and cognition. Here we also shed light on the broad contours of earlier scholarship on the sociology of international law. To illustrate the contribution of sociological theories to international legal scholarship, this section also briefly examines the question of the desirable structural design for international legal regimes from the three major sociological theoretical perspectives. Section IV observes some significant recent changes in international investment law and sketches out some thoughts regarding sociological factors that may explain this legal change; underlining the role of strains between values prevailing in the international community and the investment arbitration community, social movements, and social control mechanisms. Section V recaps the main conclusions drawn from the preceding sections.

Спортивное уголовное право: основания и пределы криминализации деяний, связанных с допингом

The article has been based on the theses of speeches of the author at the International Scientific and Practical Conference Sports in the National Law and International Law Dimension: Relevant Issues (April 4, 2018, the Institute of Legislation and Comparative Law under the Government of the Russian Federation) and is dedicated to the issues of sports criminal law related to the detection and investigation of basis of criminal activities connected with doping. It is concluded that criminalization of activities related to doping shall be based on their social hazard connected with the serious hazard of doping for the health of sportsmen. Within the context of establishment of criminalization limits for activities related to doping, articles of the Criminal Code of the Russian Federation are analyzed, which set responsibility for inducement of sportsmen to use doping (substances or methods forbidden in sports) and the use of doping in relation to a sportsman (articles 230. and 230. of the Criminal Code of the Russian Federation).

Less parochialism: intellectual property in the wider context of international law

We live in an age of globalization and the ideas of a global and polycentric law are widespread. It is a truism to state that intellectual property (IP) law is to a very great extent international law. In fact, IP law is probably one the most harmonized fields of domestic substantive law. Although there are numerous books approaching IP from an international and/or comparative perspective, the slant is usually on substantive rules. It is very seldom that the viewpoint of international law (with its specific methodology) is firmly used. The explanation is likely to be that most books on international IP law are written by (and for) IP lawyers rather than by international lawyers. Henning Grosse Ruse-Khan is a well-known IP scholar, but also has a thorough and deep knowledge of international law. This has allowed him to write a book with a clearly distinctive approach to the international law dimension of IP, and one that addresses the dynamics of international law from an IP perspective.

Comparative International Law, Foreign Relations Law and Fragmentation: Can the Center Hold?

This chapter represents my contribution to a book provisionally entitled Comparative International Law, scheduled for publication by Oxford University Press in 2017. It describes the emerging field of foreign relations law and discusses critiques of this field as an assault on international law, especially international human rights. It explores the ways in which this new field resembles both comparative international law and concerns about fragmentation in international law. All three pursuits challenge the traditional conception of general international law as uniform and universal and shift the focus of legitimating international law away from moral persuasion to falsifiable empirical claims.The chapter argues that rather than threatening international law, foreign relations law and its intellectual siblings point to a strategy for bolstering the field. They serve as a means of identifying the functionally discrete dimensions of international law, as opposed to a unified and homogenous conception. Given the risks entailed in a universal, values-based international enterprises, as exhibited by past dystopias, an empirically grounded functionalism holds the most promise for protecting the field’s relevance and value.

The Sociological Dimension of International Law

This article is the introduction to the book 'Invitation to the Sociology of International Law' (OUP, 2015). International law is deeply embedded in various sociological factors and processes. Numerous international legal rules reflect and affect societal factors and processes such as norms, socialization, identity, and collective memory. Political and economic dimensions of international law are overlain with a sociological dimension, but this study focuses on the sociological dimension of international law. While the idea that international law and other societal processes are profoundly interlinked is not new, international legal literature habitually pays only scant attention to socio-cultural aspects of international law. In light of the underlying interrelationships between international law and other social factors, the book invites international law specialists to analyse international legal rules in their wider social context, and incorporate sociological tools into mainstream international law scholarship.The book aims to introduce readers to some key sociological elements and major theoretical approaches, and illustrates their valuable contribution to international legal scholarship. To exemplify the properties of the sociological analysis, the book employs sociological tools to explore diverse topics in contemporary international law, including the World Trade Organization's (WTO) rules regulating regional trade agreements; legal fragmentation and the interaction between international investment law and human rights law; impartiality of adjudicators; compliance with and breach of international law; and the European Union's rules concerning economic and monetary cooperation.

International Energy Law: An Emerging Academic Discipline

The increasing recognition of the ‘international law dimension’ of energy law among legal scholars, legal practitioners and those working in any role with energy markets, has led to the growing recognition and development of ‘international energy law’ as a separate academic discipline. Although certain ‘sub-disciplines’ of laws within ‘international energy law’, such as oil and gas law, are well developed fields of practice, research and study in their own right, the study and teaching of international energy law in its own right is still very new. This chapter builds on Professor Adrian Bradbrook’s groundbreaking work in Energy Law to provide an overview of International Energy Law as a coherent academic legal discipline. This is done by describing certain key themes that underlie the whole of international energy law; identifying various subsets or ‘sub-disciplines’ of international energy law according to different types of energy resource; briefly discussing the energy law of the European Union, which is universally acknowledged to be a crucial part of international energy law, as well as a separate legal speciality; and by discussing some crosscutting issues that are relevant across the globe, such as energy and the environment, energy and trade, and dispute resolution.

Piercing the veil of state sovereignty: How China’s censorship regime into fragmented international law can lead to a butterfly effect

AbstractThis article seeks to address China’s entrenched censorship regime in the constitutionalist dimension of international law. First, the article probes into China’s censorship regime and the way it is linked to the country’s foreign policies. Second, the article explores the tension between China’s national censorship regime and international law. Such tension is rendered sharper than ever in the context of fragmented international law, as exemplified by two UPRs of China and two WTO rulings. Finally, the article advances a constitutionalist premise that eventually China’s self-motivated step into the fragmented domain of international law could boomerang against China’s censorship regime. As the international standards of freedom of expression are evolving into a fundamental right with constitutional status, the functional interrelatedness between different subsystems of international law gives rise to the accountability of state actors, which in turn compels them to comply with universal rules.

The Commission Acting as Amicus Curiae and the Autonomy of National Courts in EU Law - Assessment from the U.S. Perspective.

The Latin term ‘amicus curiae’ can be simply translated as ‘friend of the court.’ In recent times the concept of amicus curiae appeared in England during the 17th century and has become popular in common law countries and shortly in International law dimension as well.As a result of decentralization process in the EU, the NCAs and the national courts has played an increasingly important role in the application and enforcement of the European competition rules. Nonetheless, the role of the Commission remains vital as it must provide the parties with the necessary legal certainty as to how the Community rules must be applied. As it was described by some academics, ‘(…)in competition cases the Commission plays the part of law-maker, policeman, investigator, prosecutor, judge and jury.’

Filipino Muslims and Issues of Governance in the Philippines: Some Thoughts by a Local Practitioner

This article adopts the general theme of governance to provide an institutional framework for law reform and constitutional regime. To look into the political culture and religion of Filipinos is to ask why there is much reliance on law with an internal dynamics of hostility to all things religious in public life. The author employs the democracy argument to raise asymmetrical issues in a constitutional regime within the context of ‘the national state’ rather than problematise it as a majority versus minority relation. This makes it possible, for instance, to consider the Bangsamoro in the Philippines as a ‘people’ in legal terms and in reference to ‘state-nations’ instead of ‘nation-states’. The author also treats the dimension of international law regarding the right to self-determination with respect to the current peace negotiations between the government of the Philippines and armed non-state actors (MILF and MNLF). One might not necessarily agree with all that is stated in this contribution, which is intended to be an essay rather than a scholarly paper, but, nevertheless, it grants some insights into the mindset of contemporary Muslims in the Philippines.

Impact of Islamic Law on Commercial Sale Contracts – A Private International Law Dimension in Europe

The steady rise in Islamic finance has necessarily entailed a corresponding rise in transnational1 commerce which is guided by Islamic law and practice. There is much research literature on the content and scope of Islamic law with respect to transnational commerce.2 The object of this article however is not to engage with the scholarly debate as to what Islamic law says about how transnational commerce is carried on but to question how European transnational sales law copes with the direct and indirect effect of Islamic law. The research question is essentially one that relates to how an established European or Western private international law regime should accommodate both legally and practically the intervention of Islamic law. Although the Vienna Convention on Contracts for the International Sale of Goods (CISG) is not a private international law instrument, it represents a harmonised system of law for its signatories. It is intended thus to be a substitute for private international law where cross-border sale transactions are concerned. It would therefore be a significant lapse not to examine in this study the implications for the CISG and its application in European countries where there is an Islamic element in the sale relationship.