Field Of Public International Law Research Articles

К юбилею И.В. Зенкина

The article is dedicated to the memory of the famous Russian scientist I.V. Zenkin, who would have turned 65 in November 2023. The main directions of his scientific activity in the field of public international law and international economic law are discussed. Particularly highlighted is the fundamental work «Law of the World Trade Organization. M.: International Relations, 2003 and 2014», which has not lost its meaning up to date. Other areas of Igor Viktorovich’s creative activity are shown: poetry concerts, a self-study book on public speaking

International legal protection of related rights of broadcasting organisations

The international protection of the rights of radio broadcasting organisations to the programmes they create and broadcast began with the adoption of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done in Rome on 26 October 1961 (the Rome Convention). The Rome Convention establishesthe general principles of legal protection of the rights of radio broadcasting organisations and establishes property rights that allow them to influence the use of programmes by third parties. On 21 May 1974, the Convention on the Distribution of Programme-Carrying Signals Transmitted by Satellite (the Brussels Satellite Convention) was adopted in Brussels. This actdoes not contain any provisions on the rights of broadcasting organisations and is an international treaty in the field of public international law rather than private international law. On 15 April 1994, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was adopted. Its peculiarity lies in the fact that it is the first international act thatcombines provisions on the legal protection of various intellectual property rights: copyright and related rights, trademarks, geographical indications, industrial designs, inventions, etc. In terms of the related rights of radio broadcasting organisations, the TRIPS Agreement is based on the provisions of the Rome Convention and does not provide for any other related rights.Thus, today, the related rights of radio broadcasting organisations at the international level comply with the standards of 1961. This does not take into account modern broadcasting and information transmission technologies, and therefore does not sufficiently protect the interests of radio broadcasting organisations. Since the late 90s, a new international treaty on the protection of the rights of broadcasting organisations has been developed under the auspices of WIPO. The adoption of this treaty is an urgent need to strengthen the international system of protection of the rights of radio broadcasting organisations.

Nadležnost Međunarodnog krivičnog suda povodom krivičnih dela izvršenih na teritoriji Avganistana

The subject of this paper is the territorial and personal aspects of the jurisdiction of the International Criminal Court regarding crimes committed on the territory or in connection with the armed conflict on the territory of Afghanistan. In 2020, the International Criminal Court determined that the conditions had been met for initiating an investigation into crimes committed in Afghanistan, or in connection with the armed conflict in Afghanistan. The paper is based on the analysis of positive regulations in the field of public international law and international criminal law, as well as linking the relevant provisions with the circumstances under which crimes were committed on the territory of Afghanistan and drawing conclusions about the fulfillment of necessary conditions for initiating criminal proceedings before the International Criminal Court. The result of the analysis leads to the conclusion that the conditions have been met for initiating an investigation into crimes committed in Afghanistan or in connection with the armed conflict on the territory of Afghanistan. The initiation of an investigation is particularly important in the context of the withdrawal of US military forces and the Taliban's takeover of power in Afghanistan. Namely, there is a real possibility that the newly formed government in Afghanistan will not be willing to cooperate with the prosecution and provide the necessary evidence related to the crimes in question, which directly affects the importance of conducting proceedings before the International Criminal Court.

Remarks by Brian L. Cox

Establishing the circumstances pursuant to which parties to an armed conflict are required to provide reparations or other compensation for harm inflicted in the course of hostilities is an enduring and seemingly intractable challenge in the field of public international law. With the recent full-scale invasion of Ukraine by Russia and the ensuing harm to civilian persons and property being inflicted daily on an almost unimaginable scale as a result of the ongoing fighting, the issue of recompense for damage inflicted in the course of armed conflict has become infused with a renewed sense of urgency. My contribution to the Remedies and Reparations for Individuals Under International Law panel explores the topic that I refer to as “belligerent liability”—that is, reparations or other compensation required to be distributed by states for harm to civilian persons or property caused during armed conflict—from both a conceptual and applied approach.

Mechanisms and legal instruments to ensure air route safety

The legal regulation of ensuring the safety of air traffic in general and of air routes in particular is one of the main concerns of specialists in the field of public international law. The principles and objectives, structure and organization of airspace for safe and efficient operation by analyzing the procedures for the formation and operation of air routes are the subject of this article. Airspace areas with special legal status are an important element of airspace regulation and the process of ensuring air route safety. The analysis of the normative provisions that contribute to ensuring the security of air routes, the risks and threats on the safety of these routes and the mechanisms for preventing and combating them are a priority for specialists in the field of international air law.

ULUSLARARASI MÜNASEBETLER VE TIBBÎ ATAŞE

Küreselleşen dünyada değişik bilimsel alanların birbirleriyle etkileşimine bağımlı olarak uluslararası kamu hukukunda değişim ve gelişim kaçınılmaz olmaktadır. Bu itibarla, son zamanlardaki gelişmeler uyarınca sağlık uluslararası kamu hukuku alanında yeni bir alt dal olarak ortaya çıkmıştır. Türlerin devamının bağlı olduğu sağlık, uygarlığın doğuşundan beri insan hayatı için temel bir etken olarak değerlendirilmektedir. Bu minvalde, devletler sözde küresel sağlık diplomasisini etkileyebilecek sağlık politikalarını küresel olarak geliştirmektedirler. Bu bağlamda, tıbbî ataşeler, hem bireysel olarak devletlerin sağlık politikalarında, hem de küresel olarak küresel sağlık diplomasisinde en etkili araçlardan birisi olarak nitelendirilebileceklerdir. Dolayısıyla, bu makalenin amacı bir devlet misyonunun üyesi olarak tıbbî ataşenin statüsünü kısaca araştırmak olacaktır.

Understanding the crisis of refugee law: Legal scholarship and the EU asylum system

AbstractIn 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.

The Permissibility of Limiting Rights and Freedoms in the European and National Legal System Due to Health Protection

The article concerns the permissibility of limiting human rights and freedoms in European and national systems due to the protection of individual and public health. The author's goal was to analyse the current practice of states in the application of human rights limitation clauses in the European system of human rights protection. This is an important issue because the practice of limitation and margin of appreciation enjoyed by the member states of the Council of Europe is subject to scrutiny by means of complaints addressed to the European Court of Human Rights in Strasbourg, which examines the correct application of individual limitation clauses contained in the 1950 Convention. Human health is one of the main prerequisites for which it is possible to limit other human rights and freedoms. In the context of numerous epidemiological threats and natural disasters of a cross-border nature, assessing rights and freedoms becomes one of the most important issues in the field of public international law, constitutional law and public health law. Against the background of existing solutions in the universal system, the practice of the member states of the European Union and the Council of Europe was examined by comparing it with the views of the doctrine and the results of my research.

Особенности суррогатного материнства в Китае и проблемы его правового регулирования (Материковый Китай, Тайвань, Гонконг и Макао)

The article is devoted to the topic of surrogacy in China, a historical excursion into the practice of surrogacy in ancient and modern China. The characteristic features of surrogacy and its legal regulation in mainland China, as well as in its parts (Taiwan, Hong Kong, Macao), are highlighted, and legislative acts in this area are studied, within the framework of the "one country two systems" policy. The article analyzes the negative reaction of the Russian-language media to the practice of using surrogate mothers by Chinese citizens, which led to amendments in the legislation of some countries. The purpose of the study was surrogacy within China (intra-national), as well as the features of transnational surrogacy and related legal conflicts. The article analyzes the current legislation in the country and the legislation in the field of public international law. The result of the study was an analysis of the causes and consequences of the boom in surrogate mother services against the background of the liberalization of the childbearing policy established by the Chinese state, and forecasts for the possible development of legislation in the near future, taking into account the development of scientific and technological development in the field of biotechnology. The work is one of the rare studies in the CIS in the field of studying the peculiarities of surrogacy, taking into account its "Chinese specifics" and based on an in-depth study of the topic directly in China, discussing it with local experts in the field of law and medicine, the difficulties of legal regulation in the present are identified and forecasts of its further development are given.

Restitution of stolen cultural properties: Lessons and challenges from recent Korean cases

The Republic of Korea adopted the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property on 14 February, 1983. The Convention has some disadvantages in that its scope does not cover the cultural properties stolen from Korean territory during the Japanese colonial era, which lasted from 1910 to 1945, and the Korean War from 1950 to 1953 because it cannot be retroactively applied to cultural properties stolen during these years, and it falls within the field of public international law. Hence, in order for the Korean government and the legal community to seek more effective methods of restitution of cultural properties stolen during these periods, alternative legal tools need to be discussed. Some good examples include the donation or purchase of stolen cultural property, arbitration of disputes over the restitution of cultural property, bilateral international instruments concerning the restitution of cultural property, and the restitution of stolen cultural property though the application of foreign domestic public law or private international law. In particular, the main focus of this article is on the restitution of stolen cultural property though foreign domestic public law or private international law. At the beginning of the article, it is illustrated where overseas Korean cultural properties are located. The article then delves into why the focus is on the restitution of stolen cultural property though the application of foreign domestic public law or private international law. Three examples are discussed based on these scenarios. The article concludes by looking at the lessons learned from these cases and the challenges that the Korean government and legal community are likely to face.

Civil resistance in Public International Law

Civil resistance has rarely been analyzed from the field of public international law. This article will thus study the conception of civil resistance through its history and its current understanding in scholarship and practice, to then analyze its standing in public international law, considering doctrinal positions and the international legal framework. In this study it is argued that civil resistance may be grounded in international law general principles of law, and more concretely in the general principles of international human rights law. More particularly, it is submitted that international human rights law provides persons and organizations with a conceptual and at the same time operational basis to argue in favor of defending the rights of persons in conditions of vulnerability, discrimination, inequality and exclusion. The article will build on the legal framework and illustrative jurisprudence of United Nations, and regional human rights bodies, to reflect on its potential to serve as a foundation and a source of legitimation for civil resistance and people’s movements in relation to human rights principles, values and norms.

Recent Austrian practice in the field of international law

This selection from Austria’s recent practice in the field of international law has been prepared, once again, by members of the legal service of the Austrian foreign ministry (“Office of the Legal Adviser”, “Volkerrechtsburo”, VRB). We see our report as a contribution to our mutually inspiring dialogue with academics and with other practitioners active in the field of public international law. The highlight of this dialogue is the annual Austrian international law conference (“Osterreichischer Volkerrechtstag”); some of the contributions made at its 43rd session (Wesenufer, 24–26 May 2018) are also published in this ZOR volume. Concerning the European law practice of the VRB, an interesting selection is also published annually in this journal. 2018, with Austria’s EU Council presidency during the second semester, was a special year for the VRB, as VRB members were chairing five EU Council working parties: Public International Law (COJUR), Public International Law/International Criminal Court (COJUR/ICC), Law of the Sea (COMAR), External Relations/Sanctions (RELEX/Sanctions) and Fundamental Rights, Citizens Rights and Free Movement of Persons (FREMP). Some of the activities pursued in these groups during the Austrian presidency are reflected in this report. We wish to thank Catherine Quidenus, Isabella Brunner and Julia Haas (all VRB) who also have contributed to this publication.

Foreword: The Dynamic Evolution of International Law – Rise or Decline?

This is the foreword to the special issue of the Victoria University of Wellington Law Review presenting an edited collection of articles from leading voices in the field of public international law – scholars, judges and practitioners – that reflect on the different dimensions of the problem of change in international law.

Constitutional law and international law at the turn of the century

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. 
 Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. 
 Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. 
 Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. 
 Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. 
 The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. 
 In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community of
 nations. 
 International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.

Protection of cultural identity designs – a universal necessityShould a cultural intellectual property right be constitutionally recognized?

Protection of cultural identity designs is a necessity in today’s society and should be the subject of a joint European cultural policy. Constantly present not only in the fashion industry but all creative industries, designs inspired by tradition are and cannot be regarded as “just a trend”. Creative design is fundamentally different than tradition inspired design, as the latter is strictly connected with the interpretation of the values, traditions and creative mantras of the generating communities.In view of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions autochthonous elements of identity design fall in the category of cultural goods. The discussion is placed in the field of public international law and calls for the development of cultural intellectual property, as an individual branch of law, within the national legal system. The main question of this paper is whether a cultural intellectual property right should be granted constitutional recognition. This paper further proposes the design and implementation of a protection system dedicated to safeguarding and promoting autochthonous elements of design through mechanisms that ensure authenticity, encourage creativity and innovation with respect of cultural identity, and positive exploitation of traditional knowledge. This core of this discussion stems from a project pilot initiated in Romania, supporting the development of a dedicated legal protection mechanism for IA – the Romanian Blouse, a Romanian element of ancestral fashion that has recurrently inspired fashion designers worldwide, and the cultural movement La Blouse Roumaine, that led to the recognition of a universal celebration of the Romanian Blouse on June 24th – The Universal Day of the Romanian Blouse.

International health law: an emerging field of public international law

This article discusses the nature and scope of international health law as an emerging field of public international law. It is argued that the protection of health reflects a pressing social need that should now be spoken of in the vocabulary of international law. Furthermore, there is an urgent need for counterbalancing interests such as international trade, global commerce and the welfare interests of the protection of the health of both individuals and populations worldwide. As of now, international health law is not a well-developed field. The health-related standard-setting legal instruments are very fragmented as there is no overall international recognition of international health law as a distinct branch of international law. Enormous challenges lie ahead, especially in terms of strengthening the existing instruments and addressing the responsibilities of non-state actors in the health field.

International Health Law: An Emerging Field of Public International Law

This article discusses the nature and scope of international health law as an emerging field of public international law. It is argued that the protection of health reflects a pressing social need that should now be spoken of in the vocabulary of international law. Furthermore, there is also an urgent need for counterbalancing interests such as international trade, global commerce and the welfare interests of the protection of the health of both individuals and populations worldwide. As of now, international health law is not a well-developed field. The health-related standard- setting legal instruments are very fragmented as there is no overall international recognition of international health law as a distinct branch of international law. Enormous challenges lie ahead, especially in terms of strengthening the existing instruments and addressing the responsibilities of non-state actors in the health field..

The Economics of Public International Law

This paper is a preliminary draft for eventual inclusion in the Handbook of Law and Economics, A. Mitchell Polinsky & Steven Shavell editors. It reviews and synthesizes the work of economists and law and economics scholars in the field of public international law. The bulk of that work has been in the area of international trade, but many of the ideas in the trade literature have implications for other subfields. Recent years have seen a significant increase in research on other topics as well. The paper begins with a general framework for thinking about the positive and normative economics of public international law, and then proceeds to a treatment of specific topics including customary law, strategic alliances and the laws of war, international trade, international investment, international antitrust, human rights law, conflicts of law, and the international commons (fisheries).

Adopting the Language of Rights for Environmental Protection: Legal and Theoretical Justifications

One of the current debates in public international law is the question of whether to treat environmental violations as human rights violations. These debates have been developed in a fragmented manner by different scholars, theorists and thinkers in the field of public international law. This paper takes the analysis further; it reviews, analyses and responds to the legal and theoretical debates surrounding the proposals for the creation and recognition of a substantive environmental right under international law. It considers the questions ‘why do we need an environmental right under international law and can environmental protection be rightly classified as a human right concern?’ The debates are explored under two headings: the proliferation debate (the new right will lead to a proliferation and devaluation of the human rights currency); and the redundancy debate (the new right will be redundant as environmental concerns are already indirectly covered by existing human rights treaties, common law remedies and environmental agreements). This paper develops a case for substantive environmental rights under international law. It argues that creating an environmental right under international law could be an effective way to recognize the vital character of a clean environment to human existence. It could also be a good way to offer a more coordinated, detailed and well documented approach for dealing with the linkages between environmental and human rights, as opposed to the fragmented approaches adopted across national and regional levels that have not fostered a broad understanding of the linkages. This paper also highlights the main issues that still need considerable thought if this recognition is to be achieved under international law.

'Lex Specialis' in WTO and Investment Protection Law

Traced back to the writings of Grotius and Vattel, the doctrine of lex specialis has been the focal point in the ongoing debate on the fragmentation of international law. While international economic law has been envisaged as a specialized field in the adjudicative ambit of which normative conflicts often arise, it appears that only sporadically lex specialis has been specifically scrutinized in the context of international economic adjudication in general, and the World Trade Organization (WTO) adjudication and investment arbitration in particular. For, despite the rather often invocation of lex specialis in international trade and investment disputes, a considerable degree of generality and vagueness still appears to surround the more detailed aspects of its normative operation. In fact, the continuously growing body of panel and Appellate Body jurisprudence and the numerous investor-state arbitrations indeed feature repeated instances of recourse to the concept, perhaps now more (in numerical terms) than in any other field of public international law. At the same time, and now in qualitative terms, a closer look at these two seminal adjudicative aspects of international economic law provides the opportunity to draw insights that have also merit in the greater field of international dispute resolution. Ergo, as a first step dual typology of lex specialis is examined, so as to draw the line between the lex specialis derogat generali principle and the lex specialis/generalis qualification. Then, as a matter of normative methodology, it is demonstrated, inter alia, that the proper operation of lex specialis derogat generali denotes the juxtaposition of two specific norms. Additionally, it is argued that lex specialis is equally characterized by the normative equivalence of the juxtaposed norms, translated in a requirement for a rather high degree of rationae materiae sameness in terms of both their normative content and function. With these propositions in mind, the argument finally unfolds further so as to offer insights on the obscure issue of normative priority between lex specialis derogat generali and lex posterior derogat priori (later treaties supersedes earlier treaties) as expressed in the Vienna Convention, to then conclude with certain more generic remarks linking the analysis on lex specialis with the rationae materiae aspect of international legal disputes now, so that, overall, the conclusions reached can potentially also find general application outside the four corners of international economic law adjudication. Presented at the SIEL 2010 Conference in Barcelona.