International Law Instruments Research Articles

Enhancing Human Development in Nigeria Through Constitutional Reform via the Human-Rights-Based Approach to Development

Development indexes and scholarship portray Nigeria as non-developed. Non-development is acutely felt in the sphere of human development. This article interrogated the state of Nigeria’s human development by showing that the violation of human rights law is at the heart of Nigeria’s lack of human development. It offered some constitutional reform proposals that could potentially cure the country’s perceived human development weaknesses. It also utilised the human-rights-based approach to development. Consequently, the article answered the following research question: Is it possible to realise human development in Nigeria using the human-rights-based approach to development by way of constitutional reform? While acknowledging the weakness in the often argued importance of making chapter 2 of the 1999 Constitution justiciable, it made a case for the introduction of suo motu intervention by the judiciary in order to boost the realisation of rights that enhance human development: Right to health, right to education and right to a decent standard of living. It also argued for the relaxation of the rigidity of dualism in the 1999 Constitution in order for Nigerians to benefit from certain doctrines, like the principle of progressive realisation, which favour the aforementioned rights that enhance human development. To buttress this point, the paper then cited the innovative section 254(c)(2) of the 1999 Constitution which, to promote the plight of the Nigerian worker, did something similar with regard to the accommodation of international law instruments related to industrial relations.

Legal Concept of a State Aircraft is “Up in the Air”: Problems of a Definition

Due to the technological development the scope of State aircraft application has significantly expanded. As a result there is a need to study the current international legal approach to the definition of “State aircraft” with respect to its applicability to existing relations. Furthermore, the distinction between state and civil aviation is a critical issue in determining the scope of international air law instruments. The authors analyze different approaches to the definition of “State aircraft” at the universal, regional and bilateral level. The study has revealed that there is no holistic understanding of the concept of “state aircraft” in current international law, which has a negative impact on the international legal regulation. The authors conclude that it is advisable to revise the definition of “state aircraft” at the universal level, which should serve as an impetus for further unification of the legal regulation. The authors propose to expand t his legal category beyond the provisions of the 1944 Chicago Convention. This paper argues that it would be in the interests of modern aviation and would address existing and potential legal problems.

Article: Open-Price Contracts Under the CISG: The Law in Action

The CISG is undoubtedly the most successful instrument of international trade law. While in former times the international sale of goods was regulated by domestic laws, today the international community is able to offer a truly international regime for these contracts. However, the CISG is not free from ambiguities and contradictions. One of the most famous is between Articles 14(1) and 55. This interplay has ignited the well-known academic controversy over the validity of sale of goods contracts without an agreed price under the CISG. The purpose of this article is to look at this contradiction from a different point of view. While in theory it is possible to argue that there is a stalemate between the supporters of validity of open-price contracts and their opponents, this stalemate is the law on the book. The law in practice offers a different landscape. It shows that in practice open-price contracts are regarded as valid under the CISG, although the adjudicators still struggle with the correct application of Article 55. Open-price contracts, Article 14, Article 55, agreements to agree, tentative prices, determinable price, contractual validity, market price, reasonable price.

The Application of the Public Order Clause on the Financial Market as One of the Elements for Building Sustainable Finance in a Comparative Perspective

Abstract The public order clause is an instrument of private international law that limits the possibility of applying the law of a designated country in cross-border contractual relations. The role of the clause is to protect the specific interests and values of a given legal order, the importance of which is so significant that it justifies refusing to apply foreign law or limiting the scope of its application. From the point of view of the subject of this study, the public order clause could potentially be applied by national supervisory authorities in a situation of a threat to the security and stability of a given financial market. Thus the purpose of this article, in which the author uses the functional approach of the comparative legal method, the historical-descriptive method and the dogmatic method, is to verify the thesis about the possible use of the public order clause as an instrument supporting the process of building sustainable finance, along with its limitations in the form of the French concept of effet atténué and also from a comparative and cross-border perspective.

Interpretation of “Investments” and “Investors” in the Russia-Belgium/Luxembourg BIT: Seeking Ways to Resolve the Case of NSD

The paper addresses jurisdictional issues on the case of NSD initiating investment arbitration against Belgium/Luxembourg. Under the Russia-Belgium/Luxembourg BIT, the states undertake to prevent expropriation of investments and, if it does happen, to pay timely and fair compensation. Such “expropriation” may also occur due to sanctions. Being a Russian intermediate custodian for a number of foreign securities, the NSD has accounts with the centralized European securities Euroclear/Clearstream depositories. Since the inclusion of the NSD in the list of entities provided for in Annex I of EU Regulation no. 269/2014 in June 2022, transactions with the securities were suspended, NSD’s account with Euroclear/Clearstream was blocked. Because the NSD accounts with foreign securities depositories were blocked, it became impossible to transfer non-Russian securities from a securities account opened with the NSD to another Russian or foreign securities depository. One of the ways to challenge the consequences of Euroclear/Clearstream actions is to file a claim with the investment tribunal against Belgium/Luxembourg. The case has two potential solutions: mass claim from the end-investors or one single claim by the NSD as a “nominee holder” of the end-investors’ securities. The first option might seem time- and resource-costly, which is why a claim by the NSD might seem more attractive. Hence, using the interpretation instruments of public international law, the paper aims at assessing the perspectives of initiating investment arbitration proceedings by the NSD, thereby focusing on interpretation of the two central terms in the Russia-Belgium/Luxembourg BIT — “investor” and “investment”. The paper concludes that prima facie the investment tribunal would have jurisdiction over the case rationae personae nonetheless the “nominee holder” status of the NSD, as well as jurisdiction ratione materiae, where the blocked securities could constitute an “investment” in the sense of the BIT. Consequently, the paper defines the legal capacity of nominee holders to initiate arbitration. Since the issue has never been raised before, the paper draws an analogy with the case law on shell companies.

Prospects And Challenges of Women's Right Against Domestic Violence Under International Law

In addition to being a violation of human rights, domestic violence against women and girls has been seen as the most extreme example of gender inequality. Due to its widespread nature, the consequences for children, families, and communities, as well as the significant economic costs to society, it has been recognized as a violation of human rights under international law. Numerous international legal instruments were adopted and ratified to assure women’s protection from domestic violence. The study looked at domestic abuse’s status as a human rights violation under these treaties. It was found that victims of domestic violence in the family now have a chance to enforce their rights because it is recognized as a violation of their human rights. However, because these tools are not legally binding, victims find it difficult to rely on them. Therefore, we are unable to coerce state compliance. As a result, it is recommended that instruments of international law have a single standard that has the legal power and is applied to all parties who violate them on a global scale.
 Keywords: Domestic violence, Family, International Law, Human Rights, Women

InsurTech and private international law considerations

ObjectivesInsurTech is a new and interesting phenomenon, linked to the use of new technologies, such as artificial intelligence or distributed ledger technology, in the insurance sector. The factual and legal nature of relationships in this area, due to their heterogeneous and complex international character, raises many questions. Some of these relate to private international law, where conflict situations raise questions such as which law (the law of which state) is the substantive law applicable to resolve these situations. Presenting the complexity of this area, this statement describes possible solutions and reflects on the need and potential of applying private international law in the InsurTech sector. It introduces the InsurTech phenomenon, presents its links with private international law, reflects on the adaptability of existing mechanisms of this law to highly technological legal relations, and concludes by an attempt to indicate how to combine InsurTech and private international law, and whether this is possible at all.Material and methodsThe work was written using standard scientific methods for legal science. It is primarily a dogmatic work, but also reaches for comparative legal elements. This choice of methods is justified by the presented issues.ResultsThe result of the research is an assessment as to the possible use of private international law tools for the problems that arise with InsurTech instruments.ConclusionsThe author points out that the currently known private international law instruments are not suited to the modern requirements of the insurance services sector, especially in the context of the use of artificial intelligence or DLT technology (blockchain, smart contract) in the sector.

Supreme Audit Institution Recommendations and the Legal System: The Case of Indonesia

Abstract The audit recommendations of the Indonesian supreme audit institution (Badan Pemeriksa Keuangan, BPK) acquired new significance after the collapse of the authoritarian state in 1998 and constitutional amendments in 1999–2002 that reformed the regulation and institutional governance of public sector audit in Indonesia. However, while the reform of public sector audit regulation was carried out through a strong adoption of private sector audit standards and the Westminster SAI model, the BPK retained some of its Napoleonic legacy. This syncretic organisation led to confusion about the BPK’s role and position in the Indonesian legal system. Using a historical and case study approach, this paper analyses the relationship between the BPK’s audit recommendations and the Indonesian legal system. It argues that it is important for the BPK to develop auditing standards that take full account of higher rules, administrative law, and national interests, or at least not to adopt and abolish auditing standards that are counterproductive to its judicial function – not merely to accommodate private international law instruments developed by private non-state actors operating outside the legal framework of a sovereign state.

Building the Concept of Just Transition in Law: Reflections on its Conceptual Framing, Structure and Content

This article focuses on the concept of just transition, which has recently greatly expanded in the climate debate, expressing the demand to adopt and implement climate policies leading to decarbonisation in a way that maintains equity and justice. Building on previous research on the concept of just transition in other disciplines of social sciences, and on the concept’s appearance in international climate law instruments and law literature, we analyse the just transition in the field of law. We seek to clarify its conceptual framing, to define its meaning, and to determine its position and limits in law. We then examine it vertically (for each level of law) and horizontally, addressing the main criteria that define its content, i.e., human rights and legal principles.

The Common Core of the Fundamental Standards of International Humanitarian Law and International Human Rights Law

Abstract The presented paper discusses the convergence of international humanitarian law and international human rights law in armed conflicts. International human rights law and the human rights law converge and interact with each other because natural law is at the core of both these disciplines of public international law. Although international humanitarian law is a lex specialis, the general rules regarding the interpretation of treaties clearly indicate that international human rights law must be interpreted in the context of other rules of international law, and its possible derogations must be compatible with other international obligations of the state, including humanitarian law. In the event of a conflict between international humanitarian law and international human rights law, the mechanism for resolving conflicts between the standards was supplemented by an interpretation based on the principle of ‘system integration’ of the International Court of Justice which results in the ‘humanization’ of international humanitarian law. The evolution of the case-law of the European Court of Human Rights, which takes into account the international humanitarian law as the reference norm that should be referred to, demonstrates the close relationship between these areas of law. In the case of the application of universal and regional instruments of international human rights law, we are dealing with the ‘humanitarianization’ of these rights.

Violation of human rights to access to cultural heritage during the Russian aggression against Ukraine

The article is devoted to the study of the right of a person and a citizen to use the cultural heritage of his people, to access cultural values. During the armed attack of the Russian Federation on Ukraine, from the first days of the active phase of the war, the world saw cultural genocide, intentions to destroy the Ukrainian nation, which, according to the aggressor, has no right to exist. The whole world witnessed the destruction by the aggressor country of our historical memory, which is represented in objects, traditions, crafts, etc. Cultural heritage is a living tradition that connects generations, forms the identity of the Ukrainian nation, and is the property of all mankind. The denial of the Ukrainian people's ownership of their cultural heritage, its destruction, the theft and appropriation of cultural values, the eradication of historical memory is a component of the Russian policy of destroying the identity of the Ukrainian people. Therefore, cultural heritage occupies a central place in the strategy of Russian aggression against Ukraine to establish historical, cultural and religious hegemony. It is the cultural heritage of Ukraine, in which our Ukrainian cultural code is reflected, that influences the formation of us as a nation, inspiring the defense of our country against the racists. This once again emphasizes that the preservation of cultural heritage sites during war or armed conflict is extremely important when there is a great threat of their damage, destruction or theft of cultural values by the enemy. The article analyzes international and national legislation regarding the preservation of the cultural heritage of the people and responsibility for its destruction during hostilities. Ukraine and, first of all, the international community should apply all instruments of international law in order to bring to justice both the aggressor state and individuals guilty of the destruction, damage and theft of cultural values of Ukraine, because, as noted at the beginning of the article, cultural heritage is property of all mankind.

Social Transformation of International Human Rights Law Through Indonesian Constitutional Court

The importance of human rights in international law cannot be overstated. International Law plays a fundamental role in safeguarding and promoting human rights, which are safeguarded through a variety of legal instruments, including international conventions and international declarations, both of which are recognized as instruments of international law. The fundamental principles of Human Rights are recognized in the legal system of Indonesia. These fundamental principles are expressed in the Constitution and its related legal documents through the provisions and values that govern human rights. Thus, the preamble of the Constitution of the Republic of Indonesia includes the fundamental principles of Self-determination, Independence, Security, Social Welfare, and Education. This research will look at how the Indonesian Constitution regulates and guarantees the implementation of international human rights law through the Indonesian Constitutional Court, as well as how these rights are integrated into society from both the government's and society's perspective. This research is done through interdisciplinary approach, combining legal, social, and comparative studies. Ultimately, it's about how Indonesia's Consitutional Court can help make human rights practices better and more effective. As the highest judicial organ of a state, it is essential for the Constitutional Court to effectively and effectively implement the international human rights system as we know it in order to safeguard the interests of all stakeholders, especially in Indonesia. Keywords: human right ; constitution; International law;

„Brexito“ įtaka tarptautiniam bylinėjimuisi

By concentrating on the few recognised instruments of private international law, the article analyses problems in international commercial dispute resolution arising from Brexit. In particular, the paper deals with the relevance of, firstly, the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; secondly, the 2005 Hague Convention on Choice of Court Agreements; and, thirdly, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, all in the context of Brexit. Contextual analysis of each of the said instruments pays particular attention to the challenges specific to each of them. Therefore, for example, the article discusses the EU’s arguments in relation to its refusal to allow the United Kingdom to join the aforementioned 2007 Lugano Convention as well as varying perspectives on the moment when the 2005 Hague Convention begins to apply to the United Kingdom. Finally, the paper discusses the relevance of the recent 2019 Hague Convention in the context of Brexit.

A Double-Edged-Sword Approach to Fighting Pandemics: Patent Waivers and Incentives to Innovate

Although continents recently experienced an apoc­alyptic pandemic that posed a mortal danger to millions of people, a new, even deadlier pandemic could soon emerge… The paper seeks to address the role played by patent waivers and current contractual arrangements in the pharmaceutical indus­try in addressing the dangers caused by the current and future pandemics. The process of waiving patents is explored where it is argued that it sadly cannot amount to the knight in shining armour that everyone has been expecting. Due to the lack of coordination, the tremendously long process, and the potential block in innovation arising from pharmaceutical companies having smaller incentives, more attention must be paid to other alternative institutional solutions. Drawing from the economics literature on innovation in the pharmaceutical sector, a concep­tual framework is proposed for improved legal intervention in the case of patent waivers in international intellectual property law instruments. In addition, the paper provides a comparative law and economics treatment of current patent waivers in US, EU, and international law instruments.

Formy współpracy między państwami w celu odzyskania utraconych dóbr kultury – uwagi wokół poszukiwania optymalnego wzorca Forms of cooperation between

In the search for an optimal pattern of conduct for the settlement of disputes concerning the ownership of cultural property, the article characterises the legal means and conciliation initiatives available to states. The discussion is limited to the forms of cooperation confirmed in international law instruments, developed especially in the framework of UNESCO’s period of activity, as adopted in the second half of the 20th century and thereafter. In this context, the use of litigation before both the International Court of Justice and national courts is discussed. Attention is also given to conciliatory forms of dispute resolution, distinguishing between consensus initiatives involving only the states interested in resolving the dispute and forms extended to include the participation of impartial mediators supporting the parties in their search for a satisfactory solution. The article assumes that the development of an out-of-court compromise is particularly desirable when the settlement of a dispute concerning the ownership of a cultural asset by an international tribunal or national courts, due to the legal status in force, limits the prospect of obtaining a substantive settlement satisfactory to all parties involved in the conflict.

Right to Repatriation of Abandoned Seafarers: A Study in Light of Maritime Labour Convention 2006, and International Covenant on Civil and Political Rights 1966

The abandonment of seafarers is one of the major challenges that seafarers onboard vessels may face. In 2022, 1555 seafarers were abandoned on 113 ships. The port state's role in seafarer abandonment is crucial because it can assist abandoned seafarers by facilitating their repatriation. In practice, however, it has been seen in many cases that the port state of the vessel had restricted the disembarkation of the abandoned crew from the vessel by citing the reason that the vessel cannot be left unmanned. The present study will assess such measures adopted by the port states in light of International Law instruments, including the Maritime Labour Convention, 2006 and the International Covenant on Civil and Political Rights, 1966.

Legal Regulation on Nuclear-Powered Ships Activity in Indonesian Waters Territory

On 17 September 2021, Australia, the United Kingdom and the United States signed the AUKUS agreement legitimizing the ownership and development of Australian nuclear-powered submarines. This has direct implications for Indonesia, which has a strategic position as a trade route. In response to this, Indonesia has taken several political steps at the regional level as well as in multilateral forums. This research is intended to analyze legal steps that can be taken by Indonesia to regulate the navigation and safety of nuclear-powered submarines considering that international maritime law instruments do not accommodate these concerns. Through a normative legal approach, using the theory of Critical Legal Studies and the Concept of Legal Politics, this research finds that Indonesia needs to regulate provisions for the navigation and safety of nuclear-powered submarines at the national level.

Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?

Abstract Since India has no established refugee regime, most developments in this sphere have arisen from judgments. However, the lack of relevant applicable law means that these developments are piecemeal and humanitarian at best, failing to make true advances in jurisprudence, and anti-refugee at worst. This article argues that through recourse to international law, these hurdles can be surmounted to ensure more robust protection to refugees. Further, it is argued that constitutional and international law obligations binding India mandate that the Indian judiciary refer to these international law instruments. Doing so would ensure significantly stronger protection for refugees and less deference to the executive’s ad hoc stance.

Wybrane problemy procesowej kontroli i utrwalania rozmów

This study addresses certain aspects of procedural surveillance and recording of wiretapped calls which are relevant to prosecutorial practice. This subject matter, regulated in Chapter 26 of the Code of Criminal Procedure, involves fundamental rights of individuals which are strictly protected under the Constitution and the highest-ranking instruments of international law. Therefore, it is of utmost importance to not only appropriately elaborate the legal regulations that permit the surveillance of citizens, but apply them in the everyday practice of law enforcement and the judiciary. The author discusses the evolution of procedural wiretapping in the Polish legal order in order to facilitate the understanding of the current regulations in this field. He also points out to specific difficulties in interpreting certain vague terms such as ‘an urgent case’, whereby a public prosecutor may order surveillance and recording of the content of telephone conversations; or a ‘particularly justified case’ which constitutes the grounds for extended surveillance and wiretapping of telephone conversations. In addition, the article takes a closer look at a possibility of procedural wiretapping under a relatively new legal institution, i.e., the European Investigation Order. With regard to this issue, mention was made of numerous controversies amongst legal scholars as to the amendment to Article 237a of the Code of Criminal Procedure, which has eliminated the so-called ‘subsequent consent of a court of law’ and placed the decision on the use of the information obtained by way of procedural wiretapping in the hands of a public prosecutor within the framework of expanding the objective or subjective boundaries of surveillance.

New Wine, Old Bottles? A Review of Gabriel Gatti’s Desaparecidos (2022)

New Wine, Old Bottles? A Review of Gabriel Gatti’s Desaparecidos (2022) Joseph Wager (bio) Gabriel Gatti, Desaparecidos: Cartografías del abandono (Turner 2022), ISBN 9788418895371, 320 pages. Latin America’s experience of terror under dictators in the second half of the twentieth century and its robust civil-society response brought enforced disappearance to international attention. This attention has been integral to advances in international human rights law, most notably in the form of the International Convention [End Page 354] for the Protection of All Persons from Enforced Disappearance (ICPPED). Entered into force in 2010, the legally binding ICPPED has triple-digit signatories and represents the first instrument of international human rights law to prohibit disappearance. The ICPPED follows the contours of the Southern Cone legacy and defines enforced disappearance as the: deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.1 How to approach disappearance today, with international law as an implicit interlocutor, is the topic of Gabriel Gatti’s newest book, Desaparecidos: Cartografías del abandono (The Disappeared: Cartographies of Abandonment). Of Uruguayan extraction, Gatti is now a sociology professor at the University of the Basque Country in Bilbao, Spain. He is a leading figure on the systematic extermination of many thousands in the Southern Cone. Disappearance has been inscribed in Gatti’s biography: his father, sister, brother-in-law, and cousin were disappeared. For decades, he has embarked upon a sociology of the “gut” and “shoes,” bringing an embodied awareness to the academic study of this family legacy in powerful works such as Surviving Forced Disappearance in Argentina and Uruguay.2 His latest study exchanges the tangible gut and shoes for the intangible rumor: “I follow the rumor, that of the desaparecido,” which implies a concomitant adjustment in method and definition of the object of study.3 In this new work, Gatti assays an accounting of the overflow of desaparecidos beyond the enforced-disappearance genealogy of those deemed political dissidents in the Southern Cone to the proliferation of the term in contemporary human-rights discourse. From missing migrants in the Sonoran desert to stateless people in the canefields of the Dominican Republic, from the growing population of unhoused people in San Francisco to babies robbed in Spanish hospitals, Gatti tracks the category desaparecidos as one articulating abandonment across far-flung locales and juridically unconnected situations. Such an embrace entails personal and intellectual conflict for Gatti, as he is quick to point out. Not only do the new ways of discussing and identifying disappearance above not conform to his biography but they also fall outside the strictures of international human rights law. In jeopardy, then, is the normative advancement enshrined in the ICPPED. Yet this advancement itself warrants interrogation. The ICPPED has not provided meaningful relief in the vast majority of cases. To give one example, between 1980 and September 2020, the UN Working Group, which helped shape the ICPPED, “has sent a total of 58,606 case files to 109 States requesting search and investigation of the enforced disappearances. The number of disappearance cases under active consideration by the Working Group stood at 46,271 in 92 States as of May 2021.”4 And this only [End Page 355] captures cases that have been accepted in international fora, which already comprise a highly filtered number of cases. To offer another example, Mexico recently crossed the threshold of 100,000 officially registered disappeared, though international mechanisms would not recognize most of these cases as enforced.5 Gatti tackles these issues, the lack of relief and the tension in classifying persons as disappeared, head on, attending to the use of desaparecidos from the ground up, as it were. At stake in the pressing debate on disappearance is the privileging and socio-juridical legitimation of enforced disappearance at the expense of other forms of disappearance; thus, Gatti takes seriously the rumor to counter the category as understood in its Southern Cone...