International Law Instruments Research Articles

Article: Green Regionalism: US Strategies to Ensure Secure and Reliable Supplies of Critical Minerals

Critical Minerals are essential constituents for numerous modern technologies from computers, and modern cars to household appliances. Most critical minerals are also key inputs in technologies that are crucial for clean energy transitions such as batteries, electric vehicles (EV), wind turbines, solar panels etc. Global trends indicate that the race for ensuring a secure and reliable supply of critical minerals is being furthered through industrial policy, domestic regulations as well as international economic law instruments. More recently these three aspects have been characterized by increasing securitization as seen through attempts to friendshore and reshore supply chains and capacities. This paper peruses the recent Critical Material Transparency and Reporting of Advanced Clean Energy (Critical Material TRACE) Bill which focuses on implementing a digital identifier system for advanced energy systems including batteries and battery components. The paper looks at the bill in connection with other initiatives aimed at creating United State (US) led critical mineral value chains. These include industrial policy measures including the Inflation Reduction Act (IRA) as well as international initiatives such as the Mineral Security Partnership (MSP) and the Indo-Pacific Economic Framework (IPEF) inter alia. In our examination, the focus is on analysing the progress made under the US-led MSP and the potential coverage and implication of the Critical Material TRACE Bill. We also examine if such steps by the US further promote green regionalism or are necessary to break the dominance of a few countries (mainly China) in leading the critical minerals supply chain.

Legal Security of Parties in the Aspect of Dispute Settlement in the World Trade Organization

One of the basic elements of world order is properly functioning legal systems of individual states. The Sars-Covid pandemic and armed conflicts around the world, including those involving Europe, have strained the certainty of legal transactions in the countries of the UN system and the need to seek new supranational solutions, especially in the field of international trade. The pillar of security is therefore becoming instruments of international law, with the World Trade Organization in mind. A special tool of this organization are the dispute settlement mechanisms to which member states must adhere. In the conducted research, the thesis was put forward that one of the guarantors of the security of legal transactions is the resolution of disputes using the basic legal tools of this organization. It was proved that disputes between states themselves become solvable if they are transferred to the WTO.

Preferential Personal Income Tax Regimes in the European Union: A New Form of Permitted (Harmful) Tax Competition?

The aim of this contribution is to examine whether the current normative framework of the European Union is adequately equipped to deal with the potentially harmful effects of the so-called preferential personal income tax regimes (PPITRs). For that purpose, after providing an overview of these special tax measures within the EU landscape, the article analyses whether these regimes could be considered a new form of harmful tax competition under the international soft law instruments developed by the OECD and European Union. It is highlighted that these instruments at present do not cover personal income tax rules, although the effects of PPITRs can be as harmful as those of preferential corporate income tax regimes. With regard to other EU instruments (State aid rules, fundamental freedoms and the fundamental right to equality), it is concluded that they are not adequate to tackle in a systematic way the potential harmful effects of special tax regimes targeting individuals. To remedy this hiatus, a proposal is made to extend the mandate of the EU Code of Conduct and adapt the currently applicable criteria under the Code to enable it to capture harmful PPITRs.

THE OBSTACLES TO THE RIGHT TO A FAIR TRIAL UNDER THE INTERNATIONAL LAW: A CASE STUDY OF AL-ANFAL AND SREBRENICA GENOCIDE TRIALS

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al- Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants’ rights during the al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity.

Business and human rights as Swedish foreign policy: The soft implementation of international regulatory norms

AbstractThis article aims to explain why national governments choose soft policies in the domestication of international norms even when those norms may explicitly call for harder measures. The article achieves this aim by exploring domestic adoption of National Action Plans (NAPs) for implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs are an international soft law instrument that calls for a mix of voluntary and mandatory policies to promote human rights due diligence, and NAPs are soft domestic policy instruments that lack the bindingness of mandatory due diligence legislation now found in several states. Most governments with NAPs have adopted them specifically as foreign policies, treating them not as regulatory initiatives but as tools for enhancing national reputations. Using a range of primary and secondary sources, the article constructs a case study of Sweden to explain why governments might opt for softer implementation of the UNGPs in the form of NAPs. It draws several conclusions: (1) governments may emulate the approach to domesticating international regulatory norms that is promoted by international organisations; (2) support from domestic actors motivates norm implementation, and the policy style selected is likely to reflect power constellations in the state and, under consensus‐based governance systems, the lowest common denominator of actor preferences; and (3) path dependency following institutional venue selection influences the type of policy developed and adopted. These findings shed new light on the reasons why international policy norms are implemented in ‘softer’ ways than perhaps intended by their architects.

Climate Litigation in Indonesia: Lessons from the Royal Dutch Shell Case

This article compares the concept of unlawful act in the Indonesian and Dutch Civil Codes, with specific attention to the notorious decision of the Milieudefensie et al v. Royal Dutch Shell Case. Therein, the Dutch Court applied unwritten law under Article 6:612 of the Dutch Civil Code, calling for reduction in carbon emissions through policy changes by the Shell group. The use of unwritten law allowed for a comprehensive assessment of legal bases, including international soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights. Inspired by such a decision, this article aims to unveil the readiness of Article 1365 of the Indonesian Civil Code in entertaining a similar case. It compares the approach taken in the Milieudefensie et al. v. Royal Dutch Shell Case with pertinent decisions by the Indonesian court concerning the implementation of Article 1365 of the Indonesian Civil Code. Furthermore, it focuses on two prongs of civil liability that are necessary for establishment: 1) unwritten law; and 2) causality. By doing so, this article aims to contribute to the evolving realm of climate litigation, specifically within the framework of civil law.

Novi međunarodni privredni sudovi

In this paper, the author provides an overview of the main characteristics of international commercial courts, their composition and jurisdiction, as well as private international law instruments that ensure the recognition and enforcement of their decisions abroad. International commercial courts are national courts of international jurisdiction. They are established by individual states that aspire to be or become significant global centres for the resolution of commercial disputes. They are characterized by a certain degree of internationalization, reflected in their ability to conduct proceedings in the English language and in the origin of judges, who are, in some instances, foreign nationals. Some international commercial courts adjudicate cases according to common law rules, even though they are based in countries with legal systems based on continental law or Sharia law. The procedural rules before most of these courts incorporate elements of arbitral procedural rules and alternative dispute resolution methods. They generally have jurisdiction in commercial disputes with an international element, and they recognize a written choice-of-court agreement of the parties as the basis for international jurisdiction. In this regard, there is no requirement for any connection with the state where the court is based for valid submission to jurisdiction.

STUDY OF THE ADVISORY OPINION OF THE INTERNATIONAL COURT OF THE LAW OF THE SEA REQUESTED BY THE COMMISSION OF SMALL ISLAND STATES ON CLIMATE CHANGE AND INTERNATIONAL LAW

On May 21, 2024, the International Tribunal for the Law of the Sea issued its advisory opinion in the context of the issues submitted for opinion by the Commission of Small Island States on climate change and international law; This opinion constitutes a foundational reference for international law regarding the obligations of States in environmental matters and the fight against Climate Change in the seas and oceans. This study analyzes several elements that arise from the ruling, such as the jurisdiction of the Court; the applicability of various international law instruments beyond those on climate change; and, the establishment of marine protected areas as an ideal tool for the fight against Climate Change in accordance with international treaties on the Law of the Sea and Environmental Matters.

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.

Захист прав людини на міжнародному рівні під час збройних конфліктів: історія становлення та сучасні виклики

The article draws attention to the fact that international protection of rights during armed conflicts plays an important role, and it must be effective for its implementation in countries in armed conflicts Regardless of its nature, whether international or non-international armed conflict, it threatens the realisation of most fundamental human rights and freedoms, including the most important natural human right - the right to life. The author examines the problems of international protection of human and civil rights in armed conflicts, the history of international campaigns to protect human rights in various paramilitary attacks, and the new international policy on human rights protection during the Russian-Ukrainian war. The purpose of the article is to analyse the international protection of human rights in the context of historical challenges and current armed conflicts, highlighting key issues, aspects and possible ways to improve existing legislation and practice. Case studies will also be considered to better understand the dynamics of human rights protection during armed conflicts and the role of international organisations in this process. The article concludes that international norms and treaties aimed at protecting human rights remain relevant and effective even in the most difficult conditions, such as armed conflicts. International human rights law, in particular, as defined by specific instruments, provides the necessary framework for the protection of fundamental rights and dignity of people even during hostilities. It is noted that it is important that the international bodies responsible for the implementation and enforcement of these norms confirm the inalienability of human rights protection in conflict situations. The condemnation of war crimes, genocide and violations of international humanitarian law indicates that the international community recognises the importance of protecting fundamental rights during war. It is emphasised that even in exceptional situations, when states take measures to derogate from their obligations due to the threat to the life of the nation, the preservation and protection of human rights remains a central task of the international community. It is important to continue to improve the mechanisms and instruments of international law aimed at ensuring the effective protection of human rights in time of war, thereby contributing to stability, justice and human security in the world.

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.

Reviewing the reviews: the Global Compacts' added value in access to asylum procedures and immigration detention

The Global Compact for Migration and the Global Compact on Refugees are based on binding international law instruments whose provisions they complement with “best practice” standards related to the treatment of refugees and other migrants. Although the Compacts are non-binding, they provide for review mechanisms to promote compliance with Compact standards. Such oversight is important to achieve progress in implementing the Compacts' commitments. Yet, the current top-down and State-led review process does not offer an efficient platform for identifying cases of non-adherence to Compact standards. This article uses a case study approach to highlight instances of non-compliance with Compact standards in Canada, South Africa, and the European Union. We use a functionalist method of comparison to analyze State practice in these three regions in relation to (i) use of immigration detention and (ii) access to the asylum procedure, with access to healthcare as a cross-cutting issue. The article discusses how the Compacts' review mechanisms could be improved and their added value in terms of their impact on domestic migration policies. It argues that both Compact review and implementation can be improved through increased civil society participation.

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.