Theory Of International Law Research Articles

CRITICAL OVERVIEW OF PRINCIPLE OF TERRITORIAL INTEGRITY UNDER INTERNATIONAL LAW

The tapestry of world affairs in the post-Westphalian era has introduced various multifaceted concepts for the protection and preservation of the territorial integrity of states around the world. Unlike in the medieval ages when the rule of ‘might is right’ was prevalent, the concept of territorial integrity has provided an impeccable locus standi to all the big and small legitimate countries. The protection of the inviolability of their territorial jurisdiction is guaranteed under the auspices of an effective international legal framework. In the following lines, various aspects of the “principle of territorial integrity” have been critically evaluated in considerable detail. The facets about evolution, interpretations, differences with other resembling concepts under the principles and theories of international law have been construed herein below. Moreover, the use of the “principle of territorial integrity” for the resolution of past disputes has also been mentioned at great length. The prospects and recommendations for using this principle for settlement of present international territorial disputes for the collective peace and serenity of the world have also been elaborated in the final part. Keywords: Territorial integrity, international law, UN Charter, ICJ, Unilateral annexation, Threat or use of force, UNSC Resolution, Sanctions.

International Law´s premature farewell to the concept of War

According to the dominant view, the supposedly state-centric concept of war has been successively replaced after the Second World War by the concepts of use of force, aggression, and armed attack in international security law, on the one hand, and the concept(s) of armed conflict in international humanitarian law, on the other. Based on an analysis of post-war codifications, in particular, international human rights law, this article argues that it is yet still too premature to bid farewell to war as a concept that for centuries has shaped the practice and theory of international law. Rather, it should be treated as a dynamic umbrella concept recognizing that non-state actors may be capable of committing acts of war, i.e., armed attacks triggering a state´s inherent right to self-defence. As further explained by the authors, this 21st century concept of war might be located in international law´s general part, thus overstretching its different subareas and without altering the lex specialis-concepts contained therein.

The New Haven School Matters: An Inquiry into Insights of the Policy-oriented Jurisprudence for the Pedagogy of International Law in Iran

While the scope of the theories of international law has expanded over the past decades, the formalist rule-oriented approaches are still dominant scholarly traditions in Iranian legal studies. Describing the internal structure of the New Haven School of international law, the author suggests that the Iranian community of international law may embrace the methodological frame of policy-oriented jurisprudence in doctrinal legal research. It is an irrefutable fact that the rule-oriented schools (including positivism and natural law) could provide compelling insights into some features of international law; however, a profound understanding of the dynamic and changing process of international lawmaking requires moving beyond a set of supposedly fair and neutral legal rules. The policy-oriented perspective has provided a variety of intellectual tools and concepts (including the elements of the world constitutive process: participants, perspectives, arenas of decisions, bases of power, strategies and outcomes) to identify and influence the comprehensive process of authoritative decisions.

Subjects of the right to self-determination in contemporary international law

The issue of subjects of the right to self-determination is one of the most controversial issues in the theory of international law. The author, researching etymology, as well as cases of application of concepts “people” and “nation”, pays attention to their interchangeability and sometimes identification. The author proposes to view people (in a narrow sense) as a spatial, related to a particular socio-economic, linguistic, cultural and spiritual way of life, of individuals. Broadly speaking, a people is characterized as a social community that acquires a political identity and thereby becomes a nation, under certain circumstances, a State. The article proposed criteria for the self-determination of peoples and nations in accordance with the current international order and architecture. The research focuses on institutions such as uti possidetis juris and remedial secession. The author’s analysis of the advisory opinion of the International Court of Justice on Kosovo is of some interest. In considering the problem of indigenous and small-numbered peoples and national minorities, the author proceeds from the possibility that they may exercise their right to self-determination in the form of territorial autonomy or self-organization (self-government), depending on their number, characteristics of resettlement and other circumstances. Both models (territorial and extraterritorial) are designed to give indigenous peoples their identity, based, inter alia, on established traditions and customs, Development in accordance with the fundamental laws of the State and the norms of international law, while preserving the stability and territorial integrity of the State. On the basis of the jurisprudence of the Human Rights Committee, various aspects of the legal personality of individuals in the exercise of the right to self-determination have been examined.

Nuclear Disarmament: Some Aspects of International Legal Regulation

The subject of the study of this article is some aspects of the problem of nuclear disarmament, which are highlighted, among other things, from the perspective of the ongoing military special operation in Ukraine. The history of the creation of the nuclear disarmament regime is traced. The main documents regulating the procedure of nuclear disarmament are characterized. The ways of strengthening and finding a compromise in the issues of nuclear disarmament in the world have been identified. The analysis of the problem of nuclear disarmament, which is at the center of international relations and is relevant in the theory of international law, is given. The author has studied the international legal regulation of nuclear disarmament, identified its problematic aspects. The main documents in the field of legal regulation of nuclear disarmament are the Treaties on the Non-Proliferation of Nuclear Weapons, the Comprehensive Nuclear Test Ban Treaty, as well as the International Monitoring System created for its implementation. The existing international legal system of control over nuclear disarmament, non-nuclear testing, and the use of atomic energy exclusively for peaceful purposes does not always prove its effectiveness, as a result of which countries with unstable political situation possess nuclear weapons, which entails an additional threat to the world community. As a result of the analysis, it was concluded that the current system of international monitoring of nuclear tests and the system of international regulation of nuclear disarmament need to be modernized in order to eliminate the threat of proliferation and use of nuclear weapons. Currently, the development of technologies for the enrichment of radioactive substances, the emergence of new threats and other factors create significant obstacles to the preservation of the nuclear disarmament regime.

Definition of “Armed Conflict” in Outer Space

Countries should follow the principle of peaceful development when developing and utilizing outer space resources and rights, but the increasing militarization or weaponization of space is contrary to this basic principle. The militarization or weaponization of space not only creates tension in international relations but also greatly increases the danger of armed conflicts in space. According to the basic theory of international humanitarian law, it can be deduced that once an armed conflict in outer space breaks out, the existing international humanitarian law can be applied. Then, determining the definition of “armed conflict in outer space” and the possible types of “armed conflict in outer space” are the prerequisites for the application of international humanitarian law. Although no armed conflict in outer space has actually broken out yet, it does not prevent us from conducting tentative research on the concept of “armed conflict” in combination with the characteristics of outer space activities.

State and Personal Responsibility: War Crimes, Crimes of Aggression and Genocide in Ukraine

This article examines international crimes committed on the territory of Ukraine since February 24, 2022. Ukraine faces explicit acts of aggression, with a multitude of war crimes—including murder, sexual violence, and deliberate attacks on civilian property and infrastructure—being perpetrated within its borders. Additionally, there are indications of genocidal intent. Urgent attention is required to investigate the violations of international humanitarian law. Further, the article identifies the main causes of war crimes committed by the military: military errors or failures, the use of civilians as “human shields,” insufficient discipline, inadequate inculcation of legal norms related to international humanitarian law and Just War Theory within military ranks, and the use of targeted terror aimed at crushing the enemy’s will to resist. The author examines the interrelation of war crimes and information warfare in light of the importance of discerning truth amidst a sea of disinformation and cover-up. Finally, he explores national and international mechanisms for bringing perpetrators of crimes to justice, as well as seeking compensation for the damage they caused.

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It has been established that at today's stage of development of the democratic Ukrainian society, security issues come to the fore. Mechanisms for responding to crisis situations occupy a special place in the state's national security system. The appropriate level of provision of the state and the population against the threat of crisis situations that threaten national security is a guarantee of sustainable development of society, and this proves the relevance of the chosen research topic. The purpose of the article is the scientific substantiation of the theoretical and methodological foundations of the phenomenon of crisis situations that threaten national security and the provision of practical recommendations for further improvement and development of appropriate response mechanisms of the components of the security and defense sector of Ukraine. It was determined that modern conflicts require a comprehensive solution, as well as the participation of various departments, power structures and organizations in ensuring the safety of citizens, protecting the constitutional system, sovereignty and territorial integrity of the state, in eliminating grave consequences, etc. Under such conditions, the security forces of the security and defense sector of Ukraine play an important role. Today, global globalization processes contribute to the emergence and aggravation of armed conflicts of various levels of intensity. Therefore, the modern theory of international law includes international organizations (UN, NATO, etc.) as possible subjects of international armed conflicts. In addition, recent events in the world clearly show the growth of terrorist attacks, and later military conflicts, based on the processes of globalization. Analyzing the normative legal documents that regulate the defining principles of the functioning of the national security system, it was established that a new term "crisis situations that threaten the national security of Ukraine" was introduced, which characterizes the situation on the eve of the introduction of a special period. These terms are also used in the terminological apparatus used during the response of the components of the security and defense sector to threats to the national security of Ukraine. A key point during the emergence of crisis situations is the introduction of appropriate response mechanisms that require the involvement of additional forces and resources. It was determined that in further scientific research it is necessary to substantiate the proposals for solving the scientific problem regarding the functioning and development of mechanisms for responding to crisis situations that threaten the national security of Ukraine.

The International Law Origins of Compact Theory: A Critique of Bellia & Clark on Federalism

Compact theory will not stay dead. Justice Clarence Thomas seems intent on reviving it in some form. Recently, Professors Anthony J. Bellia Jr. and Bradford R. Clark have given a scholarly imprimatur to compact theory by arguing that the word “state” in the Constitution compels us to interpret American federalism doctrine in the manner that Emmerich de Vattel and other European international law theo-rists would have interpreted the various treaty arrangements that created confederacies of small European states. This international law doctrine holds that express waivers of sovereignty by member states in such leagues must be construed narrowly, and that waivers of sover-eignty by implication are disallowed entirely. The authors claim that the doctrines of Vattel were so “well known to the Founders” that the word “state” in the Constitution was widely and tacitly understood to refer to independent, sovereign Vattelian nation-states. This article argues that Bellia & Clark’s thesis is mistaken. The Framers consistently and systematically rejected this conception of American states as sovereign nation-states in creating the Constitution. To the extent that the Framers showed any awareness of Vattel’s inter-national law understanding of confederacies, they associated it firmly with the central failing of the Articles of Confederation. The ratifying public was well aware that a Constitution established by the people and empowered to regulate the people directly was a fundamental depar-ture from European-style confederacies. Vattelian international law theory as described by Bellia & Clark in essence became “compact the-ory” in the United States, where it served as the theoretical foundation for ultra-strict construction of implied powers, and later for nullifica-tion and secession. It was rejected repeatedly in U.S. constitutional history. Thus, while Bellia & Clark’s account could offer a serviceable origin story for compact theory, it fails as an origin story for American federalism.

THE ROLE OF ANTÔNIO AUGUSTO CANÇADO TRINDADE AS AN INTERNATIONAL JUDGE - DOI: 10.12818/P.0304-2340.2022v81p381

Antônio Augusto Cançado Trindade lived a life dedicated to the theory and practice of international law. This paper briefly presents an overview of his contributions as a Legal Advisor to the Brazilian Ministry of Foreign Affairs and as an academic on international law, focusing on the contributions of his work as an international Judge at the Inter-American Court of Human Rights and at the International Court of Justice to the advancement of discussions on international law of human rights pertaining to questions of jurisdiction, procedure, substance and to procedural crossfertilisation between international courts and tribunals.

Conflicts and Challenges of Sustainable Fisheries Governance Cooperation under the Securitization of the Maritime Commons

There is a growing trend towards securitization of the maritime commons, which seriously impacts sustainable fisheries governance cooperation. This impact is mainly reflected in the fact that it undermines the effectiveness of the international legal framework for sustainable fisheries governance, which is fragmented and runs based on countries’ willingness. It makes the international legal basis for sustainable fisheries governance cooperation more fragile. As a result, countries are more inclined to take the issues of sustainable fisheries governance and its sub-issues as security-related issues or tools for achieving maritime security strategies. Ultimately, it will lead to confrontation rather than cooperation in sustainable fisheries governance. Evidence that can support this theory is from combating IUU fishing, a sub-issue of sustainable fisheries governance, in the Northeast Asia Pacific and the South China Sea. From securitization theory and international law theory perspectives, desecuritization is the core of the solutions, including the desecuritization of the maritime commons and the desecuritization of its sub-issues. In practice, desecuritization includes improving the effectiveness of the international legal framework for sustainable fisheries governance and establishing regional cooperative governance mechanisms. The result will certainly help to promote sustainable fisheries governance cooperation on a regional and global scale.

El desarrollo sostenible y la teoría del derecho internacional

El objeto científico de este artículo es realizar una aproximación a los Objetivos de Desarrollo Sostenible (ODS) (y al desarrollo sostenible) desde el punto de vista de la teoría del derecho internacional. Abordamos la noción, funciones y concepción del derecho internacional público y las principales teorías en el contexto de los ODS, así como desde la perspectiva de los principales debates.

Interstate investment legal treatment as a factor of investment attractiveness

The theses are devoted to one of the key components of international investment agreements – investment legal treatment, since an even fluent analysis of international investment arbitrations with participation of states and subjects of economic activity with investments from abroad delivers understanding that standards and guarantees of investment legal treatments have fundamental character at least for the mentioned legal practices. Kind of argument for this could be found in a position of agreed provisions of investment treatments at bilateral investment treaties, which usually follows introduction norms for investment permitting and admitting, being set from the very beginning of such treaties. But, is this fundamental character of investment legal treatments being remained in other important rules of international investment implementation? Scientific questions about corresponding dualism are likely the key at these theses, because the concept of investment legal treatment is quite deeply studied in the framework of international law and general law theories, but leaves a number of insufficiently disclosed scientific and practical issues regarding the specifics of this concept in certain branches, including international investment law in the first place. The analysis defines main practical problems of international investment law, including the legal protection of international investment and the delimitation of actions of states that constitute expropriation or the measures taken by states under the right to regulate within public interest. Separate researching attention also paid to legal interaction between the concepts of the investment legal treatment as legal instrument of an international lawyer, and the state guarantees for the protection of foreign investment – as remedy and element of specialist in domestic law practices. Provided research significates investment legal treatment importance as a factor of local investment attractiveness, it also outlines importance of development of state guarantees for protection of foreign investments by delivering progressive European approaches as the examples, focusing on effective balance reaching within the corresponding regulation. Scientific and practical conclusions on the most important legal sources in the field of international investment activities are made, the direction for the next stage of researching work is preoutlined. Key words: international investment law, international investments, investment legal treatment, bilateral investment treaties, international investment arbitration, state guarantees for the protection of foreign investments.

The critique of the Westphalian peace narrative

The article studies perceptions of the Peace of Westphalia that were formed in the fields of international relations history and the general theory of international law as a result of conflicting doctrines, with some claiming the Westphalian treaties of 1648 are of universal significance for these scientific fields, and others, conversely, denying that these treaties had any sort of influence on the formation of a modern system of international relations and the formation of international law as a legal system. The article concludes that the treaties of the Peace of Westphalia does not actually contain many of the provisions attributed to them. These norms often arise only from their interpretation. However, the critics of the treaties’ significance for the history of international relations and their international legal regulationwho focused their attention only on the verbatim text of these documents while ignoring the historical conditions surrounding their development and adoption, failed to properly assess their impact. The Westphalian Congress was the first congress in world history that was pan-European in character. Its widely representative nature, the lengthy period of time during which it was held, the content of the treaties and the universally binding nature of their provisions, as well as the protocol rules, allow us to claim that the states of this world region started to identify themselves as part of a single pan-European international community. Moreover, the Congress also saw the creation, in a relatively short time, not only of treaties, but also of customary norms of general international law that were of fundamental importance for the formation of a new system of international relations. Despite the fact that most of the provisions of the Peace Treaty of Westphalia of 1648 havean applied nature, it is by no means an insignificant medieval treaty, the only virtue of which lies in it ending the Thirty Years' War. The Peace of Westphalia is an example of the first pan-European international treaty in world historywhich formulated a number of binding norms for all states of this part of the world. To sum up, the Westphalian Peace Treaty was, a historic breakthrough the creation of treaty norms of general international law, and therefore the it should be deemed a historical milestone in the creation of international law as a legal system.

Differences in the practice of binding international law in Southeast Asian countries: How will it affect the stability of law enforcement?

Differences in the practice of binding international law in a sovereign state have different forms which are based on various theories of international law. As a result, each country has different perceptions even in terms of law enforcement. The study uses the library research method where the author refers to legal journals and certain books as well as the opinions of experts. However, in practice, the author prefers to refer to journals and books, because the sources from journals and books can be accounted for. The author also cites sources that have been mentioned through footnotes or footnotes. This study aims to analyze different legal practices in binding international law in Southeast Asian countries and their impact on law enforcement.

Odgovornost međunarodnih organizacija, s posebnim osvrtom na višestruku pripisivost te odgovornost država za čine međunarodnih organizacija

The responsibility of international organizations attracted special attention in theory and practice of international law after the International Law Commission began its work on the topic in 2002. The Commission ended its work in 2011 by adopting the Draft Articles on the Responsibility of International Organization. In this contribution we give an overall review of the Draft articles with special a emphasis on the cases of multiple attribution and responsibility of states for internationally wrongful acts of international organizations. Analyzing the critical remarks raised in regard to the Draft, we concluded that they cannot diminish the successful outcome of the work of the Commission, which is, a coherent and consistent system of rules devoted to the responsibility of international organizations.

LEGISLATIVE PHILOSOPHY IN CHOOSING ATTRIBUTION CONTROLS IN PERSONAL STATUS MATTERS- MARRIAGE CONTRACT AS A MODEL - COMPARATIVE ANALYTICAL STUDY

After studying the attribution controls related to the marriage contract in all its stages and its effects, it is clear that there are recent trends in comparative legislation that are produced by political, social, economic, variables, which necessitated legislative intervention that modifies what is already pre-existing and regulates new issues, which leads to the need to adopt optional attribution controls as well as Resorting to the will officer as one of the forms of attribution controls that aim to respond to recent developments within the framework of the general theory of private international law as one of the means that seeks to achieve a specific and specific interest for one or both of the parties to the relationship. Keywords: Marriage, Attribution Officer, Nationality, Domicile, Legislative Philosophy, Convenience, Simple Reference Officerdiscretionary Support Officer.

Subject of Private International Law: Formation of Doctrinal Ideas

The formation of doctrinal ideas about the subject of private international law has been going on for more than a century, but this process cannot be called either completed or successful. It is incomplete since until now the understanding of the subject of the science of private international law is debatable and is replete with a wide variety of interpretations. It is unsuccessful, because the prevailing understanding of the subject of the science of private international law does not correspond to the scientific canons. The article shows that in the pre-revolutionary jurisprudence the scientific views both on private international law in an objective sense (as the set of conflict rules) and on the subject of science of private international law were characterized by certainty and reflected correlation between a fragment of reality (object) to be studied and the field of jurisprudence studying the given fragment of reality. In the post-revolutionary period of the development of Russian science, pre-revolutionary ideas about private international law as a conflict of laws were rejected due to ideological and political reasons, which led to a significant change in views on the subject of the science of private international law. In private international law, in an objective sense, both conflict of laws and substantive and procedural norms began to appear, as a result the subject of the science of private international law has been transformed into a theoretical construct that does not have clear boundaries. This approach was consolidated in the Soviet period and today forms the basis of the dominant doctrine. The author justifies the conclusion that the doctrine does not correspond to the scientific requirements to the differentiation of scientific knowledge, since the postulated provisions contradict scientific standards defining the subject of science, and the current state of affairs impedes building a general theory of private international law.

"Digital Nationalism" as the Embodiment of the Chinese Doctrine of the "Five Principles of Peaceful Coexistence"

The article focuses on the special public international relations emerging among the subjects of public international law regarding the enforcement of state sovereignty in the conditions of digitalization of the economy and ensuring national interests in the field of security. The subject of the study is the Chinese doctrine of public international law. The author analyzes the legal regulations in the field of digital economy in China. The Chinese model of "digital nationalism" is being analyzed. The state sovereignty over the cyberspace is being embodied through the category of "cyber sovereignty" and the doctrine of "five principles of peaceful coexistence". The state has to implement the policy of "digital nationalism" to ensure its sovereignty. The Chinese theory of public international law is based on the doctrine of the peaceful existence of nations with different political, economic, social and cultural systems, based on a set of five fundamental principles, which facilitate the achievement of common goals while maintaining a balance of national interests. State sovereignty is the crucial point of this doctrine, since peaceful coexistence of nations is achieved through mutual respect for sovereignty. The concept of a "community of common destiny" defines the goal identified by China implementing the five principles of peaceful coexistence. The Chinese approach to the implementation of cyber sovereignty does not imply the "Balkanization" of global cyberspace, on the contrary, it is supposed to maintain the ground for the development of international legal norms in the field of information security. Therefore, the Chinese concept of cyber sovereignty, which is based on "digital nationalism", embodies the logical and expected reaction of national authorities to internal and external security threats. The Chinese theory of public international law is not a scholastic construct, but an objective reality.

Metaconfederation as a Subject of Global Law of the Future

The subject of the study of the article presented by the authors are the subjects of that system of global regulatory regulation, which historically is called international law. The object of the study is a variety of connections that develop between the subjects of global relations, regulated on the basis of the principles and norms of the system of international law. The authors propose a gradual departure from the usual names adopted in the modern theory of international law, and, in particular, propose new definitions: "global law" and "metaconfederation". The definitions proposed by the authors are a reflection of the ongoing deep evolution of global relations and the process of the emergence of new subjects of these relations. The novelty of the study lies in the authors' proposal of a new definition for the theory of international law: "metaconfederation". The study of the phenomenon of metaconfederations is, according to the authors, a promising vector for future scientific research. Global metaconfederations are the prototype of the main, if, in principle, not the only subject of the global law of the future. The root "meta-" is a marker of the complexity of the internal structure of the subject of global law under study and its extraterritoriality. For its part, the use of the term "confederation" emphasizes the maximum freedom of the internal organization of the subjects of the global law of the future.