Theory Of International Law Research Articles

RECOVERY OF ASSETS OF SANCTIONED PERSONS TO THE STATE REVENUE AS A SANCTION: LEGAL NATURE

The article investigates the legal nature of the sanction in the form of confiscation of the assets of the sanctioned persons into the state income, as an object of application by the High Anti-Corruption Court. It was established that the current legislation of Ukraine lacks a clear definition of the legal category of “sanctions”, as well as a conceptual justification of its legal nature and a unified approach to its understanding, which necessitates the need, first of all, for their scientific development, which is extremely important in the conditions of the legal regime of military state. It has been established that in scientific legal literature, the legal category “sanction” is studied mainly through the prism of the theory of the structure of legal norms and legal responsibility, as well as certain aspects of its implementation, which is characterized by controversy regarding the compliance with the principle of legal certainty, given the application of one legal category for institutions of law that are different in their legal nature. The expediency of considering the legal nature of sanctions, which is the subject of this study, through the prism of the state sanctions policy, and defining them as national sanctions, with the aim of distinguishing their features and separating them from the legal institution of sanctions developed by the theory and practice of international law, is substantiated. The author’s definition of the legal category “national sanctions” is proposed. The peculiarities of the legal nature of the sanction in the form of confiscation of the assets of the sanctioned persons into the state income, as an object of application by the Supreme Anti-Corruption Court, which is proposed to be defined as a type of national sanctions, applied in a legal action based on a court decision during the period of the legal regime of martial law, are highlighted, and in the cases specified by law, and after its termination or cancellation, to individuals and legal entities whose actions have created a significant threat to the national security, sovereignty or territorial integrity of Ukraine (including through armed aggression or terrorist activity) or contributed to a significant extent (including through financing) the commission of such actions by other persons, including residents within the meaning of the Law of Ukraine “On the Basic Principles of Forcible Expropriation in Ukraine of Objects of Property Rights of the Russian Federation and its Residents” (sanctioned persons), after imposing sanctions on them in the form of freezing of assets in the manner specified by the Law, with the aim of compensation for damages and restoration of violated rights and freedoms, legitimate interests of a person and citizen, society and the state.

Carl Schmitt and Georg Simmel in the perspective of the theory of international relations and international law

Carl Schmitt and Georg Simmel in the perspective of the theory of international relations and international law

Resistance and Change in Form and Content of International Law: A Third World Perspective on Commodity Form Theory of International Law

Can Marxists, especially in the Third World, use international law for progressive social change? Responding to the Soviet Union's context and its jurisprudential challenges in constructing socialism, Pashukanis's seminal work on commodity form theory is nihilistic, assuming the very nature of form of international law as bourgeois with limited possibilities of radical change as its new content. European Marxism, on the other hand, in its context of revolutionary defeat and consequent postmodernist pessimism of cultural Marxism, either relies on Pashukanis's nihilistic position or a pragmatist and realist posture, insisting on staying within the law's bourgeois form and being content with social democracy. As opposed to this, Third World Approaches to International Law (TWAIL) scholars, while exploring the imperialist nature of international law and representing one variant of Third World Marxism, have been more optimistic, wanting to use international law to restrain and shield against powerful Western states, i.e., they believe that the content of Third World resistance can change the form of international law. This article deconstructs this class “content” of international law in the understanding of TWAIL and shows the postcolonial Third World states, and even in the yet to be independent states, were dominated by their dependent local elite, which had compromised by the ex-colonizers and had started blocking radical structural changes in Third World. Soon, the target of imperialism and the Third World elite became radical movements in the Third World, and this struggle of the marginalized shaped international law. Therefore, relying on the radical tradition of Third World Marxism and taking the right of self-determination as an example, this article argues that both the content and form of international law were simultaneously used, subverted, and changed in a dialectical and dynamic way by the resistance of the people of the Third World.

The International Criminal Court and the Justice Cascade

Abstract We present an original interpretation of the justice cascade theory developed by Kathryn Sikkink and her coauthors as it pertains to the icc’s engagements with African states since 2004. In doing so, we challenge a prominent and acclaimed critique of this theory: Oumar Ba’s States of Justice. Ba presents four qualitative case studies informed by fieldwork, focused on the admissibility challenges, selective cooperation, and obstructionism involving Uganda, Libya, Kenya, and Côte d’Ivoire. We closely examine the key publications in which the justice cascade theory is introduced, refined, and critiqued, identifying misinterpretations of this theory in Ba’s work and elucidating its empirical implications. Furthermore, we perform a citation analysis of States of Justice, demonstrating that the book, by virtually omitting primary sources of any type, misimplements its own empirical strategy. We introduce fresh legal analyses of compliance with the Rome Statute of the icc in the four relevant cases, revealing the dearth of evidence of noncompliance in all but the Kenyan case. Finally, we discuss legal analysis as a means of testing theories of international law and courts, and we illustrate the relevance of the justice cascade theory to current debates on the establishment of new international tribunals.

Quantum International Law Theories: Towards an Inclusive International Investment-Security Construct

Abstract In recent years, there have been significant changes in the foreign investment landscape that have affected investors and States around the world. These transitions can be broadly categorised into two hypotheses: international to domestic in the liberalisation continuum and legalisation to politicisation in the geoeconomic order. While these hypotheses seek to capture the changing investment-security dynamics, none satisfactorily comprehend classical irreconciliation. In response, this study proposes a novel trinity of quantum international law theories that extrapolates quantum entanglement, measurement, and holism theories through analogy, ontology, and post-critique approaches to inspire multidisciplinary insights. It outlines the justifications for using quantum theories in international law-making and policymaking, the extrapolated fundamentals, and the trinity application approaches by testing two variations of the trinity. The study results help move beyond unproductive debates on ‘economics versus security’ and offer international lawmakers and policymakers a new thinking model that can be applied to ‘everything’ multidisciplinary.

The reality and power of international law: Georg Schwarzenberger’s forgotten theory of International Relations

Georg Schwarzenberger’s oeuvre has remained significantly underexplored in International Relations literature despite his status as one of the most important thinkers in International Relations and international law of the twentieth century. Ahead of their time, his works reveal a picture of law that transcends academic boundaries and challenges the traditional portrayal of both realist theory and international law. Through a detailed examination of the works of this theorist, this article offers an analysis of the fundamental aspects of his theory of International Relations and international law. It explores the elements at the heart of Schwarzenberger’s theory of International Relations, which, though examined infrequently and practically forgotten, retain their relevance in today’s international society. Through this exploration of Schwarzenberger’s works, this article argues that his theory of International Relations provides a powerful commentary on the fundamental structure, nature and problems of international law. It points to and reveals issues that have remained at the heart of international law until today, offering a sophisticated and self-conscious interrogation of the relationship between law, power and politics. In doing this, this article challenges our understanding of realism as a theory that is unable to account for international law and highlights Schwarzenberger’s continued relevance today.

Theoretical and Methodological Approaches to Studying Artificial Intelligence in the Context of International Relations and International Law

This article addresses one of the pressing issues regarding the role of artificial intelligence (AI) in international relations and international law. The research question revolves around defining the theoretical and methodological approaches applicable to the strategic analysis of AI utilization in these fields. In the contemporary world, there is a demand at both interstate and societal levels to define the role of AI in the political and legal spheres. This is because AI development affects crucial areas of state relations such as security, international law, ethical norms, and dependencies. The prospective use of AI technologies without corresponding legal regulation may disrupt the already fragile balance of the world order, which could be exacerbated by state competition in AI technologies and AI applications in the military domain, a grey area in international law. Analyzing this issue from the perspective of international relations and international law theory allows for examining AI's impact on state interactions and developing new application strategies. Similarly, it helps understand how international law regulates state relations, including aspects related to AI applications. By examining various theoretical concepts and methodological approaches necessary for understanding AI's impact on global affairs, including its influence on diplomacy, security, and governance structures, as well as legal and ethical issues, this article contributes to Kazakhstan's evolving discourse on AI governance and its implications for state actors.

Veto power of the UN Security Council members as a tool for blocking the UN activities

The article is devoted to the legal analysis of the use of the veto by the permanent members of the UN Security Council. The purpose of the article is to comprehensively study the principles of minimizing the abuse of the veto power in the UN Security Council.
 The article analyzes the current legal framework of the UN Charter regarding the possibility of using the veto power in the UN Security Council. The author examines the legal content of such grounds and analyzes the legal and political motives for such use.
 The study identified gaps in the international legal regulation of situations where a particular state openly abuses the veto power in the UN Security Council.
 The study of the topic is based on the provisions of the general theory of international law and practical experience of application and interpretation of the provisions of the UN Charter. The article provides specific examples of abuse of the veto power and approaches to reforming the operation of this instrument. The scientific research is based on the analysis of the provisions of international law and the analysis of the actual behavior of states in the international arena.
 The publication draws conclusions on potential ways to reform the veto power in the UN Security Council.
 The article provides for the coverage of topical issues and regulatory features of the use of the veto power in the context of military aggression.

On the issue of the conceptual relationship between the norm s of international and national law in the theory of public international law

On the issue of the conceptual relationship between the norm s of international and national law in the theory of public international law

中韩涉外消费者合同法律适用规则比较研究

The formulation of law applicable rules on foreign-related consumer contracts in private international law of China and South Korea reflects the principle of protection of the interests of the weak and the principle of autonomy of will, demonstrating the high level of protection of consumer rights and interests in private international law. China's relevant regulations pay more attention to the balance of interests between operators and consumers in foreign-related consumption relations, and apply to the connection points of the habitual residence of consumers and the provision of goods and services. South Korea's relevant regulations are more inclined to consumer protection, mainly applicable to the law of the consumer's habitual residence. There is room for further improvement in China's relevant legislation. There are some problems, such as incomplete provisions on autonomy of will, deficiencies in the provisions on the application of consumer contracts, and ambiguity in the identification of “engaging in relevant business activities”. By learning from the advanced legislative experience of Korea's Private International Law, it is helpful to the development and perfection of China's theory and practice of private international law.

BRICS Expanding in the Light of the Principles of International Law

Introduction. Starting from January 1, 2024, Argentina3, Egypt, Ethiopia, Iran, Saudi Arabia and the United Arab Emirates should acquire membership of the alliance with the former acronym “BRICS” due to the decision adopted by its XV Summit held on August 22–24, 2023. According to one of the official acts classified as a guide for Russian National Policy in International Affairs, namely the “Concept of Russia’s Participation in BRICS”, approved by the President of the Russian Federation back in 2013, BRICS is to be deemed as a valid tool for strengthening the interstate cooperation. Taking into account other dimensions, it is necessary to develop a comprehensive strategy for cooperation between the alliance countries and define mutually agreed principles of partnership. Theoretical Basis. Methods. The research provides the analysis of the doctrinal positions of the most qualified domestic and expatriate publicists in international law, effective international treaties and international legal acts of the United Nations, official documents (declarations) of the annual BRICS summits, materials of the UN International Law Commission regarding its papers on the topic “Peremptory norms of general international law (jus cogens)”, outcome of the International Court of Justice practice as of the main judicial organ within the United Nations. In the course of performing the research, a number of general and particular scientific methods of cognition were used, including methods of systemic, structural and functional analysis, formal logic, deduction and induction, the method of comparative law, formal legal analysis and historical retrospective approach. The latter are especially productive in the study of the genesis and evolution of the concepts of “principle” in international law, “international organization”, integration, “paraorganization”, “multipolar world”, etc. Results. Both the BRICS emergence and expanding stand as direct challenge to such an international order, which proceeds from the inviolability of the existence of a single “decision-making center” (i. e., the United States and its satellites) as its core basis. In this aspect, resultant from the outcome of the XIV and XV summits held in 2022 and 2023, as well as of a new configuration of multilateralism previously initiated by China in Johannesburg (July 2018) for states that expressed ambition to cooperate with BRICS (PartNIR – “Partnership in the field of a new Industrial Revolution”), in the functioning of BRICS have been developed atypical models for involving third countries into partnership, including interaction with the countries of the region of the state chairing the group, which is carried out within the “BRICS-outreach” format. In light of the above, the study of such aspects pertaining to the theory and practice of international law as the application of the basic principles of international law and jus cogens norms to such cooperation in order to implement multilateralism, as well as the development of special principles of cooperation within the framework of BRICS should be raised to the rank of a specific subject of analysis. Discussion and Conclusion. In the course of the research, certain theses were formulated which relate to the analysis of current relationships of the “five” – Brazil, Russia, India, China and South Africa, accompanied by the assessment of the prospects for the forthcoming future in cooperation of the alliance under new formats. Thus, within the framework of BRICS, preference is given to multilateral or bilateral agreements, as opposed to the institutionalization (which involves coordinating the relationships of the involved parties by creating an international organization/institution). The identification of common features with universally widespread forms, on the one hand, and the distinctive properties of the international legal instruments used by the BRICS, on the other one, in no way deprives the analyzed segment of interstate cooperation of the “cementing” elements inherent to the entire system of international law, which include “basic principles”, “peremptory norms of general international law (jus cogens)”, as well as sectoral and special principles of legal regulation of interstate (“inter-governmental”) public relationship.

Positive Clause on Public Order is the Basis for the Protection of Constitutionally Significant Values of the State

The article notes that the purpose and mechanism of protection of public order in private international law can be understood only at the origins of the rationale for this protection, — in the doctrine of F. K. Savigny. The reasons for the formulation of F. K. Savigny only two exceptions to the displacement of foreign laws by local law, and the characteristics of fixing these rules in Art. 30 of the Introductory Law to the GGU. Analyzed are attempts to misinterpret the doctrine of F. K. Savigny after the adoption of the Rome Convention “On the law applicable to contractual obligations” (1980) and the Decision of the EU Court (2016), which gave a final assessment of these attempts. The influence of the Dutch school on modern international private law in Russia is noted. The consolidation of super-imperative norms in the legislation of Russia and the Netherlands is investigated. It has been established that the first group of norms of direct application of Art. 1992 of the Civil Code of the Russian Federation, the super-imperative nature of which in private cross-border legal relations is directly indicated by the legislator, has, in accordance with the theory of private international law, not a material, but a conflict character. The definition of super-imperative norms of the legislation of the Russian Federation, which ensure the protection of the constitutionally significant values of the state, is given.

Role of Contingency in Formation of International Law

INTRODUCTION. A group of foreign international scholars has recently published a collective monograph – “Contingency in International Law: on the possibility of different legal histories” [Contingency in International Law…2021]. The starting point of this work is the question why international law is as we know it today, and whether it could be different. The problem of possible alternative ways for development of international law calls challenges the necessity of the current state of international law and urges to research the interrelation among the power of international law itself, historical context and wills of subjects involved in international law-creating.MATERIAL AND METHODS. The research material for the present article is the collective monograph “Contingency in International Law: on the possibility of different legal histories” edited by I. Venzke and K.J. Heller. The study of the presented ideas is based on general scientific methods and private legal methods, as the historical and legal approach.RESEARCH RESULTS. The development of a national international legal scholarship of the theory of international law sometimes needs an intellectual impulse, a bold statement of questions that challenge the dominant theoretical principles. In this regard, the question on the possibility of different ways of developing international law due to a variety of factors, could be a trigger for rethinking positivist attitudes in the Russian theory of international law. The intention in revising the classical theses does not imply rejection of established legal positions, but, on the contrary, it necessitates fruitful reflections on traditional tenets. This assumption is illustrated with the concept of the international legal policy of the state, which originates from the classical theory of coordination of wills, and at the same time makes a number of assumptions or explanations which could answer questions about contingencies in formation of international legal norms. Relying on the materials of the book edited by I. Venzke and K.J. Heller the article provides outlook on questions about chance and regularities in determining the content of international law, about role of context in the creation and development of international law, about the sovereign wills and role of contingencies and extra-legal factors in the concept of international legal policy.DISCUSSION AND CONCLUSIONS. In contrast to the theory of coordination of wills, which is based on strict positivist grounds, the concept of the international legal policy of State assumes influence of extra-legal factors for arrangement of international legal argumentation of States. For example, the problem of context is of great importance in determining the possibility of legitimizing certain international legal positions of State. The arguments of States as such with references to norms of international law remain fruitless outside certain context (including present content of international law, current state of international relations, topics on the international agenda). This is because legitimated legal norms fix the current results of coordination of wills among States, which depend on interaction of legal and nonlegal factors. But it is also important to understand limits of assumptions about impact of certain factors on the content of international law. So, on the one hand, the role of context should not be overestimated, since international law does not succumb to conjuncture, but develops consistently. At the same time, by studying international legal policies of States, one should avoid false determinism. It poses the risk to trace a wrong strategic line of State's legal arguments with over-shadowing ‘irrelevant’ facts. Thus, questions that open perspectives on seemingly solved problems make it possible to develop established doctrinal ideas in a new direction. However, it is necessary to take into account methodological limits of new assumptions for consistent development of contemporary national discipline of international law.

Legal Frontier in the Regulation of Cross-Border Public Relations

INTRODUCTION. When it comes to regulating cross-border relations, the rules of law of a given state, foreign national laws and international legal norms are/may all be applicable. In their entirety, these norms form a sort of buffer zone between existing legal systems, i.e. create a legal phenomenon that can be called a legal frontier. It is within the framework of this frontier that numerous legal phenomena occur, with the very concept of their existence in recent years being either challenged or blatantly denied.MATERIALS AND METHODS. The provisions of international treaties, the national legislation of Russia and other states, as well as numerous works of Russian and foreign researchers were used as materials for this study. The study relies on the general scientific and special methods as its methodological foundation.RESEARCH RESULTS. The study found that foreign laws do not coincide, applying them to regulate crossborder relations leads to cases where relations of the same category are managed differently even within a single state. All known sources of law serve as the generators of norms that govern cross-border relations, which is not the case for either domestic or international interstate relations. Additionally, new sources of international legal norms have emerged and their objective is to regulate cross-border public relations not specified in Art. 38 of the Statute of the International Court of Justice. The article states that significant changes in the theory of general international law (as well as in the general theory of law) are caused by the emergence of self-executing international legal norms designed to regulate cross-border social relations specifically.DISCUSSION AND CONCLUSIONS. The author comes to the conclusion that the emergence of self-executing international legal norms required a change in the very definition of international law, admitting the impossibility of the existence of any universal theory of the relationship between international and national law, as well as specifying the nature of the object and subject of an international treaty. The use of self-executing international legal norms as regulators of crossborder public relations does not transform these relations into international interstate relations and does not turn their subjects into subjects of international law. These relations remain as cross-border relations, and their subjects have an exclusively cross-border legal standing, regardless of which legal system norm was responsible for regulating them.

Binding force of extended continental shelf limits: investigating whether Article 76(8) of UNCLOS constitutes customary international law

International custom is considered to be the oldest and the original source of public international law. However, because it is unwritten, the identification of international custom has always been a controversial issue in the context of international law. Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS) is the core article of the international system of laws governing the continental shelf. It stipulates the basic procedure for identifying the rights of coastal states to the continental shelf beyond 200 nautical miles (extended continental shelf, ECS) The issue of whether this paragraph constitutes customary international law is actually the question of whether the binding force of the limits of the ECS, which have been delineated based on recommendations of the Commission on the Limits of the Continental Shelf, can extend to non-parties to the UNCLOS. This study starts with the “two elements” theory of traditional customary international law and then considers its new interpretation according to modern theories. Following this, the authors provide a jurisprudential and practical exploration of whether Article 76(8) of the UNCLOS constitutes customary international law from the perspectives of how treaties are used to form customary international law, and the current delineation practices of coastal states on the ECS.

The Universal Declaration of Human Rights, Soviet Political Religion, and Soviet Law

This article discusses the Soviet contribution to the Universal Declaration of Human Rights (UDHR) and the interplay between the UDHR and Soviet legal system. The paper focuses on legal aspects of the Soviet Union’s lack of interest in the UDHR and argues that, due to the nature of the Soviet political regime, which can be defined as a political religion, Soviet law itself was fully incompatible with any meaningful idea of human rights. In order to demonstrate this incompatibility, the paper explores three aspects of Soviet law: Marxist-Leninist philosophy of law as the ideological premise of Soviet legal system; Soviet understanding of human rights; and Soviet theory of international law. The paper ends with a discussion of the role the UDHR played in Soviet and post-Soviet law.

Non-Western Peacekeeping as a Factor of a Multipolar World: Outlines of Research Program

This paper describes the contours of a research program on peacekeeping and peacebuilding, representing the interests of Non-Western countries (the world’s majority). The article is based on both individual developments of its expert authors in the theory and practice of peacekeeping, international law and development cooperation, as well as on generalized conclusions of eight international workshops on Non-Western peacekeeping, held by the Department of Theory and History of International Relations of the RUDN University in 2020-2021 with the participation of leading Russian and international experts. Particular attention is paid to the current moment in international peacekeeping associated with the “power transit” (from the United States to China, and more broadly, from the West to the Non-West) and the power vacuum observed in a number of regions. Conclusions are drawn about the crisis of humanitarian intervention and the system of liberal peacekeeping in general. At the same time, the remaining instruments of Western structural power in the field of peacekeeping are examined in detail, covering both personnel representation in the UN and the practice of ‘penholding,’ as well as the discursive hegemony of the “Collective West.” The main directions in the development of Non-Western academic discourse in the field of peacemaking and peacebuilding are explored in the context of building a multipolar world. Special attention is paid to the problems of regional human rights systems in the context of the protection of civilians and post-conflict peacebuilding. The study concludes that Non-Western countries have a significant influence on the formation of international norms in the field of peacekeeping (rule-changers), but so far do not act as norm-setting actors in world politics (rule-makers).

Cara Baru Memandang Prinsip Non-Intervensi ASEAN dalam Menilik Kasus Rohingya

This research aims to propose a fresh perspective on ASEAN's non-intervention principle through the analysis of the Rohingya case. The Rohingya case represents a humanitarian crisis complexity in the Myanmar region that necessitates serious consideration from ASEAN as a regional body. This research employs a multidisciplinary approach involving political analysis, international law, and international relations theory. The study argues that ASEAN's non-intervention principle should not be interpreted as a reluctance to intervene in cases of human rights violations that threaten regional security. Instead, the research advocates for a more proactive and responsive approach from ASEAN towards humanitarian situations resulting in mass suffering, such as the Rohingya case. The findings of this research provide new insights into how ASEAN can modernize its approach to the non-intervention principle, emphasizing the importance of human rights protection as an integral part of regional stability and peace. This research also proposes concrete recommendations regarding steps that ASEAN can take in addressing similar cases in the future, thereby strengthening ASEAN's role and relevance in the context of global humanitarian issues.

Environmental Protection in the Amazon: Constitutional Dialogues for International Cooperation

Taking into consideration the increasing relevance that environmental constitutionalism has currently assumed, the aim of this article is to critically analyze the constitutional protection of the environment in the Amazonian countries. It seeks to identify whether there is a common language among the constitutions concerning environmental protection in order to improve international cooperation. The hypothesis states that: 1) the Amazon environmental constitutionalism follow the epistemological opening of contemporary constitutionalism, by assimilating innovations in each new constitution; and, 2) the constitutions establish normative elements for the improvement of international cooperation in the region. The reflection is grounded on the field of comparative constitutional law, in dialogue with international constitutional law and constitutional theory, in a functional-structural perspective, focusing the “legislative” formant.

E.H. Carr’s Theory of Law: Exploring the Elements and Problems of International Law

Abstract E.H. Carr’s thought and approach to international relations have been the subject of several recent works. Though the insights offered by this new literature are extremely valuable, the lack of engagement with Carr’s wider oeuvre—including Britain: A Study of Foreign Policy from the Versailles Treaty to the Outbreak of War, Conditions of Peace, The New Society, Nationalism and After, History of the Soviet Union Series, and articles—has inhibited the level of understanding we have gained of his thought. This paper offers a reinterpretation of Carr’s theory of international law that challenges the prevailing arch-realist reading of his theory. It explores the distinct elements of Carr’s thought on the limits and problems of international law, revealing his insights into the nature of international law and the ways in which it is affected by national interests and nationalism. Finally, this paper argues that this rarely tackled and misunderstood aspect of Carr’s theory of international relations is clearly present in his works and that it provides a powerful commentary on the fundamental problems faced by international law.