International Lawmaking Research Articles

Closing the Protection Gap Through a Legally Binding cedaw Optional Protocol on Violence against Women and Girls

Abstract Highlighting the historical developments of soft law normative standards on violence against women, as reflected in the documents and interpretations of mechanisms of the United Nations system, the article asserts that there is a need to close the protection gap in international law, and address the issues of widespread impunity, lack of accountability and state responsibility failures. An analysis of select treaty-making processes provides an illustrative picture and understanding of the possibilities regarding addressing the protection gap in respect of violence against women, which is acknowledged as a widespread and pervasive human rights violation. This article focuses on the developments in selected international lawmaking processes, in attempts to close identified protection gaps within international law. The authors propose a solution: the adoption of an Optional Protocol on violence against women and girls, attached to the UN Convention on the Elimination of all Forms of Discrimination against Women. The international treaty-making processes identified in the article provide lessons learned and make recommendations on suggested ways to approach the issue.

There and Back Again? Russia’s Quest for Regulating War in Cyberspace

The divergence between Russia and Western States on the question whether international humanitarian law (IHL) applies to cyber space is still omnipresent in the debates at the UN Open-ended Working Group. Russia has several times submitted a draft or a concept for a binding legal instrument; however, they have not included considerable suggestions on IHL. Furthermore, Russia is actively using cyber means in an aggressive war against Ukraine, which makes its calls sound hollow. How then can one explain Russia’s quest for a treaty for cyberspace, especially regarding IHL? This article aims to shed some light on this question in the broader context of Russian approaches to international law-making and its historic role in developing IHL rules.

International sports federations as de facto lawmakers: Queer-feminist explorations of the gendered power of sports law

Abstract This article analyses the law-making power of international sports federations, with a specific focus on their authority of shaping global norms on gender. It explores a variety of international sporting rules from feminist and queer perspectives. These include the ban of rainbow armbands at the 2022 FIFA (Men’s) World Cup, rules on the participation of transgender persons in rugby, gendered and racialized uniform regulations in sports, and the Semenya case concerning the sports participation of women with variations in sex characteristics The analysis asserts that despite being non-state actors, international sports federations are de facto international lawmakers that disseminate hegemonic gender norms reflecting cis-hetero-sexism and white body norms. However, analysing the Semenya case and the decision of the Chamber of the European Court of Human Rights in the case shows that the law-making power of international sports federations in shaping gender norms is not absolute but embedded in a transnational network of norms. The article concludes that subjecting international sports federations to a feminist, queer, and anti-racist legal analysis assists in understanding how hegemonic norms on gender circulate transnationally and enhances knowledge on how international law works in practice.

When and Why the Doctrine of a “Rules-Based International Order” Emerged

INTRODUCTION. It is no understatement to say that the “rules-based international order” doctrine, as opposed to the “international order based on law”, has emerged as one of the most debated concepts in global politics during in the late ХХ and early ХХI centuries. This concept presents a framework where general rules of conduct for states, though not norms of jus cogens under general international law, are considered legally binding for all states and other participants in international relations. Consequently, it challenges the traditionally recognized supremacy of international law in governing these relations, seeking to erode established practices of international law-making. This doctrine is actively utilized by leading Western powers to substantiate their political positions and accuse strategic competitors of failing to adhere to these “rules” deemed as legally binding. Understanding the essence and origin of this doctrine is crucial in unraveling its significance. MATERIALS AND METHODS. The set of used methodological approaches encompass a range of general scientific and specialized methods, including historical analysis, formal logic, synthesis, as well as systemic and comparative legal methods.RESEARCH RESULTS. The research indicates that the doctrine of a rules-based international order entered international diplomatic discourse in the early 1990s, arising as a consequence of the collapse of the Soviet Union and the emergence of a unipolar world.DISCUSSION AND CONCLUSIONS. The author reaches the conclusion that in the context of this emerging unipolarity, the United States deemed it appropriate to unilaterally (or at most in conjunction with its closest allies) dictate universally binding rules of conduct in international relations to the global community. The doctrine of a rules-based internation[1]al order provided the necessary scientific justification to validate such a policy. Initially, this doctrine garnered substantial support in international politics but subsequently faced a decline in its proponents, particularly with the shift towards a polycentric world order. While it continues to exist to some extent, the goals for which it was originally conceived have been largely nullified.

International Legal Governance of Space Resources and the Role of National Frameworks: The Case of China

Abstract Following decades long political and legal uncertainty, several space-faring States passed national laws asserting (or reaffirming) private rights on resources extracted in space. This “bottom-up” approach is now shaping the fundamentals of international norms and rules. While the so-called “Artemis Bloc” and the US legislative and policy-making efforts have been examined extensively, what is missing is an in-depth analysis of the stance and response of other major space-faring nations. This article contributes to the scholarship by studying China’s perspective. The article considers the ongoing proliferation of national laws and policy-making efforts and the increased pace of commercialisation in the space sector as the driving force of international law-making. It then notes the absence of a clear-cut national legislation in China governing space operations linked to resource extraction from celestial bodies. The paper argues that China, as a major space-faring and a developing country, is poised to have an assertive voice in international space law-making. It shows how a stronger national legal framework, coupled with international law and policy-making efforts, can elevate China’s contribution in international space law—in particular regarding space resource extraction and utilisation.

Impact of the Rotterdam Rules on the Legislation on Electronic Bill of Lading

INTRODUCTION.International unification of rules governing carriage of goods by sea has been of high importance. Historical, economic and political background as well as different approaches to adoption, ratification and entry into force of international legal acts impede harmonization of national laws. However, in spite of all these difficulties carriage of goods by sea is subject to international lawmaking which has a huge impact on the development of commercial intercourse and commercial transactions. Today the market of goods and services requires business to use the advantages of digital economy including electronic means of communication such as an electronic transport documents. An electronic bill of lading is one of the most important marine transport documents. As digital economy is moving forward digital transformation of carriage of goods by sea must not fall behind. Russian companies as well as international business community in general are in need for legal rules guiding digitalization of the bill of lading including its issuance and passage of title to the goods.MATERIALS AND METHODS.This study is based on international conventions, model laws, domestic and foreign legislation as well as some other legal acts. Various methods applied in the course of this study resulted in different technical and juridical means of research including analytical review, synthesis, induction, deduction and formal legal analysis.RESEARCH RESULTS.Scientific and practical aspects of this study have identified the need for the introduction of new forms of transport documents in international merchant shipping. The study has also demonstrated how to reach this target by implementing the rules of international conventions and national laws. The Rotterdam Rules have appeared to be the first codification of rules on electronic transport documents at an international level. However, they have not yet entered into force and are awaiting reflection in national legislation. As a bill of lading is a security its digital transformation requires hard work and true understanding of its legal nature. Lawmakers should take into account that a bill of lading is a document of title and can be used as a way to assign rights to the goods.DISCUSSION AND CONCLUSIONS.The researcher comes to a conclusion that the adoption of international conventions, model laws and rules of foreign and domestic legislation leads to the introduction of new forms of transport documents to accompany international trade such as an electronic bill of lading. Impact of digital transformation of a bill of lading on carriage of goods by sea has been under scrutiny by national and foreign scholars whose opinions are reflected in this article. Both Russian and foreign laws have undergone legal reforms facilitating the passage of title to the goods from the consignor to the carrier under an electronic bill of lading. At the same time there is a need to protect legal interests of the owner of the goods and to invent new means of transferring the title to the goods. In this respect instruments offered by digital law and digital economy provide quite a good solution. For this reason legislation on electronic bill of lading must be subject to further development. An electronic bill of lading shall be qualified as a separate legal category which must go in parallel with digital law and may entail changes in Russian civil and shipping laws. The legal nature of a bill of lading is different from other types of securities as it is governed not only by civil legislation, but also by rules on carriage of goods by sea which is under great influence of international lawmaking. Implementation of international acts take different forms. This article illustrates how national laws reflect international rules on electronic transport documents specified in The UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea 2008, also known as the Rotterdam Rules.

Doing legality as doing drag: the Yogyakarta Principles and the productive power of performing international law-making

Abstract Despite being elaborated by experts, the Yogyakarta Principles on sexual orientation and gender identity (YP) strongly resemble an international human rights treaty in their language and format. Building on drag performances, I argue that, instead of merely imitating law, the YP creatively disturb the borders of international law-making.

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.

Coastal states’ influence on the polar code: An empirical study of Russia and Canada

Climate change presents valuable opportunities for the development and utilization of Arctic passages. It is important to address maritime safety and environmental protection issues faced by ships navigating polar waters through appropriate regulation. The Polar Code is crucial in navigation safety guarantee and marine environmental protection in polar waters. Russia and Canada play a significant role in the negotiations of the Polar Code due to their respective actual control of the Northern Sea Route and Northwest Passage. How does Canada and Russia influence on the IMO's law-making related to the Arctic navigation? The study examines the proposals submitted by Russia and Canada during the negotiations of the Polar Code, explores the development paths of their proposals and adoption to clarify their functions vis-à-vis this issue. The study concludes that five factors affect the roles played by states in international law-making, namely the “5C” factors (chiefship, compatibility, combination, contribution, and circulation). This study aims to provide a reference for similar national practices in other states by summarizing the factors that influence decisions on Arctic navigation rules.

Disarming the Women, Peace and Security agenda: the case for centring the United Nations General Assembly

Abstract After over two decades of the Women, Peace and Security (WPS) agenda at the UN Security Council, involving the adoption of 10 thematic resolutions, there is now increasing momentum towards the de-centring of the Council from feminist engagement and from broader institutional activity on WPS. Against this backdrop, this article lays out arguments for centring the WPS agenda instead in the UN General Assembly. Given its broader membership and mandate, its role in international law-making, and critically, its leadership on disarmament, the article argues that the General Assembly offers more propitious opportunities for the institutionalization of a feminist peace agenda.

Regulatory Convergence in International Law: Evaluating Models of Global Economic Governance

This essay explores the intersection of international law and economic governance, focusing on the Regulatory Convergence Model as outlined by Daniel K. Tarullo. It examines the processes and challenges in international law-making, emphasizing the role of transnational regulatory standards in global economic governance. The discussion delves into issues of legitimacy and regulatory capture, critiquing the effectiveness of current regulatory approaches. The essay concludes by assessing the impact of these regulatory models on the stability of global financial markets, offering insights into the complexities of international economic regulation in a globalized world.

Международное нормотворчество как детерминанта совершенствования правового регулирования государственных закупок для нужд системы МВД России

Introduction. International lawmaking is a source of a legal regulation of public procurement.
 Nevertheless, a defining of the system and the specifics of international agreements is required, regulating public procurement in the system of Russian legislative sources in this area, as well as the role of various international collaborations in determining the key aspects of the improvement of legislation on procurement for public needs (including the needs of the Russian Ministry of Internal Affairs system).
 Methods. Content analysis, descriptive and systemic methods of data analysis were used as research methods.
 Results. The characterization of international lawmaking and international organizations’ initiatives in the field of public procurement provides the following main conclusions.
 1. General provisions on procurement are contained in the universal and regional model (CIN), standard (UNCITRAL) and plurilateral (WTO) agreements, i.e. in the indicative and advisory instruments.
 The scientific discussion on the international regulation of public procurement is that the specifics of such relations do not provide for the creation of rigid norms at the cross-border level, as they affect national public order. At the same time, these acts reflect modern trends, for instance, the digitalization of state (municipal) procurement, etc. This fact proves that international lawmaking is an obvious determinant of improving the legal regulation of public procurement, including the needs of the Russian Ministry of Internal Affairs system.
 2. The private aspects of the public procurement process are fragmentarily regularized by special international agreements.
 3. There are also no separate international organizations in the field of public procurement, at the same time, all cross-border trade and economic organizations do not ignore the issues of ensuring public needs and form the norms of the «soft» law. Thus, international lawmaking determines the directions of improving the legal regulation of public procurement for the needs of the Russian Ministry of Internal Affairs system in the same way as any other public procurement, but with consideration of the specifics of ensuring the powers of the public body in question.

“What the Secretariat Makes It”: United Nations Civil Servants between Administrative Function and Contemporary International Lawmaking

Abstract As the only international organization that aspires to be unviersal both in terms of its membership as well as in terms of the policy fields in which it intervenes, the United Nations (UN) occupies a unique position in international lawmaking. Focusing on the UN’s political and judicial or quasi-judicial organs does not, however, fully capture the organization’s lawmaking activities. Instead, much of the UN’s impact on international law today can be traced back to its civil servants. In this paper, I argue that international lawmaking today is best understood as processual and fluid, and that in contemporary lawmaking thus understood, the UN Secretariat plays an important role. I then propose two ways in which international civil servants add to international lawmaking: they engage in executive interpretation of broad and elusive norms, and they act as an interface between various actors on different governance levels. This raises novel legitimacy challenges for the international legal order.

Law-Science Nexus in International Law-Making

Abstract Integrating science in the making and implementation of international and regional treaties emerges as an essential component of modern and future international law-making amidst profound climatic, geophysical, and biological changes worldwide. The interplay between science and law or the law-science nexus within, inter alia, the international legal frameworks on climate change, biodiversity, and fisheries offers different levels of integration of science. In practice, subsidiary scientific bodies play a key role in enabling the dialogue between scientists and law/policymakers. However, persisting challenges remain, hampering the optimal implementation of the law-science nexus. Against this background and with comparative perspectives from the 2018 Central Arctic Ocean Fisheries Agreement, which entered into force in 2021, this article explores the evolution of the law-science nexus in international law-making. Furthermore, it highlights current challenges, namely the politicization of science and scientific uncertainty, and identifies opportunities to enhance this interplay. In shedding light on the importance of building an efficient law-science nexus, this article aims to inspire future international law-making to strengthen global and regional governance.

The seabed and the South: from stock stories to new histories of international lawmaking

Centring the career of Cameroonian diplomat Paul Bamela Engo during the negotiation of the UN Convention on the Law of the Sea, this article makes a methodological intervention in the historiography of multilateral treaty-making. It reads through and against the grain of dominant narratives of oceanic constitution-making, and offers counter-narratives that serve as conceptual and mobilizational resources in contemporary struggles. It examines how the ‘stock story’ of the emergence of the resource regime for seabed minerals as the common heritage of mankind erases the radical alternatives that were proposed by Third World actors and their efforts to write them into law, and sorts these actors into trope-laden categories of ‘extremist’ and ‘moderate’. Against this, and building on critical race theorist Richard Delgado’s exploration of counterstorytelling, this article traces histories that position Third World diplomats and lawyers as intellectual innovators and rival worldmakers. Extending the field of international intellectual history, and examining international lawmaking conferences as a political form, these histories link UNCLOS to wider anticolonial and worldmaking projects. Connecting analyses at multiple spatial and temporal scales, such histories also offer an empirically-grounded approach to the agency and structural constraints of Third World actors negotiating international legal orders, and illuminate international lawmaking as a promising site for global history.

Designing Competition Clauses in Preferential Trade Agreements

AbstractCompetition policy is one important aspect of trade liberalization. However, when examining preferential trade agreements (PTAs), a major type of policy tools to liberalize trade, competition provisions are revealed not to be uniformly distributed across these treaties. What explains the variation in the design of competition clauses in PTAs? Borrowing insights from the rational design of international institutions and combining them with those from treaty ratification and policy diffusion literatures, I identify five major causal mechanisms through which competition provisions are incorporated into PTAs. In evaluating them, I employ a range of operationalization techniques to capture the proposed mechanisms. A treaty-level analysis of 319 PTAs over the period 1960–2015 lends strong and robust support to most of the hypothesized relationships. By integrating theoretical frameworks across international political economy literatures with that from law and economics scholarship, this study demonstrates the utility of political science thinking to the real-world international law-making.

International legal standards for the protection of internally displaced persons: theoretical and practical aspects

The article analyzes the system of international legal standards for the protection of the rights and freedoms of internally displaced persons, their doctrinal sources, and mechanisms for ensuring them. The purpose of the article is to study the existing international legal standards on the protection of the rights and freedoms of internally displaced persons, their theoretical, contractual and institutional foundations, implementation problems and identification of improvement prospects.
 It is substantiated, that the system of standards for the protection of IDPs constitutes a kind of international mechanism for ensuring the status, first of all, the rights and freedoms of IDPs, the corresponding guarantees, which are regulated by the norms of universal, regional and special treaties, are implemented by authorized subjects at various levels and spheres of life. The standards of the universal, supranational, regional levels, ones of mandatory legal force and recommendatory, permanent and temporary, etc. are distinguished.
 Compared to refugees, who have a special mechanism of international protection, IDPs acquire protection indirectly, as they are under the legal protection of their country of citizenship and residence, its government, etc. Attention was drawn to the significance of the Guidelines of 1998, which are based on numerous acts of the Council of Europe, the EU, etc. However, the existing standards regarding IDPs do not have a unified character, as well as the corresponding institutional mechanism.
 Therefore, at the national level, the authorized bodies are assigned a significant amount of tasks, functions, and powers to ensure the rights and freedoms of IDPs, guarantee their implementation and protection, restore violated rights, and implement international standards and best foreign practices. Therefore, it is natural to improve the legislation of Ukraine, ensure effective and accessible procedures, and integrate IDPs into the life of the community, society and the state. It is expedient to activate our state in international law-making on the issue of IDPs for the solution of existing problems, first of all, their social protection, electoral rights, housing and land rights, provision of legal assistance, etc

Opening the World Court to the International Community: an Empirical Analysis of Non-party Participation in the International Court of Justice

Abstract Over the last decades, the participation of State and non-State actors (NSAs) in the process of international law-making has become one of the basic features of international law. As multifunctional actors, the role of international courts and tribunals (ICTs) encompasses the protection and development of the international community. Together with ICTs’ role in the promotion, recognition and application of community interest norms, the growing participation of State and NSAs in international dispute settlement mechanisms also plays an increasingly important role in ensuring and facilitating compliance and enforcement of community interest norms. Whereas the non-party participation of State and NSAs has only very exceptionally been recognized, their influence in international dispute settlement cannot be ignored. By applying empirical research methodology for mapping the practice of the International Court of Justice (ICJ) concerning the participation of State and NSAs under the ICJ Statute and Rules of Court, this paper addresses the existing mechanisms of non-party participation in both contentious cases and advisory proceedings. There is no doubt that ICJ procedural law remains outdated and disconnected from the contemporary developments characterizing the international community nowadays. Broadening the possibilities for participation by State and NSAs would imply the recognition of the plurilateral nature of international disputes. In this context, the paper also discusses the challenges and possible alternatives for expanding participation via teleological interpretation of the ICJ Statute and potential amendments to the Rules of Court and Practice Directions.

China's early contribution to international lawmaking with particular focus on the role of Dr. Liang Yuen-Li

ABSTRACT Dr. Liang Yuen-Li (1903–1979) was a diplomat and lawyer from China, who was one of the founders of the UN International Law Commission (ILC) in 1947, serving as its first Secretary from 1949 to 1964. Having participated in the Hague Codification Conference of 1930, he had great authority in the ILC, and by his leadership led to the success in producing a number of important codification conventions in 1950s and 60s. After he had left the ILC, however, its productivity substantially declined. It is hoped today that his legacy be revived in the efforts for progressive development and codification of international law and the ultimate revitalization of the ILC.

Legality and legitimacy of domestic court decision as a source of International Law-making

Legality and legitimacy of domestic court decision as a source of International Law-making