International Law Issues Research Articles

INTERNATIONAL LAW BEFORE UNITED KINGDOM COURTS: A QUIET REVOLUTION

AbstractIn the 36 years since Francis Mann published Foreign Affairs in English Courts, the engagement of the United Kingdom courts with issues of international law has greatly increased. This article addresses the reasons underlying this trend and identifies four key developments: first, the nature of international law has evolved to embrace individuals as subjects; second, the Human Rights Act 1998 has had a profound influence, often requiring domestic courts to rule on matters of international law in order to give effect to the European Convention on Human Rights; third, in recent decades there has been a growing willingness on the part of courts in the United Kingdom to address and investigate the conduct of foreign States and issues of public international law; and fourth, these developments have been accompanied by a shift in attitudes to the relationship between customary international law and the common law.

Capitalism, international law, race, and China’s rise: Afterword to the Foreword by Karen Alter

Abstract Karen Alter’s rich Foreword develops an important research agenda regarding capitalism, and its impact on what she calls “global economic law.” This Afterword builds on Alter’s essay to make four points. First, it compares Alter’s framework of international regime complexes with the framework of transnational legal orders that has been applied to a wide spectrum of issues. It shows how the latter framework is necessary to supplement Alter’s regime framework. Second, it subjects Alter’s concluding argument in favor of multilateralism to a comparative institutional perspective, which foregrounds considerations that Alter’s essay elides. It notes the contexts in which multilateral international law is, or is not, a preferred approach. Third, it substantially qualifies Alter’s concluding prediction regarding continuity with China’s rise. It stresses the implications of China’s combination of state capitalism and political authoritarianism, coupled with other transnational trends, including within the United States. Fourth, it notes her lack of engagement with the issue of race and international law, which is present in its absence, on which the framework of transnational legal orders sheds greater light.

Winter Issue 2022

The Board of Amsterdam Law Forum (ALF) hereby proudly presents the first issue published by its current editorial team. In this 2022 Winter Issue, we are pleased to introduce two peer-reviewed articles covering history in international law and e-commerce vat regulation, one opinion article covering cryptocurrency pump-and-dump and financial markets in Europe, and a special cometary edition on the current war in Ukraine. All these papers are the product of the combined efforts of authors, editors, and peer reviewers. We are proud to publish articles that revise current issues in international law and disruptive technologies bringing high quality contributions to our academic community. Moreover, this May, after two years of gathering restrictions because of the COVID-19 measurements, we are finally hosting a face-to-face conference addressing climate change and its legal challenges. Trusting that these academic events are stimulating the minds of our academics contributing to this paper and the academic community, we present innovative contributions to intrigue and inspire our readers.

Humanitarian access in armed conflicts: current challenges

Humanitarian access is a crucial element of humanitarian action in situations of armed conflict since it is impossible to provide direct humanitarian assistance without it. The right of access to victims of armed conflict is a fundamental element of humanitarian action since it allows humanitarian aid organizations to make an independent assessment of needs, ensure the effectiveness of their activities and monitor the fair distribution of such aid. However, gaining and maintaining access to the population to provide humanitarian assistance is difficult for humanitarian organizations. The provision of such access may be limited by armed conflict and the fact that humanitarian access is usually considered ad hoc, so there are often no established methods or rules for granting such access. Although humanitarian access is not a new issue in international law, there are several challenges today in securing and maintaining such access in situations of armed conflict. The article will consider the problems of understanding the term "humanitarian access," the rights and responsibilities of participants in armed conflicts regarding such access, obligations, and restrictions on humanitarian organizations themselves, criteria for granting humanitarian access in various situations, the interaction of international humanitarian missions with combatant parties, challenges related to the accreditation of humanitarian missions, the coordination of the system of humanitarian assistance, and legislative, regulatory gaps. The article will suggest possible ways to solve the problems.

Lessons learnt from two decades of international environmental agreements: law

As Patricia Birnie cautiously and prophetically put it in the inaugural issue of this journal (INEA 1, January 2001, p. 74), “we do not know whether States and the tentative regimes they have so far established can withstand the pressures of globalization of trade and degradation and over-exploitation generated by advances in technologies for locating, fertilizing, harvesting, processing and modifying natural resources and biodiversity. This is truly terra incognita in which such seeds of destruction may already be implanted.” Among the 600 or so papers and reviews published in INEA from 2001 to 2020, more than 70 deal wholly or partly with legal aspects of environmental problems and the international dimensions of environmental justice. While the main focus of INEA has been on issues of public international (inter-state) law, there have also been important inputs drawn from comparative legal analysis (of national legislation and judicial decisions) and from “transnational administrative law” that influence the effectiveness of multilateral treaties and their associated international institutions. Novel concepts and practices emerging from the environmental field (such as recourse to a range of “soft law” principles; flexible delegated standard-setting in the face of global change; and equitable differentiation of compliance duties) have inspired developments in related areas of contemporary international law-making and law-applying. At the same time, the very proliferation of multilateral and bilateral environmental instruments raised new questions and expressions of alarm over “treaty congestion” and “fragmentation” within the international law system. It is not the intention of this paper to explore the general interaction of international environmental law with neighboring disciplines such as international economic law or human rights law, but simply to record the “seismographic” impact of INEA on legal-intellectual discourse over these past two decades. To some extent, the role of the Journal in identifying both new prospects and new risks in this field could indeed be likened to that of a “canary in the coal-mine.” The lessons so learnt may thus offer new insights to help in averting the destruction which Birnie visualized, and to advance inter-generationally and intra- generationally shared values of environmental justice.

The problem of humanitarian access in armed conflicts

Humanitarian access is an essential factor in humanitarian action in situations of armed conflict since it is impossible to provide direct humanitarian assistance without it. Unfortunately, the imposition of prohibitions and barriers to humanitarian aid by the warring parties has become a trend in modern armed conflicts worldwide, particularly in Asia, Africa, Europe, the Middle East, and Latin America.
 The right of access to victims of armed conflict is a fundamental element of humanitarian action since it allows humanitarian aid organizations to make independent needs assessments, ensure their effectiveness and monitor the fair distribution of such aid. However, gaining and maintaining access to the population to provide humanitarian assistance is difficult for humanitarian organizations. The provision of such access may be limited by the very fact of armed conflict and the fact that humanitarian access is usually considered ad hoc, so there are often no established methods or rules for granting such access.
 Although humanitarian access is not a new issue in international law, there are several challenges today in ensuring and maintaining such access in situations of armed conflict, including the understanding of the term "humanitarian access," the rights and responsibilities of participants in armed conflict, obligations, and restrictions on humanitarian organizations themselves, criteria for granting humanitarian access in various situations, etc.
 This article will consider the most common problems in gaining humanitarian access during armed conflicts and suggest possible ways to solve them.

Theoretical and applied problems of interaction between the international and national legal systems

The subject. The interaction of modern national legal systems and the international legal system is still the most controversial legal phenomenon. An exclusively national approach to solving issues of the general theory of international law could not and cannot justify expectations and close the need for legal comprehension. The situation is aggravated by the fact that, at the level of universal international law, the solution of issues on the agenda with the help of positive methods of legal regulation, and, consequently, the implementation of the norms of existing international treaties today are criticized, tested and often completely violated. The implementation of the norms of existing international treaties is increasingly faced with attempts to refute their postulates using the "customs" under which those "rules" are veiled. In such conditions, national legal systems may experience an increased "feeling of jealousy" to their sovereignty and try to "close" as much as possible using the principle of non-interference in the internal affairs of the state.Purpose of the study. In such conditions, it is most important to choose the right vector in improving international law, and not order, law based on normative principles. It is important to correctly "choose the key" to harmonizing the will of sovereign states of our time. The article is devoted to the search for a more correct way of developing international law through its interaction, and not counteraction with the national one.Methodology. The research was carried out using a formal legal interpretation of international legal acts, as well as a comparative analysis of Russian and foreign legal literature. Structural and systemic methods are also the backbone of the study. The conclusions of the work are based on dialectical unity and the struggle of opposites, as well as on interacting deduction and induction in relation to legal systems.The main results. The growing trend towards fragmentation of international law leads to a reduction in the base of sources in the universal sphere of international law. The intensification of regionalization and the creation of regional unions of sovereign states is becoming a source of polar processes: on the one hand, supranational control over the observance of international law by states within their legal system increases, on the other hand, natural situations of non-execution of decisions of international judicial bodies arise. Such situations, without a proper assessment of the reasons for the issuance of the international acts of law enforcement themselves, can lead to unfounded criticism. There is an impressive amount of work in the field of correlation between international and national law, as well as in the field of enforcement of decisions of international judicial bodies. Despite this, in the field of practical implementation of the norms of international law, there remains a lack of doctrinal developments. Such a situation will inevitably lead to attempts to create a semblance of a norm, an escalation of confrontation, and an inability to reach agreement on issues on the agenda. The situation at the level of the universal international legal system is aggravating, therefore, the verification of the limits of competence of regional education authorities, in particular of supranational judicial control bodies, becomes even more important.Сonclusions. The author comes to the conclusion that, on the one hand, in the sphere of universal international law, there is a reduction in the base of sources of international law. On the other hand, in the field of regional international integration, on the contrary, the number of sources of international legal regulation is increasing, and the process of their implementation is intensifying. Universal international law based on the principles of the UN Charter is the most qualitative regulator of the field of international public relations. However, at the present stage of development of the international community, regional integration may well come to its aid: through regional interaction, the consolidation of the wills of sovereign states can and should be achieved a legal constructive dialogue on key issues of already universal international law. Using the approaches of national legal regulation exclusively and unilaterally, it is impossible to productively approach issues of international law: neither in the field of creating international organizations of various types, nor in matters of fulfilling obligations under international law. According to the results of the study, it was concluded that only non-confrontational interaction of specialists in the field of international and national (primarily constitutional) law can provide the construction of the most effective model of interaction of these legal systems. This requires a transformation of the basic approaches to the issues of interaction between international and national law. The basic unity of the general theory of law and the specific features of legal systems should be the starting points for doctrinal research of existing legal structures and the practice of their implementation.

The Law Applicable to Succession, Between Unity and Splitting of the Relevant Legal Regime

Abstract The author comments on a recent judgment by the Corte di Cassazione (Sezioni Unite Civili) touching upon particularly significant issues of private international law in matters of succession. A central issue in the judgment under review lies in the role of renvoi as an instrument of coordination between national conflict-of-laws systems. This is particularly critical in succession matters, in cases where the choice-of-law rules of the countries concerned are inspired by the opposite systems of unity rather than splitting of succession. Alongside renvoi, the judgment under review touches upon other important issues of private international law, such as characterization and the requirements for a valid optio legis by the deceased. As the author notes, while the case, due to temporal reasons, was decided pursuant to Italian private international law rules in matters of succession, comparable results would have probably been reached based on the choice-of-law rules embodied in the European Succession Regulation No. 650/2012.

ОСОБЕННОСТЬ ЮРИДИЧЕСКОЙ ПРИРОДЫ МЕЖДУНАРОДНОГО ДОЛГОВОГО ПРАВА

In this article, the author examines important problematic issues of international debt law as an institution of international financial law: he determines the trends of development now and in the future of international legal norms, rules, standards. Leadership in the field under consideration. The article provides an assessment of acceptable ways to solve the debt problem at the universal level. The author suggests ways to more effectively restructure the external debts of states, taking into account their legislation and contractual practice. The evaluation of documents related to the management of external debts of States is given.

Economic Migration, the Last Frontier

Moving goods and services is much easier than moving labor and obstacles to migration represent the biggest difference between the wave of globalization we are experiencing and that which occurred more than a hundred years ago. Universally, the General Agreement on Trade in Services (GATS) is the only multilateral treaty that specifically deals with the admission of migrants for labor purposes. Relevantly, according to some estimates, elimination of immigration controls would more than double the world’s real income. Despite the prospect of such significant welfare gains, migration is the most sensitive of all aspects of globalization, one of the most virulent political issues in international law and the unexplored frontier of globalization. Political realities largely explain the resistance, especially in wealthy countries, to liberalizing the flow of workers.

Private international law and substantive liability issues in tort litigation against multinational companies in the English courts: recent UK Supreme Court decisions and post-Brexit implications

This article examines the private international law and substantive liability issues in tort claims against UK based parent companies for the actions of their foreign subsidiaries. Arguments drawn from private international law’s largely untapped global governance function inform the analysis and the methodological pluralism manifested in the jurisdictional and choice of law solutions proposed. The direct imposition of duty of care on parent companies for torts committed by foreign subsidiaries is examined as an exception to the bedrock company law principles of separate legal personality and limited liability. In this regard, the UK Supreme Court’s recent landmark decisions in Vedanta v Lungowe and Okpabi v Shell have granted jurisdiction and allowed such claims to proceed on the merits in the English courts. This article assesses these decisions and their significance for transnational corporate accountability. The post-Brexit private international law regime and its implications for the viability of tort claims against parent companies are examined.

International Economic Law and Racialized “Others”

This essay seeks to show how racialized histories of global political economy have shaped core issues in international economic law. The essay begins by noting challenges to framing the topic of racialized “others,” and then turns to the case study of cotton, showing how U.S. domestic production subsidies—long a focal point of international trade law in both formal dispute settlement and agreement negotiations—have affected persons of African heritage in the United States and internationally. The essay concludes by considering the U.S. and international contexts more generally, both to demonstrate where integral structural biases are at play, and to locate areas of contingency and change.

Pravo EU kao izvor međunarodnog privatnog prava

In the long-term development, private international law had a changing path, and a part of European law, it, is an important part of the European integration process. The most important legal instrument in the process of developing European private international law is the regulation implementing European private international law. Integration achieves uniformity in certain issues of European private international law, which is achieved through international treaties and regulations. The paper discusses European Union law as a special form of private international law, and sources of private international law that seek to ensure uniform application of European Union law, but also the modern development of European private international law that marks the process of communitarization.

Aggression and Determination: Two Basic Issues of International Law in the Russia-Ukraine Conflict

Aggression and Determination: Two Basic Issues of International Law in the Russia-Ukraine Conflict

Final Theses of Students of Faculty of Law in Lithuania: 1925-1939

The study examines the final students’ theses of the Faculty of Law of the University of Lithuania (later – Vytautas Magnus University), which was the only one university during the interwar period in Lithuania. Thus, it was the only place where lawyers were prepared. The research is based on the different branches of law, considering structure, literature, legal acts, jurisprudence students used in their theses, and the Lithuanian legal language of that time. The most valuable and interesting quotes of students are presented, the teachers who assessed their works are named, and the fates of the students and teachers are revealed. The research covers over five hundred students’ final theses written between 1925 and 1939. Namely, such a number of final theses are held in the Department of Manuscripts of Vilnius University Library. Noteworthy that around one thousand students graduated in law during the interwar period in Lithuania. Each of this thesis was reviewed in the series of four articles published in the Lithuanian language (Deviatnikovaitė, 2020a, 2020b, 2020c, 2020d). This article summarizes all four articles and presents final conclusions. The theses reveal not only how the Faculty of Law educated lawyers, but also the legal topicalities of Lithuania at that time. Students wrote about various issues of civil, criminal, administrative, constitutional, labour, and international law. Historical, comparative, and analytical methods were used in the research.

Foreign Law Rules in French Justice: The Basic Problems and Challenges

Private international law plays an important role in defining applicable law and regulating private international law relations. Foreign law is significantly different from local law. Judges do not have the right to change the content of foreign law, they simply have the opportunity to reject or apply foreign law. When a judge is obliged to make a decision based on the rules of national law in the process of legal proceedings, it is clear that the law of a foreign country can- not enjoy the same status. The issue of determining the content of foreign law and its application remains one of the most problematic issues in the private international law of countries around the world. French case law has gone through a difficult and controversial path to formulate a decisive position on the application of foreign law. Resolving this problem was especially important for France, as the courts of this country have to deal with a large number of international litigation cases. The basis for the application of foreign law is the choice of French private international law rules, as a particular legal relationship is subject to regulation by a foreign legal system. Thus, French courts apply foreign law to administer high-quality justice, as finding the right solution lies in applying foreign law.

Legal consequences for the state arising from the use of weapons against civil aircraft: review and legal framework development

The authors elaborate on one of the controversial issues of international air law - safety of civil aircraft in flight in respect of the use of weapons against it. The first part of the present article considers major aerial accidents arising from shooting down the civil aircraft for the last 70 years as a factual basis for further legal analysis. In the second part, the authors back up customary prohibition of the use of weapons against civil aircraft in flight and legal consequences for states for violating the mentioned principle. The authors investigate the grounds for the security exception and conclude that the only grounds for derogation from the principle of non-use of weapons against civil aircraft is Article 51 of the UN Charter proclaiming the inherent right of the state to self-defence. Even in this case, the application of the security exception by the state is tolerated by using a set of precautions before employment of weapons. Finally, authors conclude that compensation for victims reflects the inevitable monetisation of human lives. Moreover, states negotiations reveal the controversial reality of trade-offs between them, where compensation amounts are occasionally affected by external political factors and current position of a particular state in the international community.

Analisis Putusan Mahkamah Internasional dalam Kasus Sengketa Indonesia-Malaysia Mengenai Pulau Sipadan dan Ligitan

Disputes between Indonesia and Malaysia in the International Court of Justice on the issues of the islands of Sipadan and Ligitan continued to roll throughout the year until 1997 both countries raised this issue in international law. The two islands which are located in the center of Indonesia, precisely in the Makassar Strait, were finally won by the Malaysian side on December 17, 2002 The Court finally decided that Malaysia is the party that has full sovereignty over Sipadan Island and Ligitan Island. In its decision. The court made the doctrine of "ejfectivites" the main consideration for declaring Malaysian ownership of the two islands. According to the Court, the conventional Indonesian title claim and the OlY Malaysia chain of title claim are as weak as they cannot provide legal evidence that can support their respective ownership claims in the two disputed islands. The Court also believes that there is no authentic documentary evidence that can be sure that the two disputed islands belong to the Dutch or British territories. after various international legal channels taken by these two countries because it is based on several factors, namely: continuous presence, effective occupation, management and preservation of nature. This was confirmed in the Report of the International Court of Justice 1 August-31 July 2012, the decision of the International Court of Justice was carried out through bargaining led by presiding judge Gilbert Guillaume from France who established Malaysia as having sovereignty over the islands of Sipadan and Ligitan. Thus Malaysia has the right to draw a base line as its boundary to the outer points of Sipadan Island and Ligitan Island. As a friendly country, diplomatic relations between Indonesia and Malaysia were disrupted at that time due to the overlapping claims between Indonesia and Malaysia over the islands of Sipadan and Ligitan, which emerged since 1967, but as we know, based on The Hague's two conventions on resolving international disputes this, the countries (members) make maximum efforts to resolve international disputes peacefully. For this purpose, as long as the situation still permits or permits, the parties agree to submit their dispute to good services, mediation or the commission of inquiry to settle their dispute (diplomatic means) therefore a peaceful path is pursued by the two countries cannot do big things as a form of change in accordance with their wishes.

The Enrica Lexie Award Amid Jurisdictional and Law of the Sea Issues

This article analyzes the Enrica Lexie Arbitral Award, first of all, in relation to international law issues concerning the application of the United Nations Convention on the Law of the Sea (UNCLOS). The article then focuses on the question of the functional immunity of the two marines, from the point of view of the Tribunal’s assertion of its incidental jurisdiction to deal with the matter, as well as of the Tribunal’s affirmation of the existence of a customary international law rule applicable in the present case. Both conclusions appear unconvincing, also in light of the role of the two marines on board a merchant ship. In any case, the fact remains that the judgment has the merit of finally putting an end to a long-standing dispute, to the satisfaction of the two parties involved.

Indigenous “People” in the context of the Right to Self Determination: A Critical Appraisal

Under the international human rights regime, the right to self-determination is a right guaranteed to the groups of “people”. This right is one of the most controversial issues of international law as it comes into conflict with the principle of sovereignty and territorial integrity of the states. There are various uncertainties associated with this right regarding the scope of the right and mode of implementation etc. The present article seeks to make an in-depth analysis of the claimants of the right and the uncertainties associated with the meaning of the term “people” in the context of the right to self-determination. The article encompasses, among other things, the right of indigenous people under various international instruments and how they interrelate to the right of self-determination.