Part Of Public International Law Research Articles

International humanitarian law and the war in Ukraine – Russian aggression and the legal-political possibilities of punishing the perpetrators

International humanitarian law of armed conflicts (known as humanitarian law) is a set of rules that seek to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is part of public international law and therefore regulates relations between states in times of peace and war. The aggression of the Russian Federation against Ukraine in February 2022, preceded by hybrid military operations in Crimea and the eastern regions of Ukraine since 2014, demonstrated – once again in the history of international law – that prosecuting and bringing perpetrators of war crimes before an international criminal court is not easy from the point of view of either law or politics, specifically their correlations with international relations. States are strongly dependent on each other, but the prospect of returning to the pre-war situation, with the desire to maintain the status quo at all costs, trouble-free economic exchange and, finally, the resumption of economic investments are all somehow in contradiction with the humanitarian obligation to stop the hostilities, and arrest and persecute the aggressor. It is no different in the case of the war in Ukraine, where achieving international justice seems to be a legal and political mirage.

How to Do Things with International Law. By Ian Hurd

Is commitment to the rule of law the sole overarching principle that governs international law? Or is it, rather, a delusional Chimaera, which disregards the intertwined nature of international law and politics? This is the conundrum that Ian Hurd poses, with a clear-cut answer in favour of the latter. Through the use of three case studies that span from the use of force, to drones, to torture, Hurd questions the ‘legalization of global affairs’ as an advancement of international law and as a ‘marker of good governance’ (1). Hurd’s position is well established from the introduction and throughout the book: his suggestion is that power and politics intrinsically form part of public international law, which is not intended to be a set of pre-existing and predetermined general rules. Instead, an empirical approach which impugns the rule itself, without taking it for granted, ensures that the rule is best understood, even...

Facts, Evidence and the Burden of Proof in the World Bank Group Sanctions System

ABSTRACT The large and growing number of international judicial and quasi-judicial bodies has made international procedural law an important part of public international law. This article examines how procedural rules of a certain type—provisions related to facts, evidence, and the burden of proof—have been designed in the World Bank Group Sanctions System. The main conclusion is that such rules play a central role, and that considerable efforts have been made during the last two decades to develop a well-functioning body of procedural provisions. However, the article also argues that certain parts of the system could be developed further, in order to make it as clear as possible what is expected from the different actors in the proceedings.

Die rechtliche Lage der deutschen Minderheit im Ungarn der Horthy-Ära

This publication seeks to provide an overview of the German minority in Hungary during the era of Regent Miklos Horthy (1920–1944), mainly with regard to its legal situation but also beyond. After delivering some background knowledge and facts concerning this minority, its legal status is shown by the examples of the 1920 Treaty of Trianon (forming part of public international law) as well as concerning the laws governing the Hungarian school system (legally on the national level). Moreover, the rising degree of organization within Hungary‘s German minority from the 1920s onwards, exemplified predominantly by the Ungarlandisch-Deutscher Volksbildungsverein and the Volksbund der Deutschen in Ungarn, is thematized. Lastly, also the legal effects of the “Volksgruppenabkommen” of Vienna from 1940 as a minority protection agreement between Hungary and the “Third Reich” are addressed. Thereby, this article proves that minority law was a highly political issue and that the legal situation of the Hungarian Germans during the Horthy’s period of office was strongly dependent on the foreign relations between the German Reich and Hungary.

Some Reflections on Custom in International Economic Law

The main problem with surveying customary international economic law is that there is no universally accepted understanding of the term international economic law. On the contrary, there are huge differences in this regard, ranging from classifying it as a part of public international law to a broad area of law, covering parts of international, municipal and other law, distinguished by the object of regulation – international economic relations of public and private nature. Keywords: international economic law, customary law, economic relations

International Legal Rules for Adjudicating Matters of State Contracts ('State Contract Rules'). Informal Reflection on Public International Law in Its Current Development Phase

Rules pertaining to State contracts is the most intricate part of public international law dealing with foreign investors. While earlier this branch predominantly focused on safeguarding interests of foreign business, the attitude of international commercial community has evolved. Still, the major focus on committing the State to honor its voluntary contractual undertakings throughout the business project's life is maintained. At the same time, nowadays Tribunals tend to refer to various subsets of sustainable business environment principles when assessing implications of changed Government policies, conduct of the Investor, or workings of International Governmental Organizations. This paper aims to be the first codified set of modern public international rules regarding full plethora of major issues regarding State contracts. Especially, it gives position on such issues commonly facing Tribunals as: hierarchy of applicable laws to a State contract; conflict between terms of a State contract and EU law; whether defenses of force majeure and similar tools are applicable to State contracts at all (with regard to a Host State); or - when hardship has occurred and Parties are obliged to renegotiate terms of the deal. It is frequently forgotten (even by reputable Arbitrators) that, in the first half of the 20th century, when protection of State contracts was developing as a specific subset of public international law, the whole system was implicitly based on assumption that a Home State of the Investor permits direct dealing by the Host State with Investor only on condition as if the direct international bond existed between the two States regarding the agreed rules for operation of business of the Investor in the Host State. In other words, intention was to avoid opportunistic behavior on part of the Host State (that could formally cite changes in its laws - or impetus from international organizations - as ground for deviation from the contract). There are Tribunals committing a grand mistake of letting political factors influence their decisions - while it is true that, especially lately, international scene has witnessed various high level misuses of corporate power and links (and so, one shall be careful enough to properly assess each case), Tribunals shall persistently maintain a realistically juristic attitude rather than making politics or becoming popular with States (in terms of, potentially securing appointments as arbitrators in further proceedings). Of course, there are more and more known or publicized instances when Investor has been so exploitively, speculatively, or grossly negligently keen to secure the deal that it would run contrary to basic tenets of international justice to protect its interests, when later the deal brakes off and various risks turn against the Investor. But, for a proper and comprehensive assessment of peculiarities of each case, Tribunal would much benefit from existence of codified rules and guidance, such as put forward in this Paper. As a final note, these Codified Rules have been amalgamated from workings of both (i) Tribunals specifically formed under State contracts, or bilateral or multilateral investment protection treaties (including, the Energy Charter Treaty), and (ii) general international courts and tribunals (including, International Court of Justice and Permanent Court of International Arbitration). The latter referred general courts are an extremely useful source for inspirations concerning efficient and progressive adjudication of modern complex international relations.

“What Kant Would Have Said in the Refugee Crisis”

The paper starts out from a debate that occurred in Germany in 2015, where interpreters claimed to be able to divine Immanuel Kant’s views of the contemporary refugee crisis. It does not attempt to give a substantive answer to the title question, i.e. it does not try to specify the conclusive extension of cosmopolitan right. In contrast, it outlines the systematic work that would have to be done in order to be able to answer the title question. I start from cosmopolitan right as natural right and ask what kinds of transformations cosmopolitan right would have to undergo to form a legitimate part of public international law, in parallel to Kant’s move from provisional private law to peremptory public law in his Doctrine of Right. For that purpose, I introduce distinctions between trivial and non-trivial transformation, between strong (i.e. property-related) and weak (property-unrelated) transformation, and between transformation based on historically blameworthy and historically blameless action.

From Public International to International Public Law: Translating World Public Opinion into International Public Authority

This article argues that increasing demands in world public opinion for legitimate and effective international institutions require a paradigm shift in public international law. There is a part of public international law that should be better understood as international public law because it enables and disciplines the pursuit of public interests by international institutions. We consider such activities as exercises of international public authority. The article elaborates our approach by way of a thorough discussion of other approaches to governance phenomena in international legal scholarship. It then carves out the notion of international public authority. This notion includes various types of soft and informal governance instruments with innovative compliance mechanisms as well as the activities of informal and hybrid institutions or network-like structures.

Teaching LOAC Vocabulary in a Military Classroom

This article is to present teaching methods adopted to develop lessons aimed at teaching vocabulary connected with LOAC (Law of Armed Conflict) to military personnel. Topics taken into consideration include: conduct of hostilities, prisoners of war (POW) and special signs. The presented exercises have been based on authentic materials such as: the Hague Convention, Geneva Conventions with additional protocols and rules of engagement cards. Additionally, the skills of speaking, reading and writing will be integrated. The exercises have already been conducted with professional soldiers as well as cadets at the Polish Air Force Academy in Dęblin.“The LOAC arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked. LOAC applies to international armed conflicts and in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized”.Rod Powers, US military expert

Taxpayers’ Lack of Standing in International Tax Dispute Resolutions: An Analysis Based on the Hybrid Norms of International Taxation

This paper examines whether a taxpayer should have “standing” in international dispute resolutions. To answer this question the primary task is to identify the nature of international taxation. In other words, this paper discusses how to classify the field of international taxation. Is it part of public international law, private international law (i.e., conflict of laws), national (domestic) law, or is it a hybrid field that requires specific attention? Making this distinction is vital for resolving disputes when a taxpayer is taxed twice for cross-border transactions in cases where the double tax convention is unclear and both contracting states claim full or partial tax on accrued income.

Siege of town and establishment of field hospital.

Introduction:The degree of material and social development determines the basic characteristics of warfare. There are various causes, means and goals of warfare. From the standpoint of international war law, significant is the division between international and non-international (civil) war. International law of war is a part of public international law and constitutes a set of contractual and legal rules governing the relations between the international recognized subjects in times of armed conflict. The town of Konjic and Konjic municipalities are geographically located in the northern part of Herzegovina–Neretva Canton. It is the largest urban municipality in the state of Bosnia and Herzegovina. Distance to some settlements in the northeast to the northwest or the villages are 186 km. Municipality area is 1,101 km2. According to the character of the mountainous districts, inhabited by a sparse population, which amounts to 29.65 people per 1 km2. A third of the population lives in the city and suburbs, and the other two-thirds is the rural population.Goal:Our aim was to show that in an environment, space, under the conditions imposed suddenly by all sorts of war blockade, the successful in transformation from peacetime to war organization, with full support to local personnel and material-technical resources can be achieved successful results.Material and methods:This research was conducted as a clinical, descriptive and retrospective, by valid documentation of War Hospital and already published thesis on a series of conferences, symposia and seminars at home and abroad. In this paper we show our results achieved in the care and treatment of injured and sick hospitalized in the War Hospital Konjic for the period from April 1992 till December 1995.Results and discussion:Of the total number of hospitalized at the surgical ward, 62% had an injury, a disease had 30.7%. Dominated by war injuries (78.9%). The total mortality in the surgical ward was 4.5%. By localization were most often represented injuries of the extremities (52.1%), followed by chest (22.4%), stomach (13.4%), head and neck (12.1%), and multiple wounds (10.4%). In case of extremity injury in 64% of cases it was a case of fracture of the bone and the skeleton, and 19.5% had an injury of the neuro–vascular structures. In case of injuries to the abdomen, usually it was a case of open injury (95%).Conclusion:War Hospital, in many cases of illness and injury, due to the proximity of combat operations, and all manner of constant blockade, uniting all four echelons of health care by war-surgical doctrine. Start the application of the doctrine of original beginning of the admission, triage departments and ending at the other hospital departments with definitive cure in 90% of cases. In the meantime, patients went through all the stages (diagnosis, resuscitation, surgical treatment, conservative treatment, isolation, etc.).

Sustainable Development: Linking the Convention on the Diversity of Cultural Expressions to WTO?

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Convention on the Diversity of Cultural Expressions), adopted on 20 October 2005, has breathed new life into the ‘trade and culture’ debate. Witness the fact that several scholars have discussed the position of the Cultural Diversity Convention in relation to the rules of the World Trade Organization (WTO). This literature on the Convention on the Diversity of Cultural Expressions describes three possible hypotheses on how the Convention on the Diversity of Cultural Expressions, as part of public international law, could play a role within the framework of WTO. First, the Convention on the Diversity of Cultural Expressions could be invoked as a defense to claims under WTO covered agreements (WTO claims). This defense would be independent from the exceptions expressly mentioned in the WTO agreements. Second, the Convention on the Diversity of Cultural Expressions may be used to interpret WTO provisions relevant in a WTO claim. Third, the Convention on the Diversity of Cultural Expressions might indirectly influence the WTO by offering its members an improved bargaining position during WTO negotiations. Yet, not everything has been revealed. This paper is going to argue that the concept of sustainable development may bring the Convention on the Diversity of Cultural Expressions and the WTO regime closer to each other.

Society of International Economic Law (SIEL) 2010 Conference Program

The Second Biennial Global Conference of the Society of International Economic Law (SIEL) will be hosted by the University of Barcelona and its IELPO LL.M. Programme at the premises of the University of Barcelona from the 8th July to 10th July 2010.Over the course of the last two decades, the communities of scholars, practitioners and others active in the area of international economic law have grown and diversified in ways that few could have predicted. The field of international economic law now includes a diverse array of participants and covers many new substantive issues. Inevitably, the term international economic law defies easy definition: it is at once a fully integrated part of public international law and an identifiable field in its own right.This conference provides a venue for exploring many different faces of international economic law. Given that the aim of the Society includes fostering research in the area of IEL and promoting cooperation among all parts within the field, the SIEL Global Conference offers a forum for those inside and outside academia to share pedagogical and research methods, as well as to explore greater cooperation among the many different constituencies of the field.

A Post-Westphalian Conception of Law

A Post-Westphalian Conception of Law Brian Tamanaha, A General Jurisprudence of Law and Society. New York: Oxford University Press, 2001. xx + 263 pages. $60.00 cloth; $22.95 paper. The discipline of is becoming more cosmopolitan, partly because of globalization. Jurisprudence, as theoretical part of as a discipline, has begun to respond to this challenge. During most of twentieth century, mainstream Anglo-American jurisprudence focused almost entirely on two forms of law: municipal (of sovereign nation-states and subordinate legal orders) and public international (largely but not exclusively treated as governing relations between states). From a global or a broad transnational perspective this focus is inadequate.1 It leaves out too much: if one were to try to sketch a broad overview of forms of legal orders in contemporary world, one might quibble about including lex mercatoria or his humanitatis or or Gypsy or Hindu or Internet (GLT; Santos 1995, 2002), but it would be difficult to justify leaving out European Community or Islamic or major examples of traditional or law.2 Yet it would be strange to try to subsume all of these under municipal or public international law. (GLT:chs. 3, 9) If one were to adopt an historical perspective, other candidates would press for attention, for example, classical Roman medieval merchant, canon to say nothing of major traditions of religious, indigenous, and chthonic law. This is not merely or mainly a semantic issue; rather it involves a judgment about what forms of legal ordering deserve sustained attention by our discipline. Mainstream Westphalian legal theory does not seem to be well equipped to answer some important questions about juridical status of particular legal orders. For example, what is juridical status of EC contemporary Islamic lex mercatoria? Is human rights merely part of public international law? Can one claim to understand in Brazil if one ignores internal ordering of squatter settlements, made famous by Santos's account of Pasagarda (Santos 1995:ch. 3, 2002:ch. 4)? Are these all law in same sense? It is tempting to try to brush aside such questions as semantic, or trivial, or aridly conceptual, but it is difficult to escape from them completely. The purpose of this essay is to consider one of first attempts to confront problems of theorizing about at a global or broad transnational level in response to challenges of globalization.3 Brian Tamanaha's A General Jurisprudence of Law and Society is bold, ambitious, radical, and challenging. My object is to summarize its central theses, to indicate why I think that this is an important work, to sketch some differences in our perspectives and positions, and to suggest some areas that are in need of development. I shall follow order of book, focusing on a few themes rather than trying to follow all of ramifications of a rich and complex argument. The first section sketches Tamanaha's background, concerns, and conception of his enterprise. The next section considers his critique of mirror theories and the social order thesis. Next, I shall consider how he pares down Hart's model of to produce a nonessentialist, nonfunctionalist concept of law.4 Rather than dwell on his interpretations of Hart and other thinkers, I shall focus on clarity and tenability of Tamanaha's own position, especially in regard to his attempt to construct a core concept of on basis of folk concepts. Finally, I shall suggest some ways of extending or refining his analysis in respect of globalization and general jurisprudence, bottom-up perspectives on law, and normative and legal pluralism. Tamanaha's and my own views are quite similar and seem to be converging. As we proceed, I shall indicate some points of divergence in our enterprises and positions, but main objective here is to clarify and assess Tamanaha's central theses. …

An international criminal tribunal: The difficult union of principle and politics

When the war criminal Adolf Eichmann was kidnapped from Argentina by agents of the state of Israel and forced to stand trial before an Israeli tribunal, world opinion was mixed. Almost everyone rejoiced that one of the most callous mass murderers of the twentieth century was finally being forced to take public responsibility for his crimes. However, it was also recognized that the Israeli government's action compromised another state's sovereignty and was itself probably unlawful.The Eichmann case illustrated a political and legal dilemma that has frustrated the development of international criminal law as a discrete discipline. Over the centuries, by custom and by treaty, rules governing the behavior of states and individuals in times of armed conflict have emerged as part of public international law. But one element was lacking: a means of enforcement. Heads of state and government policymakers, whether ruling as princes or as democratically elected representatives, have with few exceptions avoided responsibility for their conduct by claiming state sovereignty, knowing no international mechanism existed to call them to account. Until the twentieth century, the international community paid scant attention to the lack of an international forum to prosecute perpetrators of crimes against the international.After the second world war, the victorious Allies decisively brought key war criminals to trial in Nuremberg and Tokyo. These tribunals' jurisdiction extended to senior officials in the German and Japanese governments and went beyond traditional war crimes to include crimes against the peace and crimes against humanity. Although the Nuremberg and Tokyo trials generally accorded with accepted standards of procedural justice, they were tainted by the fact they were created by the victors and were widely perceived, by the vanquished at least, as the imposition of victors' law.The need to establish an independent international criminal tribunal with relatively broad jurisdiction was recognized by the United Nations early on. The goal of setting up such a court, which would have jurisdiction over individuals alleged to have committed a number of international crimes, has been championed by various intergovernmental and nongovernmental organizations, diplomats, and international law experts. Unfortunately, efforts have repeatedly foundered, with the issue resurfacing in an immediate way only in response to the ghastly events played out in the former Yugoslavia. Although there seems to be growing support for a permanent international criminal tribunal, the community of nations has no consensus on the range of offenses that would fall within its jurisdiction. Perhaps a permanent court will emerge in the near future, prompted finally by the tragedy of Yugoslavia and Rwanda.