Practice Of International Law Research Articles

Australian Practice in International Law 2023

Australian Practice in International Law 2023

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.

Is critique part of the practice of international law?

Abstract This article empirically explores whether critique is part of the practice of international law by drawing from citation practices and interviews with actors of international courts and tribunals. It argues that critique is immanent to practice as part of international law’s unending, hermeneutic, and transformative engagement with human society.

A Review on the Reception and Practice of International Law in Korea and Its Related Issues : With focus on the legal status of Korea and the changed mind toward international law

A Review on the Reception and Practice of International Law in Korea and Its Related Issues : With focus on the legal status of Korea and the changed mind toward international law

The United Nations War Crimes Commission 1943–1948: A Forgotten Highway to Postconflict Justice?

Abstract: This article offers a critique of the Nuremberg-inspired paradigm of international criminal justice, which focuses on high-profile, top-down approaches to post-conflict accountability. To this end, it appraises the work of the United Nations War Crimes Commission as a "path not taken." We discuss the very different approach to supporting post-conflict justice adopted by the UNWCC—from its original support base beyond the major geopolitical powers, to the impact of its more deliberative system, to the role of the UNWCC as a hub in which new practices of international law were developed. Such an approach had its achievements: the UNWCC assisted in prosecuting significantly more cases than the International Military Tribunals at Nuremberg and Tokyo, as well as the subsequent Nuremberg Military Tribunals, and its structure lent itself to effective use of national expertise and resources. It also had weaknesses and limitations. The Commission was unable to resist great power politics, which eventually led to its demise. We then discuss the implications of such a model for modern-day international criminal justice. While many of the advances made by the UNWCC have echoes in modern-day processes of "convergent evolution," there is much still to learn from examining this period of institutional innovation. Recent efforts to institute "positive complementarity" and more cooperative, facilitatory, and horizontal criminal justice institutions could benefit from exploring the UNWCC model. While it remains strictly within liberal approaches to international criminal justice, we argue that the UNWCC represents a clear alternative to the "Nuremberg model" and contemporary approaches to international criminal law, including the work of the International Criminal Court. Shorter Abstract: This article offers a critique of the 'Nuremberg model', which focuses on high-profile, top-down approaches to post-conflict accountability, in favour of the model offered by the United Nations War Crimes Commission. We discuss its achievements – especially around peer review, sharing best practice, and participation of states outside Western Europe and the US – as well as its weaknesses and limitations in the face of great power resistance. We then discuss its lessons for "positive complementarity" today, with more cooperative, facilitatory, and horizontal (in terms of state influence) forms of post-conflict justice. It offers several possible paths for future development.

International family justice as collaborative justice

AbstractGlobalization has fueled the rise of international family disputes, which raise difficult legal issues that cannot be addressed by any court or jurisdiction working alone. These challenges require a considered and coherent response on the international front, supported by the willingness of individual family judges to communicate and cooperate to identify and implement practical solutions. To meet these new challenges, this paper proposes a vision of international family justice as collaborative justice. There are three aspects or phases to the proposed endeavor: (a) the articulation of common aspirations and values; (b) continuing cooperation and communication between family courts and institutions; and (c) convergence in the substantive norms and practice of international family law.

Jungtinių Tautų Saugumo Tarybos (ne)veikimas Rusijos agresijos kontekste: ar naivu tikėtis permainų?

Russia’s aggression against sovereign Ukraine in February 2022 has once again highlighted the shortcomings of the UNSC mechanism. The UNSC, which continues the work of its predecessor, the League of Nations, and which has the mission of maintaining world peace and security, is incapable, in the context of the war in Ukraine, of adopting the necessary resolutions and other actions that would help to put an end to the ongoing aggression. 
 The planned reforms of the UNSC have not been implemented in the past, and therefore face the insurmountable obstacle of Russia, one of the 5 permanent members, being the aggressor state and constantly vetoing UNSC resolutions. Both the requirements for amending the UN Charter itself and the voting process legally make it impossible to remove Russia from the UNSC unless the aggressor itself votes to remove its delegation from the UNSC. Observing Russia’s actions during the war in Ukraine, it is safe to say that Russia will not give up the opportunity to continue to enjoy the place in the SC that it took over from the USSR after its collapse in 1991. An analysis of the practice of international law and the historical context in which the UNSC operates leads to the conclusion that the UNSC is currently functioning as an organisation that is unable to fulfil its core functions due to the limitations of the UN Charter. It is hardly possible to revive an organisation in which the aggressor state and the violator of international law have veto power.

Talmon, Stefan: German Practice in International Law: 2019

Talmon, Stefan: German Practice in International Law: 2019

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.

Classification of international legal obligations on the rights and freedoms of convicts

In the modern science of international law and European law, insufficient attention is paid to the problem of protecting the rights and freedoms of convicts, their typology. Especially in the conditions of modern threats and challenges, there are numerous violations of various categories of the population, including the vulnerable, who are in the temporarily occupied territories. This causes the attention of scientists, as well as representatives of authorized authorities, to be drawn to certain theoretical and practical problems of protecting the rights and freedoms of convicts, their varieties, effective mechanisms of protection, restoration of violated rights.
 Therefore, the purpose of the article is to analyze the existing doctrinal sources and relevant approaches, criteria for the classification of international legal obligations on the rights and freedoms of convicts, to highlight their special varieties, effective mechanisms for the protection of the rights and freedoms of convicts.
 There are many types of international legal obligations on the rights and freedoms of convicts, as well as criteria and approaches to their classification. Along with international legal obligations, other related categories are used in the science and practice of international law – international legal mechanisms, international legal standards. Undoubtedly, they also concern the rights and freedoms of convicts, they are interacting but not identical concepts. The analyzed classification groups of international legal mechanisms, standards and obligations to ensure the rights and freedoms of convicts are based on established approaches to the typology of human rights and freedoms, existing international legal norms and principles in this field. At the same time, the penitentiary systems of specific states, including Ukraine, are characterized by specificities, features of national legislation, national penitentiary policy, institutional and other mechanisms.
 Reports of international experts and monitoring measures demonstrate certain problems in the way of fulfilling international legal obligations regarding the rights and freedoms of convicts in Ukraine. Therefore, further systematic studies of the European penitentiary concept, the best foreign practices of compliance with such obligations, decisions of the ECtHR, the strengthening of a human-centered approach in the activities of penitentiary authorities, the functioning of an effective legal system that would protect human rights and freedoms regardless of the conditions in which she stays without being discriminated against, without additional restrictions caused by the fact of isolation.

ASEAN and the Major Powers in the South China Sea: the Role of Law, Diplomacy, and Deterrence in Moderating Sovereignty Claims

Abstract This article focuses on the rising strategic significance of the South China Sea for the Association of Southeast Asian Nations (ASEAN) and the major powers. It traces the origins of the South China Sea (SCS) dispute, and the claimants that are directly involved (China, Vietnam, Philippines, Malaysia, and Brunei). It then examines why balance of power considerations have influenced and continue to influence the role of regional states as well as the major external powers (China, United States, India, and Japan, together with other interested middle powers such as Australia and Canada). It argues that the SCS is an international maritime regime (global commons), and therefore subject to the principles and practice of International Law, specifically United Nations Convention on the Law of the Sea (UNCLOS). Any attempt at nationalisation of the SCS will be rejected under international law, as evidenced by the 2016 decision of the Permanent Court of Arbitration (PCA), with respect to the submission in 2013 by the Philippines on its dispute with China, for compulsory arbitration by the The Hague Court. It notes the lack of unity in ASEAN over how to deal with China’s assertive conduct in the SCS. It suggests that only a dynamic balance of power approach, which includes external power engagement with regional interests, will create the necessary space for diplomacy and dialogue by upholding the primacy of the rule of law, freedom of the open seas, and the legitimate rights and interests of all claimant states. It concludes that law, politics, diplomacy, and deterrence are interactive variables requiring strategic management to promote shared interests, stability and security in the South China Sea.

Multilingualism, translation and international law: four myths

Translators and interpreters allow international law and its institutions to operate in a multilingual world. However, the legal literature analysing how international law and institutions understand the role of translators, and the significance of translators’ work to the practice of international law, is still developing. This article contributes to this emerging body of work by analysing the discourse of international law on translation, interpretation and multilingualism. It identifies four key assumptions about translation and its role in the multilingual international legal order which repeatedly appear in the discourse of international law. Drawing on insights from other disciplines, including socio-linguistics and translation studies, it demonstrates ways in which these assumptions may be flawed, and explores the significance of this for the operation of international law. Ultimately, it argues that these ‘four myths’ skew the operation of international law in ways that empower some at the expense of others and call into question whether international law is truly ‘international’.

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.

Chronology of Practice: Chinese Practice in Private International Law in 2022

Abstract This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People’s Congress. Secondly, three judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts’ jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem, life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia, China’s Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List.

Private ownership of water bodies: does it exist?

In modern conditions, when the issue of conservation and rational use of water resources of Ukraine is gaining special attention in the conditions of armed Russian aggression, the analysis of the legal basis of the ownership of water bodies receives a new impetus for research and is especially relevant from the point of view of the possibility of the owners of water bodies calculate damages caused to water resources - a direction that includes pollution, clogging, depletion and other actions on water resources that can worsen water supply conditions, harm people's health, cause a decrease in fish stocks and other objects of water fishing, deterioration conditions for the existence of wild animals, a decrease in soil fertility and other adverse phenomena due to changes in the physical and chemical properties of waters, a decrease in their ability to natural purification, a violation of the hydrological and hydrogeological regime of waters. It was emphasized that water resources are a key factor not only for ecological stability, but also for the socio-economic development of the country. Regulation of ownership of water bodies has a significant impact on the efficiency of water resources management, access to drinking water, agricultural production and other important aspects of the life of the population and the state. Taking this into account, the central place of the conducted research is devoted to the issue of the existing conflict of provisions of the Land and Water Codes of Ukraine in the sphere of settlement of the issue of ownership of water objects from the position of the ratio of public and private environmental interests. Separate aspects of this issue are considered from the standpoint of national judicial practice and analysis of international environmental law. It has been proven that in some cases, the national legislation of some EU member states provides for the possibility of acquiring the right of private ownership of water bodies. The paper also highlighted doctrinal approaches to understanding the essence of the Ukrainian people's ownership of natural resources, including water. Summing up, it is argued that the study of conflicts in the legal regulation between the Land and Water Codes of Ukraine is relevant and important for ensuring sustainable water management and protecting the rights of citizens. Appropriate amendments to the Land Code of Ukraine were developed and proposed.

Relevance of International Law in Preventing International Conflict: A Case Study of Russia-Ukraine

Russian invasion of Ukraine in 2022 raises the question of the relevance of international law which is supposed to preserve international peace. In the context of the current Russia-Ukraine war, the legitimacy and applicability of international law are being questioned, as it has not been able to protect human rights, which are grossly violated in such a war. In this context, it becomes very pertinent to revisit the idea and practice of international law to find out where the fault lies, why it fails to provide the solution to international conflict, and what can be done to make the body of international law serve its purpose in the true sense. In light of these questions, this article attempts to examine the limitations of international law in relation to addressing the Russia-Ukraine conflict and to reflect on how international law can become an instrument of protecting human rights by preventing international conflict and ensuring international peace.

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).

Legal Personality in International Migration: the Personological Aspect

The article examines the legal nature and content of legal subjectivity of international migrants using the cutting-edge methodology of international legal personology. The relevance of the research topic is the need to apply the personology methodology to the study of the personal component of the international legal system, especially in the context of Russian aggression which poses a threat to the lives of Ukrainian refugees. The purpose of the article is to determine the legal nature and content of international migration legal personality of a person using the latest methodology of international legal personology. The methodological basis of the study is an interdisciplinary and comprehensive approach which made it possible to formulate the conceptual framework of international migration legal personality of a person with due regard for the modern doctrine and practice of international law. The work uses a number of general theoretical and special scientific methods: objectivity; dialectical; historical and legal; formal and logical; special legal; systemic and structural; comparative legal; sociological; the person-centered method was developed by the author specifically for the study of the problems of the subject of law in general and the subject of international law in particular. It posits that the 1948 mistranslation of the traditional legal concept of “legal personality” (person before the law) as “legal subjectivity” in Article 6 of the Universal Declaration of Human Rights has had negative methodological consequences for domestic studies of personative legal reality. In their research, the scholars typically focused on the legal status, rights and duties of the legal subject rather than legal personality per se. The study of specific qualitative traits of legal personality (such as personative capacity, under the umbrella term of “legal capacity”, or negative capacity, in the narrow framework of criminal capacity) has been fragmentary, sporadic, and categorically vague. Only when legal personology cohered as an academic approach did it became possible to use an adequate person-centric methodology to study the personative element of any legal system. A personological analysis of the traditional concept of “legal capacity” identified three aspects: 1) normative: the capacity of a social actor to bear a legal status, possess rights and duties (normative capacity before the law); 2) personative: the capacity of a social actor to be a subject of law, a legal personality, a bearer of a personative legal form of a physical, legal or sovereign person (personative capacity before the law); 3) communicative: the capacity of a social actor to take part in legal communications, to be a party of legal relations (communicative capacity before the law). Further personological study of international migration law found that a person bears all the features of an international legal personality that possesses the corresponding sectoral personative capacity and active capacity at the universal, regional, and particular level. Meanwhile, a significant number of environmental (climate), anthropogenic and political migrants remain outside the purview of international legal regulation at the universal level, where they are conventionally referred to by the rather restrictive term “refugee”. At the regional and especially at the bilateral level, there is a risk that the generally recognised rights and fundamental freedoms of forced migrants during accelerated readmission, which underscores the necessity of academic scrutiny of this relatively new institution of international migration law.

Legal consolidation and practice of law of the renvoi institute in the romano-germanic legal system

The article is devoted to the study of the renvoi doctrine on the example of the countries of the Romano- Germanic legal system: France, Germany and Italy. The author analyses in detail the decisions of the courts that have established precedents for the application of this doctrine. The author points out that France is considered to be one of the founding states of the renvoi doctrine and the term «renvoi» became world famous after the Forgo judgment. The author analyses the cases in which the French courts have applied the principle of deference to resolve conflicts of law. Examples of changes in French legislation that excluded the rules of deference for decisions in inheritance matters are given. The author analyses in detail the French statute on reference to the legislation of other states and the rules of interpretation of legislation in cases where it refers to France or other countries. The process of creation and implementation of the Code of Private International Law in France is considered.
 The author highlights the practical aspects of the use of deference in France and notes that, despite the existing doubts and problems, deference is becoming increasingly acceptable and widespread in the practice of private international law. The author analyses the peculiarities of German conflict of laws in the context of situations where a backward reference to the law of a third state which is not a member of the European Union (EU) is made.
 It is established that in the practice of German courts, the concept of implied deference is used to achieve justice and ensure predictability and stability in the resolution of international disputes. It makes it possible to preserve the principles of foreign law while using national law for this purpose.
 The author examines the issue of retroactive reference in Italian law, which requires that a court apply conflict of laws rules to a case on its own initiative. The article provides examples of a court decision in a case where the issue of application of the renvoi doctrine arises.

On benefits of new legal realism for international tax scholarship

ABSTRACT Specialists in international tax law tend to adopt a legal positivism perspective. Although not without merit, legal positivism alone offers an incomplete understanding of international tax law for the purposes of legal theory, law-making and practice. In comparing new legal realism with legal positivism, this article will demonstrate how analytical frameworks that incorporate a new legal realism approach can enhance our understanding of international tax law and its concepts, by viewing it through the real-world lens. It will also outline some issues for future empirical analysis that could help to advance legal positivism theory and connect law-making and the practice of international tax law to the real world.