Practice Of International Law Research Articles

Study on Compliance and Practice of International Law and Remedies

How can powerful countries be made to comply with international law? This question has been widely discussed by scholars. This paper expounds from three aspects: theory, famous case analysis and proposed solutions. First, how this problem came into being, secondly, its impact, and finally, how the country should deal with this problem.

Decolonizing the Corpus: A Queer Decolonial Re-examination of Gender in International Law's Origins

This article builds upon queer feminist and decolonial/TWAIL interventions into the history of international law, questioning the dominant discourses about gender and sexual victimhood in the laws of armed conflict. In Part One, I examine how early European international law writers (re)produced binary and hierarchical ideas about gender in influential legal texts, discursively creating a world in which wartime violence only featured men and women in strictly defined roles (a construction which continues to influence the practice of law today). In Part Two, I decenter these dominant discourses by looking outside Europe, questioning what a truly “international” law would look like if non-Western ideas about gender diversity and hierarchy had instead been allowed to contribute to its development. I demonstrate how gender diversity was the norm, not the exception, for multiple Indigenous and non-Western communities prior to colonization, drawing new connections between gendered oppression, colonial violence, and the continued practice of international law. This analysis provides an important bridge between queer and TWAIL critiques of international law, challenging lawyers and academics to think beyond mainstream ideas about binary gender when considering gender-based violence.

АСПЕКТИ ПРАВОТВОРЧОСТІ У СФЕРІ ТРАНСКОРДОННИХ ІНВЕСТИЦІЙ

Notwithstanding the fundamental position of theoretical concepts related to law-making of international organizations, discussions about their effective juridical content still could exist. This may accordingly influence practices of international law, including questions of international economic law on implementation and regulation of cross-border investment exchange. Thus, issues of international investment law specific, including international law-making and the correspondent impact of decisions and practices of international investment arbitration, have been considered based on the letter well-known classic works on the theory of international law as well as analysis of sources and basic norms of international investment law. Scientific and practical conclusions are done about the legal sources that should be taken into account as the key ones during the implementation of international investment exchange.

The 2008 Agreement Between the Holy See and Brazil on the Juridical Statute of the Catholic Church in Brazil in the Eyes of the Brazilian Superior Courts

In 2008, Brazil and the Holy See entered into an Agreement on the Juridical Statute of the Catholic Church and its Ecclesiastical Institutions in Brazil (the “Agreement”). The Agreement was approved by the Brazilian Congress by Legislative Decree 698 on October 7, 2009 and entered into force in the international sphere on December 10, 2009. On February 11, 2010, by Presidential Decree 7.107, it entered into force in the domestic sphere. The purpose of this essay is assessing the consistency of the Agreement with the State laicity enshrined in the 1988 Brazilian Constitution. The hypothesis is the validity of the Agreement due to the special status of the Holy See in International Law. The methodology of study consisted in describing the historical background of the relationship between State and Church in Brazil as a preamble for surveying cases which have dealt with the 2008 Agreement and the corresponding decisions at the Brazilian Superior Courts. As a result, we have found out that the Brazilian Judiciary sustained the compatibility of the Agreement with the laicity of the Brazilian State enshrined in its 1988 Constitution in two leading cases that addressed, respectively, the possibility of confirmation, by Brazilian Courts, of ecclesiastical declarations of nullity issued by marriage tribunals under the Code of Cannon Law, and the possibility of confessional classes in public schools. Both possibilities were eventually upheld by Brazilian Superior Courts in landmark rulings on the status of the Holy See in the Brazilian practice of international law.

Australian Practice in International Law 2020

Australian Practice in International Law 2020

Chronology of Practice: Chinese Practice in Private International Law in 2020

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Welcome a Board

In 2020, in consultation with Oxford University Press, we decided to expand and diversify the composition of the Editorial Board of the International Journal of Refugee Law. The Board has existed since the journal was founded in 1989 and has always been a mix of academics and practitioners from across the globe. Our aim was to increase its composition and reach. With existing Board terms up for periodic review, we first ascertained who was able to continue. Regrettably, but for understandable reasons, three Board members stepped down: Professor BS Chimni, Professor François Crépeau, and Dr Volker Türk. We thank each of them for their many years of service to the journal, and indeed to the study and practice of international law more generally. Volker Türk, who remains an unstinting supporter of the journal, is a prime example of why the IJRL has such traction with not just the academic...

Smart contracts in the context of digitalization: the legal realities of world experience

The development of digital technologies is forcing lawyers to analyze phenomena that have recently looked fantastic. This means that a phenomenon like smart contracts has ceased to be a theoretical idea of improving commodity monetary transactions and now needs a legal justification. In this article, we have analyzed smart contracts in terms of their belonging to digital technologies and the legal field, that is, how they can be equated with legal agreements, if they are their analogues, what application can it find given the legislation in the field of civil (contractual) law. The purpose of our study was to establish a link between smart contacts and their legal regulation, with the feature of smart contract implementation perspectives. The methodology used are systemic and formal-legal methods, as well as methods of analysis and synthesis. The results found highlight that a smart contract is a computer code that is entered into a blockchain network to execute a transaction, the usual expression of which is an agreement between the parties. From a legal point of view, smart contracts are only a part of ordinary agreements (contracts) under the practice of international and national law.

Human rights and positive obligations of the state

At present, both the international and the regional levels of human rights protection lack an express definition of the positive obligation of states to protect human rights. Similarly, the doctrine lacks a unified opinion regarding this concept. For quite a long time, human rights were considered as such that give rise to so-called negative obligations of states to refrain from human rights violations. However, with the development of international human rights law, it is increasingly recognised that human rights also give rise to positive obligations of the state to take active measures to ensure these rights. Such obligations usually derive from international human rights treaties or from the interpretation of international judicial bodies that monitor the implementation of corresponding international treaties. Therefore, it is crucial for the doctrine and practice of international law in the field of human rights protection to analyse the positive obligations of the state, which are consolidated in international treaties and the practice of international judicial bodies. The purpose of this study is to analyse human rights and positive obligations of the state in the context of regional mechanisms for the protection of human rights. Among the general scientific methods, the study used the analysis and synthesis, as well as deduction, induction, prediction, modeling, analogy and other general scientific methods. A thorough study of the positive obligations of the state would be impossible even without the use of special methods of study and cognition, which include comparative legal, historical and legal, technical, and structural-functional methods. In particular, one of the leading research methods was the comparative legal method, which was used to study the practice of regional mechanisms for the protection of human rights. The study provides an overview of the modern interpretation of positive obligations of states. Specifically, this study focuses on the practice of the European, Inter-American and African Human Rights Courts in the context of applying the state's positive obligations

Rein Müllerson in the international law: retrospectives and prospects

This article is dedicated to reconsideration of the ideas of the prominent Soviet, Russian, Estonian and international legal expert Rein Müllerson, which he introduced to the theory and practice of international law. The relevance of this research is substantiated by the contribution made by Professor Rein Müllerson to the Soviet system, as well as the contribution he continues to make to the modern domestic, foreign, and universal doctrine of international law. In 201, the author of multiple articles and monographs that are published in different languages and countries, Professor Rein Müllerson released his summarizing work – the autobiography “Living In Interesting Times: Curse or Chance?”, which in reality is not an autobiography. This monograph, which determines the topic of this research, is dedicated to the most relevant issues of international law and international relations, which underlie the scientific reflections in the latest published work of Professor Müllerson. The goal of this article lies in the analysis of manifestation of subjective realism and new philosophy of modern international law declared in the 2021 monograph. Using such instruments of the modern researcher of international relations as liberalism and democratization, globalization and regionalization, correlating the theory built in the Soviet scientific paradigm with the practice tested in the UN structures, he brought the international law to a higher level of comprehension, as a complex system of regulators of multinational behavior. The neutral and non-politicized views of Professor Müllerso answers on the majority of modern international problems, along with his vast experience in practical implementation of legal norms, should be duly appreciated by present and future generations of researchers interested in building a new world – free from warfare and confrontations.

Following up the Discussion on the stricto sensu ‘Principles’ in Modern International Law, and Beyond the Same ….

Following up the Discussion on the stricto sensu ‘Principles’ in Modern International Law, and Beyond the Same ….

Translating Gender Diversity In International Criminal Law: An Impossible But Necessary Goal

The day-to-day practice of international criminal law typically requires that concepts from diverse countries and cultures be communicated in certain languages, often including French and English, the working languages of the International Criminal Court (ICC) and most United Nations (UN) courts. This article explores one challenge associated with this multilingual legal process, namely, the challenge of describing gender identities, including non-binary identities, that have no precise equivalent in English and French. It does so through a case study of Sou Sotheavy, a gender non-conforming person who gave evidence at the UN-backed war crimes tribunal in Cambodia, and by considering past cases in which international criminal courts have made foreign terms intelligible to French and English speakers without being limited by the lexicon of those languages. I conclude that diverse gender identities can and should be expressed in terms from the culture from which they originate, in order to broaden and enrich existing conceptions of gender in international criminal law.

Austrian Practice in International Law 2019

Austrian Practice in International Law 2019

Tilting at windmills: Reparations and the International Criminal Court

AbstractMore than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.

Umowy normalizujące stosunki między Państwem Izrael a Zjednoczonymi Emiratami Arabskimi i Królestwem Bahrajnu w świetle prawa międzynarodowego – wybrane zagadnienia

The main purpose of this article is to analyse the normalization agreements between the State of Israel and the United Arab Emirates and the Kingdom of Bahrain (known as the Abraham Accords). First of all, author wants to present these treaties in the light of international law. This article contains a detailed description of provisions of the agreements based on examples of theory and practice of international law. Moreover, it presents the legal nature of the treaties, as well as the historical context of their conclusion. The author concluded that international law guarantees peace and gives hope for a better future. The Abraham Accords are an example of the creation of this law.

Implementarea instituţiei non-discriminării în legislaţia Republicii Moldova The implementation of the principle of non-discrimination in legislation of the Republic of Moldova Имплементация принципа недискриминации в законодательство Республики Молдова

Romanian Abstract: Проблема дискриминации явилась следствием реальных общественных процессов, объективно затрагивающих широкие слои населения и связанные с отрицанием свобод личности, и не в последнюю очередь её унижением. Несмотря на длительную историю существования дискриминации, она остается одной из сложнейших проблем международного права. Одна из сложностей связана с правовой природой принципа дискриминации. Так будучи нормой международного права, данный принцип права связан с процессом согласования воль государств относительно его признания в качестве обязательного правила поведения, выраженного в форме международного договора. Естественно, что для ряда государств это выражение обретает форму международно-правового обычая. Такая сложность указывает на смешанный договорно-обычный характер данного принципа права. Последовательные демократические преобразования, через которые прошла Республика Молдова, способствовали созданию собственной законодательной базы для проведения полной гармонизации национального законодательства с международными стандартами. Все эти критерии заложили фундамент правовых механизмов, необходимых для защиты прав и основных свобод человека. В условиях демократизации всех сфер общественной жизни, особое значение уделяется консолидации правового порядка, прагматического применения действующих нормативных и законодательных актов государственными органами, предназначенными для защиты не только интересов государства, но и каждого гражданина в отдельности, а также, непрерывного движения к сближению правовых систем путем заимствования институтов и практик, предоставляющих реальные гарантии. Процесс сближения и реформа законодательства Республики Молдова, неизбежно включает в себя изучение правовой базы, существующей в других странах, по эффективному управлению заимствованными институтами. Это привело к принятию институтов и инструментов, известных в международной практике и законодательстве, таких как институт «недискриминации», но реализация, которого только сейчас начата в законодательстве Республики Молдова. English Abstract: The problem of discrimination is the consequence of real social processes that objectively affect the biggest strata of population and is associated with the denial of the individual liberties, and not in the last instance their humiliation. Despite a long history of existence of discrimination problem, it remains one of the most difficult problems of international law. One of the difficulties is associated with the legal nature of the principle of discrimination. So being a norm of international law, this principle of law is connected with the harmonization of the wills of states regarding its recognition as a binding rule of conduct expressed in the form of international treaty. It is natural that for a number of the states this expression finds the form of international legal custom. This complexity points to a mixed, contractual and customary nature of this principle of law. The consecutive democratic transformations experienced by the Republic of Moldova favoured the creation of legislative basis to conduct its own full process of harmonizing national legislation with international standards. All these transformations have determined the creation of necessary legal mechanisms to protect human rights and fundamental freedoms. In the process of democratization of all spheres of social life is given particular importance to reinforce the rule of law and to pragmatic application of normative and legislative acts by state bodies, designed not only to protect state interests but also that of each citizen in particular. Also, a special role in this process belongs to the continuous movement toward a convergence of legal systems by borrowing those institutions and practices that provide actual guarantees in this respect. The convergence process and reform of legislation in the Republic of Moldova, inevitably, involves studying the regulatory framework that exists in other countries, in terms of efficient management of institutions which were taken over. This process led to the regulation of institutions and instruments well-known in the international law practice as, for example, the institution of “non-discrimination”, but has only now begun to be implemented in the legislation of the Republic of Moldova.

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

DIFFERENTIATION OF BASIC PRINCIPLES AND NORMS JUS COGENSAS CONCEPTS OF THE THEORY AND PRACTICE OF MODERN INTERNATIONAL LAW

The article deals with both juxtaposition and differentiation of the concepts of “basic principles” and jus cogens (peremptory norms of general international law) as phenomena of international legal reality from the point of view of their location in the theory and practice of international law. Not limited to fixing a serious problem that exists in the field of research and consists in a considerable variety of terms having complicated the apparatus of modern international legal science, this article provides a consistent differentiation of many other individual notions which fall under the head of the principles of international law. Along with this, as the key-stone of the problem under consideration the broader “layer” — the analysis of the “principle” as a category of legal science shall be subject to accentuation as core, dominant in modern international law. Since the “basic principles” are one of the main concepts of both the system of international law and its science, they are evaluated primarily from the point of view of their functional role in the legal regulation of interstate relationships. While being compared with the peremptory norms of general international law (jus cogens), the basic principles are also envisaged in this article aiming to determine their importance for the theory and practice of international law in general.

Rein Müllerson in the international law: retrospectives and prospects

This article is dedicated to reconsideration of the ideas of the prominent Soviet, Russian, Estonian and international legal expert Rein Müllerson, which he introduced to the theory and practice of international law. The relevance of this research is substantiated by the contribution made by Professor Rein Müllerson to the Soviet system, as well as the contribution he continues to make to the modern domestic, foreign, and universal doctrine of international law. In 201, the author of multiple articles and monographs that are published in different languages and countries, Professor Rein Müllerson released his summarizing work – the autobiography “Living In Interesting Times: Curse or Chance?”, which in reality is not an autobiography. This monograph, which determines the topic of this research, is dedicated to the most relevant issues of international law and international relations, which underlie the scientific reflections in the latest published work of Professor Müllerson. The goal of this article lies in the analysis of manifestation of subjective realism and new philosophy of modern international law declared in the 2021 monograph. Using such instruments of the modern researcher of international relations as liberalism and democratization, globalization and regionalization, correlating the theory built in the Soviet scientific paradigm with the practice tested in the UN structures, he brought the international law to a higher level of comprehension, as a complex system of regulators of multinational behavior. The neutral and non-politicized views of Professor Müllerso answers on the majority of modern international problems, along with his vast experience in practical implementation of legal norms, should be duly appreciated by present and future generations of researchers interested in building a new world – free from warfare and confrontations. The article employs historical analysis, comparative method, methods of legal research and interpretation.

On the universality of human rights in the doctrine and practice of international law (a review of the conference in memory of professor G. V. Ignatenko)

On the universality of human rights in the doctrine and practice of international law (a review of the conference in memory of professor G. V. Ignatenko)