Principles Of Public International Law Research Articles

The Right to Self-Determination of Peoples through Examples of Åland Islands and Quebec : Recommendations for a Peaceful International Legal Order

In contemporary public international law, it is increasingly common that in many countries of the world and Europe, political representatives of the peoples are calling for an inalienable right to the external self-determination of the peoples involving secession to try to achieve their independence and autonomy, forming their national states to the detriment of already existing countries in which they are currently living. However, this may cause destabilization and wars in many complex multiethnic states and the European Union. Therefore, the Aland Islands and Quebec cases are extremely important for today’s understanding of the exercise of the right to self-determination of the people in contemporary public international law, in particular as the International Court of Justice in The Hague and the domestic courts invoke them as precedents to address all future cases of reference to the right of the people to external self-determination involving secession. Based on those cases, it has developed that the issue of secession is the question of the internal legal order of each sovereign country, which should deal with this issue through its constitutional legal order, and contemporary public international law should deal with its consequences. In connection with this, it is necessary to investigate and offer answers that will highlight possible abuses of the right to self-determination of all peoples as a collective human right in contemporary public international law. Such unlawful conduct may result in adverse legal consequences, in particular, the violation of basic principles of public international law, including the principles of territoriality and sovereignty of the states, the distortion of world peace and order, economic progress, the rule of law and the pursuit of basic human rights and freedoms, as well as other collective human rights, which may ultimately be the cause of provocation and lead to international and civil wars.

The East African Court of Justice: Weaving Jurisprudential Pathways, 2012–20

A reading of the decisions of the East African Court of Justice delivered during its early years portrays an orientation towards the application of common law doctrines. This is not surprising given that the initial litigants, legal Counsel and Judges originated from countries with legal systems sourced from common law; and so, they relied on judicial precedents of national courts and the Court’s predecessor, the Court of Appeal for East Africa. For over a decade now, there’s been a shift as the Court has charted a jurisprudential path reflecting its international character. This paper considers some of the decisions of the Appellate Division which have espoused the primacy of public international law principles and legal instruments; and the inspiration drawn from the jurisprudence of other international and regional courts in interpreting and applying the East African Community Treaty. Over the years, the Court has continued to uphold deference for rule of law, jurisdictional, procedural and evidential standards in the administration of justice and applied the seldom used dissenting opinion mechanism where necessary.

The Meaning of Silence in Investment Treaties

Abstract The ambiguity of key terms in investment treaties, such as ‘investment’, ‘fair and equitable treatment’ and ‘fair market value’, has been subject to extensive analysis. Less attention has been paid to the silence of investment treaties on numerous issues that routinely arise in practice. This article argues that treaty silence has played a critical role in the development of international investment law. It shows that arbitrators frequently adopt a creative approach to silence resulting in expansive interpretations, and argues that this approach stands in tension with several fundamental principles of public international law. The article concludes by highlighting considerations drawn from its analysis for arbitrators, treaty drafters and the international legal order.

European Diplomacy and the Principles of Public International Law applied during the Congress of Berlin 1878

During this historical time, Romanian diplomacy followed the stable line of the national party who aimed to create a young national state and obtain state independence; this was the main state goal. Considering these major objectives, the deciding parties acted in the spirit of public international law in order to secure Romania’s acknowledgement as an independent nation with a well-deserved role among all other independent countries. As a result of the diplomatic efforts which preceded the Congress of Berlin, Romanian diplomacy obtained the acknowledgement of the legitimacy of Romania from all major powers, so as to obtain the statute of sovereign and independent country.

O universalismo moral kantiano: uma abordagem ética da dignidade humana no direito internacional público

PROBLEM: The problematic of this article discusses how the proposal of Kant's universalist ethics can support the universal foundation of human dignity, focusing on Kantian philosophical theory, through the analysis of the work The Foundations of the Metaphysics of Morals. This article relates the Kantian philosophical conception with the issues of Public International Law of Human Rights. OBJECTIVES: The study aims to understand the necessity of a priori moral laws to constitute, through practical reason, the good will to act according to duty. The categorical imperative and the autonomy of the will of the universal legislator are conceptualized to identify the dignity of the human person, having man as an end in himself. It is shown that man is a possessor of duties (responsibilities)/rights (freedom-autonomy of will). Aspects of the ethical foundation of human dignity are identified in order to compare them with the current principles of public international law. METHODOLOGY: The research is qualitative bibliographical, focusing on Immanuel Kant's Foundation of the Metaphysics of Morals, followed by the analysis of books and scientific articles on the subject. Following the doctrinal analysis, the subject is related to the exposition of the articles of international treaties of the human rights protection system. CONCLUSIONS: The research is justified on the basis of the universal ethical need to link national law with international law, independently of positivized international norms, according to contemporary requirements vis-a-vis all established powers, official or not. It is concluded that an international organization founded on principles based on universal morality is necessary for the protection of human dignity in order to achieve peace.

Doctrinal Differences in the Definition of the Principles of Public International Law

The ambiguity of scholars' vision of the content of the principles of international law and their corresponding definition in doctrinal discussions can be reduced to two main directions. First, it is a problem of coverage of the concepts of principles of international law of generally accepted principles of law, and, secondly, the problem of limiting the category of principles of public international law to only ten basic principles of international law. These discussions confirm the relevance and urgency of its solution. The general principles of international law, as the inheritance of all mankind, are the result of the development of all legal systems of the world in its legal unity. These principles represent the unity of the general principles of international law, which are inherent only in the international legal system; general principles of law inherent in both national and international legal systems, as the ideological foundations of law; and common principles of national legal systems, which with certain comments can be applied to international legal relations. If we take as a basis Art. 38 of the Statute of the UN ICJ as a conditional list of sources of international law, where generally accepted principles of international law are not provided as such, the interpretation of this article can be imagined as conclusions that the principles of international law as special to general principles of law are norms of international law its reflection in any of the sources of international law, including those, which are unforeseen articles 38 of the Statute of the UN ICJ. The main difference between the principles of international law and general principles of law is that they contain specific rights and obligations for subjects of international law and are directly a regulator of international relations. Such unity can be deduced from the normative interpretation of Art. 38 of the UN Statute, in particular: the sources of enshrining the general principles of international law are customs and international treaties in accordance with paragraph a and paragraph b of Art. 38; the source of the general principles of law is paragraph c of Art. 38 of the Statute of the UN ICJ (general principles of law recognized by civilized nations); the source of identification or the legal basis for the application of the common principles of national law is paragraph d - ex aequo et bono, their application by an international court on the basis of the principle of justice.

Sailing in All Winds: Extraterritorial Regulation as a Trigger for Self-Regulatory Practices in Shipping Industry

The regulation of private activities that take place overseas has received significant attention in the legal scholarship. The traditional discussion of the topic observes such regulation from the perspectives of public international law principles of jurisdiction or private international law conflict of laws rules. The present article contributes to the discussion from the perspective of private parties engaged in shipping activities, who face an increasing need of compliance with different regulatory acts of extraterritorial application. It argues that the proliferation of such acts incentivizes private parties to include regulatory interests in their business activities. The article further suggests that extraterritorial regulation can serve as a trigger for transfer and intrinsic adoption of state’s regulatory interest by private parties. It observes the examples of such ‘privatization of extraterritoriality’ in corporate compliance policies and contractual CSR clauses used by shipping companies, noting their spillover effects over other parties. It further notes that the proliferation of extraterritorial regulation sometimes results in the universalization of responses from private parties, as acquisition of regulatory interest untied from its nation-state origins. The concluding section puts the observed phenomenon into a broader picture, discussing the contribution of extraterritorial regulation to the mechanisms of private governance.

Murder of Jamal Khashoggi: An International Law Perspective

The assassination of Jamal Khashoggi, a prominent Saudi Arabian journalist, inside the consulate of Saudi Arabia in Istanbul, Turkey, was sure to raise alarms in the international community. The murder was further scandalized as speculations arose about the involvement of the Crown Prince of Saudi Arabia and investigations revealed gross violations of public international law principles. This paper analyses the limits of consular immunity and the inviolability of consular premises. Further, the violation of the territorial sovereignty of Turkey is in question. It is argued that Turkey as a host country could have prevented the incident, as it was not faced with a conflict of norms because harmonious interpretation of the relevant norms was possible in this instance. An international crime of this magnitude requires the determination of the individual criminal responsibility of the Crown Prince, and a condemnation in the international community. This study is aimed at examining the major international law issues for this incident, that took place in broad daylight, under the garb of consular immunity, against a civilian in protected premises.

Tax Treaty Interpretation and Authentic Languages Lessons from Polish Case Law

This article argues the case for a holistic approach to tax treaty interpretation in respect of multiple authentic language texts, which is supported by Polish case law. In daily practice, courts rarely consider other language text(s). Established international doctrine sanctions this practice by maintaining that a comparison of text(s) would not be necessary for cases of ‘routine interpretation’. This state of affairs impairs international consistency of tax treaty interpretation and necessarily produces cases of treaty misapplication. Hence, it is all the more important to pay attention to case law in which a court has looked at other authentic text(s) – particularly when it has commented on the methodology of plurilingual treaty interpretation in a fundamental manner and not only used the other text(s) to resolve an ambiguity or confirm an interpretation based on the text in its own language. This article will outline and discuss the position developed by the Polish Supreme Administrative Court (NSA) which is congruent with the views developed by the present author elsewhere based on fundamental principles of public international law and considerations of systematic consistency. Tax Treaty Interpretation, Plurilingual Treaties, Authentic Languages, Case Law, Poland

Musings on the legal framework for resolution of foreign investment disputes in Nigeria

Resolution of dispute arising from foreign investments in Nigeria is achieved through non-judicial and judicial mechanisms, otherwise known as arbitration and litigation in courts. Foreign investors are expected to seek redress using one of the aforementioned mechanisms. Although the principles of public international law seem to be in contention with the business interests of an investor and the host country, there has been a rapid growth and development in investment arbitration as a trade dispute resolution mechanism in the past years, and the courts in Nigeria, through her decisions, have made pronouncements regarding the disputes from foreign investments. Consequent to this, it has become critically important for investors, solicitors, professional service providers and trainers, to understand the intricate legal elements involved in the resolution of disputes involving foreign investment. This study examines the legal framework for resolution of foreign investment disputes in Nigeria. Concepts such as nationalisation and expropriation of foreign investments, stability clauses and foreign investment disputes, renegotiating and the stability of contractual agreement as well as legal infrastructure were discussed and fully analysed.

A Step Closer: Economic Integration and the African Continental Free Trade Area

Post-colonial Africa views economic integration as an endogenous means for attaining self-reliant, sustainable development. Working under various regional and sub-regional economic institutions, states elaborated several norms in search of legitimacy in economic competence. However, several political and economic pathogens, including weak institutions, have blighted those efforts. This paper interrogates the African Continental Free Trade Area (AfCFTA or CFTA), which is the latest attempt to reboot the integration drive and achieve sustainable development. The CFTA seeks to create a geographic zone where goods and services will move freely among member states by removing trade distortions and boosting factor mobility, competition, and investment. After a rigorous analysis of the relevant normative instruments and examining the vertical and horizontal relationship between the CFTA and regional economic communities (RECs)/member states, the paper articulates some objective criteria for measuring the CFTA’s effectiveness. It concludes that, if faithfully implemented, the CFTA could maximize utility and increase welfare. For the analysis and conclusions, the paper deploys principles of public international law as well as economic theories, with a blend of political and moral philosophy.

Topoi of Ambiguity I: Decoupling Statehood from WTO Membership – the Case of Separate Customs Territories

One of the external functions usually performed by entities effectively controlling a geographically defined area is the conduct of cross-border trade. To conduct international trade, entities that are recognised by the international community as sovereign States, or groups of such entities that form customs unions and free trade areas having legal personality under public international law, enter into treaties in the form of trade agreements that regulate the terms for the conduct of trade to and from those areas. However, there are also de facto independent regimes controlling geographically defined areas that, although not recognised as States by the international community, nevertheless conduct trade with States, to the extent they are not subject to trade sanctions or embargoes. In international trade law, these territories are usually termed ‘separate customs territories’, to distinguish them from sovereign States. These territories – topoi of ambiguity – are physical places whose status under public international law is (or has been) ambiguous, disputed, in flux, sui generis, or in any way unusual. This chapter is part of a wider research project whose aim is to systematically investigate on the basis of precedent the legal rules and practices by which de facto independent regimes, of which ‘separate customs territories’ as understood in international trade law form part, conduct cross-border trade and the ways in which States and international organisations react to these. The idea is to try to discern the public international law principles, legal rules, historical realities, or functionalist arguments – the notional places in international trade law that deal with the physical topoi to which topoi of ambiguity also alludes – that underpin the de jure or de facto territorial application of international trade rules to de facto independent regimes. Put simply, the question that I try to shed light on is why notions and requirements of statehood are decoupled from issues of the territorial application of the rules in the field of international trade law.

As Potencialidades e os Limites do Direito Internacional Público Contemporâneo: uma análise do bloqueio imposto à Cuba pelos EUA

Este trabalho analisa o bloqueio imposto pelos Estados Unidos da América a Cuba, considerando os princípios do Direito Internacional relativos à soberania, autodeterminação e não intervenção. Para tanto, discute como tais elementos se constituem numa marca fundamental para o desenvolvimento do Direito Internacional Público contemporâneo. Em seguida, analisa a origem e o aprimoramento, ao longo dos anos, de tal política até alcançar, nos anos 90, sua formulação mais recente e elaborada nas leis Torricelli e Helms-Burton. Finalmente, analisa os efeitos do bloqueio e a reação contrária da comunidade internacional, demonstrando que este se constitui numa violação de princípios básicos do Direito Internacional Público e num dos principais obstáculos para a normalização efetiva das relações entre Cuba e Estados Unidos da América (EUA).

Revitalising a phantom regime: the adjudication of human rights complaints in sport

The protection of fundamental human rights in sport has increasingly been at the forefront of public consciousness over recent years. The response from the sport sector has been a number of measures that purport to bolster its own human rights credentials, with a number of key governing bodies taking steps to implement principles of international human rights law through soft regulation and institutional initiatives. With access to remedy representing a key pillar of human rights protections, however, the extent to which these measures can be enforced via third party adjudication is key to understanding the effectiveness of these developments. This article makes two key assertions. First, that the current system for adjudicating human rights complaints in sport lacks cohesion, effectiveness and credibility; it is consequently a ‘phantom regime’. Second, it will argue that the best means of addressing the accountability gap created by this phantom regime is through a closer alliance with principles of public international law—it will then proceed to examine the case for a specialist Court of Arbitration for Sport and Human Rights. In doing so, it will seek to emphasise the value of a functional adjudicatory system to the overall effectiveness of human rights protections in sport, and consider how best this objective might be achieved.

A responsabilidade internacional norte-americana na jurisdição comercial da Organização Mundial do Comércio a partir do caso WTO-OSC/DS267 - upland cotton

O presente trabalho tem como pano de fundo das discussões apresentadas, a análise assentada nas reflexões sobre a responsabilidade internacional do Estado e as jurisdições internacionais, recaindo sobre a responsabilidade internacional norte-americana na jurisdição comercial da Organização Mundial do Comércio (OMC), a partir do caso WTO-OSC/DS267 - Upland Cotton. É inevitável afirmar que sempre existirão conflitos de interesses nacionais, sujeitos às regras comerciais reconhecidas internacionalmente, o que leva a necessidade dos organismos internacionais efetivarem um mecanismo de harmonização através da tomada de decisões calcadas na regulamentação do comércio internacional. Considerando que a obrigação que um Estado tem com o outro de reparar o dano que causou está consagrada como um princípio do Direito Internacional Público. Os princípios gerais de direito internacional se aplicam à OMC e a seus acordos. Nesse sentido, a relação de responsabilidade internacional, no Sistema de Soluções de Controvérsia (SSC) da OMC, transcende as partes envolvidas numa disputa, pois diz respeito a todos os membros da OMC.

That Most Canadian of Virtues: Comity at the Supreme Court of Canada

In this paper, I consider how the Supreme Court of Canada has used the concept of comity in its Charter jurisprudence, focusing primarily on s.7. I argue that the effect of its adoption of public international law principles has been to limit the rights of Canadians and create zones free from Charter rights or court scrutiny.

Basic and general principles of public international law as a source of legal regulation of international cooperation in the fight against crime

Basic and general principles of public international law as a source of legal regulation of international cooperation in the fight against crime

The Autonomous Interpretation Standard of International Uniform Private Law: A Dialogue on Methods of Interpretation from the Perspectives of Comparative Private Law and International Public Law

Our article is based on a fresh dialogue between two colleagues of public international law and comparative private law. We question whether the standard of interpretation of uniform private conventions is, or should be, identified and shaped under the two scholarships. In particular, we aim to answer three main research questions. The first question is whether the interpretation of uniform private law conventions is governed by the principles of public international law on the interpretation of treaties (as expressed by Articles 31-33 of the Vienna Convention on the Law of Treaties (VCLT)). In case of an affirmative answer, the second question follows by discussing whether the application of the rules at Articles 31-33 of the VCLT may be beneficial for the interpretation of the conventions of uniform private law. We argue that these articles may finally offer a ‘common interpretative framework’ to domestic courts. Third, the article questions whether, in applying uniform private law conventions, domestic courts are under a duty to apply the VCLT interpretative methods and consider foreign case law. Here our point is that such a duty exists, although domestic courts ‘tend to ignore it’ in adjudicating cases. We will address these questions through dialogue, where we both describe the state of the art in our respective scholarships and try to come to a reciprocal, and if possible even common, understanding on each issue. ‘It would be deplorable if the nations should, after protracted negotiations, reach agreement … and that their several courts should then disagree as to the meaning of what they appeared to agree upon'

Intimations of Global Anti-Bribery Regime and the Effectiveness of Extraterritorial Enforcement: From Free-Riders to Protectionism?

One topic has featured in discussions of bribery of foreign public officials over the last few years – the rise of the broad extraterritorial use of national anti-bribery laws (based on the OECD Anti-Bribery Convention) which might reach domestic or foreign companies anywhere in the world. The problem is that extraterritoriality pushes or even exceeds traditional principles of public international law which may both support and undermine the core values of the international order. In this context, it is still unknown how and to what extent this practice is effective; i.e. whether positive effects of extraterritoriality outweigh negative effects. This paper aims to develop an outline of the effectiveness model of the OECD anti-bribery enforcement regime. It builds on existing theoretical concepts which assess effectiveness of global prohibition regimes. The analysis reveals that on the one hand extraterritoriality has positive effects because the anti-bribery laws are applicable to a widening range of foreign firms coming from jurisdictions where transnational bribery is under-regulated or even not criminalized at all. It can be concluded that increasing number of directly subjected firms, as consequence of the U.S. enforcement leadership, has been reducing the incentives to bribe for any other firm. This is because of indirect effects of these laws on private contractual arrangements which de facto create private implementation processes connected with community enforcement. Consequently, this dynamics also creates incentives for non-enforcers to become active. However, national enforcement authorities often use enforcement strategically to offer domestic companies a competitive edge. Thus, as the OECD anti-bribery regime lacks an enforcement mechanism, extraterritoriality often results in multiple uncoordinated investigations and therefore undermines stability of the anti-bribery enforcement. Extraterritoriality in the context of transnational bribery is a new phenomenon. The paper focuses on anti-bribery law, but much of it also relates to lager issues concerning the role of extraterritoriality in legal and economic globalization and in the evolution of public international law. The paper presents implications for further empirical and doctrinal research.

قانون العدالة ضد رعاة الإرهاب (جاستا)

The Justice Against Sponsors of Terrorism Act (JASTA) has raised a lot of interest in the Western and Arab media, which is of great concern to the countries that may be accused under the law. This is because the law violates the most important, established, and stable principles of public international law, especially those relating to the sovereignty and immunity of states. Under the law, states can be prosecuted in the courts of the United States of America for alleged deliberate or negligent support of persons or organizations that commit terrorist acts that threaten the safety and national security of the citizens of the United States of America. JASTA was approved by both houses of the U.S. Congress, but the President of the United States of America vetoed the law. The U.S. Congress overrode the objection of the President, allowing the Act to become law. This paper deals with the stages of the preparation of this law and the most important reasons that made the President of the United States use the right of veto against it, the reasons the U.S. Congress overrode the President’s objection, and the most important concerns and questions about this law.