Rules Of International Law Research Articles

The proposal for a regulation on the recognition of parenthood: An attempt to recognize surrogacy in the European Union?

Within the European Union, EU, a proposal for a Regulation on the recognition of parenthood has been in the pipeline since December 2022. If approved, the filiation of a child will be determined by the law of the country where the pregnant woman habitually resides, even if it is a non-EU Member State. The text obliges States to recognize birth certificates issued by third countries establishing the parentage of a child born from surrogacy agreements. In this paper, we analyze how the proposal interferes with the exclusive competences of EU Member States to regulate parentage and with the rules of international human rights law, including the European Court of Human Rights' case law.

Dispute over the 1974 MoU Box between Indonesia and Australia: How MoU Legally Binding in Two Countries?

This study aims to delineate the legal authority of Memorandum of Understanding (MoUs) within the jurisdictions of Indonesia and Australia, particularly concerning the resolution of international civil law disputes. The research employs a normative juridical approach, utilizing legal reviews and secondary data for support. The findings reveal that in civil law states, notably Indonesia, MoUs are regarded as binding agreements in accordance with the "Agreement is Agreement" perspective as per Article 1338 (1) of the Civil Code. Conversely, common law states, such as Australia, generally perceive MoUs as non-legally binding. However, an MoU may attain validity and binding status if it fulfills the six stipulated requirements outlined in Australian contract law. To address the dispute surrounding the 1974 MoU BOX between Indonesia and Australia, resolution options include examining international civil law rules based on primary and secondary links or resorting to an international arbitral tribunal.

China's transboundary hydropower development at home and abroad: exploring the regulatory interface between international water law and international economic law

China, located upstream on most of the major transboundary waters shared with vast populations across Asia, is heavily invested in developing hydropower at home and abroad. Some of this hydropower development involves freshwaters that cross national borders raising complex issues in international law, a situation exacerbated by growing economic, environmental, and regional security pressures. In such a context, where conflicts-of-use are almost certain to arise, it is essential to understand the rules that apply so as to enhance opportunities for enhanced transboundary water cooperation. This paper examines the rules of international water law and international economic law that apply to transboundary hydropower development, with a focus on China as one of the key actors in this field. The aim is to examine the regulatory interface of relevant legal frameworks with a focus on China's approach to transboundary hydropower development at home and abroad. While international economic—and more specifically international investment law—is not directly concerned with international water law, host states and foreign investors must be informed, and take into account, the legal obligations governing transboundary waters. China's position as a major water user (at home) and significant investor (abroad) on transboundary waters, makes it a unique case study for exploring the rules of international law that apply in two different regulatory settings. The work examines the rules of law in each of these domains and reveals the inapparent linkages across these seemingly unconnected areas of international regulation.

The concept of the «International Rule of Law»

The article is devoted to the elucidation and exposition of the concept of the «international rule of law», the analysis of approaches to its definition and the formulation of its definition. It is emphasized that the international rule of law is among those concepts that have been consistently «hanging in the air» to some extent since the post-World War II period. It is noted that, unlike in the case of defining the «classic» (domestic) rule of law, there is a lack of consensus within the scientific community regarding the definition of the international rule of law. The trends on which a certain unanimity is forming within the scientific and scholarly community are identified. The limits of the influence of the domestic rule of law theory on the international rule of law theory are revealed.
 The approaches to defining the concept of the international rule of law, as well as its «narrow» and «broad» meanings, are analyzed. It is stated that despite inconsistencies in the scientific doctrine, full adherence to the international rule of law is an «ideal,» and this «ideal» is associated with a human being, their rights, and freedoms. It has been proved that the narrow concept in the era of human rights law cannot be fully considered to be the «international rule of law», since human rights are an integral element of the latter. It is stated that contemporary theories of the rule of law and constitutionalism converge on the idea that human dignity, freedom, and human rights form the basis of all other obligations of the state. It is noted that the international analogue of the «rule of law, not individuals» would be the «rule of law, not states», which implies two aspects: it is not only about the impossibility for the hegemonic state to arbitrarily dictate its will to other states, but also the impossibility to dictate it to individuals.
 The authors distinguish between the concepts of «international rule of law», «rule of international law», and «rule of law in international relations». The requirements of the international rule of law in the practice of international bodies are highlighted. Based on the analysis of scientific approaches and the practice of international bodies, the authors’ own definition of the «international rule of law» is provided as a civilization-wide conceptual tool that represents a set of values, doctrines, and principles, the main requirement of which is the restrictions arising from the dignity, freedoms, and fundamental rights of every individual, in order to delineate the limits of power of states concerning an individual - both at the level of relations between subjects of international law and at the level of relations between certain subjects of international law and certain individuals.

Shaping the International Law Principle of the Inviolability of the Right to Peaceful Enjoyment of Property in the Context of International Armed Conflict

The article focuses on the formation of the international law principle of the right to peaceful enjoyment of possessions in the context of an international armed conflict, given the relevance of the issue of damage and destruction of property as part of the armed aggression of the Russian Federation against the sovereignty and territorial integrity of Ukraine. The author examines the right to peaceful enjoyment of possessions through the prism of international human rights law - as such, where the right to peaceful enjoyment of possessions (property rights) has been enshrined in the international law system, and also through the prism of international humanitarian law and international criminal law - as such, which are special in relation to the right to peaceful enjoyment of possessions in the context of international armed conflict.
 The article examines the principle of inviolability of property rights at the national level, in particular, in legislative and judicial sources, and its impact on the formation of the relevant international law principle. In particular, the author analyses the philosophical development of the concepts of “sacredness” of property rights and inviolability of property rights, as well as the natural essence of this right for a person.
 The author examines in detail the rules of conventional and customary international humanitarian law on the right to peaceful enjoyment of property/property rights depending on the type of acts that may be committed against property and the type of property against which certain acts are directed in the context of an international armed conflict or legal regime of occupation. The provisions on the protection of civilian objects, as well as the non-absolute nature of the protection of property rights in international armed conflict in cases of urgent military necessity, are carefully considered. Based on this analysis, the author identifies the key fundamental provisions on the basis of which the international legal principle of the right to peaceful enjoyment of property in the context of international armed conflict is formed.

Cybercrimes in Light of The Rules of Public International Law

Despite what has been witnessed by the international community during the recent decade in connection with the widespread use of modern technology based on the World Wide Web in all aspects of life, as well as what this has achieved, including the easiness of having access to information and the reliance by the fundamental infrastructures and services provided to citizens on it, there have been adverse effects of this revolution with which we live in our life. However, legal experts have attempted to research how applicable its rules are to cybercrimes being considered cross-border crimes, and they can threaten the principles of sovereignty and non-interference. Therefore, this research has addressed the problem related to how applicable the rules of international law are to cross-border cybercrimes, which might violate the two principles above deemed to be some of the fundamental principles on which international law is based.

On the Construction of the SCO Community with a Shared Future for Mankind - From the Perspective of International Law

The 21st century is the century of organization. Against this background, General Secretary Xi’s proposition of “building a SCO community with a shared future” has pointed out the direction for the SCO’s development in the context of a century of change. The proposition of “SCO Community with a Shared Future for Mankind” was put forward by General Secretary Xi Jinping from the perspective of building a community with a shared future for mankind and in order to promote the construction of the “Belt and Road”. However, against the backdrop of profound change unseen in a century, international rule of law has been put on the governance agenda and has become a recognized necessary form of international governance. Therefore, the proposition of building a “SCO community with a shared future” needs to be examined from the perspective of international rule of law. First, in terms of causes, the rise of the argumentative international law paradigm has provided an opportunity to inject oriental wisdom into international rule of law, and the demand for international rule of law in the construction of the “Belt and Road” initiative has also put forward practical demands for the construction of the SCO community of shared future. Secondly, in terms of content, the SCO’s insufficient rule-oriented approach, imperfect legal system, and uneven rule of law among its member states are all specific contents that need to be improved in building a SCO community with a shared future. Finally, in terms of goals, building a SCO community with a shared future should achieve the multi-dimensional goals of common prosperity, universal security, openness and win-win cooperation, equality and inclusiveness, and consultation and construction in the dimension of international law, and inject oriental wisdom into the beneficial development of the current international legal system.

On the Construction of the SCO Community with a Shared Future for Mankind - From the Perspective of International Law

The 21st century is the century of organization. Against this background, General Secretary Xi’s proposition of “building a SCO community with a shared future” has pointed out the direction for the SCO’s development in the context of a century of change. The proposition of “SCO Community with a Shared Future for Mankind” was put forward by General Secretary Xi Jinping from the perspective of building a community with a shared future for mankind and in order to promote the construction of the “Belt and Road”. However, against the backdrop of profound change unseen in a century, international rule of law has been put on the governance agenda and has become a recognized necessary form of international governance. Therefore, the proposition of building a “SCO community with a shared future” needs to be examined from the perspective of international rule of law. First, in terms of causes, the rise of the argumentative international law paradigm has provided an opportunity to inject oriental wisdom into international rule of law, and the demand for international rule of law in the construction of the “Belt and Road” initiative has also put forward practical demands for the construction of the SCO community of shared future. Secondly, in terms of content, the SCO’s insufficient rule-oriented approach, imperfect legal system, and uneven rule of law among its member states are all specific contents that need to be improved in building a SCO community with a shared future. Finally, in terms of goals, building a SCO community with a shared future should achieve the multi-dimensional goals of common prosperity, universal security, openness and win-win cooperation, equality and inclusiveness, and consultation and construction in the dimension of international law, and inject oriental wisdom into the beneficial development of the current international legal system.

آليات إنفاذ قرارات الأمم المتحدة المتعلقة بالمستوطنات الإسرائيلية في الأراضي الفلسطينية المحتلة طبقاً لقواعد القانون الدولي

This study sheds light on the attempt to find appropriate mechanisms to implement the United Nations’ resolutions related to Israeli settlements in the occupied Palestinian territories, following the rules of international law. This is prompted by Israel’s failure to comply with international resolutions, the most recent being Security Council Resolution No. 2334 issued on December 23, 2016. The study aims to highlight the concept of Israeli settlement in the West Bank and its motives, as well as to examine ways and means of prosecuting Israel, holding it responsible for the settlements before the International Criminal Court. The researchers adopted a descriptive-analytical approach for this study, which is divided into two sections. The first section focuses on the nature of the settlement crime and the legal status of the occupied Palestinian territories. The second section discusses the most important United Nations’ resolutions regarding Israeli settlement in Palestine and the mechanisms for enforcing these decisions in accordance with the rules of international law. The study concludes with a set of results, the most important of which emphasizes the necessity of using diplomatic and popular means to implement UN resolutions related to settlements in the occupied Palestinian territories.

Mogućnost primene pravila međunarodnog humanitarnog prava na sajber rat

Cyber warfare represents a new form of conflict in today's world. Unlike earlier traditional armed conflicts, cyber warfare is different in terms of means, methods, techniques, and actors. Cyber warfare takes place in virtual space through the use of information and communication technologies. The actors may be states, but also individuals who can inflict significant damage on their opponents. The consequences of cyber attacks may not be immediately apparent, but can manifest much later. Similarly, the outcome of a cyber attack can be material damage or the loss of human life. Since cyber operations can take place not only during conflicts but also in peacetime, the concept of cyber aggression is often present. States are aware of the new cyber threats and are developing their defensive and offensive capabilities, adopting strategies and doctrines addressing these issues. However, there is no international agreement that regulates the open issues related to cyber warfare, as there is no consensus among states on how to regulate it. There are attempts to apply the rules of international humanitarian law that govern armed conflicts to the realm of cyber warfare. Consensus within the international community has not been reached, leaving this area unregulated. The paper aims to examine the possibility of applying the rules of international humanitarian law, specifically the rules governing the right to use force in international relations (jus ad bellum) and the rules governing the conduct of parties in conflict (jus in bello), to cyber warfare.

Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism

Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism Authors Shelly Aviv Yeini, University of Haifa Abstract International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside international institutions, nongovernmental organizations, international tribunals, and legal academia. Such entities harness the competing theories to dilute and nullify the traditional voluntarist doctrines of international law. This article aims to portray such phenomena and show how the theoretical supremacy debate is reflected in the contestation between states and non-governmental entities over the validity of the gatekeeper doctrines—the specially-affected states doctrine, the persistent objector doctrine, and the monetary gold principle. Diluting or reconstructing the gatekeeper doctrines may alter the way in which rules of international law are made, developed, and apply. This article argues that while the contestation may aid in the legal development of international law as parties take time to articulate and refine their legal positions regarding the gatekeeper doctrines, it has also created radicalization of positions and uncertainty regarding the gatekeeper doctrines’ content and applicability.

The Effects Doctrine As a Basis for Jurisdiction of States in Cyberspace

An important feature of cyberspace is its cross-border nature, due to the absence of physical borders and the decentralization of infrastructure and users. Due to the fact that all transactions in cyberspace potentially cross state borders and have an impact on objects and entities in various states, the consequences of certain actions can be felt in many jurisdictions. At the same time, the traditional links between the offense and the State on the basis of territoriality, nationality or the need to protect fundamental national interests may be absent. In such cases, jurisdiction is proposed to be established on the basis of the doctrine of consequences. However, the objections of a number of States to such extraterritorial dissemination of foreign legislation and the uncertain nature of the consequences doctrine have raised questions about the conformity of the consequences doctrine with international law. Based on the analysis of international treaties, practices and positions of States and international organizations, scientific research and other doctrinal sources, the following conclusions were drawn. The doctrine of consequences is increasingly being recognized as a principle of establishing the jurisdiction of States through the formation of a rule of customary international law. However, objections to the application of this doctrine, especially in cases of establishing jurisdiction in criminal cases, continue to be expressed. The generally recognized conditions for the application of the consequences doctrine are as follows: a State enacting legislation based on the consequences doctrine must have an internationally acceptable interest in this; the consequences must be direct, predictable and significant; there must be no infringement of the legitimate interests of other States or foreign persons who do not have a significant connection with the State that claims to implement such jurisdiction. Other mechanisms should be considered to limit the scope of actions falling under the jurisdiction of the State: apply the principle of targeting, which requires an assessment of the actions that a person has taken in order to fall or not fall under the jurisdiction of the State; apply special liability measures related not to the imposition of sanctions on persons engaged in illegal behavior, but to the creation of obstacles to the implementation of such activities, for example, to block access to information that is illegal from the point of view of the State. A combination of such mechanisms could prevent undesirable activities in a more balanced way and not create unjustified risks for cyberspace actors.

Конфликт между Палестиной и Израилем: динамика международно-правовой квалификации

International law has played an ambiguous role in resolving the conflict between Palestine and Israel: on the one hand, the UN General Assembly and Security Council assessed Israel’s activities in the occupied Palestinian territories by applying its rules; on the other hand, it de facto authorised the formation of the state of Israel and the occupation of Palestine in violation of the Palestinians’ right to self-determination. This article is a continuation of other articles published in 2018 in the Russian Law Journal. After summarising the main stages of the conflict’s development and highlighting its elements, the author identifies the features of international law which influence the qualification of the conflict, describes the main instruments used for the qualification, identifies the peculiarities of the legal rhetoric of the both parties, and focuses on the three most important problems of the qualification. He then assesses the prospect of the judicialisation of the conflict (its referral to international courts) and the application of the law of international responsibility to it. In the author’s view, the real regulators of the conflict are military power and political calculations; this conflict therefore reveals two important features of contemporary nternational law: first, it reveals the inherent inefficiency of the secondary rules of international law and its institutional mechanisms, unable to ensure the high values proclaimed by the primary norms; second, it confirms K. Marx’s famous thesis – “Between Equal Rights the Force Decides”. Indeed, the principle of formal equality, which is the very essence of the international order, does not exclude but presupposes recourse to force to resolve conflicts in which each party is able to formulate arguments based on international law.

THE ROLE OF CHINA IN CONTEMPORARY INTERNATIONAL LAW

In this article, China's practices in international trade, human rights, territorial disputes, and information technologies, are analyzed. The author emphasizes that China is ready to challenge international law when it conflicts with its interests. The article also highlights that China does not recognize the obligation to implement decisions of international courts and its national institutions refrain from engaging in human rights protection. The following methods were employed in the course of this research: systemic, comparative legal, historical and legal, structural and functional, and generalization. The author researches China's interest in the stability of rules of international law and its ability to interpret them freely, including in relation to the Russian-Ukrainian war. It was found that China is interested in applying existing international law rather than creating specific new norms, which aligns with its stance on sovereignty and non-interference. Special attention is paid to China's strategic approach to international law, balancing between adherence and reinterpretation to align with national interests.

Second Report on Subsidiary Means for the Determination of Rules of International Law A/CN.4/769* <br>

Second Report on Subsidiary Means for the Determination of Rules of International Law A/CN.4/769* <br>

The “International” Rule of Law in the Polish Administrative Court’s Jurisprudence

This study analyses the jurisprudence of Polish administrative courts, referring to the concept of the “international” rule of law, and thus, to the concept interpreted by the courts based on sources of law binding on Poland adopted at the supranational level (international agreements and law created by the European Union). The following jurisprudence issues emerge: 1) international and EU legal bases for the protection of the rule of law and the resulting meaning of this concept; 2) international versus national approach to the rule of law; 3) the rule of law – principle or value; 4) normative sources (national and supranational) of the general obligation of administrative courts to implement the international rule of law; 5) the order to implement it as an element determining the jurisdiction of administrative courts and the pattern of control exercised by these courts. In this context, it was stated, inter alia, that according to the jurisprudence of administrative courts, the ‘international’ rule of law primarily implies effective judicial protection of individual rights, guaranteed by independent courts, impartial and irremovable judges who have been duly appointed.

Human rights violations during Russia’s full-scale war against Ukraine. Selected aspects

This article reviews human rights violations committed by Russians in Ukraine from February 24, 2022 to June 1, 2022. It argues that the system of human rights protection did not have a significant impact on Russia and turned out to be ineffective during the war. The article considers the rules of international human rights law and international humanitarian law that can be applied during the wartime.

EUROPEAN PRIVATE INTERNATIONAL LAW AND NATIONAL CIVIL CODES:INTERACTIONS AND SYNERGIES

The objective of this work is to emphasize the role of global law in the current legal reality and the importance of autonomy of the will in regulating international legal relationships. The study starts from the existence of a legally fragmented world and the differentiation of three levels of regulation of legal relationships with a foreign element. One block of universal regulation, consisting of international treaties and rules of uniform law, another regional level based on the existence of regional integration organizations with their own regulations, and finally a diminishing state level, formed by national legal systems. Whether in a phase of globalization or post-globalization, the juridical reality of international trade and legal relations, in general, undergo significant changes that are worth analyzing. The perspective of global law allows us to contemplate this juridical reality from an eminently practical standpoint, which places the autonomy of will as the protagonist of the legal framework for international contracting, and points to an increasingly significant role in the field of personal and family legal relations.

Hersch Lauterpacht and language in the international law of treaty interpretation

The contribution addresses a lesser-known chapter in the history of the rules on the interpretation of treaties: the role played by Hersch Lauterpacht as Rapporteur at the Institut de Droit International on the topic of treaty interpretation. The work of the Institut on this topic was situated within the general effort to progressively develop and codify the rules of international law, a movement itself inspired by the idea of codification that unfolded during the nineteenth century mainly in continental Europe. After the Second World War, Lauterpacht initiated the study of the topic of treaty interpretation both at the Institut and at the International Law Commission (ILC). As Rapporteur at the Institut, Lauterpacht provoked a remarkable controversy by proposing to place the emphasis, in the process of interpretation, on the travaux préparatoires rather than on the text of the treaty. Although the 1956 resolution of the Institut did not follow Lauterpacht in this respect, the work of the Institut nevertheless proved to be a catalytic event leading towards the integrative conception of the rules of interpretation which the ILC developed in the 1960s while preparing the Vienna Convention on the Law of Treaties. The Lauterpacht episode also marked a change of focus with regard to the addressees of the rules of treaty interpretation from intergovernmental interaction towards judicial decision-making.

The legal personality of foreign states in civil law: l’affaire Zappa and the bequest of the Marquise du Plessis-Bellière

Summary This article traces the doctrinal debate on the civil legal personality of foreign states occasioned by two famous legal cases during the closing decade of the nineteenth century: the protracted conflict between Greece and Romania following Evangelis Zappa’s bequest of immovable property located in Romania to the Greek state for the purpose of resurrecting the Olympic Games, and the contested will of the Marquise du Plessis-Bellière which named Pope Leo xiii as legatee of real estate located in France. As Ernst Rabel and others have thought, the debate confirmed the scholarly consensus that the recognition given to a foreign state according to the rules of public international law, implies recognition of its capacity in private law matters. The objective of this article is to reconstruct the considerations that led to this apparent consensus, thus helping to facilitate an assessment of the persuasiveness of those considerations.