Sources Of Public International Law Research Articles

Cyberspace and sovereignty in public international law

The paper studies the manifestation of cyberspace in the context of the principle of sovereignty as a fundamental principle of public international law. It is a young phenomenon that is still difficult to define in a clear way in the international community. The author analyzes whether, to what extent, and which formal sources of public international law apply to cyberspace. The analysis focuses on three central sources of public international law - international treaties, international customs and general legal rules. Cyberspace is then analyzed from two angles. The first, external aspect of the analysis seeks an answer to the question of whether, first of all, states as central subjects of international public law, but also the international community and to what extent, have sovereignty over cyberspace. Second, internal segment of the analysis is aimed at determining whether cyberspace has its own sovereignty. The paper briefly reviews the perspectives of the leading world powers, above all the United States of America, the People?s Republic of China and the Russian Federation. The author concludes that it is necessary to continue working on the regulation of cyberspace, primarily through the institutions of the United Nations. Only regulation at this level can provide the necessary legal regulations that will adequately regulate a specific area such as cyberspace.

The Future We Want?

The United Nations (UN) Security Council (UNSC) is endowed with the primary responsibility for the maintenance of international peace and security under Art. 24 (1) of the Charter of the United Nations (UNC). The establishment of the ad hoc criminal tribunals for Yugoslavia and Rwanda in the 1990s under Chapter VII of the unc has shown that individual criminal accountability for international core crimes belongs to the instruments to address threats to or breaches of peace (Art. 39 of the UNC). With the International Criminal Court (ICC) a permanent institution has been established to sanction the commission of international core crimes. Acting under Chapter VII, the unsc is entitled to refer a situation to the ICC according to Art. 13 (b) of the Rome Statute of the International Criminal Court (Rome Statute), as well as to defer proceedings (Art. 16 of the Rome Statute). By using their veto power each of the five permanent members of the unsc might block both types of resolutions. While a veto against an ICC referral resolution might hinder the Court from fulfilling its mandate (destructive veto), blocking a deferral resolution might enable the Court to continue its fight against impunity (constructive veto). This article discusses whether obligations stemming from the unc and other sources of public international law, in particular human rights, might impact the decisions of the unsc and the veto exercise in particular in both cases. It intends to contribute to the ongoing discussion by several reflections on the veto powers, and concludes that, even though the veto powers might be influenced by these legal sources, it will be difficult to guide the conduct of the five unsc Permanent Members (P5) with regard to the ICC.

Art of Interpretation of Norms in Contemporary Public International Law: Appraisal of Methods and Approaches

The article explores contemporary issues in the interpretation of public international law rules: treaties, customary rules and other formal sources. As it is generally required in both legal practice and science, the practitioners of public international law also need to interpret international legal rules when trying to find its correct meaning and scope of application if there is the lack of clarity. The article has shown that there is a variety of methods that are applied by the subjects of interpretation with a view of determining the right and just meaning of the rules in question. During the last century, the art of interpretation has partially advanced as the Vienna Convention on the Law of Treaties has established the rules applicable to the interpretation of inter-State treaties. However, the customary rules or specific legal regimes still apply to interpreting other treaties and other formal sources of public international law, which do not fall within the scope of application of the Vienna Convention. Unlike municipal legal orders, there is no a centralised authority at the international plane which is authorised to interpret international law. Therefore, it is possible to speak about a multitude of subjects that interpret international law, whilst the most relevant seem to be authentic interpretation of the treaties or other acts. A particular layer in the interpretation of the rules of public international law is related to the need to ensure their effectiveness, thus enabling that the subject international relations be maintained or that the international structures keep performing their duties.

تحول القواعد الدولية الاتفاقية إلى عرفية

International custom is one of the oldest sources of public international law, and it is credited with forming this law. However, it differs from international conventions as they are basic sources in that the latter is broader, clearer and more specific, while international custom is characterized by its ambiguity and breadth of comprehensiveness. Therefore, countries sought to codify the rules of international custom in written documents in the form of multilateral or legal international treaties. You find the broad scope of the obligation of these treaties in contravention of the principle of relativity of the effect of treaties. If it is possible to transform customary rules into convention rules, the opposite is also true. Convention rules can be transformed into customary rules by the abundance of text in the treaty documents and their frequent follow-up. You will find that the convention rule turns over time into a customary rule that states are bound by, whether they are parties to the treaty or not. This is certainly after the availability of the basic conditions that the international custom necessitates in its formation, which are the material pillar represented by the repeated behavior in adopting the agreement text, and the moral pillar represented by the mandatory belief towards this text.

WTO AGREEMENTS: WAYS OF INTERPRETATION

Background. The most of the world’s trade relations are governed by uniform rules that form the legal basis of the WTO. Member states sometimes have different understanding of the content of their rights and obligations, which are in the WTO agreements. This gives rise to controversy between them. To reduce the number of disputes between states, they should use uniform ways of interpreting WTO agreements. Analysis of recent research and publications has revealed that the interpretation of WTO legal sources has not been the subject of a separate study, therefore, requires clarification. The aim of the article is to identify and theoretically comprehend the main ways of interpreting the WTO agreements. Materials and methods. The set of general scientific and special methods of scientific research is chosen as the methodological basis. Results. WTO law consists of legal norms and the general rules of interpretationof the theory of law are applied to clarify their meaning. The legal sources of the WTO are the sources of public international law. Therefore, for the interpretation of the norms of this organization, the methods of international law are primarily used. The main source of rules for the interpretation of international treaties is the 1969 Vienna Convention on Treaties. The Agreement on the Rules for the Settlement of Disputes specifies that the usual rules of interpretation of international law are applied to clarify the rules of WTO agreements. Thus, for the interpretation of WTO agreements, the rules enshrined in the Vienna Convention and other methods of interpretation used in international law are applied. Articles 31, 32 of the Convention provide for such methods of interpretation as textual, teleological interpretation, clarification of the meaning of the term of the contract by establishing the intentions of the participants and historical interpretation. It is worth adding to the list of ways of interpreting WTO law such general theoretical methods as logical, systematic, special legal interpretation, etc. Conclusion. So, the methods of interpretation of the WTO agreements include textual, teleological, historical interpretation, the interpretation of norms by clarifying the intentions of the parties to the treaty, as well as general theoretical methods of interpretation. Keywords: legal interpretation, methods of interpretation, textual, teleological, historical interpretation, intentions of the parties, WTO agreements.

De Klockner a Total: la reivindicación de la aplicación de las fuentes del derecho internacional en el arbitraje internacional de inversión extranjera

This article analyzes the applicability of the sources of international law and the principles of law in international investment arbitration, through the notorious change in point of view of the ICSID foreign investment panels, in matters of applicable law, with a special period of change between 2000 and 2010 between the Wena Hotels (2000-2002) and Total (2010) awards, a trend which extends to the present , in which ICSID arbitral proceedings have increasingly decided to apply to investor-State disputes the different sources of public international law and the general principles of law, both in original proceedings and in annulment proceedings, despite the private instrument. The article analyzes the possibility of applying international law as the main controlling rule in ICSID proceedings, the application by ICSID arbitral tribunals of both international customary law regarding international responsibility of the State, the applicationof international law principles to give content to the substantive protections to investors and to the reparations granted by the awards.

Bases of International Cooperation of Local Governments

At the turn of the 21st century, we witnessed a civilisational change that resulted in decentralisation and deconcentration of power. As a result, international cooperation between local authorities has increased. This article is to indicate the legal basis for international local government activities, forms of cooperation and their impact on regional development. The legal bases for this cooperation can be classified as follows: 1. Sources of public international law, 2. EU Community law, 3. Sources of national law. Having this in mind, the article will discuss the selected legal bases for international self-government activity in Europe, starting with the acquis of the Council of Europe, then moving on to the activities of the European Union. Finally, an analysis of forms of international cooperation of local government units in Poland are going to be presented. These considerations are largely of a theoretical nature, based in particular on jurisprudential analysis.

Interactions between Foreign Investment Treaties and Customary International Law

The increasing number of investment treaties raises the issue of relationship between these treaties and public international law. This paper investigated and argued that the substantive norms introduced in these treaties can contribute greatly to sources of public international law through State practice and opinio juris from one hand and customary international law can be applied to international investment disputes on the other hand.

When the Multilateral Meets the Regionals: Regional Trade Agreements at WTO Dispute Settlement

AbstractInteraction between regional trade agreements (RTAs) and the multilateral trading system established by the World Trade Organization (WTO) is an issue of significance but nevertheless remains unsettled. This article aims to explore the influence RTAs have generated had on the WTO system, with particular focus on the approach adopted by the adjudicators when dealing with irreconcilable RTA–WTO conflicts. During the development of 20 years’ jurisprudence, WTO adjudicators offered responses to a number of critical questions. On the one hand, direct endorsement of RTA provisions with the effect of prevailing over the counterpart WTO rules appears to be very difficult, either through legal interpretation or application. On the other hand, unlike often being argued, a close review of WTO case law does not reveal a biased adjudicatory approach against regionalism, as compared to other sources of public international law. When dealing with RTA-related matters, the Appellate Body has been advocating an all-encompassing approach featured by the emphasis on the common intention during the interpretative exercise and the promotion for the WTO built-in mechanisms for valid modification. Such an approach is, to a certain extent, misleading in the RTA –WTO context and has led to certain ill-founded adjudicatory choice.

Comparing Islamic International Law and Contemporary International Law with an Emphasis on Identification Principle and Human Rights Principle

The purpose of the Islamic International Law is the applicable rules of an international community in which both Muslim and non-Muslim countries are present. In many of its foreign relations, the Islamic country can follow the rules that come from the sources of public international law. Islamic International Law means the general rules governing the international relations of a Muslim country, which during the ten years of the political life of the great Prophet of Islam was developed in Medina and the first Islamic state was formed with the emigration of the Prophet (pbuh) to Medina. By contrast, contemporary international law takes into account any agreement that is being made between members of the international community and aims to create some legal effects. Because the issues of Islamic and contemporary international law are diverse and different, this article focuses on two components, the principle of identification and human rights. In contemporary international law, identification is an action taken by old governments to recognize a new government. Islam, in its relations with peoples and peoples, and the treaties it concluded with them, showed that the problem of identifying something is completely natural, but it is also absolutely necessary. Regarding human rights, both in Islamic law and contemporary international law, it has been tried to prevent it from being violated, with the difference that these two laws have minor differences in relation to human rights.

Customary International Law and General Principles: Rethinking Their Relationship

In this chapter, I examine the relationship between customary international law and general principles of law. Both are distinct sources of public international law (Art. 38(1)(b) and (c) of the Statue of the International Court of Justice). In a first step, I analyze the different meanings of principles as a “source” of international law. Second, I consider different approaches to principles as a norm type in legal theory. Third, I discuss attempts in international legal doctrine to facilitate conceptual issues by either unifying general principles as a source with the source of customary international law or by equating general principles as a source and as a norm type. Finally, I propose that the delimitation between customary international law and general principles of law as sources of international law should follow the distinction between situations dominated by factual reciprocity (which justify customary norms) and situations where such factual reciprocity is absent (which justify general principles). The jurisgenerative processes leading to the emergence of general principles of international law are processes of changing identities and argumentative self-entrapment.

Seguridad Humana y Derecho Internacional Público

This study argues that human security holds a conceptual relationship with public international law and that in recent years several practical expressions of human security have been developed in a manner relevant to this area of the law and, thus, they deserve to be analyzed in further detail. In this respect, the main emphasis of this text is not to provide integral evidence of the normative materialization of human security in the traditional sources of public international law, but rather to deepen in the examination of the normative implications of human security, particularly in its synergies with human rights recognized internationally. One of the main concerns of modern public international law is, precisely, the area of international human rights law. As such, reference is made to the sources of public international law and closer attention is provided to the concrete ways in which human security relates to them in the sphere of human rights.

International obligations of international organizations

This article discusses the scope of international obligations of international organizations, considering different formal sources of public international law. Neither the practice nor the doctrine of international law, have shown much interest in this topic until recently. This was mainly due to a widely spread perception of international organizations, which were seen as protectors, not as violators of international law. However, when it became apparent that international organizations could be implicated in abuses of international legal rules as was the case of the UN peace missions in Somalia, Bosnia and Herzegovina, and Kosovo the topic of international obligations and international responsibility of international organizations became pertinent. The general principle of international law is that every internationally wrongful act entails international responsibility. This principle is also to be applied to international organizations as subjects of international law. In order for internationally wrongful act to exist there need to be a conduct attributable to international organizations which constitutes a breach of its international obligation, regardless of its source. However, most international obligations were established in respect of states. Thus, when working on the rules on international responsibility of international organizations, the UN International Law Commission (ILC) was facing a challenge which did not exist when they were dealing with the responsibility of states. Namely, the small number of international obligations to be applied to international organizations meant that the rules drafted by ILC were not substantiated by much practice. This is one of the reasons why the present article tries to shed some light on the situation with regard to international rules that are to be applied to international organizations. As the International Court of Justice has stated, international organizations are bound by obligations under general rules of international law (international customary law), their constitutions, or international agreements to which they are parties. However, if one were to apply, for example, international customary rules to international organizations, one would face many difficulties. This is due to the specific nature of international organizations as subjects of international law, which is reflected in their limited and functional international personality that is quite different than the personality of states. With these challenges in mind, this article analyses the practice of international law in order to identify treaty and customary law obligations applicable to international organizations. Moreover, it gives a special attention to unilateral acts as a possible source of international obligations of international organizations. Firstly, it discusses whether international law criteria for unilaterally binding commitments of states may be applied to international organizations. Secondly, it presents instances of unilateral declarations by the UN in which these criteria were met (statements of the Secretary-General of the UN). Thirdly, the article discusses rules of international organizations as sources of their international obligations, using the examples of Security Council resolutions and acts based on them (UNMIK regulations). The article concludes that although the scope of international obligations of international organizations is substantially narrower than in the case of states, the practice shows the tendency towards their broadening, especially in the field of international human rights law.

L'émergence du droit administratif global

Les mecanismes emergents du droit administratif influencent la prise de decision et l’elaboration de la regle de droit au sein de la variete croissante des structures reglementaires mondiales. Ces dernieres incluent les organisations internationales, les reseaux intergouvernementaux, l’« administration distribuee » (distributed administration) ainsi que les regimes transnationaux hybrides public/prive et prives. Nous definissons le Droit Administratif Global (DAG) comme les principes, procedures et mecanismes d’examen emergents destines a gouverner la prise de decision et l’elaboration des normes de ces organes, en laissant en grande partie de cote le contenu substantiel des regles et en considerant les sources du DAG plus largement que les sources classiques du droit international public. Nous analysons ces sources, ainsi que les principes doctrinaux de transparence, de participation, de prise de decision raisonnee, de revision et les normes materielles qui se sont developpees. Nous nous tournons ensuite vers les conceptions des fondements normatifs du DAG des approches pluraliste, solidariste et cosmopolite a l’ordre international, et discutons des partis pris possibles inherents au DAG. Nous considerons par la suite les differentes strategies des dispositifs institutionnels pour construire le DAG selon les defis et opportunites qui se presentent, en passant de l’espace reglementaire national a l’espace transnational. Nous concluons que le Droit Administratif Global est un phenomene emergent important et particulier, meritant une etude systematique et un approfondissement.

What Is Public International Law? The Need for Clarity about Sources

This article addresses the need for clarity as regards the sources of public international law, or at least as much clarity as possible. Questions relating to sources lie at the heart of international law. Of particular concern is the lack of rigour shown by some domestic judges when it comes to determining the rules of customary international law.

Sources of Public International Law

AbstractThis paper by Lesley Dingle, Squire Law Library, University of Cambridge was presented at the BIALL Seminar held on 3 March 2009. It covers the major sources, both paper and electronic, of international law.

On the Sources of International Criminal Law

In their efforts to establish a quite original system of procedural and material rules of international criminal law, by means of the so-called ''judge-made law'', the two ad hoc Tribunals for the Former Yugoslavia and Rwanda hold a peculiar approach to the sources of that law. The most controversial of all is their concept of ''customary law''. This paper is an attempt to clarify the meaning and scope of these sources mainly from some aspects of the respective rules adopted in the 1998 Rome Statute. It is also a continuance in this author's research on the sources of public international law.