Sovereign Equality Research Articles

Constitution and International Law: A New Model of Interaction

The paper analyzes the constitutional reform in Russia with an emphasis on the constitutional amendment on the interaction of the norms of international law and national legislation within the domestic legal system. Constitutional provisions and doctrinal approaches enshrined there play an important role in ensuring stable and predictable international relations. The paper discusses the possibility of applying two classical doctrines on the relationship between international and national law (dualistic and monistic) to the definition of the characteristics of amendments to Article 79 of the Constitution of the Russian Federation. The authors substantiate the necessity of introducing constitutional amendments from the point of view of the development of international relations and the maturation of domestic political, economic and social conditions over the past decades. Some doctrines of interpretation of international treaties of interstate bodies and the possibility of determining the parameters of their execution in the legal system of Russia are considered. It is concluded that the new model of interaction between international and Russian law corresponds to the principle of sovereign equality of states enshrined in the UN Charter. The authors summarize that the supplement of the constitutional norm under consideration clarifies the constitutional model of the relationship between international and Russian law. It allows for the full implementation of the provisions of the Constitution of the Russian Federation, as well as the execution of international legal acts, including decisions of interstate bodies that comply with the Constitution of the Russian Federation, which eliminates possible threats to destabilize the rule of law of the state. Thus, we are not talking about adopting a radical model of the primacy of national law over international law, but rather about adapting the doctrine of dialectical interaction between Russian and international law to the needs of modern development of our state.

SUBJEK HUKUM INTERNASIONAL


 
 
 
 In individual municipal law, limited liability companies and public companies are recognized as each having a distinct legal personality, the provisions of which are limited by the relevant legislation. That law will determine the scope and nature of personality. Personality involves examining certain concepts in law such as status, capacity, competence, as well as the nature and extent of certain rights and obligations. “All states enjoy sovereign equality. They have the same rights and obligations and are equal members of the international community, regardless of economic, social, political or other differences.
 
 
 

Enforcing U.S. Foreign Policy by Imposing Unilateral Secondary Sanctions: Is Might Right in Public International Law?

Following the United States’ unilateral withdrawal from the agreement between the five permanent UN Security Council members, the European Union, Germany, and Iran, that intends to stop Iran from acquiring nuclear weapons, the United States has re-imposed and tightened its sanctions against Iran. The United States’ renunciation of the agreement, despite the agreement’s UN Security Council approval and verified Iranian compliance, arguably violated international law. Nevertheless, the United States is attempting to compel the other state parties (and others) to follow its policy on Iran by threatening those states’ companies and business executives with economic or even criminal sanctions to force them to cut commercial ties with Iran. Based on an in-depth discussion of the lawfulness of such secondary sanctions under public international law, this article concludes that secondary sanctions, as imposed by the United States more recently, are unlawful. The United States’ assertion of extraterritorial jurisdiction is not justified under any principle of jurisdiction recognized in customary international law. In fact, the international community explicitly rejects the United States’ claims to extraterritorial jurisdiction. Furthermore, the United States seeks to undermine third states’ foreign and trade policies by targeting their citizens and businesses. United States’ sanctions policy is thus an attempt to assert control over other states’ foreign policies. This coercion amounts to an unlawful intervention into those states’ internal affairs. Lastly, the use of the United States’ superior economic power to strong-arm other states into abandoning their own foreign policy is a violation of the sovereign equality principle.

North South Connectivity: Opportunities and Challenges in National Security and Development

After the long decade civil conflict, Nepal has been moving through a transitional phase for the development and prosperity. Comparing among the landlocked state, the indicators depict low level of infrastructure development. Being landlocked and mountainous country, Nepal has high trading cost due to difficult geography and lack of reliable infrastructures, decreasing the competitiveness domestically and internationally. North South connectivity not only connects China and India but also revives the role of Nepal as land linked. Nepal is always trying to boost economic growth using liberalization, decentralization policy and now transforming the unitary state to federal state. The growing expectation of people towards prosperity and development has driven the state to make investment on large scale connectivity projects in transport, energy, aviation, communication sector. Having resource constraints, state should mobilize the scarce resources in rational and optimum ways to maximize the development opportunities and mitigate the security challenges and threats. Furthermore, it is necessary to assess both long term and short-term impact during strategic project formulation. This paper aims to identify opportunities and challenges of cross boarder connectivity in national security and development using various information and fact through secondary sources and with the examples of other nations sharing similar attributes. Findings suggested that Nepal should develop multimodal connectivity strategies while considering strategic location of Nepal and shall utilize international assistance and support while maintaining the relationship with neighbors, regional power and great power based on sovereign equality, mutual respect, and benefits. Further, this study contributes to policy makers and planners for the appraisal of strategically important projects.

Transnational Business and Human Rights Litigation: An Imperialist Project?

Abstract Business and human rights litigators have increasingly attempted to hold to account parent companies incorporated in the west for the extraterritorial human rights abuses committed by their subsidiaries and supply chains in the global south. This has met with the criticisms of judges and scholars calling out such attempts as imperialists. The purpose of this article is to address this anti-imperialist critique in the context of the accountability of multinational enterprises. The anti-imperialist critique is based on three fallacies. First, the equal sovereign fallacy: the assumption that developing and developed states are equally able to hold multinationals to account. Second, the transnational commerce fallacy: the acceptance of the transnational use of western laws protecting a particular market or economy, but the refusal to apply the laws aimed at preventing or remediating human rights abuses committed by commercial actors extraterritorially. Third, the public/private divide fallacy: to consider multinational enterprises as purely private actors while ignoring that they were hybrid entities regulated by both private and public laws during colonial times.

Race and racism in the founding of the modern world order

Abstract While race existed as a cultural marker in earlier history, a mutually-reinforcing link between racism, slavery and empire is a distinct product of western Europe and the US-led world order. Yet, mainstream scholarship on International Relations has obscured the question of race or worse, legitimized its exclusion in discussions of world order-building. At the same time, demand for racial equality from anti-colonial forces presented an alternative and inclusive conception of world order. The first part of this article offers a brief discussion of concepts of race, racism and world order. The next part examines how racist ideas and norms created exclusionary frameworks and approaches of world order, such as the European ‘standard of civilization’ principle. The third part looks at the role of racism in the emergence of the American-led world order, including US President Woodrow Wilson's rejection of the ‘racial equality’ principle in the League of Nations Charter, the privileging of ‘sovereign equality’ over ‘racial equality’ in the UN Charter, and the scant attention given to the link between colonialism and denial of human rights in the Universal Declaration of Human Rights. Yet, anti-colonial leaders and conferences, especially the 1955 Bandung Conference, integrated ‘national sovereignty, racialism and colonialism’, and demanded racial equality as a fundamental human right. The final part cautions against the dangers of complacency and compartmentalizing the study of race and racism, and calls instead for viewing racism as an inter-linked global challenge, hence integral to the emerging research agenda of Global International Relations.

Obedient rebellion: conceiving the African nuclear weapon-free zone

Abstract Why do nuclear weapon-free zones (NWFZs)—areas which prohibit nuclear weapons—emerge in some contexts, and not others? Focusing on the African case, this article introduces the concept of ‘obedient rebellion’ to explain the African NWFZ's early conception. ‘Obedient rebellion’ is an attitude of ambivalence toward global nuclear order. To newly-decolonizing African states, the African NWFZ symbolized both postcolonial anti-nuclear solidarity and nuclear responsibility; it represented both ‘obedience’ to—and ‘rebellion’ against—global nuclear order. This ambivalence, between ‘obedience’ and ‘rebellion’, paradoxically accommodated multiple conflicting audiences simultaneously, thereby stabilising the zone. The African NWFZ's ambiguous meanings made it viable, even though those meanings conflicted. The zone's early conception offers insight into the complex, contending forces that continue to bind the world's NWFZs—and indeed nuclear order itself—to the present. NWFZs epitomize the tensions which stabilize nuclear order: between sovereign equality and nuclear inequality; between local solidarities and global loyalties; and between contestation and compromise. At first, these tensions seem to imperil NWFZs; in fact, these tensions stabilize NWFZs. The African zone also poses challenges to the African blind spot that continues to exist in International Relations theory.

The effect of the principle of sovereign equality on the settlement of multiple nationality relations

Multiple (or plural) nationality is a phenomenon that can be considered both in domestic and international legal perspectives. It has been the subject of controversy for a long time, and no consensus has been developed on this problem. The purpose of this article is to identify the nature of the influence of the basic principle of international law – sovereign equality - on the international legal regulation of multiple and dual nationality relations by examining the effectiveness and compliance with this principle of the methods of resolving bi- and polypatrism cases, developed by science and judicial practice. The article analyzes the possibility of exercising state sovereignty in the diplomatic protection of one’s citizen from the state whose nationality he also possesses. By studying and analyzing the relevant provisions of international treaties, court practice, the Draft articles on diplomatic protection of the UN International Law Commission, the article concludes that the only, albeit imperfect, way to resolve such cases today is the principle of effective nationality.

Can the Notion of the Rule of Law Be Applied to the UN System?

The paper demonstrates that the Charter of the United Nations contains some incompatible norms, a fact that directly impacts the organization’s system of collective security. The voting procedure of the Security Council, privileging its permanent members, stands in open contradiction to the Charter’s principle of “sovereign equality” of all member states. Article 27(3) of the Charter makes uniform enforcement of the prohibition of the international use of force impossible because it effectively exempts the organization’s five permanent members. Those states can block any decision of the Council even in cases when they are themselves party to a dispute. The problem is further aggravated by a lack of checks and balances in the UN system in general. The International Court of Justice has no competence to rule on the Security Council’s use of its vast coercive powers under Chapter VII of the Charter. The supreme executive organ of the UN can act as “index in causa sui.” Thus, the lack of a separation of powers – in tandem with the statutory privilege of some of the most powerful states – makes the “rule of law” an elusive idea in the intergovernmental system of the United Nations.

Posle američke "izuzetnosti" - "Tukididova zamka" XXI veka

In the centre of this interdisciplinary investigation is the issue of primary political, philosophical and social foundations of the project of liberal hegemony - as well as real-political end of this discourse in the 21stcentury. The politics of interventionism and human rights is opposed to the politics of sovereignty in such a way that the structural difference between the 20th century Western elitism and the perspective of the multipolar world is the differentiation between hierarchical systems of power and politics of equality. The constitutive part of these processes is "the rebirth of history" through which a more just order is to be established and political consequences for the world will significantly depend on whether crypto-idealistic i.e., "Wilsonian school" will prevail in the USA. Therefore, the issue whether it is possible to avoid "Thucydides Trap" in the 21st century refers to the difference between "necessary America" and "independent America". Multipolarity as the basis of true multilateralism appears as a potentially new model for the implementation of the politics of sovereign equality.

Comments on paragraph 67 of the judgement of ICJ in the case of immunities and criminal proceedings ——in the view of interpretation of the convention

The decisive issue in this case is whether the building at 42 avenue Foch acquired the status of “premises of the mission” within the meaning of Article 1 (i) of the Convention. If it acquired that status before the action taken by France, there is a breach of the building’s inviolability under Article 22 of the Convention. Here the majority has wrongly conflated a requirement for the receiving State’s consent with the power of the receiving State to object. An intended use of premises for the purposes of the mission will suffice for those premises to be entitled to diplomatic protection when it is followed by actual use. Interpreting the Convention should be done in a way that is consistent with its object and purpose of promoting the achievement of friendly relations among nations on a basis that respects the principle of the sovereign equality of States and promotes the maintenance of international peace and security because it balances the interests of the sending and the receiving States.

To the issue of vaccine nationalism in COVID-19 era

Problem setting. The new coronavirus pandemic is one of the greatest challenges in contemporary history, especially in the face of unprecedented globalization. Mankind has been waiting for almost a year since the beginning of the pandemic for the most effective way to fight against the virus – vaccines. Over the last two years, such concepts as “vaccine races”, “vaccine nationalism”, “vaccine diplomacy” have been spread in the international political and scientific discourse. However, in Ukraine these concepts have not become the subject of research yet. Analysis of recent researches and publications. The researched issues have not attracted the attention of Ukrainian scientific community yet, so the basis of our work consists of foreign scientists’ publications, which were, inter alia, done by L. Gruszczynski (Lukasz Gruszczynski), A. Filipovich (Aleksa Filipović), P. Hotez (Peter J. Hotez), I. Yanqiu Rachel Zhou, A. Kobieriecka, M. M. Kobieriecki, Z. Mammedyarov and some others. In addition to that, Academician of the National Academy of Sciences of Ukraine S. Komisarenko has studied the problems and prospects of creating Ukrainian vaccine against COVID-19, rightly noting that it is a matter of national security. The target of the research. The target of this research is to examine the content, the scope and genesis of “vaccine nationalism” concept, practical manifestations of this phenomenon as well as the relationship between vaccine diplomacy and vaccine nationalism. Article’s main body. Over the past two years, nation-states have resorted to policies of economic protectionism, and then to so-called “vaccine nationalism”, which we inclined to analyze in three guises: 1) “vaccine races” – at the stage of development and testing; 2) “vaccine egoism” – at the stage of contracting and use of vaccines; 3) the issue of mutual recognition of vaccines. Thus, the article examines the meaning of the concept of vaccine nationalism in its broadest sense. It has been emphasized, however, that vaccine nationalism is not a new phenomenon in international relations as a similar situation was observed, in particular, during the H1N1 pandemic. It has been also illustrated that vaccine nationalism usually characterizes the most economically developed states. Vaccine-producing countries to carry out their foreign policy tasks, as well as recipient countries to ensure their biological security resort to “vaccine diplomacy”. However, there is no unanimous scientific approach to the definition of both “vaccine diplomacy” and “vaccine nationalism” around the globe. It has been established that with the spread of COVID-19, protection of state sovereignty and national security has come to the fore in comparison with the obligation to cooperate and the principle of sovereign equality, which are jus cogens and erga omnes. On the other hand, “my nation first” policy is not directly prohibited by the letter of international law. Conclusions. In the modern world, there are simultaneous phenomena of globalization and deglobalization. Actually, to denote the trend of deglobalization in the field of countering COVID-19 such a concept as “vaccine nationalism” is used. The “vaccine race” can be seen as a rivalry between two political regimes: on the one hand, liberal democracy in the face of the United States and its allies, and on the other hand – states with authoritarian political regimes (China and Russia). However, geopolitical rivalry, the struggle for extension of spheres of influence can be an effective means of combating the pandemic in practice. The concept of vaccine nationalism is closely linked to “vaccine diplomacy”, which is used by vaccine donor countries as a method of achieving their national interests. It was concluded that it is important to ensure sovereignty and biological security of Ukraine by launching the production of vaccines against infectious diseases. That will also strengthen the position of Ukrainian diplomacy.

Recent Developments of International Law Commission Work on Immunity of State Officials from Foreign Criminal Jurisdiction

Immunity is a well bedded concept within international law and mainly within the principle of sovereign equality of states. There are different procedural implications of the concept of immunity – diplomatic and consular privileges and immunities, State jurisdictional immunities and also immunity of State officials from foreign criminal jurisdiction. The Article focuses on the latter one and portrays on recent developments of immunity of State officials from foreign criminal jurisdiction as it is elaborated by the UN International Law Commission (‘ILC’). The author frames (in the introduction) the concept of immunity and especially the immunity of State officials and puts it in a large theoretical structure of international law and in the work of ILC. Then, he focuses his attention on the phenomenon of progressive development of international law (2) and how it is used with respect to the topic considerated by the ILC. He then presents main ILC conclusions regarding limitations and exceptions to immunity of State officials (3) and finally outlines latest development (4) of the ILC work dealing mainly with relationship between foreign criminal jurisdiction and international criminal jurisdiction and other procedural questions.

José María Torres Caicedo and the Politics of International Law in Nineteenth-Century Latin America

Abstract The mid-nineteenth century was the formative period of doctrines that dominated international law debates in Latin America until well into the twentieth century. José María Torres Caicedo (1830–89) is one of the least-known international law scholars from those years. Torres Caicedo’s vast experience as a diplomat provided him with a sharp political instinct, which nurtured his academic work about international legal affairs. A look into his writings exposes the politics behind present-day principles, such as sovereign equality and non-intervention. It also reveals the stance of Latin American intellectuals with regard to the Eurocentric notion of the ‘civilized State’. In the field of the law of aliens, Torres was a major influence in the development of the Calvo Doctrine. His contributions to international law are all the more relevant, as historians place Torres as one of the first authors designating Central and South America as ‘Latin America’. This term was closely intertwined with Torres Caicedo’s views on foreign policy and international law.

The Community of Shared Future for Mankind and China’s Legalist Turn in International Relations

Abstract The introduction presents China’s legalist turn in international relations against the background of the Trump administration’s backlash against international law and international organizations. The next section retraces the origins and evolution of the Community of Shared Future for Mankind (CSFM) up to its incorporation in the preamble to the Chinese Constitution. Section 3 examines the main tenets of the CSFM on the basis of XI Jinping’s writings with the visual aid of a “paifang” (“牌坊”). In this representation of a Chinese architectural arch or gateway structure, the “foundation” of the CSFM is, first, assimilated to China’s acknowledgement of the centrality of “interdependence” in the international community. Second, the “pillars” of the CSFM are identified as the goals of global peace, international common security, inclusive international development and international ecological civilization. Third, the “wooden beams” that bind the CSFM together are assimilated into the principles of sovereign equality, inter-civilizational dialogue and multilateralism, while the principle of “win-win” cooperation is represented as the CSFM’s “frontispiece”. The concluding section points to the benefits of China deepening its legalist approach to international relations as the most fitting companion to its grand strategy of “peaceful/development rise”.

An Equivocal or Unequivocal Bar for Determining Consent to Jurisdiction

Abstract The legal consequence of the principle of sovereign equality is the fact that the jurisdiction of international courts and tribunals in inter-State disputes is contingent on consent of the disputing States. Consent to jurisdiction may be expressed in different forms but requires in each instance the demonstration of unequivocal acceptance of consent. The case law is abundant on and under which circumstances consent can be considered present. Interestingly, the criteria that are set forward in the case law appear to present two different standards for determining whether consent to jurisdiction has been expressed. This arises unequivocally in the English and French texts of the relevant judicial decisions.

The politics of gender justice

The clash between liberalism and realism as international relations theories and states practices is a driving force within the international criminal justice as well. Liberal peace theory embodied with set of interventionist norms on one hand and doctrine of sovereign equality plus non-intervention political pattern as a realist theory on the other hand, make up for the debate all over the years of doing and undoing politics and gender politics recently. This paper seeks to provide insights on how the international community can and have to enforce accessibility for the gender crimes in armed conflict situations. The discussion based on political and legal scholars, aim to identify challenges and efforts that international community face with regard to sexual crimes and the responsibility to hold accountable based on gender approach crimes done against humanity. The international attempts to reform international legal order will be analyzed through the Rome Statute and the International Criminal Court (ICC), Responsibility to protect norm in lenses of: sovereignty as responsibility, right or duty to intervene, gender articulation of war crimes, principle of complementarity and institutional legitimacy.

BETWEEN MANAGERIALISM AND THE LEGAL COUNTERCULTURE: THE YALE PROGRAM IN LAW AND MODERNIZATION IN THE HISTORY OF THE GLOBAL 1970S

Often described as a period of seismic shifts in world history, the 1970s bear the definitive marks of a conflictual era. Focusing on the unraveling of the postwar liberal consensus, historians of the United States have portrayed this decade as nothing short of an “Age of Fracture,” during which larger narratives about American democracy, the relationship of the individual to the whole, and the relationship between state and society came undone.[1] International historians point to a dramatic reconfiguration of the international order during the same decade, which saw the completion of a society of nominally equal sovereign states, once aspiring to produce a New International Economic Order but eventually defeated by the 1973 oil crisis and the rise of neoliberalism.[2] The microcosm of the Yale Program in Law and Modernization illuminates the overlapping themes of protest, disruption, disillusionment and backlash that characterized the 1970s. Established with a significant grant from USAID, the Program, in the years of its operation between 1969 and 1976, was designed as a space of research on America’s legal modernization projects in the global periphery. Soon enough, a diverse cast of characters, united in their interest in the Third World but otherwise quite contrasting in terms of their backgrounds, goals, and aspirations, inhabited this space. Some had direct policy experience working for the American government, while others became interested in the Third World through oppositional politics and a deep suspicion about the possibility of improvement through legal reform. While originally presented as a vessel for designing sound policy-making under the aegis of the USAID and aiding the Third World through managerial socio-legal engineering, the Program unexpectedly transformed into the breeding ground for what would eventually become Critical Legal Studies, and was soon terminated.

‘Parity with all nations’: The ‘coolie’ trade and the quest for recognition by China and Japan

AbstractThis article explores the quest for sovereign equality by China and Japan as it unfolded in a specific historical moment, the third quarter of the nineteenth century. It does so by focusing on the debate around the ‘coolie trade’, i.e., the traffic of Chinese indentured labourers, which offered an opportunity for non-Western countries such as China and Japan to position themselves with respect to Western conceptions of ‘modernity’ or ‘civilization’ and thereby advance their quest for ‘parity with all nations’. Through a study of the Maria Luz case, decided in the early 1870s by Czar Alexander II and drafted by de Martens, the article sheds light on the different approaches of Japan and China with respect to international law at this critical historical juncture. Specifically, it shows that, although the coolie trade mostly affected China, it was Japan who first managed to reap a parity dividend by firmly condemning the practice, whereas China’s action was steered by the circumstances. Eventually, however, China’s growing interest in Chinese populations abroad paved the way for the establishment of its first permanent diplomatic representations overseas. For both countries, the events encapsulated by the Maria Luz case unveil an important, yet overlooked, moment in their quest for parity with all nations and, more generally, in their engagement with international law.

A Pluralist Approach to ‘the International’ and Human Rights for Sexual and Gender Minorities

Queer theorists have considered the problems concerning the political strategy of using LGBT rights to justify racist xenophobia and using homo/transphobia to consolidate heterosexist nationalism. Their timely interventions are important in exposing state violence in the name of human rights and sovereign equality, but they have offered no alternative. They may also have reinforced the assumption of state science. This assumption is based on a trinity structure of the nation-state-sovereignty of ‘modern, self-determining men’, who are against each other and thereby co-built the so-called ‘international’. State-centric internationalism produces exclusionary effects that undermine the rights of sexual and gender minorities. To address this, I first consider the debate over ‘LGBT rights as human rights’, and identify two types of cultural relativism (epistemological and political) as the categories to formulate a decolonial response to the debate. In this article, queer political theorising is pushed forward to: 1) critically evaluate universalism, 2) differentiate cultural relativism (opposing the political version of it) and 3) revise the epistemological version with decolonial-queer praxis. I propose a pluralist approach to sovereignty and human rights; informed by this approach, the lack of international consensus is remedied by recognising the polyvocality within transnational queer activism beyond the monopoly of states’ representation of their own peoples. This proposal also aims to decentre modern statecraft from the political imagination of contemporary international studies scholarship.