Structure Of International Law Research Articles

Textbooks as Markers and Makers of International Law: A Brazilian Case Study

Abstract This article challenges conventional views of international law textbooks as mere instructional tools and explores them as powerful sites for shaping knowledge and the discipline. Drawing on empirical methods and critical theory, we analyse the 10 main international law textbooks used in Brazil and conduct interviews with their authors to illuminate the textbooks’ complexities and their potential for shaping the discipline and the profession. The article delves into the tension between the structure of international law as depicted in the textbooks and the agency of their authors, investigating the authors’ identities and backgrounds. Brazil serves as a compelling case study due to its numerous international law textbooks and their widespread use. Our results indicate a predominant universalist approach in Brazilian textbooks and their connection to the French international law tradition. Moreover, the study sheds light on the Brazilian ‘invisible college’ of international lawyers, revealing gender and racial disparities and institutional centralities. It also uncovers crucial omissions in the textbooks, such as the relationship of international law to colonialism, slavery, race, gender and economic inequality. Overall, this study offers a comprehensive understanding of international law as a field in Brazil and provides a valuable methodological framework for future research on textbooks’ role in shaping the discipline.

The End of the United Nations?

A dynamic shift in global power balance and the rapid pace of technological advances are likely to pose an existential threat to the United Nations (‘UN’) and its collective security system. The political impasse at the Security Council has undermined its ability to address international security crises in recent years. Proceeding with the assumption that the UN collective security system ceases to perform its function, this article provides a thought experiment (Gedankenexperiment) on how international law might operate and evolve in the absence of collective security enforcement. The primary focus of this inquiry is to what extent the fundamental structure of international law might revert to the pre- Charter era and how the modern development of international law achieved under the UN Charter might survive and set a course for normative restructuring. This article tests the hypothesis that the receding institutional capacity to contain destabilising behaviour will have a normative impact on the existing rules of international law, insofar as their modern development has depended upon the institutional framework for collective security. It does so by examining the normative impact in the following three areas of international law: (1) jus ad bellum; (2) the legal authority of regional institutions for collective security; and (3) restrictions on military support to a belligerent involved in international armed conflict under the law of neutrality. It finds that the legal implications of the demise of collective security are likely to be limited, with a gradual shift in State practice and an associated change in opinio juris as States interact with specific instances of security threats.

Global Administrative Governance: Liberalization of Government Procurement in Third World Countries

Globalization and the rise of global governance are transforming the structure of International law. From the perspective of the classical, interstate consent-based international law, global governance may still appear merely as a quantitative increase in international legal instruments. On the other hand, some requirement for adoption international law is needed, particularly through a classic scheme for binding force of international law into national legal system. Classic method means that such agreement which is concluded by states. One of the interstate consent based international law is Government Procurement Agreement (GPA) which legally binding agreement in the WTO focusing on the subject of government procurement. Since GPA is a multilateral treaty administered by a Committee on Government Procurement, which includes the WTO Members that are parties to the GPA, and thus have rights and obligations under the Agreement. In fact, the majority of member state, particularly most developing countries are not party the GPA, so there is no legal obligation to observe all the provision of GPA. It seems to be a great obstacle for developing countries to adopt the GPA provisions by several reasons In sum, global administrative governance takes some roles to reform some legal frame works in developing countries. A great contribution produced some positive legal reforms in term of the achievement of competitive and transparent government procurement.

Validity and efficacy of international law according to the pure theory of law

At the beginning of its development, the science of international law was inextricably linked to the doctrine of natural law. The latter was seen as the basis of international law. The very problem of the foundations of international law became acute in the 19th century, when the prevailing legal positivism abandoned the idea of natural law. All proposed solutions were based on the idea of self-obligation of sovereign states. Some of them questioned the very existence of international law, while others required the introduction of explicit fictions. In an attempt to solve this problem, the pure theory of law developed by Hans Kelsen and his students proposed a theory of a hierarchical structure of international and domestic law. The relationship between the levels of the normative system is based on the empowering norms, which transfer the property of legal validity to the lower norms created on their basis. The concept of validity corresponds to the concept of efficacy of the norm. The interrelation of validity and efficacy of legal norms in international law differs significantly from their interrelation in domestic law; the study of this relationship in Kelsen’s theory was the main purpose of this study. The structure of international law according to Kelsen is a pyramid, the highest level of which is customary international law, based on the basic norm of international law that establishes the binding force of international custom. In this case, from the point of view of the pure theory of law, a special role in international law is played by the principle of effectiveness — recognition of the existing factual state of affairs as legitimate. The greater importance of this principle in international law is explained by the absence of a centralized system of coercion in the latter because decentralized legal order does not allow the application of organized sanctions in instances of violation of international legal norms.

Sovereignty, Trade in Goods and Protecting Human Health through Pandemic Prevention

How can the world do better at responding to potential pandemics at an early stage? Intense consideration is being given to this question as the World Health Organization (WHO) seeks to build on formal reviews of the global response to the COVID-19 pandemic and the functioning of the WHO’s International Health Regulations. A significant aspect of epidemic prevention relates to the disincentives to reveal new disease outbreaks that may flow from export-dependent States’ concerns about encountering a response characterized by excessive restrictions on international trade in their products. This problem has maintained a low profile in the context of COVID-19, where the nature of the disease has called for restrictions on the movement of people rather than products. Yet a central learning from COVID-19 has been the importance of early disease outbreak notification. WHO and World Trade Organization (WTO) procedures for dealing with complaints do not adequately cater to this problem. Options to increase accountability for import restrictions and promote early disease notification include a specific-instances joint WHO-WTO inquiry mechanism to cast greater light on disease-related trade bans.

The Role of the Internet in International Law-Making, Implementation and Global Governance

This paper delves into influence of the internet on international law and global governance, a phenomenon that increased incrementally over the last decade before the COVID-19 emergency precipitated it. It posits that the digital world birthed whole new 'territories' where the practice of states and other actors is recorded and displayed, but it also exists independently from the physical realm. With respect to law-making, the internet acts as both a sounding board for, and an originator of, international practice. New technologies and social networks have also certainly increased the availability of information to governments and the public regarding violations of international norms. Yet, they have created a new – online – environment in which internationally wrongful acts can be committed. This further qualifies, yet does not make less significant, the relevance of the internet for the implementation of international law. The paper further submits that technological power has become a fundamental force of leverage in global governance, akin to economic, military, and political might for states and a wide range of non-state actors alike. Big Tech companies and other corporations but also civil society, social and political groups, and individuals are all potential stakeholders participating formally and informally (or to be included) in the sharing of power. Notwithstanding the difficulty to articulate a concept that comprehensively rationalises the impact of the internet on the processes and structures of international law and governance, the paper highlights a gap between the theory and practice of international law and offers a contribution in this direction.

The publication ≪Encyclopedia of International Law≫ in Three Volumes (an Editorial Board Chaired by Yu.S. Shemshuchenko and V.N. Denisov) Institute of State and Law. V.M. Koretsky NAS of Ukraine - (Kiev: Academic Periodic, 2014-2019) - as the Next Step in the Development of International Law (Analytical Review of Vol. 1)

INTRODUCTION. The article contains a comprehensive analysis of one of the fundamental works on international law, which was published in the post-Soviet space - “Encyclopedias of International Law” in three volumes. The work was performed at the Institute of State and Law. V.M. Koretsky NAS of Ukraine and its methodology is based on the sociological approach of establishing the laws of social development. Its timeliness at the time of the crisis of international law is noted. This requires its adaptation to new, changing conditions of social development. However, moving forward, it is necessary to fix the clear legal structures of international law. Inaccurate definitions of legal concepts, allow their ambiguous interpretation, complicate law enforcement and allow abuse. The encyclopedia is a basis that has fixed the most advanced views to date in the field of international law. It contains the best practices of the Russian, Soviet and, in a new quality, post- Soviet school. Given the volume of material, the article highlights the 1st volume of the Encyclopedia, which adequately characterizes the entire huge array of work.MATERIALS AND METHODS. The article considers the 1st volume of the Encyclopedia of International Law in three volumes, uses scientific works presented in domestic and foreign science on the international legal regime of the Arctic sea spaces, the application of estoppel rules, regulatory and analytical material, and international judicial practice. The study is based on general scientific methods of cognition (systemic and structural approaches, analysis and synthesis, induction and deduction), as well as special methods (comparative legal, historical legal, modeling).RESEARCH RESULTS. The 1st volume contains articles on international treaties, which are included in the textbooks of the course of international law and are little-known. There are articles on international organizations, specialized bodies and institutions; terms and concepts. A significant place in the Encyclopedia is given to international legal practice, including international judicial and arbitral awards. The authors of the Encyclopedia are leading scientists, many of whom have earned authority on a global level. The Preface focuses on the fact that numerous crisis phenomena and military conflicts of the last period in the world, including Ukraine, bring chaos to international relations and threaten peace and security. The Encyclopedia reflects the influence of modern challenges and threats on the level of effectiveness of the application of the principles and norms of international law, highlights the role and significance of the UN Charter. A significant place in the Encyclopedia is devoted to the historical aspects of the development of international law, starting with the treaties of Kievan Rus with Byzantium. The participation of Belarus, Russia and Ukraine as part of the USSR in the founding of the UN. Considered the collapse of the USSR, its consequences for international law. The way out of this situation is possible only by restoring the balance of forces and establishing a new world law and order on the basis of strict observance of the norms and principles of international law. Attention is paid to sharp historical topics. The encyclopedia contains a large selection of articles about personalities, among which are the founders of international law and current scientists. Some of them are given special attention in the article.CONCLUSIONS. It is concluded that Russia could revise its position, voiced by the USSR, regarding the width of territorial waters in the Arctic Ocean. The encyclopedia of international law is the first systematic work that has collected knowledge in the field of international law in the post-Soviet space. The Encyclopedia reveals the features of the legal nature of international law and the content of its basic concepts and categories.

BetweenSollenandSein: The CJEU’s reliance on international law in the interpretation of economic agreements covering occupied territories

AbstractThis contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering occupied territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in theFront PolisarioandWestern Sahara Campaign UKcases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to theVölkerrechtsfreundlichkeitdebate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.

The Issue of Immunity of Private Actors Exercising Public Authority and the New Paradigm of International Law

Summary 1. The changing image and structure of international law – 2. The exercise of public authority through delegation – 3. The question of state immunity in the context of hybridisation between public and private – 4. The content of the activity as a paradigm to guide the extension of state immunity – 5. The issue of limiting the immunity of delegated non state actors – 6. Conclusions

The Durability of Parastates: Declarative Statehood in the Absence of Constitutive Sovereignty

AbstractThis article assesses the characteristics of the parastate; a territorial entity that operates outside the formal structures of international law and sovereign recognition. The primary obstacle for parastates transforming declarative statehood into constitutive sovereignty is the nature of their creation, which is seen as a violation of another state’s sovereignty and territorial integrity. Parastates are thus prevented from becoming equal members of the international community with access to and decision-making in international organizations and governing bodies. Left outside these groups, parastates remain disputed territories dependent on patron state sponsorship and blocked from improving their status by international actors that deny sovereign recognition. Despite these limitations, parastates have a noted record of endurance that can last decades as long as the international status quo prevents the host state from regaining control of the contested territory. This article concludes that while options for ending frozen conflicts of parastates are not impossible, they are extremely costly and highly risky. Without decisive diplomatic and military leverage favoring the host state, parastates will continue to endure for the foreseeable future.

FIVE LEVELS OF INTERNATIONAL LEGAL MYTHOLOGY

This article continues the article «International Law as a Mythology», which states that the descriptive ideas used by international law distort reality and are, therefore, myths. The mythological structure of international law consists of five levels. At the first (fundamental) level, there are the ideas of sovereignty and human rights, which have a basis in the Christian doctrine of the will and were finally approved during the transition from the Middle Ages to the Modern history (the 16th and 17th centuries). At the second level, there are the liberal ideas of the 19th century: peaceful settlement of disputes, international governance, free trade, humanization of war and self-determination. At the third level, there is the idea of international crime, formulated after the Second World War and applicable to acts of states (aggressive war) and acts of individuals (terrorism). At the fourth level, there are neoliberal ideas of the second half of the 20th century: common sovereign, common law, prohibition of the use of force, sustainable development, common heritage, etc. At the fifth (emerging) level, there is the idea of technology. The article discusses the features of each level: the cultural and political prerequisites of its formation, the relationship with other levels, the characteristics of the order organized on its basis, the content and logical defects of the relevant myths, the character of their destructive impact, etc.

Legitimacy beyond the state: institutional purposes and contextual constraints

ABSTRACTThe essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law.

The Changing Structure of International Law as a Change of International Law’s Foundational Principles

The Changing Structure of International Law as a Change of International Law’s Foundational Principles

Think Global, Act Unilateral? WTO Limitations on Trade Measures to Enforce Ocean Conservation

The traditional territory-based structure of international law makes protecting global common goods a major challenge. This is particularly true with respect to the ocean, an environment where overlapping areas under the jurisdiction of different states coexist with very mobile resources and a medium in which pollution can spread quickly. This paper examines recent developments that allow a greater role in enforcing fisheries conservation measures for consumer states and port states, affecting the law applicable de facto to fishermen and fishing vessels regardless of the flag they fly and the area where the fishing occurs, and considers the WTO-legality of conservation measures adopted by two major fish importers, the EU and the US. Following the sea change brought by the Appellate Body report in US – Shrimp, WTO law permits consumer states to impose requirements with respect to environmental conservation beyond their borders. The jurisprudence that authorizes the use of product specifications applicable abroad, subject essentially to non-discrimination requirements, would seem to permit port state measures that deny certain vessels freedom of transit. On the other hand, the WTO-consistency of country-wide sanctions for Members that fail to adopt and enforce conservation measures may depend on these measures finding support in multilateral instruments and decisions.

The changing structure of international law

1 The magnitude of the current world war is greater than that of any previous conflict. Today we are fighting around the world for an order of the earth as a whole. The current conflagration, there...

The sovereignty of human rights

Acknowledgments 1. Field Missions Human Rights as Moral Concepts Human Rights as Political Concepts Human Rights as Legal Concepts The Plan of the Book 2. Sovereignty and Structure Sovereignty and its Exercise Between the National and International Sovereignty and its Distribution 3. Human Rights: Three Generations or One? Generations as Chronological Categories Generations as Analytical Categories Civil and Political Rights as Monitors of Sovereignty's Exercise Social and Economic Rights as Monitors of Sovereignty's Exercise 4. International Law at Work Labor Rights as Instrumental Rights Labor Rights as Universal Rights Labor Rights and the Structure of International Law 5. The Ambiguous Appeal of Minority Rights The Moral Ambiguities of Minority Rights The Political Ambiguities of Minority Rights The Interdependence of Sovereignty and Minority Protection 6. International Indigenous Recognition Indigenous Territories and the Acquisition of Sovereignty Indigenous Recognition and the International Labour Organization Indigenous Recognition and the United Nations The Purpose of International Indigenous Rights 7. Self-Determination in Three Movements Self-Determination and the Legality of Colonialism The Many Paradoxes of Self-Determination Bridging International Law and Distributive Justice 8. Global Poverty and the Right to Development The Emergence of the Right Implementing the Right From Global Poverty to International Law The Right to Development and the Rise and Fall of Colonialism Bibliography Index

Achieving Sex-Representative International Court Benches

Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.” As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015. On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time. Women made up a lower percentage of the bench in mid 2015 than in previous years on two-thirds of the courts surveyed.

Wybrane uwagi na temat charakteru i statusu lex sportiva w przestrzeni prawnomiędzynarodowej

Artykuł podejmuje tematykę charakteru prawnego i miejsca prawa sportowego w strukturze prawa międzynarodowego. Obejmuje rozważania nad typami źródeł prawa, zakresem przedmiotowym i podmiotowym (instytucjonalnym) prawa sportowego na poziomie międzynarodowym, porusza kwestię konieczności usystematyzowania terminologii w zakresie takich pojęć, jak ‘międzynarodowy porządek’ i ‘system sportowy’. Autor podejmuje próbę przybliżenia definicji terminu lex sportiva, a także prezentuje wybrane uwagi i obserwacje na temat jego klasyfikacji jako, odpowiednio, prawa międzynarodowego, transnarodowego, globalnego i ponadnarodowego. W końcowej części argumentuje za opisem lex sportiva w kategoriach globalnego prawa administracyjnego i wskazuje na jego innowacyjne cechy, mogące stanowić potencjalnie atrakcyjną modelową propozycję lex ferenda nowego prawa globalnego.

Appropriating Nature: Commerce, Property, and the Commodification of Nature in the Law of Nations

AbstractThis article explores the structural link between international law's long-standing doctrinal commitment to commerce and its inability to act decisively on behalf of the environment. One of the fundamental rights the early authors of jus gentium discovered was the right to engage in commerce. Francisco de Vitoria, Alberico Gentili, and Hugo Grotius each drew on and applied a providentialist theory of commerce. The doctrine held that Providence distributed scarcity and plenty across the earth so that peoples could not be self-sufficient, but would need to go in search of one another in order to acquire what they lacked. Commerce imagined in its pure form of reciprocal, mutually beneficial exchange would be the means to bring separated mankind to friendship. The embrace of the providentialist doctrine by these early exponents of the law of nations, carried forward by Emer de Vattel, set the stage for international law's longstanding commitment to international commerce, viewed (despite all the distortions) as a virtuous activity that tends to the common good. The doctrine's additional legacy was the installation of a view of nature as commodity. The providentialist doctrine of commerce, adopted by the early authors of international law, remains embedded in the structure of international law and cannot easily be dislodged. Until this doctrine is dislodged, however, international law will continue to be hobbled in its ability to address the urgent task of protecting the natural environment.

The democratic potential of systemic pluralism

AbstractThis article analyses how, and under what conditions, a systemically-pluralist structure of international law provides a springboard for global democratization. I argue that contestation and deliberation – core values of democracy – can and do arise within systemic pluralism. Specifically, I contend that institutional heterarchy between legal orders and forum shopping by different actors provide a means to engender these democratic values. I maintain that democratization can be sought on both horizontal and vertical planes: the former being the sphere of multilateral negotiations; the latter being governance which links individuals directly to sites of public power. In making this argument, I analyse recent developments within global intellectual property law, establishing and treating the multiple jurisdictions in this issue-space as an instantiation of systemic pluralism. This article thus provides a normative strategy for ongoing democratization of international law. Systemic pluralism must still prove its merits in terms of stability, the rule of law, and other values. However, I provide a method to advance transnational democracy that takes seriously empirical realities and competing normative visions.