Theory Of International Law Research Articles

The concept of the legal system – theoretical and comparative aspects

The article is dedicated to the study of the legal system, which is one of the basic theoretical concepts of the contemporary legal studies. The concept of legal system has been in focus of a number of studies in different legal disciplines, from the theory of law and state to classical international law. However, the multi-functional use of this concept as well as diverse approaches to its understanding from the perspective of different schools of legal thinking reaffirms the need for the continuation of the discussion as for the essence of this concept with the particular focus on the possibility to utilize this concept and the term with regards to the law of the European Union.The article provides the analysis of this concept from the perspective of three different scientific approaches: comparative legal studies, international law, and general theory of state and law. It refers to a diverse number of research papers, including both the works of classical scientists in the area of state and law and the innovative researchers of recent years.As the result of the analysis the article offers a number of conclusions. First of all, it reaffirms the idea of the potential possibility to use the concept of the legal system with regards to both national and international law, despite the differences existing between these systems. Second, the principal structural elements of the “legal system” concept are identical for both cases. These elements are law (or the system of law), legal practice, institutional and psychological components. Third, the provided analysis offers the ground for the determination of the essence of the theoretical concept “legal system” via the analysis of the four mentioned principal structural elements. In its turn, this provides theoretical basis for the analysis of other inter-state legal systems, which are different from both national and international law.

WTO’S Trade Policy Review Mechanism (TPRM) and Indonesia’s Compliance in Agriculture Sector

This article is designed to appraise TPRM as a monitoring instrument in WTO and understand how it affects Indonesia’s compliance in the agriculture sector. On paper, TPRM should be exercised as a surveillance system to boost transparency and compliance. However, the author doubts the current periodic, differentiated by economic power, and the self-serving reporting system of the TPRM. As this process is complicated and flexible, where often used as a diplomatic visit or excuses to initiate diplomatic relations between turbulent nations, the writer believes that TPRM is only the tip of the iceberg with unlimited complex problems underneath. Adapting instruments from International Law and Rational Choice Theory, the writer borrowed Guzman’s framework to determine how TPRM could affect Indonesia’s compliance in the agriculture sector. This article will give a better understanding of the monitoring process of an international institution, especially the one with no law enforcement system and held fundamentally by mutual respect and good faith.

ECFA and Taiwan from the Perspective of International Law

The Economic Cooperation Framework Agreement (ECFA) is an important milestone between the People's Republic of China and Taiwan; it is also the most critical achievement in improving the close cross-strait relations since President Ma Ying-Jeou took office in 2008. This article intends to use Guzman's rational choice theory of international law to analyze Taiwan's motivation for signing ECFA under East Asian regionalism, and to speculate whether Taiwan will abide by the relevant ECFA regulations. Signing the ECFA with China is mainly to break through the predicament of Taiwan's isolation under East Asian regionalism. As the first step in cooperation with East Asia, ECFA has a significant impact on Taiwan's credibility in East Asia. Regardless of whether there is a chance to cooperate with other East Asian countries in the future, if Taiwan gets off ECFA's relevant regulations, it will cause damage to Taiwan's credibility and may even obliterate the possibility of future cooperation with East Asian countries. Therefore, from the perspective of rational choice, in order to maintain Taiwan's good reputation and look forward to more cooperation possibilities in the future, complying with the relevant ECFA regulations is an obligation that Taiwan must fulfil.

The Politics of the ‘Civilized War’ in the Meiji period Japan : Ariga Nagao's Political Thought during the Sino-Japanese and Russo-Japanese Wars

It is the subject which has been researched in various fields that, during the Meiji period, Japan succeeded to emerge into full membership in the international society which was controlled by western powers at the time. This paper takes the approach of the study of the history of political thought to understand the rise of Japan during the Meiji period. In order to do that, this paper will focus on Ariga Nagao who was one of the pioneers of the study of international law and history of diplomacy. Ariga argued a war, even without a declaration, is a fully legitimate act, since it is the expression of the ‘free will’ of independent states. Ariga’s pro-war theory of international law was affected by Lorenzo von Stein who was a scholar of Staatswissenschaft which means the sciences of the state in German. In Ariga’s theory, military intervention by a powerful nation to a weaker one is justified with this magic word of the ‘free will’. At the same time, Ariga strongly states that, if Japan is to become one of the ‘civilized countries’, it is required to follow the diplomatic custom of them: And there was no exception during the war time. He rather considers the war as the most effective way to prove how ‘civilized’ Japan is. During the Sino-Japanese and Russo-Japanese wars, he accompanied a army for the purpose of proving that the Japanese army is conducting a war in accordance with the ‘civilized custom . In conclusion, Ariga shows two different seemingly contradictory arguments: One is the absolutization of national sovereignty, which even justifies ‘imperialism’, and the other is the observance of the ‘civilized custom’ of the international community. A ‘civilized empire’ would be an appropriate definition to describe Japan s diplomatic ideals of the time.

On Issue of the Subject Matter of International Law Philosophy

This article offers a comprehensive view of most significant aspects of the subject matter of international law philosophy. The purpose is a framing the conceptual model of its subject matter and is to identify general themes of further discussion. The methodology of research conducted consists of the general scientific methods of analysis and synthesis, generalization and abstracting. The author has used the system principle and the historical principle. As results of given study are following: justifying the idea of international law as a main subject matter of respective philosophy; explicating the content of the notion “contemporary philosophy of international law”; demonstrating the differences between theory of international law and international law philosophy. The conclusions drawn are conceptual provisions that, firstly, international law philosophy is an independent legal science. Secondly, its vocation is to investigate not only philosophical foundations of international law but also philosophical foundations of international law doctrine. Thirdly, the contemporary international law philosophy must provide the dialog between versions of understanding of international law that are typical for various civilizations.

International Law in the Best of All Possible Worlds: An Introduction to G.W. Leibniz’s Theory of International Law

Today, the contribution by Gottfried Wilhelm Leibniz (1646–1716), the last ‘universal genius’, to the theory of international law is nearly forgotten. Leibniz was a lawyer by training (later in life holding prestigious positions such as Reichshofrat), and he acted as a diplomat and political advisor to the Duke of Hanover. His engagement with legal practice distinguishes Leibniz from other philosophers. Always looking for intellectual synergies, Leibniz integrated his knowledge of (positive) law into his legal theory. Leibniz provides the rare combination of an international legal theory which is both grounded in his metaphysics and natural law theory and inspired by his extensive study of the positive international law of his time (Leibniz was the first to systematically collect and analyse historical international treaty law). This article introduces Leibniz’s theory of international law by outlining the different conceptual layers of his notion of ius gentium, by explaining the functions of natural law for positive international law and by showing how natural law can shape the substance of international relations. The three ‘takeaways’ from Leibniz for contemporary international legal theory are the idea of ‘optimizing pluralism’, his ideas on synergies between ‘theory’ and ‘practice’, and, finally, his insistence on treating law as ‘legal science’.

The role of peace in Kelsen and Lauterpacht’s theories of international law

The purpose of this article is to analyze the role of peace in the theory of international law of Hans Kelsen and Hersh Lauterpacht. The 1960 shift in Kelsen' s approach to the role of peace will be elaborated in detail. Along with the theoretical account on the connection between peace and law, both authors have directed their theories to practical matters in the existing international legal system. At the end of the analysis, the similarities and differences between Kelsen and Lauterpacht will be described.

Images and Customary International Law, or the Destruction/Construction of International Norms through Images

Abstract This paper explores the power of images vis-à-vis the practice and theory of international law, with a focus on rules of customary international law, i. e. the unwritten general rules of international law, that apply to all states (as well as to non-state actors falling within their scope of application), irrespective of specific acceptance. As Sherwin writes: “We are awash in images.” States, international organizations (IOs), non-governmental organizations (NGOs), insurgents, terrorists and other groups of individuals of all sort, are in the news and our movies, on our TV screens, newspapers, internet and social media. Modern technologies, visual digital technologies, in particular, have a profound impact on the means and speed of communications across the globe and immensely facilitate the task of seeking information of all sort. In international law, images are a means for spreading knowledge about the practice of states and other actors. As with law in general, images are also found to be a valuable resource in explicating the rules of international law. They aid and clarify the analysis of international law and the determination of the existence and content of rules of customary international law. In contemporary international settings, however, modern technologies of visual representation are also a means for influencing the development of international law, i. e. the existence and content of international norms. Moreover, looking at implementation, at no time in history has there been more information available to governments and the public about violations of international norms (particularly, but not exclusively human rights violations): more and more these violations are documented through images. Yet, international law doctrines have failed so far to comprehensively assess the power of images, beyond that of a toolkit for thick cultural description – the power of narrative – and analysis. The present essay offers a contribution in this direction.

Smiley , Will From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law (review)

REVIEWS 365 consideration is given to the ways in which the Pomors organized their activities, including the winter land-based hunting of fox, polar bear, northern reindeer and eider-duck. Altogether it is concluded that Pomor expeditions to Svalbard did not play a substantial role in the northern economy, though the sources available are two meagre to allow for a definitive judgement. The book’s second section consists of some 184 documents, most of which appear in published form for the first time. The authors and their assistants have scoured archives in Moscow (RGADA), St Petersburg (RGIA, Arkhiv SPbII RAN) and Archangel (GAAO) to make a wide range of materials available to the scholarly community. The documents include those relating to government attempts to establish monopoly companies according to mercantilist principles, and to develop a whaling industry, and those which cast light on traditional Pomor activities. An important role in the latter is played by data from the Archangel customs receipts. There are two appendices. The first is a list of excerpts from the St Petersburg vedomosti for the 1740s and ’50s with details about whaling activity plus a translation of an account of a voyage to Svalbard undertaken in 1780 by S. Bacstrom. The second contains data on the arrival and departure of relevant vessels at the port of Archangel with the provisions and imports carried (1780s) and other details. There is a short bibliography and indices of personal and geographical names, but unfortunately no subject index. In conclusion, this book can be said to be a very solid contribution to the literature concerning Russian maritime activity in Svalbard and its surrounding seas, and in the north more generally, in the eighteenth century. In addition it provides scholars with a major new resource for future research. All historical scholars with Russian Arctic interests will value its appearance. School of Geography, Earth and Environmental Sciences Denis J. B. Shaw University of Birmingham Smiley, Will. From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law. The History and Theory of International Law. Oxford, Oxford University Press, Oxford and New York, 2018. x + 283 pp. Map. Notes. Bibliography. Index. £65.00. Narratives of captivity and slavery loom large in imperial Russia’s encounter with the Ottoman empire, evoking the Orientalist tropes that characterized broader European discourses about ‘the East’. These narratives also had material basis in the Russo-Ottoman confrontation, marked by internecine wars that resulted in large numbers of captives on both sides. In From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law, Will SEER, 97, 2, APRIL 2019 366 Smiley places the shifting norms, governance and practice of captivity on the Russo-Ottoman frontier at the centre of a new account of international law’s development before the twentieth century. This account provincializes western Europe and the ‘Law of Nations’ doctrines articulated by Grotius or Vattel, and argues instead for a set of norms regarding subjecthood and the laws of war that emerged from the exigencies of inter-imperial competition on the ground. Beginning with Peter the Great’s attempts to puncture Ottoman control of the Sea of Azov in the early eighteenth century, and tracing RussoOttoman relations through to the eve of the First World War, Smiley presents a compelling genealogy of law wrought by war, and the implications of this process for subjects of the Tsar and Sultan. Over the course of ten chapters, Smiley presents a clear chronology of stepwise and contingent legal change. Ottoman approaches to captives (many of whom were also slaves) evolved from the ‘Law of Ransom’ in the seventeenth and early eighteenth centuries, to the ‘Law of Release’ from the 1730s through to the mid-nineteenth century, and a prisoner-of-war system that began under the aegis of ‘benign reciprocity’ in the mid-nineteenth century. This transformation was, Smiley argues, ‘complex and multilayered’ (p. 237) and not characterized by a single direction of ideological travel from west to east. Crucially, the Ottoman captivity system, which by 1900 had come to resemble the norms expounded by international humanitarian law, was formed through contestation with Russia and then expanded to apply to Ottoman relations with other powers...

Sovereignty, The Core Tenant of Public International Law?

The question whether the sovereignty still remains the core tenant of international law contains several dimensions of illustrations. This essay will try to not only make a factual judgement on the question but also give an in-depth discussion on the relationship between the modern theory of sovereignty and contemporary international law. The essay will first suggest that sovereignty still plays an essential role in the present international legal system, then argue that the new developments of public international law have undermined the basis of sovereignty theory, which will finally transfer the international law to a global legal system where the sovereignty does not matter. It will be followed by an argument that though this transition will benefit the international rule of law, it is better for the international society to keep sovereignty as a core tenant of international law in the near future, which will protect equality and justice of modern international law.

Research Handbook on the Sociology of International Law - Introduction

Bringing together a highly diverse body of scholars, this comprehensive Research Handbook explores recent developments at the intersection of international law, sociology and social theory. It showcases a wide range of methodologies and approaches, including those inspired by traditional social thought as well as less familiar literature, including computational linguistics, performance theory and economic sociology. It reflects the fact that we are in the middle of a particularly fertile period of creative borrowing between the disciplines of international law and sociology. This borrowing no doubt partly reflects a broader and more general turn towards interdisciplinary work in international law, a turn which has its roots in the changing character of the international legal academy, as well as the newly problematized place of legal knowledge as a privileged expertise of international governance. But it also reflects the fact that quite profound social and political changes to the international order over the last decades have led international lawyers to consider again some fundamental questions which had appeared settled – or had at least been provisionally bracketed – for some time. What is the state? What motivates international actors to behave as they do? How are states’ interests formed, and how do they change? What is ‘culture’, and how does it relate to international law? Who interprets the world for international actors, how, and to what effect? How are (global) markets made and unmade? What dynamics drive the messy processes by which international law is formed, interpreted, and implemented? Many international lawyers interested in these questions have found themselves returning to, and taking inspiration from, an eclectic range of different traditions of social and sociological thought, This new sociological turn is helping to creating spaces in which the constraints of what has become orthodox international legal thinking have been consciously cast off in pursuit of new kinds of thinking, more suitable for the rapidly transforming social and political landscape in which contemporary international lawyering is done. For this volume, we asked our authors, first, to situate their intervention within a particular tradition of sociological or social theoretic thinking, and second, to explain and illustrate how and why they find this tradition useful in thinking about some contemporary development, or problem, within the domain of international law and governance. The result is a diverse and exciting set of contributions, which lay out a variety of paths down which future international legal scholarship may choose to travel, or indeed which it may contest.

A Community of Shared Future for Mankind—The Contemporary Development of the Social Foundations Theory of International Law

In the traditional understanding, the social basis of the emergence and existence of international law can be summed up as an international society in which interstate conflict and cooperation and interests and contradictions coexist. In recent years, the term “international community” has been widely used in national practice and academic discourse. Many scholars believe that the development of interstate relations indicates that the international community is being transformed into a global international community. The concept of “a community of shared future for mankind” reflects China’s new understanding of the social foundations of international law. It introduces Chinese traditional culture into global governance, develops Marxist theory on the community, is concerned both for mankind as a whole and for individuals, highlights the ultimate issues of the international community, and emphasizes the international community’s union of diversity and interdependence. The idea of “a community of shared future for mankind” is of great significance for the theory and practice of international law; it reflects the emergence of methodological holism, the response of international law to the questioning of its legitimacy, and the trend toward hierarchical systematization in international law. The concept of “a community of shared future for mankind” is of great value to China’s participation in the reform of the global governance system. It will help promote appreciation of the relations between China and the world, enhance China’s international discourse power and discourse force, and promote the rule of law in international relations that China advocates.

150th anniversary of professor M. A. Taube: years of development and triumph, oblivion and renaissance

This article discusses the life and work of a talented Russian legal scholar and international lawyer, an authoritative public and political figure of the late 19th — first half of 20nd centuries, Professor of St. Petersburg University, Baron Mikhail Alexandrovich Taube, 150 years since his birth which was celebrated in 2019. M. A. Taube occupied a prominent place in the scientific, educational, social and political life of both pre-revolutionary and foreign emigrant Russia, was prolific in many fields of scientific knowledge and socially significant activity, but having left Russia after the October revolution of 1917, was forgotten for many years. The article is based on the domestic, foreign scientific materials, and archival sources, including the half-forgotten scientific works of M. A. Taube in the field of theory and history of international law, as well as archival material, mostly new and original, discovered by the authors in the state archives of St. Petersburg and the Bakhmeteff archive of Columbia University, and the collections of the Library of Congress, mostly introduced into scientific circulation for the first time. The article pays tribute to Professor M. A. Taube on his 150th anniversary year, thereby commemorating the name and works of an individual who made a significant contribution to the development of the St. Petersburg school of international law.

Наказ Міжнародного трибуналу з морського права як фактор розвитку вітчизняної теорії та практики міжнародного права

Наказ Міжнародного трибуналу з морського права як фактор розвитку вітчизняної теорії та практики міжнародного права

The Dialogic Aspect of Soft Law in International Insolvency: Discord, Digression, and Development

In this study, I describe three important articles in the IRJ model law and discuss their development, drawing in part upon my experience as a delegate to UNCITRAL Working Group V. In doing so, I want to situate these developments within the broader discussions of international law and international relations theory regarding soft law. Doing so will both vindicate and puzzle some of the conventional understanding of how soft law instruments tend to function, although some of the conclusions must necessarily be conjectural at this stage.

The Slow Process of Normativizing Cyberspace

In their article, Dan Efrony and Yuval Shany claim that post-Tallinn Manual practice demonstrates that states entertain doubts about the applicability to cyberspace of the rules contained in the Tallinn Manuals. According to the authors, post-Tallinn practice reveals that states treat the application of international law to cyber operations as optional; operate in parallel—legal and nonlegal—tracks of conduct; and engage in gradated enforcement. They also claim that their study invites further research into the implications of state conduct in cyberspace for general international law theory. I will use this last point as a springboard to explain the process of normativization in cyberspace—that is, the process of subjecting states’ cyber operations and behaviors to legal standards. To do this, I will use Oscar Schachter's representation of a normative (legal) order as a three-story building. According to Schachter's metaphor, the third floor is occupied by public values and general policy aspirations; the second floor is occupied by law with its distinctive normative patterns of prescribing, proscribing, and applying; while the ground floor is occupied by the social reality of conduct. The three floors are not isolated but connected by escalators and staircases that go in both directions.

Lex Rei Sitae and the EU Internal Market – towards mutual recognition of property relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

International Customary Law in the Jurisprudence of the ICTY and the ICTR

The object of this article is to describe how two ad hoc international criminal tribunals dealt with the issue of following and explaining norms of customary international law. In order to do that the representative decisions and judgments of international criminal courts are citied and examined. The first part is a description of the sources of law for criminal tribunals, with emphasis on the international custom. The second consists of the analysis of the international criminal courts’ approach to the two-element theory of customary international law. It is followed with an enquiry into the content of customary international law: concerning both jurisdiction and substance of customary international law. Keywords: International Customary Law, ICTR, ICTY, jurisprudence

Lex Rei Sitae and the EU Internal Market - Towards Mutual Recognition of Property Relations

For as long as our modern legal systems exist they have operated on the basis of the lex rei sitae rule. As an expression of the principle of territoriality, the law of a country applies to all objects that are situated on the territory. In domestic cases, of course, the regular rules apply, but in international disputes a legal system uses its own rules to be able to apply its own domestic law. The doctrine of lex rei sitae becomes relevant in a situation in which two legal systems come into contact with one another. A conflict of laws or conflit mobile arises when the law of one country is to be applied in the law of another country. Over the last centuries an intricate system of rules has developed with which private international lawyers resolve conflict of laws by pointing towards one of these legal systems as the applicable law. They do so - at least in theory - blindfolded, so that they cannot favor one legal system over the other. Instead of choosing one system over another, a set of impartial and objective rules is used to determine what legal system is to be applied. Private international law theory is, however, less facilitative in practice. In the European Union there is an internal market in which there is free movement of goods, persons, services and capital. This internal market is governed by principles and theory that are very different from the principles and theory underlying private international law. EU law works on the basis of a market functionalism that seeks to allow legal relations to remain to be governed by their country of origin. Property private international law rules are aimed to have legal relations governed by the host country. This tension between two opposite viewpoints is part of a larger tension between the unifying nature of EU Law and the procedural autonomy of the EU Member States. Rather than having EU law decide what is to be the applicable law, in general private international law cases, the host country, i.e. the lex fori, decides this by itself. In the past decade, however, many private international law rules have become EU law to centralise the rule deciding on applicable law and jurisdiction. The EU has therefore claimed competence in the area of applicable law and jurisdiction. However, when property law has been concerned, mostly connection has been sought, also at the EU level to the traditional lex rei sitae rule. In practice however, also an EU lex rei sitae rule turns out to be difficult to apply. The best example of this is perhaps the EU Succession Regulation that allows one single legal system to be applied to an entire cross-border succession case.

The Decline of International Law as a Normative Ideal

International law was integral to the rise in power of the United States and has been central to the operation of world politics during the period in which the United States has been the dominant state. This article draws on the theory of International Law as Ideology to explain the manner in which the ideal of international law as politically neutral has served as a rhetorical fulcrum. The theory also offers a framework within which to perceive and assess the significance of an apparent sidelining of the ideal in global politics, including, notably, by the United States. While reduced use of the ideology of international law and introduction of the term "rules-based international order" or "rules-based order" might be the best strategic option at a time of declining power, the theory of International Law as Ideology illuminates the manner in which these developments may at the same time be unwittingly contributing to that decline.