Учение М.Н. Капустина о праве: история, методология, теория и практика

Introduction: the article deals with the doctrine of modern international law, international legal integration, international security and international responsibility. The aim – to study the development of international law and the interaction of legal systems. Methods: comparative legal, formal-legal. Analysis: there are new forms of expressing scientific positions along with traditional forms. It is connected with Internet technologies. The language of discussion of scientific issues is English now. More attention is paid to scientific and practical problems, less to theoretical ones. There are changes in the methodologies of international law, it becomes a «technology», a process of mechanistic challenge, selection, connection and presentation of a limited set of arguments. International law is a universal means to bring together national legal systems. Results: It is concluded that the doctrine of international law is not holistic now. The legal convergence is the process of convergence of various legal systems and models of legal regulation by international legal means. More over, there is no effective security system both at the universal or regional levels. International responsibility is developing. Its content is being updated at the expense of WTO law.

INTRODUCTION. This article is aimed at reducing the gap between Russian and Western schools of international investment law, and offers an opportunity to gain adequate understanding of the proper place of international investment law within the system of international law. So far there has been no recognised attempt to complete a research which would analyse both approaches in order to make a comparison between conceptual discrepancies of the two doctrines first-hand based on an analytical product.MATERIALS AND METHODS. The authors undertake to research and analyse the most recent academic literature. As a result, this article includes references to both Russian and Western works in the field of international investment law published over the past ten years. However, there are occasional references to the classic academic contributions which have certainly proven their lifetime doctrinal value. As for the methodology, the authors opt to employ popular scientific research methods (including dialectics, analysis and synthesis, deduction and induction, comparative legal and historical analysis).RESEARCH RESULTS. As a result of the conducted research the authors offer a comprehensive overview of the doctrinal positions of Russian and Westerns academics which can be found in Russian and Western academic law literature. The authors summarise approaches and make conclusions about similarities and discrepancies between Russian and Western doctrines of international investment law.Discussion and conclusions. In this article the authors underscore a critical distinction in the interpretation of international investment law as a field of private international law (advocated by Russian doctrine) and as a field of international law (supported by Western doctrine). The article reveals the challenge in finding a proper definition for international investment law as a standalone law concept. Based on the findings the authors make an attempt to put forward a compromising approach to the place of international investment law within international law.

In his recent piece in the American Journal of International Law, B.S. Chimni depicts a doctrine of customary international law that has allowed the First World to impose its domination and promote its version of global capitalist justice. From Chimni's perspective, all the gimmicks and sophisticated dichotomies invented by international lawyers to refine international customary law serve a hegemonic socialization process whereby the center imposes its neoliberal ideals on an admiring periphery. But this diagnosis is certainly not the end of the story. In fact, Chimni's dismal image of the world and the role of custom therein is meant to foreground a more central project—i.e., the reinvention of customary international law around “the progressive ideas, beliefs, and practices of the global civil society” and geared towards the promotion of the “common good.” My view is that Chimni's postmodernization of the doctrine of international customary law does not necessarily remedy the charges he levels against custom, let alone redefine the center and the periphery. As much as I share his diagnosis about custom's complicity in hegemonic socialization and the promotion of a global capitalist ethos, I contend that Chimni's postmodernization is at best unavailing and, at worse, rehabilitative of the First World's centrality in norm-setting. Instead of striving to reinvent the doctrine of custom, we must invest in strategies that draw on the malleability and fluidity of the current doctrine and facilitate the types of argumentation that “decenter” the First World, thereby directly empowering international lawyers elsewhere.

Extracurricular International Criminal Law

The article examines the problems associated with the classification of international crimes. It is stated that in the doctrine of international law, international crimes are understood as the most serious and dangerous violations of the principles and norms of international law which encroach on the global interests of humanity and pose a threat to international peace and security. The author analyses the classification of international crimes provided for in the statutes of the Nuremberg and Tokyo International Military Tribunals, the Geneva Conventions, the United Nations documents, the Rome Statute, and case law. It is noted that the list of international crimes is only approximate, since it will constantly change as international law develops. Today, in our opinion, the corpus delicti of international crimes are most fully presented in the Rome Statute of the International Criminal Court of 1998. They include: genocide; crimes against humanity; war crimes; aggression. It is noted that, in addition to inhuman acts (murder, extermination, enslavement, exile and other cruelties committed against civilians before or during war) and persecution of a human group (for political, racial or religious reasons), the list of crimes against humanity also includes torture, sexual crimes, enforced disappearance of persons and apartheid when committed as part of a widespread or systematic attack against any civilians. It is noted that the full-scale russian armed aggression is accompanied by the commission of numerous international crimes on the territory of Ukraine which have no statute of limitations. The author emphasises that the main discrepancy between national legislation and generally recognised corpus delicti of international crimes in international criminal law is the absence of criminalisation of crimes against humanity and the absence of the institution of command responsibility (chief of command). It is concluded that the main legislative step is to bring the national criminal legislation of Ukraine into full compliance with the requirements of the Rome Statute of the International Criminal Court to ensure fair, necessary and inevitable punishment of persons who commit international crimes.

Right to Self-Determination in International Law: A Leeway to Secession?

INTRODUCTION. While abroad over the past decades both comprehensive research and publications touching on individual aspects of amicus curiae in international law have been edited, it garnered only very little scholarly attention in Russian scientific literature. The frequency of its use and the nature of its impact on international judicial and quasi-judicial proceedings vary among branches of international law. This article considers one of the functions that an amicus curiae may perform in international criminal proceedings – the function of expertise.MATERIALS AND METHODS. The article is based on the existing volume of scientific knowledge in different branches of international law, such as law of international treaties, international criminal law, law of international organizations, human rights law, international economic law, history of international law and others. The research is based on the conclusions and inferences achieved mainly in the foreign doctrine of international law including publications of this year, due to the low degree of development of the topic in Russian literature. The empirical basis of the research is formed by international legal acts, internal acts of international criminal tribunals, materials of proceedings relating to interstate disputes, international advisory proceedings, practice of international criminal courts. The methodology used is a combination of general scientific methods of cognition (methods of analysis and synthesis, induction and deduction, critical and dialectical) and private scientific methods typical for legal sciences (historical, comparative).RESEARCH RESULTS. International criminal courts actively rely on the amicus curiae mechanism to obtain information, both legal and factual, on issues under consideration in criminal proceedings. The admission of amicus curiae to international criminal proceedings is entirely at the discretion of the judiciary. In practice, amicus curiae applications are submitted by subjects of international law, international non-governmental organizations, natural and legal persons and professional associations.DISCUSSION AND CONCLUSIONS. Too frequent use of amicus curiae mechanism seems to be difficult to reconcile with the iura novit curia maxima. Its current practice provides fertile ground for all kinds of abuse and needs to be reviewed. In particular, the experience of the UN International Court of Justice, the International Tribunal for the Law of the Sea and the UN Commission on International Trade Law could be instructive in this regard.

Legal aid is one tool in efforts to achieve justice for the poor in Indonesia. Implementing legal aid is not only limited to the advocate profession but also legal professionals, lecturers, and law students. The involvement of UINSU Sharia and Law Faculty Students in Implementing Non-Litigation Legal Aid is not limited to just the demands of the legal aid law but is also an implementation of religious commands to always do good and prevent evil. In the academic aspect, the implementation of non-litigation legal assistance carried out by UINSU Faculty of Sharia and Law students is an experience in itself to test the theoretical knowledge gained in class with law enforcement practice in the field. This research is included in the qualitative research category. The research results concluded that even though it is still relatively limited, UINSU Faculty of Sharia and Law students have played a role in implementing non-litigation legal assistance. Barriers experienced by UINSU Faculty of Sharia and Law students in legal aid activities include lack of support, lack of student awareness of the social environment, lack of campus facilities and infrastructure, lack of funding for legal aid, quite busy study time, lack of self-confidence, lack of public understanding regarding legal aid as a right and public doubts regarding the status of students who can carry out non-litigation legal aid.

The relevance of the study is due to the lack of proper legal regulation in the field of legal determination of the procedure for executing a court decision under which a foreign state (aggressor or occupier) acts as a debtor. The purpose of the study is to develop a mechanism for effective protection of the rights of Ukrainian recoverers in cases of compensation for damage by the state aggressor through the prism of proper enforcement of court decisions in these categories of cases. In the course of the study, a number of general scientific and industry methods are applied, in particular, the method of analysis and synthesis, system, structural-functional, dialectical, historical, and hermeneutical methods. The paper analyses the legal positions of the European Court of Human Rights regarding the right to appeal to the court in cases of debt collection from a foreign state as compensation for material and/or moral damage caused to individual applicants. The study examines the practice of the national courts of Ukraine in cases of claims of individuals – citizens of Ukraine against a foreign state for compensation of material and (or) moral damage caused by the invasion of the territory of Ukraine. It is established that a state cannot be allowed to use the doctrine of sovereign immunity as a shield for its violations of other doctrines of international law, such as international law on armed conflicts. The expediency of applying the model of functional (limited) immunity, which is becoming increasingly widespread and recognised by advanced countries of the world, is justified, considering its practicality and compliance with modern requirements for the development of society and leading trends in the development of international law. The results of the study can be used for further scientific developments of the outlined problems in the rule-making process, both in the conclusion of international treaties and in national legislation and in the law enforcement process in the implementation of legal proceedings

The Day in Court: Legal Education as Sociolegal Research Practice in the Form of an Ethnographic Study

Notes on Contributors

There is a need to provide legal assistance to persons who suffer with serious mental illness for legal problems over and above problems associated with mental illness. This paper describes a single-case study of the development and introduction of a pilot of a hospital-based, legal service, in partnership with The University of Western Ontario Faculty of Law. The data sources included direct observation and documentation. Law students provide legal services reflecting the application of a therapeutic jurisprudence approach. Interprofessional education and training occurs with law, medical, nursing and other students, and professionals on the principles and scholarship of therapeutic jurisprudence, mental illness and legal rights. A programmatic organizational template, the program logic model, was used to conceptualize the activities, and process, short-term, long-term and ultimate objectives, and indicators. The four core activities were: (1) patient access point to law students; (2) supervision of law students at the London Health Sciences Centre; (3) intake and access to other services, and (4) teaching and additional training of law and other students, physicians and other health caregivers. The development, issues and challenges of the introduction of an in-patient student law service is described.

A Realistic Theory of Law (Book Review)

The article aims to investigate, under the aspect of translation, the process of legal appropriation and reproduction of international law during the course of the 19th century. An occidental understanding of translation played an important role in the so-called process of universalization in the 19th century, as it made the complexity of global circulation of ideas invisible. Approaches proposed by scholars of Postcolonial, Cultural and Translation Studies are useful for re-reading histories of the circulation of European ideas, particularly the international law doctrines, from a different perspective. The great strides made in Translation and Cultural Studies in the last decades, as well as the discernment practiced in the scholarship of Postcolonial Studies, are important for a broader and more differentiated understanding of the processes of appropriation and reproduction of the doctrines of international law during the 19th century. The present article begins by tracing the connection between translation and universalization of concepts in 19th century international law; after a short excursus on the Western idea of translation, the attention is focused on the translation of international law textbooks. The conclusive section is dedicated to a comparison between Emer de Vattel’s Droit des gens and Andrés Bello’s Principios de Derecho de Jentes.

International Law: Text, Cases and Materials provides not only an essential introduction to the core concepts and foundational principles of international law, but also a detailed overview of each established area in which international law operates. Featuring cases, materials, and illustrative figures throughout to enhance the level of context and detail provided, the book covers everything a student of international law requires. Topics include the law of treaties, international organisations, the international protection of human rights, responsibility in international law, jurisdiction, diplomatic and consular law, territory in international law, the law of the sea, international air and space law, international economic law, international environmental law, and international humanitarian law. This comprehensive textbook will be essential reading not only for any course on international law, but also as a starting point for those wishing to grasp the context of a particular area of international law before exploring further.