Volume 2, Nº 3 (2024)
- Ano: 2024
- Artigos: 6
- URL: https://journal-vniispk.ru/2949-5717/issue/view/21523
- DOI: https://doi.org/10.17323/jil.2024.v2.i3
Edição completa
Philosophy
Reflection on the Philosophical-Historical Roots of the Crisis in Western International Law Thinking
Resumo
International Law appears to have lost both its possible civilizational foundations — the Greco-Roman/Christian doctrine of natural law and the contract theory, based on the “Humanist” confidence in the creative potential of individual will. In practice International Law — as it continues to exist — consists of either contractual arrangements among two or more States, or unilateral assertions of will by individual States, usually contested by other States. In this sense, International Law has become privatised, a matter of duelling individual perspectives, with no ontologically objective environment within which “warring” individuals can be embedded. This is the context in which the so-called Lauterpacht approach to International Law arises. It claims that the application of private law analogies should be suitable for international legal decision-making. Legal analysis and judgement then becomes a matter of weighing up the force of two or more competing wills. Another problem is that the social contract theory prioritises the striving for security as the central human characteristic. The legal discourse closes itself off from alternatives capable of questioning this idea. For one possibility, the idea that world society is a natural family of Nations is excluded. The new goal of the social contract, after the Great Depression and World War II, was to establish a liberal order wherein human opportunities would be significantly expanded and universal prosperity would be guaranteed. The basic tenet of liberalism is the dismantlement of the State, which is supposed to be the form through which individuals participate in their own governance. As this State retreats, private economic interests, regulated only by private law, if at all, take precedence. So, the long pathway from the 17th century confidence in the humanist construction of the State through the social contract of free and equal individuals ends up at present in a critical breakdown of order, where an antinomian spirit prevails at all levels of society, domestic, transnational and international. This diagnostic exercise offers no solution, although it does indicate obstacles which could, conceivably, be overcome.
4–13
Topical Issues
Compensation for Damage to Natural Resources versus Compensation for Environmental Damage (On the Example of Resolving the Dispute Between the Democratic Republic of Congo and Uganda)
Resumo
14–24
Exploring International Courts’ Exercise of Incidental Jurisdiction: Towards Coherent Approaches Through Res Judicata
Resumo
This article is devoted to the study of the exercise of incidental jurisdiction by international courts and tribunals. It may be concluded from the existing case law where international courts and tribunals have exercised incidental jurisdiction that there are no consistent and coherent approaches to the exercise of incidental jurisdiction now. The article also analyses alternative techniques that may be used to avoid the necessity to exercise incidental jurisdiction. It is noted that international courts and tribunals may “escape” the exercise of incidental jurisdiction due to legitimacy concerns since making determinations on incidental issues may lead to the violation of the parties’ consent to the dispute settlement procedure. The article concludes that the existence of different approaches to the issue of the exercise of incidental jurisdiction could itself result in judicial fragmentation, which, in turn, reduces the legitimacy of international courts and tribunals. In this regard, it is concluded that it is necessary to develop a coherent approach to the exercise of incidental jurisdiction by international courts and tribunals. The author concludes that a consistent approach can be developed by applying the concept of res judicata, whereby the decision of an international court or tribunal is not binding except on the parties to a case within the framework of a particular dispute. It is also concluded that decisions on incidental issues lack the force of res judicata. Therefore, it is also resumed that international courts and tribunals can exercise incidental jurisdiction without overstepping states’ consent to dispute settlement. However, res judicata may not serve as a sufficient ground for the exercise of incidental jurisdiction on its own since the role of res judicata is limited in that regard.
25–41
Praxis
The Practice of Self-Recusal and Recusal of Judges of the International Court of Justice
Resumo
42–51
Commentary
Commentary on the Council of Europe Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law
Resumo
52–63
Book Review
64–75