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1
Sykes, Alan O. « Economic “Necessity” in International Law ». American Journal of International Law 109, no 2 (avril 2015) : 296–323. http://dx.doi.org/10.5305/amerjintelaw.109.2.0296.
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Exigent circumstances can extinguish or suspend a wide range of legal obligations. They may empower governments to seize property or quarantine individuals. They may excuse the nonperformance of private or public contractual obligations. And, of especial interest here, they may permit governments to deviate from their obligations under treaties or customary international law (CIL).
2
Badaru, Opeoluwa Adetoro. « Examining the Utility of Third World Approaches to International Law for International Human Rights Law ». International Community Law Review 10, no 4 (2008) : 379–87. http://dx.doi.org/10.1163/187197308x356903.
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AbstractWith the gradual emergence of Third World Approaches to International Law (TWAIL), there arises a necessity to examine its utility as an academic endeavour, particularly within the context of international human rights law. Questions need to be asked as to what benefits – if any – the adoption of TWAIL (either as a method of inquiry or as a subject of inquiry) offers researchers in the field of human rights law. In the same vein, the time is also ripe for scholars to engage with the important question of whether there are some shortcomings that TWAIL needs to address in order for it to be of more benefit to the human rights discourse.
3
Jackson, Miles. « VIRTUOUS ACCOMPLICES IN INTERNATIONAL CRIMINAL LAW ». International and Comparative Law Quarterly 68, no 04 (18 septembre 2019) : 817–35. http://dx.doi.org/10.1017/s0020589319000307.
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AbstractHumanitarian actors sometimes have to decide whether to render assistance in situations that put them at risk of liability for aiding and abetting under international criminal law. This is the problem of the virtuous accomplice—the idea that knowingly contributing to the wrongdoing of others might, exceptionally, be the right thing to do. This article explains why the problem arises and clarifies its scope, before turning to criminal law in England and Wales and Germany to assess potential solutions. It argues that the best approach is to accept a defence of necessity—of justified complicity—and shows that such an argument works in international criminal law.
4
Asadov, B., V. Gavrilenko et S. Nemchenko. « BRICS in International Legal Space : Humanitarian Imperatives of International Security ». BRICS Law Journal 8, no 1 (11 avril 2021) : 8–34. http://dx.doi.org/10.21684/2412-2343-2021-8-1-8-34.
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The article is devoted to the examination of the formation of new vectors for international relations development within the global format of cooperation. The establishment and unification of BRICS in the international legal sphere through a wide range of common interests and views of its members towards issues facing the modern world reflect objective tendencies of world development to the formation of amultipolar international relations system and determination of particular large country actors of broad integration and having many dimensions. The authors reveal particular characteristics of the international-legal status of BRICS, which make it possible to have an effective impact on challenges facing the modern world. The legal BRICS status differs crucially from traditional legal approaches to international organizations. Acting as a special subject of world politics, creating more trusted interaction conditions, BRICS focuses its attention on the alternative world order principles within the new model of global relations. Such a format of multilateral cooperation, as well as more trusted and additional mechanisms of international interaction, gives the members an opportunity to demonstrate their geopolitical and geoeconomic world significance, and in addition their demanded humanitarian role, which, as the analysis of the mentioned actor demonstrates, is aimed at forming its own interaction model. The logic of the BRICS agenda extension to the level of an important global management system element demonstrates the goal in the field of action and, accordingly, intensive progress of humanitarian imperatives. For these humanitarian imperatives, the issues of international peacekeeping, security, protection, encouraging human rights and providing stable development are an objective necessity, especially for active demonstration of the members’ viewpoints on the international scene. For understanding the process of the alignment of international security humanitarian imperatives it is necessary to study the existing objective needs in conjunction with each country, member of BRICS.
5
Winkler, Thomas. « The Copenhagen Process on Detainees : A Necessity ». Nordic Journal of International Law 78, no 4 (2009) : 489–98. http://dx.doi.org/10.1163/090273509x12506922107037.
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AbstractThe traditional distinction between military and law enforcement operations is increasingly difficult to uphold. This gives rise to a number of difficult and complicated challenges in regard to the handling of detainees. Legal ambiguity may lead to operational uncertainty, which may hamper the efficiency of a given United Nations (UN)-mandated international military operation. It is in the interest of no one, not least the detained individual. The author argues that the Copenhagen Process on the Handling of Detainees in UN-mandated international military operations is a necessity to ensure the full protection of any individual detained during an UN-mandated international military operation and thereby ensuring the efficiency of the efforts of the international community to bring stability and peace to States and regions in dire need. On the key legal question concerning the relationship between international humanitarian law and human rights law, it is necessary to conduct a thorough analysis of the relevant provisions of both bodies of international law in context. When this is done, most of the claimedincongruities between the two bodies of law disappear – and thereby also the basis for the sometime heateddiscussions between the advocates of one or the other body of law.
6
Hsiung, James C. « Human Rights and International Relations : Morality, Law, and Politics ». Asian and Pacific Migration Journal 2, no 2 (juin 1993) : 127–46. http://dx.doi.org/10.1177/011719689300200202.
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In reassessing the evolution of the post-1945 human rights movement, the paper identifies three “waves” or genres of human rights, generally representing the divisions between the Western and non-Western nations on the subject. A number of serious problems are raised, such as “double standards” maintained by some countries concerning human rights. This is followed by an evaluation of the possible clash between two perspectives: (a) the Third World's advocacy of such collective economic rights as a developing nation's right to sustained development (with its attendant demand that the West has to pay for its past colonization); and (b) the West's obstinancy regarding the individuals' rights to be asserted against their governments. In the age of intensified complex interdependence, a growing feature is the interpenetration of the economies of nations. That by necessity makes the migrant workers an “interface” between rich and poor economies. As economic interdependence deepens, both labor-importing and labor-sending countries have common stakes in the protection of the migrant workers.
7
Terenteva, L. V. « Extraterritoriality in Private International Law ». Actual Problems of Russian Law 16, no 5 (9 juin 2021) : 183–94. http://dx.doi.org/10.17803/1994-1471.2021.126.5.183-194.
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The paper questions the extraterritorial nature of foreign private law applied by the national law enforcement body in the regulation of cross-border private law relations. In view of the use of common terms “exterritorial” and “extraterritorial” in the framework of international public and private law regulation, it seems necessary to study the extraterritorial effect of foreign private law provisions through the prism of the substantive characteristics of extraterritoriality, formulated in the context of public international law. To this end, the author refers to the definition of extraterritorial jurisdiction as an international legal category and raises the question of how appropriate it is to admit, within the framework of a single definition, “extraterritorial” both the presence and absence of the manifestation of the sovereign will of the state on the territory of which any of the types of jurisdiction of a foreign state is exercised. Taking into account that the manifestation of the extraterritorial jurisdiction of one state in relation to another is realized in the absence of the latter’s sanction for its implementation, the author debates the admissibility of designation as extraterritorial foreign private law, the admissibility and limits of application of which are sanctioned by the national state.
8
Jalloh, Charles Chernor. « Regionalizing International Criminal Law ? » International Criminal Law Review 9, no 3 (2009) : 445–99. http://dx.doi.org/10.1163/157181209x457956.
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AbstractThis article examines the initially cooperative but increasingly tense relationship between the International Criminal Court (ICC) and Africa. It assesses the various legal and political reasons for the mounting criticisms of the ICC by African governments, especially within the African Union (AU), following the indictment of incumbent Sudanese President Omar Hassan Al Bashir. The author situates the ICC within broader African efforts to establish more peaceful societies through the continent-wide AU. He submits that the ICC, by prosecuting architects of serious international crimes in Africa's numerous conflicts, could contribute significantly to the continent's fledgling peace and security architecture which aims to prevent, manage and resolve conflicts and to anticipate and avert crimes against humanity. On the other hand, the author suggests that the ICC also has much to gain from Africa, especially in these early years when it is seeking to become a functional court of law with global legitimacy. By undertaking independent, fair and credible prosecutions without alienating States Parties, the world criminal court is more likely to fulfill its mandate and to win over powerful hold outs, such as the United States, China, and India. This will help it co-opt the support necessary for its universal reach and future success. However, he cautions that given Africa's sensitive historical experience with foreign interventions, including the slave trade and colonialism, the international criminal justice regime anchored on the ICC may be undermined, or perhaps even falter, if it is perceived as having a biased, politicized or insensitive application to a single region of the world.
9
Taft, William H., et Todd F. Buchwald. « Preemption, Iraq, and International Law ». American Journal of International Law 97, no 3 (juillet 2003) : 557–63. http://dx.doi.org/10.2307/3109840.
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Preemption comes in many forms and what we think of it depends on the circumstances. One state may not strike another merely because the second might someday develop an ability and desire to attack it. Yet few would criticize a strike in the midst of an ongoing war against a second state’s program to develop new types of weapons. Between these two examples lie countless fact patterns.In the end, each use offeree must find legitimacy in the facts and circumstances that the state believes have made it necessary. Each should be judged not on abstract concepts, but on the particular events that gave rise to it. While nations must not use preemption as a pretext for aggression, to be for or against preemption in the abstract is a mistake. The use of force preemptively is sometimes lawful and sometimes not.
10
Reinisch, August. « How Necessary is Necessity for International Organizations ? » International Organizations Law Review 3, no 2 (2006) : 177–83. http://dx.doi.org/10.1163/157237406780331652.
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11
Рафалюк, Елена, et Elena Rafalyuk. « International Integration : Methodological Problems of Research ». Journal of Russian Law 2, no 3 (26 février 2014) : 42–52. http://dx.doi.org/10.12737/2579.
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The author investigates certain methodological problems of studying international integration. Complication of social relations and appearance of new integrated legislation branches testify to the necessity of using an interdisciplinary approach in the legal science. Such approach suggests taking into account the knowledge of various sciences in order to get an idea of the object under study and can be applied for studying international integration as a general scientific category. But modern legal studies should be based on an intersectoral method as well. Due to the development and deepening of integration processes a need arises in new methodological methods which allow investigating sets of norms, that promote the integration process (integration law). While studying international integration it is necessary to take into account the increasing convergence of private and public law, which means that as such it is necessary to use both private-law and public-law methodology.
12
Курдюков, Геннадий, Gennadiy Kurdyukov, Мария Кешнер et Mariya Keshner. « Correlation of Responsibility and Sanctions in International Law : Doctrinal Approaches ». Journal of Russian Law 2, no 9 (23 septembre 2014) : 103–15. http://dx.doi.org/10.12737/5506.
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The doctrine of international law lacks a clear estimate on the ratio of the international legal sanctions and international legal responsibility. This moment has been reflected in the variety of theories and views in the domestic and foreign literature. Based on the analysis of the international legal doctrine in the development, three main trends interpretation of international legal sanctions in connection with the problem of international responsibility. It is noted that the ratio of treatment embodiments investigated these legal phenomena blur the boundaries between sanctions and responsibility, preventing improved understanding of the nature of these institutions and the proper understanding of the role of each of them in the system of international regulation. Determined by the provisions of that properly take into account the features of international law and based on the trends of contemporary practice of international relations. Substantiates the necessity making a distinction between the forms of liability and international legal sanctions due not only theoretical but also practical considerations important to ensure that the international legal order. In conclusion, it seems necessary to further progress in the work of the International Law Commission on the codification of international responsibility issues and use of coercive measures.
13
Daugirdas, Kristina. « International Organizations and the Creation of Customary International Law ». European Journal of International Law 31, no 1 (février 2020) : 201–33. http://dx.doi.org/10.1093/ejil/chaa012.
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Abstract This article argues that international organizations ‘as such’ can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations’ direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations’ role in creating customary international law may make international organizations more willing to comply with those rules.
14
LUBAN, DAVID. « Military Necessity and the Cultures of Military Law ». Leiden Journal of International Law 26, no 2 (3 mai 2013) : 315–49. http://dx.doi.org/10.1017/s092215651300006x.
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AbstractMilitary and humanitarian lawyers approach the laws of war in different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. The result is two interpretive communities that systematically disagree not only over the meaning of particular law-of-war norms, but also over the sources and methods of law that could be used to resolve the disagreements. That raises the question whether military lawyers’ advice should acknowledge any validity to the contrary views of the ‘humanitarian’ community. The article offers a systematic analysis of the concept of military necessity, showing that civilian interests must figure in assessing military necessity itself. Even on its own terms, the military version of the law of war should seek to accommodate the civilian perspectives featured in the humanitarian version.
15
Prislan, Vid. « JUDICIAL EXPROPRIATION IN INTERNATIONAL INVESTMENT LAW ». International and Comparative Law Quarterly 70, no 1 (janvier 2021) : 165–95. http://dx.doi.org/10.1017/s0020589320000445.
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AbstractThis article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.
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Prislan, Vid. « JUDICIAL EXPROPRIATION IN INTERNATIONAL INVESTMENT LAW ». International and Comparative Law Quarterly 70, no 1 (janvier 2021) : 165–95. http://dx.doi.org/10.1017/s0020589320000445.
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AbstractThis article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.
17
Sloane, Robert D. « On the Use and Abuse of Necessity in the Law of State Responsibility ». American Journal of International Law 106, no 3 (juillet 2012) : 447–508. http://dx.doi.org/10.5305/amerjintelaw.106.3.0447.
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Necessity, necessità, is Machiavelli’s guiding principle . . . that infringing the moral law is justified when it is necessary.Thus is inaugurated the dualism of modern political culture, which simultaneously upholds absolute and relative standards of value. The modern state appeals to morality, to religion, and to natural law as the ideological foundation for its existence. At the same time it is prepared to infringe any or all of these in the interest of self-preservation.—J. M. CoetzeeRecent jurisprudence in investment arbitration, almost all of which originated in disputes arising out of Argentina’s turn-of-the-century fiscal crisis, has raised difficult questions about the existence, nature, and advisability of necessity as a defense to state responsibility. The jurisprudence has contributed to a sophisticated literature focusing on necessity’s role in the special context of investment arbitration. But the growing prominence of necessity pleas in international law has not been so limited. Nor will its effects be. In the first place, investor-state arbitral jurisprudence contributes to the evolution of general international law. Investment tribunals invoke the latter, for example, to inform their interpretation of bilateral investment treaties (BITs) or to cure lacunae in the law. More significantly, beyond the realm of investment arbitration, the past few decades have seen a striking growth in necessity pleas in fields ranging widely across the landscape of international law.
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Mousa Al-Janabi, Hazim Hamad. « The Philosophy of Tripartite International Strategy (Law-Force-Security) ». Tikrit Journal For Political Science, no 18 (26 mars 2020) : 97. http://dx.doi.org/10.25130/poltic.v0i18.206.
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The research focuses on the importance of the concepts of law, power and security in the international strategy, and the definition of the role and the role of the balance of international relations or not, and show the ability to paint the strategy of the dye, and the research highlights the problem of "How far can be a relationship between law and power and security, In the ladder of international strategy? We try to answer the following main question: Which is the most used law, force or security in the international strategy?
A solution to the problem and answer to the question was based on the following hypothesis: the more the international strategy is based on force;” the more violations of international legal norms and norms; the greater the international security, the greater the threat to international security threat”.
The objective of the researcher is to define the strategic position occupied by the tripartite (Law - Power - Security) in the global strategic perception, which made bridges for it, is a theoretical choice and a necessity, and to use the analytical approach, which focuses on analysis of international politics, and to address the Most important three – International and how to interpret the movement of the international system
19
McEvoy, John P. « Forum of necessity in Quebec Private International Law : C.c.Q. art. 3136 ». Revue générale de droit 35, no 1 (17 novembre 2014) : 61–124. http://dx.doi.org/10.7202/1027329ar.
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Article 3136 C.c.Q. is a departure from the general rules of jurisdiction applicable to a Quebec authority. Based on the principle of necessity and in the absence of an appropriate forum, it authorizes an authority to exercise jurisdiction in relation to a matter not subject to its direct jurisdiction when it is impossible or unreasonable for the parties to access a foreign authority and when the litigation has a sufficient connection with Quebec. Article 3136 thus confers a discretionary jurisdiction on a Quebec authority. This discretion is limited by the definitional elements expressed in article 3136 and has been further narrowed by an inappropriate interpretation by the Court of Appeal in Lamborghini. The critical factor is that necessity jurisdiction implies that the litigation is subject to an effective remedy in the Quebec forum. Availability of an effective remedy renders reasonable the exercise of necessity jurisdiction and the requirement that foreign litigation be instituted, unreasonable. However, the factor of remedy is ignored, or without expression, in both doctrine and jurisprudence. Supported by a comparative approach between the civil law and the common law, the first part presents a general analysis of this exceptional rule with particular attention to the Swiss law which inspired the drafters of article 3136. In the second part, article 3136 is considered in context with the general provisions of the Code and the legislative history of the provision is clarified. The third part analyzes the definitional elements of the article and the last part examines its application as reflected in the relevant jurisprudence.
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CHAN, PHIL C. W. « A Keen Observer of the International Rule of Law ? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council ». Leiden Journal of International Law 26, no 4 (8 novembre 2013) : 875–907. http://dx.doi.org/10.1017/s0922156513000459.
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AbstractGiven the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.
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Okladnaya, Marina, et Anastasia Pererodova. « Stages of the formation of treaty law in the history of international law ». Law and innovations, no 2 (34) (18 juin 2021) : 90–95. http://dx.doi.org/10.37772/2518-1718-2021-2(34)-11.
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Problem setting. An international treaty is an agreement between two or more subjects of international relations concerning the establishment, modification or termination of mutual rights and obligations. In modern time an international treaty is the universal and primary source of international law and, at the same time, the law of treaties as a branch of international law occupies a central place in this system. The role of the treaty is constantly increasing, so it is important to study how treaty law was formed in order to understand how it has changed over history, and what factors have influenced the formation of the main branch of international law. Analysis of recent researches and publications. The law of international treaties causes increased attention of lawyers to the study, research and analysis of its main aspects. Among the domestic and foreign scholars who have made a significant contribution to the study of the law of treaties can be distinguished such as V. Butkevich, Y. Brownlie, A. Talalaev, O. Merezhko, O. Nazarenko, F. Martens, V. Shurshalov, I. Lukashuk, O. Zadorozhniy and others. Target of research. Study of international treaty at different stages of formation of international law, analysis and comparison of forms, content, functions and significance of the treaty in different historical periods. Article’s main body. The article is devoted to the development and formation of the basic branch of international law – treaty law. It studies the stages of formation of the institute of treaty law during different periods of history, identifies the features of the treaty at each stage of formation. Conclusions and prospects for the development. The agreement is an important and necessary instrument of interaction and communication between people, it establishes ties between peoples and states, helps to resolve conflicts, that is why the signing of treaties is a significant mechanism for the regulation of human relations since ancient times. In this article we have traced how different historical periods influenced the formation of international treaty law, which events were of key importance for the development of international law in general. Throughout the history of international law, the treaty has undergone a number of transformations of its forms, types and procedures of conclusion. The treaty form of consolidation of international relations is the basis of stability and efficiency of the legal order in international law. At the present time, the law of international treaties is a self-sufficient, developed branch and system of international law. It is the key branch of international law with its institutions, low basic principles, and continues to develop rapidly and irreversibly.
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Bekker, Peter H. F. « The Work of The International Law Commission on “Relations between States and International Organizations” Discontinued : an Assessment ». Leiden Journal of International Law 6, no 1 (avril 1993) : 3–16. http://dx.doi.org/10.1017/s0922156500001618.
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The UN General Assembly has recently decided to delete from the agenda of the International Law Commission the topic ‘Relations between States and International Organizations’.Over a period of 31 years, fourteen Reports by two successive Special Rapporteurs studied the topic in two parts. The First part of the topic (1963–1975) dealt with the privileges and immunities of representatives of states to international organizations, and resulted in a Convention, that has, however, not yet entered into force; the Second part of the topic (1976–1992) concentrated on the legal status and immunities of organizations themselves.The author analyzes the Draft Articles that have been submitted in the course of the ILC's study of the Second part. This is done by way of a three-step application of the functional necessity concept of organizational immunities:(1) Status, dealing with an organization's functions, legal personality and capacity-(2) Selection, defining a scale of organizational immunities for which an organization may be eligible - and (3) Scope, determining the extent of selected immunities. Finally, the author employs the two statutory functions of the ILC -the codification of international law and the progressive development of international law- to assess the contribution by the ILC to this field of international institutional law.
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Perry, Glenn E. « The Islamic Theory of International Relations ». American Journal of Islam and Society 9, no 1 (1 avril 1992) : 123–25. http://dx.doi.org/10.35632/ajis.v9i1.2597.
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This book provides a remarkable reformist approach to Islam in generaland to the Islamic theory of international relations in particular. The authorbegins by attributing the tragic condition of the modem Islamic world to itsstagnation, brought about by the predominance of taqlid. Only with a resolutionof the ”time-place issue” p. 4), a phrase that recurs throughout the book in relationto the necessity of distinguishing between what is permanent and what isa mere dated application in another time and place, does AbQSulaymzin believethat “the badly needed original dynamic and realistic policies” (p. 4) can befound.The author distinguishes between the Shari’ah and fiqh (writings of Islamicjurists), which he maintains has been inaccumtely considered to be “law in itselfand not a secondary source of Islamic law” p. 4). The siyar (i.e., juristic writingsrelated to international relations), AbuSulayman argues, is not “an Islamic lawamong nations’’ that constitutes “a sort of unified classical legal code” (p. 7).He also criticizes some writers for overlooking the diversity of classical opinion,saying that Majid Khadduri in particular presented only the “strict position”of al Shifi‘i while ignoring “the equally authoritative opinion of Abu Hanifah”AbuSulayman insists that it is necessary to understand the Qur’an and theSunnah “in the context of conditions at a time when the early Muslims wereconfronted by unceasing aggression and persecution” (p. 35) and criticizes theuse of abrogation (naskh) to exclude a more tolerant outlook. It is necessaryfor today‘s Muslims, the author says, ”to go back to the origins of Muslim thought. . . . and reexamine and reform their methods and approaches” (p. 49). Thetask of developing the required new methodology, he argues, must not be leftto the ulama alone, because they “no longer represent the mainstream of Muslimintellectual and public involvement” and are not educated in “the changes. . . inthe world today” (p. 76).Characterizing “modern Muslim thought in the field of external affairs”- particularly an “aggressive attitude involved in the classically militant approachto jihad” in the case of “a people who are [now] weak and backward ...
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BACHOFEN, BLAISE. « The Paradox of “Just War” in Rousseau's Theory of Interstate Relations ». American Political Science Review 109, no 2 (23 avril 2015) : 314–25. http://dx.doi.org/10.1017/s0003055415000052.
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In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.
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Yoo, John. « International Law and the War in Iraq ». American Journal of International Law 97, no 3 (juillet 2003) : 563–76. http://dx.doi.org/10.2307/3109841.
Texte intégralRésumé :
In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.
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Paddeu, Federica I. « Humanitarian Intervention and the Law of State Responsibility ». European Journal of International Law 32, no 2 (1 mai 2021) : 649–78. http://dx.doi.org/10.1093/ejil/chab041.
Texte intégralRésumé :
Abstract The primary rules of international law do not permit states to resort to force for humanitarian purposes. Some scholars have thus attempted to rely on the secondary rules of state responsibility to find a legal basis for forcible humanitarian intervention. In particular, three claims can be identified: that humanitarian intervention is justified; that the state intervening for humanitarian purposes is excused; and that the consequences arising from the intervention for the state acting for humanitarian purposes ought to be mitigated. All three arguments rely either on the defence of necessity, cast as a justification or as an excuse, or on necessity-like reasoning, as the basis for mitigation. This article takes these three claims and draws out the implications of each both within and beyond the law of responsibility. In so doing, this article shows how each of the three arguments is more problematic and less straightforward than it appears at first and that, ultimately, none can provide an adequate legal basis for humanitarian intervention. The legality of humanitarian intervention must be found in the primary rules regulating the use of force in international relations and not in the secondary rules of state responsibility.
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Akande, Dapo, et Thomas Liefländer. « Clarifying Necessity, Imminence, and Proportionality in the Law of Self-Defense ». American Journal of International Law 107, no 3 (juillet 2013) : 563–70. http://dx.doi.org/10.5305/amerjintelaw.107.3.0563.
Texte intégralRésumé :
The concepts of necessity, imminence, and proportionality play a central part in Daniel Bethlehem’s sixteen proposed principles regulating a state’s use of force against an imminent or actual attack by nonstate actors. While all three are requirements that must be considered in the law of self-defense, their exact content remains somewhat unclear. In this comment, we examine how each one is conceived in Bethlehem’s principles and review the questions that remain unanswered.
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Trindade, Antônio Augusto Cançado. « Uprootedness and the protection of migrants in the International Law of Human Rights ». Revista Brasileira de Política Internacional 51, no 1 (2008) : 137–68. http://dx.doi.org/10.1590/s0034-73292008000100008.
Texte intégralRésumé :
The article attempt to demonstrate the evolution of international law in connected to the subject of the forced immigrants'. The author supported by several texts, cases and resolutions of the regional level, through interamerican court and European court, and the global level, through the international court. It's shown the evolution that occurred in international law in millennium turn over, which recognize the immigrants' rights. However, it's stressed the necessity of the development of those laws connected to the theme e the recognition, from the States; the importance of law's that effort to ensure the respect to human rights relative to the immigrants and their families.
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Smith, Tara. « Critical perspectives on environmental protection in non-international armed conflict : Developing the principles of distinction, proportionality and necessity ». Leiden Journal of International Law 32, no 4 (13 septembre 2019) : 759–79. http://dx.doi.org/10.1017/s0922156519000372.
Texte intégralRésumé :
AbstractThis article presents a timely and relevant critical examination of the customary international law principles of distinction and proportionality, and the doctrine of military necessity and the extent to which they can be better interpreted to protect the environment during the conduct of hostilities in non-international armed conflict. In so doing, this article contributes new perspectives to the ongoing debate on how environmental protection ought to be enhanced during non-international armed conflict. The article also suggests ways in which the International Law Commission (ILC) might approach the development of draft principles based on these customary principles as part of their current programme of work.
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Mazhorina, M. V. « Network paradigm of private international law : concept contouring ». Actual Problems of Russian Law, no 4 (30 mai 2019) : 140–59. http://dx.doi.org/10.17803/1994-1471.2019.101.4.140-159.
Texte intégralRésumé :
Modern society is characterized as a network, which makes it necessary to rethink its superstructure — law — in the logic of the network paradigm of scientific knowledge. At the interface of law and information technology, new legal and sub-legal phenomena arise that need to be conceptualized. International private law, being in the forefront of the changes that are taking place, possesses a special methodology that can adapt to the network society. The paper analyzes the individual signs of the formation of a new paradigm. One of the most revolutionary products of the Network are global technological or digital platforms, within which predominantly cross-border private law relationships are formed, mediated by transactions, collectively understood as e-commerce or m-commerce. The legal analysis suggests that americanization of «platform law» is observed. Of interest for the study of the network paradigm is the emerging practice of online arbitration in disputes involving consumers. A significant role in the regulation of modern cross-border relations is assigned to the norms of non-state regulation, traditionally conceptualized through the prism of lex mercatoria, which is now systematized in the logic of the legal system, highlighting the subsystems brought to life by globalization processes. The corresponding changes testify to the modification of the architecture of the regulation of cross-border relations.
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Kinsella, Helen M., et Giovanni Mantilla. « Contestation before Compliance : History, Politics, and Power in International Humanitarian Law ». International Studies Quarterly 64, no 3 (4 juin 2020) : 649–56. http://dx.doi.org/10.1093/isq/sqaa032.
Texte intégralRésumé :
Abstract Despite the common reference to international humanitarian law (IHL) in the discourse and practice of international politics, international relations (IR) scholarship has yet to consistently engage in an analysis of IHL that extends beyond the relatively narrow specifications of its regulative and strategic effects. In this theory note, we argue that this prevailing focus leaves the discipline with an impoverished understanding of IHL and its operation in international politics. We propose that the study of IHL should be expanded through a deeper engagement with the law's historical development, the politics informing its codification and interpretation, and its multiple potential effects beyond compliance. This accomplishes three things. First, it corrects for IR's predominantly ahistorical approach to evaluating both IHL and compliance, revealing the complicated, contested, and productive construction of some of IHL's core legal concepts and rules. Second, our approach illuminates how IR's privileging of civilian targeting requires analytical connection to other rules such as proportionality and military necessity, none of which can be individually assessed and each of which remain open to debate. Third, we provide new resources for analyzing and understanding IHL and its contribution to “world making and world ordering.”
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Barafi, Jamal, et Nael Georges. « The Legal Protection of Minorities from International Law and Arab Mashreq Perspectives ». International Journal on Minority and Group Rights 27, no 3 (3 août 2020) : 555–79. http://dx.doi.org/10.1163/15718115-02704001.
Texte intégralRésumé :
The international protection of human rights, including those of religious minorities, has mainly developed through instruments adopted under the framework of the United Nations. After clarifying the concept of minorities, this article focuses on the legal protection of minority rights, particularly of religious minorities, under international instruments. It sheds light on the participation of Arab Mashreq states in the preparation of these instruments, in terms of their position in the elaboration of the instruments, and their multiple reservations. It offers an objective analysis of the issue of religious minorities in the Arab Mashreq region, and the necessity to respect their rights fully in order to build democracy and states of citizenship.
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Brownlie, Ian, et C. J. Apperley. « Kosovo Crisis Inquiry : Memorandum On The International Law Aspects ». International and Comparative Law Quarterly 49, no 4 (octobre 2000) : 878–905. http://dx.doi.org/10.1017/s002058930006471x.
Texte intégralRésumé :
1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum “on the area of international law“.1 In the course of his career as a member of the English Bar, specialising in international disputes, the writer has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.
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Mullerson, R. A. « Sources of International Law : New Tendencies in Soviet Thinking ». American Journal of International Law 83, no 3 (juillet 1989) : 494–512. http://dx.doi.org/10.2307/2203308.
Texte intégralRésumé :
As this discourse is devoted to the sources of international law in Soviet doctrine and the diplomatic practice of the USSR, I think that it is necessary to begin by characterizing my understanding of the contemporary Soviet doctrine of international law.In Western countries, the Soviet doctrine of international law is often regarded as monolithic, without internal contradictions and discussions. It is not so, though I would agree that there are some grains of truth in those allegations. On certain questions we have had too much unanimity in our social sciences at large, and in the doctrine of international law in particular. One could feel this unanimity particularly in the domain of the most sensitive political and legal problems.
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POLYMENOPOULOU, ELENI. « Cultural Rights in the Case Law of the International Court of Justice ». Leiden Journal of International Law 27, no 2 (24 avril 2014) : 447–64. http://dx.doi.org/10.1017/s0922156514000107.
Texte intégralRésumé :
AbstractOne of the most remarkable developments of the new millennium has been the expansion of debates on culture at the highest levels of the international community's decision-making processes. This has, out of necessity, had an impact on the empowerment of cultural rights, enhancing their justiciability. Substantial progress has been made both at a regional and international level. Yet not all thresholds have been reached. The International Court of Justice (‘ICJ’) has never explicitly addressed cultural rights in its case law. Despite its multicultural composition, it is only with great difficulty that the Court examines questions related to culture. However, a thorough examination of the jurisprudence of the ICJ reveals that opportunities to take cultural rights seriously have arisen more than once. Recent judgments of the Court reveal the emergence of a certain trend calling for a culturally sensitive understanding of legal issues brought to the Hague. This article submits that this trend is beneficial not only for the protection of cultural rights, but also for the maintenance of human and cultural diversity, as well as for the survival and livelihood of indigenous peoples. In light of the urgent worldwide need for peace, addressing culture as a legal issue before the ICJ, in accordance with Articles 36 and 60 of its Statute, may be a fruitful pathway for the Court to follow in order to resolve international disputes.
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Popko, Vadym. « National legislation as a source of transnational criminal law ». Law Review of Kyiv University of Law, no 1 (15 avril 2020) : 381–86. http://dx.doi.org/10.36695/2219-5521.1.2020.75.
Texte intégralRésumé :
The article covers the topic of national legislation as a source (form) of transnational criminal law. International criminal law doctrine has examined different aspects of legal sources many times, but development and establishment of transnational criminal law creates a necessity of research with a view to substantiating the concept of transnational criminal law and researching the empiric basis: international legal act and legislatures of different states.
Author finds that the systems of legal sources are in a state of constant development and reassessment, which does not change the fact that domestic legislation always takes its place in such systems. The author analyzes the positions of domestic and foreign scientists on the recognition of national legislation as a source of international criminal law. The place of national legislation in the system of sources of transnational criminal law its ancillary character are determined.
The author substantiates the position of recognition of national legislation as a source of transnational criminal law in view of the important conceptual feature of this sub-branch of law, which is manifested in the interaction of transnational (international) and domestic (national) criminal law. Transnational criminal law as part of international criminal law is part of the system of international law, is based on its principles and closely linked to national criminal law.
The article notes that every national or international legal system contains a specific system of legal sources, determined within its demands which allows to distinguish the peculiarities of each separate system. National legislation holds a special place in any of such system of sources of international criminal law and belongs to the group of auxiliary sources. It is emphasized that national legislation does not directly regulate international relations, but does affect transnational criminal law in various ways, in particular by criminalizing transnational crimes and penalizing them; according to the rules of national law, criminal prosecution of criminals and implementation of norms in accordance with the jurisdiction defined in the national legislation, etc., takes place.
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Lynch, Cecelia. « Kant, the Republican Peace, and Moral Guidance in International Law ». Ethics & ; International Affairs 8 (mars 1994) : 39–58. http://dx.doi.org/10.1111/j.1747-7093.1994.tb00157.x.
Texte intégralRésumé :
Just as Niccolò Machiavelli and Thomas Hobbes became etched into the minds of international relations scholars as the oracles of realpolitik during the Cold War, Immanuel Kant appears to be well on his way to becoming the prophet of “progressive international reform” in the post—Cold War era. Not only has Kant's thought provided the underpinnings of one of the major traditions of international law, but there is a groundswell of interest among international relations scholars today in the question of whether contemporary events, particularly the proliferation of republican states and attempts to create them, signal the march forward to the Kantian ideal of republican peace. Yet, prior to asking what contemporary events signify for the attainment of the Kantian ideal, we should analyze the conflicting interpretions fo Kantian political thought so as to understand the meaning and implications of the ideal itself. Such a task is not merely pedantie—it is necessary to determine the utility of political philosophy for providing understanding and guidance in the real world.
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Сазонова, Кира, et Kira Sazonova. « AMERICAN INTERNATIONAL LAW DOCTRINE : REVIVAL OF “JUST WAR” CONCEPT ». Journal of Foreign Legislation and Comparative Law 2, no 1 (16 mars 2016) : 0. http://dx.doi.org/10.12737/18192.
Texte intégralRésumé :
This article discusses the views and opinions of American experts in the field of international law and international relations, devoted to a very ambiguous concept of “just war”. However, this concept raises many questions about its compliance with the contemporary international law, particularly in the context of the principle of non-use of force or a threat of force, which is fixed in the UN Charter. The subject of research is a range of works of American international lawyers on the substantive content and the legal aspects of “just war” concept. As research methods were used common scientific methods, such as induction, generalization, deduction, as well as comparative legal, historical, structural-functional methods. Reference to the concept of “just war” is often use in the speeches of American politicians, so it has a significant impact on the U.S. foreign strategy. Thus, the legal assessment of the “just war” concept is necessary in the context of the current international legal framework. In the Russian doctrine of international law the concept has practically no coverage, so the article is intended to fill this gap.
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Imseis, Ardi. « Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion ». American Journal of International Law 99, no 1 (janvier 2005) : 102–18. http://dx.doi.org/10.2307/3246093.
Texte intégralRésumé :
I shall confine my brief thoughts on the recent advisory opinion of the International Court of Justice (ICJ) on the legal consequences of the construction of a wall in the occupied Palestinian territory (OPT) to the Court’s treatment of international humanitarian law (IHL) in general, and to the law of belligerent occupation in particular. To that end, I will focus on the following four areas: the Court’s consideration of the applicable law as regards IHL; the Court’s interpretation of Article 6 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War; the Court’s consideration of the concept of military necessity in the context of foreign military occupation; and the Court’s consideration of the responsibility of third states, particularly the high contracting parties to the Fourth Geneva Convention, for violations of relevant principles of IHL by an occupying power.
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Vylegzhanin, A. N., B. I. Nefedov, E. R. Voronin, O. S. Magomedova et P. K. Zotova. « The Term “Rules-based International Order” in International Legal Discourses ». Moscow Journal of International Law, no 2 (9 juillet 2021) : 35–60. http://dx.doi.org/10.24833/0869-0049-2021-2-35-60.
Texte intégralRésumé :
INTRODUCTION. The term “rules-based order” is increasingly referred to in speeches within many international forums as well as declared from national political tribunes. The initial question is whether this notion is of purely political nature (since it is not used in the UN Charter or in other universal international conventions and this term is not relied upon by the International Court of Justice or by the UN International Law Commission). On the other hand, with the popularization of such a political discourse, the frequent usage of this term by representatives of some states (not only of Western States, but also of China, for example) can affect international law. The very application of this term definitely provokes a splash of other questions. How does the term “rules-based order” correlate with the universally recognized term “international legal order”? Does the idea to use the term “rules-based order” have substantive legal grounds? Which rules in concreto1 are meant by the term? Who and how creates these rules? What is the nature of these rules – are they rules of national law and if so – national rules of what State? If these are rules of international law – why is it not reflected in the term? Due to the attractive wording the concept gets widespread, but lacking a common understanding of its content, everyone might put a different meaning into the concept. Does it result in the fact that some officials, representing states, become politically entitled with the right to abuse the international legal order as it is established by modern international law? This research examines these theoretic aspects of the concept “rules-based order”, taking into account that in the context of international relations it may be referred to also as “rules-based international order”. An additional question to answer is whether the concept might be regarded as one of the numerous attempts to adapt the current international law to new challenges.MATERIALS AND METHODS. The research paper is based on the analysis of numerous statements of representatives of states, in which their attitude to the “rules-based order” concept is manifested, positive and critical remarks relating to the concept made by international lawyers, as well as other research papers of Russian and foreign international scholars. The methodological instruments include general scientific and special methods, among them the historical method, methods of formal logic, analysis, synthesis, as well as systemic, comparative legal methods.RESEARCH RESULTS. Although the above-noted questions about the legal meaning of the term “rulesbased order” have arisen only in recent years mainly in the context of the anti-Russian rhetoric of Western politicians, the term has been used much earlier at different levels in a wide variety of topics. The question of inconsistent perceptions of this term is another reflection of a more general problem of weakening or strengthening the universal legally binding international order. One of the appropriate interpretive versions of this concept might be that “rules-based order” means first and foremost the world order which is based on norms of international law (which are mandatory as well known), and on applicable non-binding international rules containing a normative element, such as international rules provided in the documents of intergovernmental organizations and conferences, interstate political arrangements, and other mutually accepted rules, formed in the contemporary practice of international relations. This interpretation allows to bring the concept in line with modern international law. Nevertheless, even within such interpretation, it is necessary to respect the distinction between the norms of international law, which are binding, and other rules, which do not create State’s obligations under international law. Thus, unilateral or “blocking” imposition of values of one State on other States under the guise of rules on which, according to the first State, the world order is based, will not be allowed.DISCUSSION AND CONCLUSIONS. If another interpretation prevails, the “rules-based order” concept may have a negative impact on the existing international legal order insofar as it “washes out” the established legitimate procedures of international law-making, thus rejecting traditional international values of legal stability and diminishing the role of international law in international relations. Such scenario would not only multiply legal uncertainly and even unreasonable expectations among the participants of the international processes, but also might lead to undermining the very fundamentals of modern international law based on the UN Charter. The latter in its turn will inevitably lead to the global legal instability and will dramatically increase the risks of World War III. At the moment, the frequent abuse of the term “rules-based order” by the representatives of the NATO countries in support of their politically motivated statements, agreed upon only among them, impedes achievement of accepted understanding of the concept at the universal level, that might be consistent with international law.
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Lapshin, Valery, et Nadezhda Kuznetsova. « Implementation of the law of the Eurasian Economic Union in national criminal law ». E3S Web of Conferences 135 (2019) : 04065. http://dx.doi.org/10.1051/e3sconf/201913504065.
Texte intégralRésumé :
Currently, one can observe the process of active economic integration and cooperation, in the post-Soviet space. This is possible due to mutual economic and political interests, ensuring the protection of the interests of national producers, and obtaining competitive advantages of domestic goods in comparison with similar products of Western European and Asian manufacturers. The solution to all these problems is facilitated by the creation of a single international organization of the post-Soviet space the Eurasian Economic Union (EAEU), the territory of its member states already constitutes a single customs space. Activities of the EAEU are associated with the adoption of a significant number of regulatory international legal acts. Implementation of these acts will be satisfactory only if the EAEU member states properly implement it in the national legislation. At present, several types of implementation of international law provisions in the national legislation of a particular country are distinguished in legislative activity: reception, transformation, referral, incorporation, ratification. Law enforcement practice also deserves special attention, including decisions of international courts binding in a single state. As a result of the study, the most preferred forms of implementation of the EAEU regulatory acts into the national law systems of its participants: Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia, were established. In addition, it was concluded that it is necessary to unify provisions of the criminal law of the listed states in terms of establishing liability for customs offenses. This decision will positively affect protection of both the interests of individual participants in economic relations and the economic security of each union state.
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Ebenroth, Carsten Thomas. « Shareholders' Liability in International Organizations-The Settlement of the International Tin Council Case ». Leiden Journal of International Law 4, no 2 (septembre 1991) : 171–83. http://dx.doi.org/10.1017/s0922156500002284.
Texte intégralRésumé :
The financial collapse of the International Tin Council (ITC) in 1985 raised three fundamental legal questions. Firstly, whether the granting of legal personality to an organization under international law by means of an international agreement always carries with it the limited liability of the organization. Secondly, it must be asked whether agreements to establish an international entity based on the statutes of international law are never subject to national jurisdiction. And thirdly, consideration is needed of the precautions to be taken in the future in order to avoid this kind of financial collapse. The answers to these questions have to consider that the international organizations have changed the emphasis of their activities from the perception of sovereign duties over the economic field where they rely on trust and cooperation with private enterprises. Due to this situation a distinction must be made between acts of state and activities under civil law. There is no principle at all in international or private law according to which the granting of international personality or legal capacity involves sole liability. Also the Act of State doctrine is not suited to protect the FTC or its member states from recourse to the court by private creditors in the case of civil acts. To realise the aim of creating a new and more equitable economic order and to improve the necessary credit standing, the statutes of the internationalorganizations must also contain improved control mechanisms.
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Brown, Chris. « John Rawls, “The Law of Peoples,” and International Political Theory ». Ethics & ; International Affairs 14 (mars 2000) : 125–32. http://dx.doi.org/10.1111/j.1747-7093.2000.tb00058.x.
Texte intégralRésumé :
John Rawls is the most influential English-language political philosopher of the second half of the twentieth century – indeed, perhaps since John Stuart Mill. His influence rests partly on the very format of his masterwork, A Theory of Justice. But Theory is a flawed and incomplete masterpiece, and the “Rawls industry” that has developed around his work has been stimulated by these imperfections. Indeed, Rawls himself has corrected and elaborated upon his original formulations in a series of essays compiled in Political Liberalism and his recent Collected Papers. One of the most controversial features of Theory concerns its handling of international issues; Rawls turned to this question explicitly in an Amnesty International Lecture of 1993, “The Law of Peoples” (published in his Collected Papers), which he has now extended into a monograph with the same title. The latter is the main focus of this essay, which also includes a sketch of Rawls's project as a whole as a necessary preliminary.
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DEEN-RACSMÁNY, ZSUZSANNA. « Diplomatic Protection and International Criminal Law : Can the Gap Be Bridged ? » Leiden Journal of International Law 20, no 4 (décembre 2007) : 909–20. http://dx.doi.org/10.1017/s0922156507004529.
Texte intégralRésumé :
The concepts of nationality and allegiance are central to the doctrine of diplomatic protection as well as to certain institutions of (horizontal) international criminal law such as jurisdiction over treason, passive and active personality jurisdiction, and the non-extradition of nationals. In this sense, there appears to be a clear parallel between these two fields of international law. Yet most scholars – including John Dugard – tend to place and keep diplomatic protection and international criminal law in distinct conceptual compartments, never addressing them in relation to each other. This study considers whether this prevailing strict doctrinal separation is necessary and justified – in other words, whether diplomatic protection and international criminal law are, or can, or should be bridged.
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Hryschenko, O. P., et O. P. Yefremova. « SOURCES OF LEGAL REGULATION OF FAMILY RELATIONS IN UKRAINE ». Actual problems of native jurisprudence 1, no 1 (3 mars 2021) : 38–41. http://dx.doi.org/10.15421/392108.
Texte intégralRésumé :
With the adoption of the Civil Code of Ukraine (2003) and the Family Code of Ukraine (2002), the process of reforming the family legislation of Ukraine began. The study of sources of family law is relevant and has important theoretical and practical significance. The purpose of the article is to analyze the problems in the sources of legal regulation of family relations in Ukraine. Sources of family law – a set of state and legal, social and legal requirements and legal positions, which regulate family relations and are reflected in such forms as regulations, general principles of family relations, principles of family law, generally accepted principles and norms of international law, international treaties normative legal agreements, legal acts of the European Union, family agreements, legal doctrine, judicial and administrative precedent, case law of the Constitutional Court of Ukraine, the Supreme Court determine the types of sources of family law according to the legal tradition of origin and existence of legal sources in the family legislation of Ukraine, according to the subject of legal regulation, depending on the subject of perception, depending on the action in space, depending on the legal force and the place of the system of sources of law, depending on the primary origin and primary derivative in content. Conclusions. 1. The concept of sources of family law as a special legal category, which denotes a set of state and legal, social and legal regulations and crisis legal positions in the field of family and marriage, regulating a special area of public relations using a special method of legal regulation, as a set state-legal, social-legal prescriptions and legal positions that contain norms of family law and regulate family relations. 2. The system of sources of family law is characterized as a single dynamic legal system taking into account the international and European experience of regulating family relations. 3. The normative-legal agreement is a source of family law and a social regulator of family relations, which carries out individual legal regulation of family relations. It is proved that the normative-legal contract is an exclusive source of family law, which is applied in cases of necessity of settlement of opinion of several public-legal subjects.
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Anisimov, V. F., et Yu V. Truntsevskiy. « Intrusion of international law into the national legal system ». Law Enforcement Review 5, no 1 (17 avril 2021) : 40–57. http://dx.doi.org/10.52468/2542-1514.2021.5(1).40-57.
Texte intégralRésumé :
The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.
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Vadi, Valentina. « Crisis, Continuity, and Change in International Investment Law and Arbitration ». Michigan Journal of International Law, no 42.2 (2021) : 321. http://dx.doi.org/10.36642/mjil.42.2.crisis.
Texte intégralRésumé :
The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between crisis, continuity, and change in international investment law and arbitration. It seeks to answer the following question: can international investment law successfully address the challenges posed by the coronavirus crisis? Or will the pandemic change the field of international investment law as we know it? After briefly discussing a range of procedural matters, the article focuses on substantive aspects, namely, the kinds of claims that can be filed, the kind of defences that can be raised, and how arbitral tribunals can adjudicate such matters. In this way, the article ultimately concludes that both continuity and change are necessary for ensuring the health and wealth of nations and justice among them.
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Menshawy, Ibrahim Sief Abdel Hameed. « Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work ». Review of Economics and Political Science 4, no 3 (12 juillet 2019) : 182–96. http://dx.doi.org/10.1108/reps-11-2018-0030.
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Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.
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Zubchenko, Serhii. « “Red Lines” of Modern Geopolitical Confrontations : Role of Political and Legal Values in Hybrid Warfare Era ». Diplomatic Ukraine, no XIX (2018) : 656–65. http://dx.doi.org/10.37837/2707-7683-2018-39.
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The article analyses the place of political and legal values (in particular, the principles of international law) in the modern system of international relations. It is stated that Russia artificially creates hotbeds of instability and terrorism around the world to put pressure on certain states. Russia’s unlawful actions have also created a notable international precedent which goes beyond regional or continental security concerns. The author defines three main points: which state became the victim of aggression, who was the aggressor and how other states acted. Some current topical problems on the global diplomatic agenda, notably, concerning the international legal response to the Russian military aggression against Ukraine and acts of state terror-ism all around the world, carried out by Russia within the framework of the hybrid war, are highlighted. Considerations regarding the importance of trust as a vital element of interstate relations, the lack of which provokes conflicts, leads to the encapsulation of states, making it impossible for them to achieve sustainable and progressive development and to solve urgent common issues, are studied. It is noted that by the fourth year of the Russian-Ukrainian War some Western diplomatic circles have started to gradually analyze the Russian question, in particular, regarding the revision of the methodology for responding to Russian actions. The author stresses out that the issue of annexation of Crimea and Russia’s armed aggression against Ukraine cannot be removed from the international agenda until the territorial integrity of Ukraine and the just punishment of the aggressor are restored. To prevent the escalation of current negative geopolitical tendencies to the level of uncontrolled, it is necessary to follow a number of fundamental points, in particular the inviolability of the principles of international law, prompt response to obvious violations of this law, the inevitability of legal liability of violators of international law. In this context, the author asserts the necessity to ensure absolute adherence to the principles of international law as “rules of the game” of the geopolitical club and “red lines”, going beyond which generates uncontrolled processes of global scale, as well as the need to maintain international sanctions against the aggressor country – the Russian Federation – and entities, individuals and groups, affiliated with the Putin regime. Keywords: Russian military aggression against Ukraine, international law, political and legal values, principles of international law, diplomacy, foreign policy, national security, geopolitics, hybrid war.
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Akami, Tomoko. « Divide and Then Preside : the Dilemma of the First Asian President of the Permanent Court of International Justice in the Age of Empires : a Review Essay on Yanagihara Masaharu and Shinohara Hatsue Eds, Adachi Mineichirō (2017) ». Journal of the History of International Law / Revue d’histoire du droit international 21, no 3 (28 octobre 2019) : 421–42. http://dx.doi.org/10.1163/15718050-12340121.
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Abstract Adachi Mineichirō was the first non-European and the first Asian President of the Permanent Court of International Justice (1931–1934). This review article introduces the first substantial study of Adachi, focusing on his path of ‘becoming’ one of a few leading international jurists with non-Euro-American backgrounds in his period. This review essay demonstrates that by examining this Japanese diplomat and jurist, the book, written in Japanese, contributes to the debates on the history of international law in two significant ways. First, it reveals the fundamental issues in the development of the international judicial system, namely the nature of international jurists, empires and the principle of the equality of national sovereignty, and the significance of the roles of non-Euro-American actors in shaping the system. Secondly, it demonstrates the necessity of the inter-disciplinary collaboration between international law, international history and specific regional and national history, as well as methodological challenges in evaluating the historical development of the system.