A Fresh Look at the Meaning of the Doctrine of Denial of Justice under International Law

1977 ◽  
Vol 14 ◽  
pp. 73-95 ◽  
Author(s):  
A. O. Adede
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
The Subject ◽  
Droit International

About four decades ago, an eminent jurist described the doctrine of denial of justice as “l'une des plus anciennes et “l'une des plus mal elucidees du droit international.” Another writer, also noting the persistent confusion over the meaning of the doctrine, suggested that the term denial of justice could as well be removed from the language of international law. Despite such suggestions, the doctrine of denial of justice, whose origin has been traced back to antiquity, has been retained, and international lawyers have constantly attempted to elucidate its meaning. In doing so, however, international lawyers, such as Alwyn Freeman in his classic book on the subject, have, for reasons explained elsewhere, eschewed the attempt to define the term justice as such. They have concentrated mainly upon the conduct that has most frequently been regarded as constituting a denial of justice. Thus, from its origin and development, the term denial of justice may be said to have been used in the following three senses:In its broadest sense, this term [denial of justice] seems to embrace the whole field of State responsibility, and has been applied to all types of wrongful conduct on the part of the State towards aliens. In its narrowest sense, this term has been limited to refusal of a State to grant an alien access to its courts or a failure of a court to pronounce a judgment. In an intermediate sense, the expression “denial of justice” is employed in connection with the improper administration of civil and criminal justice as regards an alien, including denial of access to courts, inadequate procedures, and unjust decisions.

scholarly journals Scope of State Responsibility Against Terrorism in International Law Perspective; Indonesian Cases

2015 ◽  
Vol 3 (1) ◽  
Author(s):  
Dian Purwaningrum Soemitro ◽  
Indra Wahyu Pratama
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
International Law ◽  
The State ◽  
Responsibility To Protect ◽  
State Responsibility ◽  
Criminal Offence ◽  
Foreign Nationals ◽  
Global Terrorism ◽  
International Conventions

Abstract: Scope of State Responsibility Against Terrorism in International Law Perspective; Indonesian Cases. The emergence of global terrorism cases within more than a decade, marked by the tragedy of 9/11, making the issue of it being a big problem. The State as one of the subjects of International Law, into the spotlight. One of the problems that developed was the extent of the responsibility of the State towards acts of terrorism that occurred in the region of his sovereignty, which caused casualties both its own citizens or foreign nationals. In the case of terrorism that happened in Indonesia, the State's responsibility to the International Conventions implementation are very insufficient and the efforts from the country by creating a system of criminal justice to the criminal offence of terrorism has not been a maximum. There should be an obligation of the internationally imposed on it. The problem is if the terrorism was occurred will be submitted to the International Law are likely to be open to foreigners intervention. This is of course contrary to the principles of International Law. However, in the development of International Law as it has evolved in the Principle of the Responsibility to Protect and that should be accepted by any countries in order to attract the embodiment of the country against the security and Human Rights Abstrak: Lingkup Pertanggungjawaban Negara Terhadap Terorisme dalam Perspektif Hukum Internasional pada Kasus Indonesia. Munculnya kasus terorisme global dalam satu dekade, ditandai dengan tragedi 9/11 yang menjadi masalah besar. Salah satu masalah yang berkembang adalah sejauh mana tanggung jawab negara terhadap aksi terorisme yang terjadi di wilayah kedaulatannya, yang menyebabkan timbulnya korban, baik warga negaranya sendiri atau warga negara asing. Dalam kasus terorisme yang terjadi di Indonesia, pertanggungjawaban negara terlihat dalam pelaksanaan Konvensi Internasional dan upaya menciptakan sistem peradilan pidana bagi pelaku tindak pidana terorisme. Jika permasalahan terorisme diserahkan kepada Hukum Internasional, maka cenderung akan membuka intervensi asing. Hal ini tentu saja bertentangan dengan prinsip-prinsip Hukum Internasional. Namun, dalam perkembangan Hukum Internasional telah berevolusi dalam Prinsip Tanggung Jawab untuk melindungi, selain adanya keharusan setiap negara untuk menjaga keamanan dan Hak Asasi Manusia  DOI: 10.15408/jch.v2i1.1841

Part IV Access to Protection and International Responsibility-Sharing, Ch.29 Smuggling of Migrants and Refugees

2021 ◽  
Author(s):  
Schloenhardt Andreas
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
United Nations ◽  
International Law ◽  
Asylum Seekers ◽  
Refugee Law ◽  
The Subject ◽  
International Responsibility ◽  
The United Nations ◽  
International Refugee Law

This chapter focuses on the smuggling of migrants in the context of refugee movements, and examines the scope and application of international law pertaining to these phenomena. The principal binding global instrument on this topic is the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air which, on the surface, coexists alongside international refugee law in situations where smuggled migrants are seeking asylum. Although the Smuggling of Migrants Protocol expressly recognizes the protection afforded to refugees under international law, its interpretation, operation, and implementation often run into conflict with the Refugee Convention. All too frequently, measures to prevent and combat the smuggling of migrants focus exclusively on law enforcement, criminal justice, and restrictive border measures without recognizing the rights of refugees, asylum seekers, and smuggled migrants, which are the subject of this chapter.

5 Rules of Attribution

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
United Nations ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
Final Version ◽  
Legal Principles ◽  
Form Part ◽  
Energy Charter Treaty ◽  
International Law Commission ◽  
Law Commission

This chapter focuses on the rules of attribution. The State is not responsible for all acts and omissions of its nationals, but only for those which can be attributed to the State. It is thus necessary to establish this link between the State and the person, or persons, committing an unlawful act or omission. The legal principles used to establish this link are usually referred to as rules of attribution. The rules of attribution form part of the law of state responsibility, which, to a large part, is reflected in the work of the International Law Commission (ILC) of the United Nations. At its fifty-third session in 2001, the ILC adopted its final version of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The ILC Articles are intended to cover all aspects of state responsibility under international law. The rules of attribution are laid down in Chapter II of the ILC Articles. From an Energy Charter Treaty perspective, Articles 4—8 are the most relevant ones. The central provision with respect to attribution is Article 4, which confirms the well-established principle of international law that the State is responsible for the acts of its own organs acting in the capacity of the State.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Ashley Charles Moorhouse ◽  
David Abrahams
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Subject Matter ◽  
Review Process ◽  
The State ◽  
The South ◽  
Customary International Law ◽  
National Implementation ◽  
The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause. 

scholarly journals Dilemmas over individual and state responsibility for violations of international humanitarian law

2004 ◽  
Vol 56 (4) ◽  
pp. 345-369
Author(s):  
Keneth Mengjo
Keyword(s):  
International Law ◽  
Legal Issues ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
State Responsibility ◽  
Human Suffering ◽  
Humanitarian Law ◽  
The Subject ◽  
International Law Commission ◽  
Law Commission

This paper attempts an explanation to some of the complex legal issues surrounding the whole concept of responsibility for violations of international humanitarian law. The arguments here are based on reflections on the draft articles on the responsibility of states for the violations of international humanitarian law adopted by the international law commission as well as opinions of experts on the subject, treaties, conventions international jurisprudence, and internationally recognized principles and customs that govern conduct in armed conflicts so as to limit human suffering particularly of non combatants.

Part III The Current International Law of State Immunity, 10 The Definition of the Foreign State

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
Internal Structure ◽  
The State ◽  
Legal Person ◽  
State Immunity ◽  
General Law ◽  
Foreign State ◽  
The Subject ◽  
Definition Of ◽  
Domestic Law

This chapter sets out definition of the State to which the rule of immunity applies, which is an important element in the operation of the rules and UNCSI's treatment of this subject. In conjunction with this, the chapter discusses two (of three) aspects of the State within the context of State immunity: the external attributes of the State as a legal person by reference to international law; and the internal attributes of the State, as determined by its constitutional and domestic law, which make up its internal structure comprising its organs, departments, agencies, and representatives. Both the external and internal attributes of statehood are also the subject of the general law relating to the State as a subject of international law.

11. State Responsibility

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
The State ◽  
Legal Person ◽  
State Responsibility ◽  
Responsibility Attribution ◽  
Customary International Law ◽  
International Obligation

State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.

Treatment of Enemy Aliens

1918 ◽  
Vol 12 (1) ◽  
pp. 27-55 ◽  
Author(s):  
James W. Garner
Keyword(s):  
National Security ◽  
International Law ◽  
The State ◽  
Alexander Hamilton ◽  
Substantial Agreement ◽  
Government Grants ◽  
German Authority ◽  
The Subject ◽  
Jay Treaty ◽  
The Right

Writers on international law are now in substantial agreement that a belligerent ought not to detain enemy subjects, confiscate their property, or subject them to any disabilities, further than such as the protection of the national security and defense may require. Vattel, in 1758, appears to have been the first writer to adopt the view that had come to be generally held by publicists at the time the present war broke out. “The sovereign,” he said, “who declares war has not the right to detain the subjects of the enemy who are found within his state, nor their effects. They have come to his country in public faith; in permitting them to enter and live in the territory, he has tacitly promised them all liberty and surety for their return. A suitable time should be given them to withdraw with their goods; and if they stay beyond the time prescribed, it is lawful that they should be treated as enemies, though as disarmed enemies.” Alexander Hamilton, in defending the Jay Treaty of 1794, declared that the right of holding property in a country always implies a duty on the part of its government to protect that property and to secure to the owner full enjoyment of it. “Whenever, therefore,” he added, “a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security — the property of a foreigner placed in another country, by permission of its laws, may be justly regarded as a deposit of which the society is the trustee.” Westlake, in 1907, adverting to the numerous treaty stipulations on the subject, remarked that they might be deemed to amount to “a general agreement, on the part of governments, that modern international law forbids making prisoners the persons of enemy subjects in the territory at the outbreak of war, or, saving the right of expulsion in case of apprehended danger to the state, refusing them the right of continuous residence during good behavior.” Referring to the right of expulsion, Ullmann, a respectable German authority, remarks that expulsion can be resorted to against the subjects of the enemy state, but only after a suitable delay has been offered in order to enable those affected to wind up their affairs.

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