The same as it never was? Uncertainty and the changing contours of international law

2011 ◽  
Vol 37 (5) ◽  
pp. 2163-2182 ◽  
Author(s):  
OLIVER KESSLER
Keyword(s):  
Cold War ◽  
International Law ◽  
Dispute Settlement ◽  
Private International Law ◽  
Attribution Of Responsibility ◽  
Public International Law ◽  
World Polity ◽  
The World ◽  
Definition Of ◽  
The Cold War

AbstractInternational law has changed significantly since the end of the Cold War. As long as the international was thought to be populated by sovereign states predominantly, international law was conceived of as a means for peaceful dispute settlement. That is: the reference to state sovereignty not only divided public from private international law, but structured most of public international law itself; from the very definition of and associated rights and duties to the attribution of responsibility. With the emergence of the post-national constellation, a reduction of law to questions of states' practices is increasingly problematic. At the same time, the post-national constellation denotes more than just a structural shift in the world polity. It challenges established dogmas rooted in an individualistic philosophy of science and thereby calls for a different understanding of how the world is (made) known. What uncertainty has to offer is the provision of a different vocabulary detached from the state through which we can reconsider some changes in international law.

Understanding the Functions of Jurisdictional Law

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Philosophy ◽  
Law Reform ◽  
The Internet ◽  
Private International Law ◽  
Public International Law ◽  
Important Concept ◽  
Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

Collective Security

2014 ◽  
Author(s):  
Ademola Abass
Keyword(s):  
Cold War ◽  
United Nations ◽  
International Law ◽  
Collective Security ◽  
General Sense ◽  
Regional Organizations ◽  
The United Nations ◽  
Definition Of ◽  
The Cold War

The term collective security in a general sense is given many understandings both professional and nonprofessional. The phrase is sometimes used to describe the organization of security on a “collective” basis. Often, it is used to denote the “collective organization” of security. While neither of these uses is inherently wrong, neither succinctly captures what “collective security” implies when used by international lawyers. In international law, collective security is a term connoting something more dense and intricate, and much more slippery, than the above more straightforward expressions. The notion of collective security, its premise, and objectives are deeply contested by states and scholars. It is universally acknowledged that collective security is today organized under the United Nations; however, regional organizations, which used to focus primarily on economic matters, have attained greater prominence in collective security efforts especially since the end of the Cold War. This article examines the definition of collective security, its features and objectives, the actors that have the responsibility for operating it globally and regionally, its various manifestations, its limitations and, above all, its role in future.

The Obligation to Withhold from Trading in Order Not to Recognize and Assist Settlements and their Economic Activity in Occupied Territories

2012 ◽  
Vol 3 (2) ◽  
pp. 344-385 ◽  
Author(s):  
Tom Moerenhout
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Economic Benefits ◽  
United Nations Security Council ◽  
Public International Law ◽  
Legal Standing ◽  
The World ◽  
Occupied Territories ◽  
Trade Sanctions ◽  
Peremptory Norms

This article argues that trade embargoes toward illegal settlements in occupied territories are an obligation under general public international law, when such trade primarily benefits the occupant. In this case, the self-executing duty of non-recognition applies. There is no need for an explicit trade embargo imposed by the United Nations Security Council. For, transferring parts of an occupant’s civilian population to occupied territories, and gaining economic benefits from occupation, both violate peremptory norms of public international law. Equally, withholding trade is also permitted under the law of the World Trade Organization (WTO). This article shows that according to Article XXVI.5.(a) of the General Agreement on Tariffs and Trade (GATT), the GATT does not apply to illegal settlements. A WTO panel could reach this conclusion, either by denying jurisdiction through finding that the occupying State has no legal standing or by scrutinizing Article XXVI.5.(a) on its merits. However, if a panel would, erroneously, decide the GATT does apply to settlements; trade sanctions could still be allowed in a dispute settlement. This can be done by either accepting the relevant rules of public international law as an independent defense, or by using it in the interpretation of public moral and security exceptions under GATT Article XX and XXI.

The International Rule of Law—Rise or Decline?—Approaching Current Foundational Challenges

2019 ◽  
pp. 3-30
Author(s):  
Heike Krieger ◽  
Georg Nolte
Keyword(s):  
Human Rights ◽  
Cold War ◽  
International Law ◽  
Rule Of Law ◽  
Preliminary Assessment ◽  
Research Project ◽  
Public International Law ◽  
The Cold War ◽  
International Rule

The chapter undertakes a preliminary assessment of current developments of international law for the purpose of mapping the ground for a larger research project. The research project pursues the goal of determining whether public international law, as it has developed since the end of the Cold War, is continuing its progressive move towards a more human-rights- and multi-actor-oriented order, or whether we are seeing a renewed emphasis of more classical elements of international law. In this context the term ‘international rule of law’ is chosen to designate the more recent and ‘thicker’ understanding of international law. The chapter discusses how it can be determined whether this form of international law continues to unfold, and whether we are witnessing challenges to this order which could give rise to more fundamental reassessments.

scholarly journals Extraterritoriality in Private International Law

2021 ◽  
Vol 16 (5) ◽  
pp. 183-194
Author(s):  
L. V. Terenteva
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Private Law ◽  
Private International Law ◽  
Public And Private ◽  
Public International Law ◽  
Cross Border ◽  
Foreign State ◽  
Extraterritorial Jurisdiction ◽  
Definition Of

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.

Estética e Paisagem - Algumas Referências Legais

2002 ◽  
Vol 10 (19) ◽  
pp. 69-85
Author(s):  
Ângela Delfino ◽  
Keyword(s):  
International Law ◽  
Environmental Protection ◽  
Environmental Law ◽  
Natural Habitats ◽  
Public International Law ◽  
The World ◽  
Antarctic Treaty ◽  
Definition Of ◽  
The Antarctic ◽  
Agreed Definition

This paper analyses the legal treatment of the concepts of “aesthetics” and “landscape” in the areas of Zoning, Planning and Environmental Law, both in domestic and public international law. References are made to the World Charter for Nature, Convention for the Protection of the World Cultural and Natural Heritage, Convention on the Conservation of European Wildlife and Natural Habitats, Protocol to the Antarctic Treaty on Environmental Protection, European Landscape Convention and several Portuguese Statutes. In the absence of a common agreed definition of the terms, several proposals of interpretation are provided and discussed taking into account the relevant values of law, i.e. justice and certainty.

scholarly journals International Investment Law as International Law: Russian and Western Approaches

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 202-206 ◽  
Author(s):  
Dmitry K. Labin ◽  
Alena V. Soloveva
Keyword(s):  
Comparative Study ◽  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Practical Relevance ◽  
Private International Law ◽  
The West ◽  
Public International Law ◽  
International Investment Law ◽  
Investment Law

No Western publication on international investment law (IIL) has ever specifically undertaken a comparative study of Russian and Western doctrines of IIL. Although Russian scholars often contrast Western and Russian approaches to international law, scholars in the West mostly proceed without any discussion of Russian practice and perspectives. To fill this gap, this essay introduces the Russian approach to IIL and contrasts it with its Western counterpart. In particular, we show that the Russian approach focuses far more extensively on the nature and categorization of IIL and treats IIL primarily as private international law rather than public international law. The distinctive Russian approach has practical relevance for states and scholars, in part because it helps to explain why Russia has resisted efforts to reform investor-state dispute settlement.

scholarly journals Rules of jurisdiction in the new Hungarian private international law

2021 ◽  
Author(s):  
Katalin Gombos
Keyword(s):  
International Law ◽  
Private International Law ◽  
The Novel ◽  
Public International Law ◽  
International Distribution ◽  
Basic Purpose ◽  
Definition Of ◽  
The Relationship

AbstractOn 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.

The Moralities of Negotiation

Worldview ◽  
1959 ◽  
Vol 2 (11) ◽  
pp. 3-6
Author(s):  
E. Raymond Platig
Keyword(s):  
United States ◽  
Cold War ◽  
Public Opinion ◽  
Soviet Union ◽  
International Law ◽  
The United States ◽  
The Political ◽  
The Soviet Union ◽  
The World ◽  
The Cold War

Many well-intentioned people have long recognized the absence in our century of any effective international law, government and mores. They have also wasted a lot of time attempting to conjure up constitutional governments for the world, to codify, revise and extend international law, and to call forth a mostly non-existent world public opinion. In a world rent by such basic ideological and cultural splits as is ours, these efforts are foredoomed to failure.The much more relevant question for one interested in peace in this nuclear-missile’ age is whether or not the United States and the Soviet Union can settle through negotiation some of the political problems of the Cold War. If they cannot agree to “live and let live” as sovereign states in a world of sovereign states, on what basis can we expect that they will engage in that much more intimate collaboration out of which mores, law and government can grow?

scholarly journals The Role of Public International Law in the WTO: How Far Can We Go?

2001 ◽  
Vol 95 (3) ◽  
pp. 535-578 ◽  
Author(s):  
Joost Pauwelyn
Keyword(s):  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
Public International Law ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Law ◽  
The Relationship

How does the World Trade Organization (WTO) relate to the wider corpus of public international law? What, in turn, is the role of public international law in WTO dispute settlement? This paper aims at resolving these two difficult questions. No straightforward answers to them can be found in WTO rules. Yet answering them has major ramifications both for the WTO (is the WTO a largely “self-contained regime” or is it not?) and for international law (is the future of international law further fragmentation or increased unity?). This exercise will be conducted under the law as it stands today—that is, the law as it may be invoked at present before the WTO “judiciary” (panels and the Appellate Body). Of course, WTO members (viz., the WTO “legislator”) could clarify or change the relationship between WTO rules and other rules of international law. However, it is unlikely that such changes will occur any time soon. In part I, I examine the general relationship between public international law and WTO law. I then assess, more specifically, the role of public international law in WTO dispute settlement in part II and offer some conclusions in part III.

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