Member State Compliance with the Judgments of the Inter-American Court of Human Rights

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Download Full-text

Introduction: Trumping International Law?

10.1093/oso/9780190912185.003.0001 ◽

2018 ◽

Cited By ~ 1

Author(s):

Harold Hongju Koh

Keyword(s):

Climate Change ◽

Human Rights ◽

World War Ii ◽

International Law ◽

Global Governance ◽

Islamic State ◽

World War ◽

Legal Process ◽

Spheres Of Influence ◽

Transnational Legal Process

How to resist President Donald Trump’s assault on international law? This introduction sketches the tripartite plan of this book. First, it discusses a counterstrategy of resistance based on transnational legal process. Second, it illustrates that counterstrategy with respect to immigration and refugees, and human rights; the Paris Climate Change Agreement, the Iran Nuclear Deal, and trade diplomacy; with countries of concern such as North Korea, Russia, and Ukraine; and with respect to America’s wars: Al Qaeda, Islamic State, Afghanistan, and Syria. Third, it reviews what broader issues are at stake in the looming battle between maintaining the post-World War II framework of Kantian global governance versus shifting to an Orwellian system of authoritarian spheres of influence.

Download Full-text

The Trump Administration and International Law

10.1093/oso/9780190912185.001.0001 ◽

2018 ◽

Cited By ~ 10

Author(s):

Harold Hongju Koh

Keyword(s):

Human Rights ◽

International Law ◽

Islamic State ◽

Legal Process ◽

High Stakes ◽

Legal Adviser ◽

The Many ◽

Transnational Legal Process ◽

Trump Administration

Will Donald trump international law? Since Trump’s administration took office in January 2017, this question has haunted almost every issue area of international law. This book, by one of our leading international lawyers—a former Legal Adviser of the U.S. State Department, former Assistant Secretary of State for Human Rights, and former Yale Law Dean—argues that President Trump has thus far enjoyed less success than many believe, because he does not own the pervasive “transnational legal process” that governs these issue areas. This book shows how those opposing Trump’s policies in his administration’s first two years have successfully triggered transnational legal process as part of a collective counterstrategy akin to Muhammad Ali’s famous “rope-a-dope.” The book surveys many fields of international law: immigration and refugees, human rights, climate change, denuclearization, trade diplomacy, relations with North Korea, Russia and Ukraine, and America’s “Forever War” against Al Qaeda and the Islamic State and its ongoing challenges in Syria. This tour d’horizon illustrates the many techniques that other participants in the transnational legal process have used to blunt Trump’s early initiatives across a broad area of issues. While this counterstrategy has been wearing, the book concludes that the high stakes, and the long-term implications for the future of global governance, make the continuing struggle both worthwhile and necessary.

Download Full-text

Res Judicata in Comparative Perspective of International Law, European Union Law and European Convention of Human Rights

10.5771/9783748931232-743 ◽

2021 ◽

pp. 743-754

Author(s):

Vilenas Vadapalas

Keyword(s):

European Union ◽

Human Rights ◽

International Law ◽

Comparative Perspective ◽

European Convention ◽

European Union Law ◽

Res Judicata

Download Full-text

Slaughterhouse-Six: Updating the Law of War

German Law Journal ◽

10.1017/s2071832200012670 ◽

2004 ◽

Vol 5 (5) ◽

pp. 525-544 ◽

Cited By ~ 2

Author(s):

Ed Morgan

Keyword(s):

Human Rights ◽

International Law ◽

The Other ◽

European Court ◽

House Of Lords ◽

Self Interest ◽

Time Zones ◽

National Jurisdiction ◽

State Obligations ◽

The Impact

International law has come unstuck in time. It has gone to sleep stressing a normative future based on state “obligations owed towards all the other members of the international community,” and has awakened in a bygone world in which the state is “susceptible of no limitation not imposed by itself.” The opposing time zones seem now to exist in unison. Thus, for example, the European Court of Human Rights, in examining the impact of the Torture Convention, can split 9:8 on whether national self-interest trumps universal rules of cooperation, or the other way around. Likewise, England's House of Lords can opine in thePinochetcase that, as between a reinvigorated national jurisdiction and the developing concept of universal one, “international law is on the move.”

Download Full-text

Minority Protection in International Law: From Standard-Setting to Implementation

Nordic Journal of International Law ◽

10.1163/15718109920295939 ◽

1999 ◽

Vol 68 (2) ◽

pp. 131-160

Author(s):

Keyword(s):

Human Rights ◽

International Law ◽

Minority Rights ◽

Broad Perspective ◽

Minority Protection ◽

Monitoring Process ◽

International Monitoring ◽

State Compliance ◽

Potential Impact ◽

Minority Regime

AbstractIn recent years, minority issues regularly feature on the international agenda, due to growing concerns for human rights and stability. Minority rights instruments are being multiplied accordingly. While this is no doubt a welcome development, the fact that the effectiveness of any (present and future) minority regime remains to be tested through an adequate implementation machinery should not be overlooked. The aim of this paper is to examine the international monitoring mechanisms which are relevant to minority protection, with a view to discussing the prospects for improving State compliance. An overview of such mechanisms and a focus on some basic, contemporary elements of the resulting monitoring process, afford the basis for a set of forward-looking reflections on the problem of the implementation of minority rights standards. An attempt has been made at analysing the relevant patterns of scrutiny within a broad perspective, namely in relation to their real and/or potential impact on minority protection as embraced by international law.

Download Full-text

Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance

The American Journal of International Law ◽

10.5305/amerjintelaw.104.1.0001 ◽

2010 ◽

Vol 104 (1) ◽

pp. 1-28 ◽

Cited By ~ 23

Author(s):

Laura A. Dickinson

Keyword(s):

International Relations ◽

International Law ◽

Legal Analysis ◽

Theoretical Level ◽

Legal Process ◽

Strategic Action ◽

State Behavior ◽

Legal Norms ◽

Norm Internalization ◽

Transnational Legal Process

International law scholarship remains locked in a raging debate about the extent to which states do or do not comply with international legal norms. For years, this debate lacked empirical data altogether. International law advocates tended to assume that most nations obey most laws most of the time and proceeded to measure state activity against international norms through conventional legal analysis. In contrast, international relations realists and rational choice theorists have argued that international law is simply an epiphenomenon of other state interests with little independent power at all. Meanwhile, constructivist and transnational legal process approaches have posited that international law seeps into state behavior through psychological and sociological mechanisms of norm internalization and strategic action. But even these studies tend to remain on a theoretical level, without on-the-ground data about which factors might influence compliance in actual day-to-day settings.

Download Full-text

State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994-2004

The American Journal of International Law ◽

10.1017/s000293000002950x ◽

2007 ◽

Vol 101 (1) ◽

pp. 1-34 ◽

Cited By ~ 16

Author(s):

Frans Viljoen ◽

Lirette Louw

Keyword(s):

Human Rights ◽

International Law ◽

International Human Rights ◽

Human Rights Treaties ◽

State Compliance ◽

State Obligations ◽

Legal Position ◽

International Human ◽

The Impact ◽

African Commission

Current discourse on international human rights leaves little room for self-satisfaction about near-universal acceptance of wide-ranging normative frameworks with a global and regional scope. Recent times have witnessed growing academic concern with the “impact” or “effect” of international human rights treaties on the de jure and de facto legal position in state parties. These concerns are embedded in bigger and more enduring questions about the nature of state obligations under international law (including those derived from “nonbinding norms”) and compliance with them. However, general questions about obedience to international law have been replaced by attempts to answer the question whether human rights treaties in fact “make a difference.”

Download Full-text

TEORI INTERNASIONALISME DALAM SISTEM HUKUM NASIONAL

Refleksi Hukum Jurnal Ilmu Hukum ◽

10.24246/jrh.2015.v9.i2.p199-208 ◽

2015 ◽

Vol 9 (2) ◽

pp. 199

Author(s):

Ninon Melatyugra

Keyword(s):

International Law ◽

South African ◽

The State ◽

Process Theory ◽

The South ◽

Legal Process ◽

Crucial Problem ◽

Municipal Law ◽

South African Constitution ◽

Transnational Legal Process

AbstrakKonstitusi suatu negara memegang peran penting dalam menjelaskan posisi hukum internasional dalam sistem hukum nasional. The South African Constitution adalah salah satu contoh konstitusi yang menjabarkan secara eksplisit mengenai kedudukan hukum internasional sehingga mempreskripsi pengadilan untuk menggunakan hukum internasional secara langsung dalam wilayah domestik. Masalah muncul bagi negara yang tidak memiliki ketentuan eksplisit dalam konstitusi, seperti Indonesia, namun praktiknya terdapat penggunaan hukum internasional oleh agen negaranya. Artikel ini menawarkan teori internasionalisme untuk memberi dasar legitimasi bagi negara yang ingin patuh terhadap hukum internasional di saat konstitusi tidak memiliki ketentuan eksplisit yang mengaturnya. Teori ini dibangun dengan fondasi 2 teori yakni teori transnational legal process yang menitikberatkan pada bagaimana negara memperlakukan hukum internasional, dan teori international constitution yang berfokus pada bagaimana perlakuan hukum internasional tersebut bersifat konstitusional. Abstract A constitution of a nation holds an important role to define international law before municipal law. The South African Constitution is an example of constitutions that explain explicitly the position of international law and prescribe its courts to observe international law in domestic zone. A crucial problem has risen in States which have no explicit provisions in their constitutions, like Indonesia, but the State agent acts of using international law are often found. This article offers internationalism theory in order to give the States a legitimacy to be comply with international law although the constitution lacks the explicit provisions. The theory contains 2 basic theories which are transnational legal process theory that stresses on how states treat international law properly; and international constitution theory that focuses on how the treatment becomes constitutional.

Download Full-text