The Principle of Fairness and States’ Duty to Obey International Law

2011 ◽  
Vol 24 (2) ◽  
pp. 327-346 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal Order ◽  
Moral Duty ◽  
Fair Play ◽  
International Context ◽  
Cooperative Scheme ◽  
Technical Sense ◽  
Domestic Law ◽  
In Virtue Of ◽  
Do So

I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law. On this voluntarist interpretation of the principle of fairness, agents must accept (in a technical sense) the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation. I contend that states can accept the benefits international law provides, and that only if they do so do states have a fair-play duty to obey international law. In addition, I demonstrate that A. John Simmons’ criticisms of the attempt to use the principle of fairness to establish a duty to obey domestic law – both with respect to understanding the legal order as a cooperative scheme, and to agents’ acceptance of benefits – do not apply in the international context.

A Hesitant Embrace: The Application of International Law by Canadian Courts

2003 ◽  
Vol 40 ◽  
pp. 3-60 ◽  
Author(s):  
Jutta Brunnée ◽  
Stephen J. Toope
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
Legal Effect ◽  
Potential Impact ◽  
Treat All ◽  
The Relationship ◽  
Domestic Law ◽  
Over Time ◽  
Do So

SummaryCanadian courts are approaching the task of mediating the relationship between international law and domestic law with newfound energy. Yet, for all their declared openness to international law, courts are still inclined to avoid deciding cases on the basis of international law. This does not mean that international law is given no effect or that its broad relevance is denied. The avoidance strategy is more subtle: even when they invoke or refer to international law, Canadian courts generally do not give international norms concrete legal effect in individual cases. Although international law is brought to bear on a growing range of questions, its potential impact is tempered — and we fear largely eviscerated — because it is merely one factor in the application and interpretation of domestic law. Within the Canadian legal order the question of “bindingness” of international law is closely intertwined with the manner in which it comes to influence the interpretation of domestic law. In the case of norms that are binding on Canada under international law, Canadian courts have an obligation to interpret domestic law in conformity with the relevant international norms, as far as this is possible. By contrast, norms that do not bind Canada internationally (for example, soft law or provisions of treaties not ratified by Canada) can help inform the interpretation of domestic law and, depending on the norm in question and the case at issue, may even be persuasive. Courts may, and in some cases should, draw upon such norms for interpretative purposes, but they are not strictly speaking required to do so. However, especially following the Supreme Court’s decision inBaker, there appears to be a trend towards treating all of international law, whether custom or treaty, binding on Canada or not, implemented or unimplemented, in the same manner — as relevant and perhaps persuasive, but not as determinative, dare we say obligatory. Our concern is that if international law is merely persuasive, it becomes purely optional, and can be ignored at the discretion of the judge. We argue that it is not enough to treat all normative threads in this fashion — over time this approach risks weakening the fabric of the law.

Due diligence as a secondary rule of general international law

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
Domestic Law ◽  
Secondary Rule ◽  
Law Making ◽  
Law Commission ◽  
Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

European and Domestic Law

2017 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Public Law ◽  
Legal Order ◽  
Eu Law ◽  
The European Union ◽  
Legal Certainty ◽  
European Public ◽  
Domestic Courts ◽  
The Relationship ◽  
Domestic Law

Chapter 4 turns to the domestic law of the countries of Europe, arguing that the combination within European public law of EU law, the law of the ECHR, and of domestic law cannot be conceived of along the lines of a pyramidal hierarchy. The chapter examines the ways in which the different European domestic legal systems conceive of the relationship between international law and domestic law. The chapter then looks at the relationship between international law and domestic law through a constitutional lens, an approach which more and more domestic courts in Europe seem to be adopting. The chapter then turns to the integrated legal order of the European Union, a legal order distinct both from domestic and general international law. Finally, the chapter teases out and analyses four shared guiding principles of European public law: equality and non-discrimination; proportionality; subsidiarity; and legal certainty.

Conclusion

2019 ◽  
pp. 321-326
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
American Exceptionalism ◽  
Great Powers ◽  
Legal Order ◽  
International Context ◽  
International Legal Order

This chapter concludes this book by comparing American exceptionalism and Chinese exceptionalism in the context of the rise and fall of great powers. It agrees that all great powers, compared with other countries, are capable of advocating international law that advances their values and interests; in this sense, there is Chinese exceptionalism. More importantly, it suggests that different great powers have different exceptionalism, thereby bring about different implications on international legal order. This chapter does not purport to argue that people should have a rosy expectation for Chinese exceptionalism. In light of international context and China’s own particularities, however, it is more likely that Chinese exceptionalism can bring about new promise for international legal order, thereby balancing American exceptionalism. Therefore, Chinese exceptionalism merits serious consideration with sympathy.

scholarly journals The Binding Force of Nascent Norms of International Law

2014 ◽  
Vol 27 (1) ◽  
pp. 145-166 ◽  
Author(s):  
Anthony R. Reeves
Keyword(s):  
International Law ◽  
Legal Status ◽  
Good Governance ◽  
Moral Authority ◽  
Customary Law ◽  
Legal Authority ◽  
Binding Force ◽  
Limited Support ◽  
Domestic Law ◽  
In Virtue Of

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally.This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law.

Problems of Interaction Between the International and Domestic Legal Orders

2014 ◽  
Vol 5 (2) ◽  
pp. 246-278 ◽  
Author(s):  
Hisashi OWADA
Keyword(s):  
Public Policy ◽  
International Law ◽  
Security Council ◽  
Legal System ◽  
International Institutions ◽  
Legal Order ◽  
International Treaties ◽  
International Courts ◽  
Municipal Law ◽  
Domestic Law

With the rapid advent of globalization, international law has come to expand into new areas which had traditionally been under the exclusive domain of municipal law. As a result, problems concerning interaction between the international and domestic legal orders have become increasingly common. Specifically, difficulties have arisen concerning the implementation of international law decisions into the domestic legal order. This paper examines this problem in three different areas: the process of incorporation of international treaties into the domestic legal order; the issue of giving effect to Security Council resolutions in domestic law; and the issue of the implementation within the domestic legal system of judgments of international courts and tribunals. The paper concludes that, in an age of the emergence of a global community as a matter of socioeconomic reality, the two legal orders should work together to promote common public policy, paying due respect to the decisions of international institutions.

Application of Fifth Amendment to U.S. Constitution in international context—fear of foreign prosecution as ground for invoking privilege against self-incrimination—relevance of growing international law enforcement cooperation—role of U.S. judiciary in foreign relations

1998 ◽  
Vol 92 (4) ◽  
pp. 759-764
Author(s):  
Bernard H. Oxman ◽  
Diane Marie Amann
Keyword(s):  
United States ◽  
Law Enforcement ◽  
Supreme Court ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
International Context ◽  
Open Question ◽  
Domestic Law

United States v. Balsys. 118 S.Ct. 2218.U.S. Supreme Court, June 25, 1998.Resolving a long-open question, the U.S. Supreme Court held in this 7-2 decision that a witness in a domestic proceeding may not invoke the constitutional privilege against self-incrimination if the witness fears that the testimony may be used in a prosecution outside the United States. Although grounded in domestic law, the three opinions in Balsys reveal tension between the judiciary's traditional deference to the political branches in foreign relations matters and its concern over the risk that individuals subject to prosecution abroad will suffer deprivation of liberty because of that deference.

Direct Effects and Indirect Effects of Union Law

2018 ◽  
Author(s):  
Robert Schütze
Keyword(s):  
Member State ◽  
International Law ◽  
Indirect Effects ◽  
Direct Contact ◽  
Legal Order ◽  
European Law ◽  
National Courts ◽  
The Law ◽  
The Relationship ◽  
Domestic Law

Classic international law holds that each state can choose the relationship between its ‘domestic’ law and ‘international’ law. Two—constitutional—theories thereby exist: monism and dualism. Monist states make international law part of their domestic legal order. International law will here directly apply as if it was domestic law. By contrast, dualist states consider international law separate from domestic law: international law is viewed as the law between states; national law is the law within a state. International law needs to be ‘transposed’ or ‘incorporated’ into domestic law; and it can therefore only have indirect effects through the medium of national law. For dualist states, all European law would need to be ‘incorporated’ into national law before it could have domestic effects. Individuals would here never come into direct contact with European law; and where a Member State violated European law, individuals could not invoke ‘their’ European rights in the national courts.

Sources and the Legality and Validity of International Law

2018 ◽  
Author(s):  
Pierre d’Argent
Keyword(s):  
International Law ◽  
Legal Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Legal Identification ◽  
Domestic Law ◽  
What Matters

This chapter argues that, from the perspective of a theory about the sources of international law, what matters is not so much to determine whether international law is really law, but, rather, what makes law ‘international’. It first recalls the structural reasons inherent to international law that explain the specificity and the crucial character of the issue of sources—understood as a process of legal identification—in that legal order, as opposed to sources in domestic law. The chapter then contextualizes Article 38 of the International Court of Justice (ICJ) Statute by recalling its specific purpose; that is, determining and delimiting international legality. Finally, the chapter questions whether and to what extent a theory of sources really achieves its objective of determining what unequivocally counts as international law. The chapter thus brings to light the awkward fact that international legality is not necessarily normatively exclusive.

scholarly journals European Legal Pluralism after Kadi

2009 ◽  
Vol 5 (2) ◽  
pp. 237-264 ◽  
Author(s):  
Samantha Besson
Keyword(s):  
International Law ◽  
Legal Pluralism ◽  
Legal Order ◽  
European Court Of Justice ◽  
Advocate General ◽  
Court Of Justice ◽  
European Court ◽  
Court Of First Instance ◽  
Domestic Law

Relationships between international, EU, domestic law – Different legal orders – Different jurisdictions – Validity, rank, effects of international law in EU legal order – Kadi – Court of First Instance in Kadi – Advocate-General in Kadi – European Court of Justice in Kadi – Pluralism concept of AG Maduro – European legal pluralism reconsidered

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