scholarly journals What Makes for a Valid Legal Argument?

2014 ◽  
Vol 27 (4) ◽  
pp. 811-816 ◽  
Author(s):  
INGO VENZKE
Keyword(s):  
International Law ◽  
Central Question ◽  
Legal Argument ◽  
Methodological Challenges ◽  
Plural Identity

Three intertwined threads run through many recent editorials of the Leiden Journal of International Law (LJIL). They tie together many debates within and beyond the board of editors. The threads are those of the Journal's plural identity, the conversation about methods, and the spicy theme of interdisciplinarity. They are related for obvious reasons. Methodology forms one – not the only and perhaps not the foremost – factor in assessing submissions. We need to have an idea of good methodology for such an assessment to be possible. At the same time such an idea must not go against the plurality of perspectives or the Journal's aspiration to provide a forum to new and possibly unsettling voices. Research that cuts across disciplines seems especially valuable in this regard. But it comes with its own methodological challenges and tests the Journal's identity which is – albeit plural– that of a Journal of international law. It is against the background of these intertwined threads that I wish to offer a discussion of a central question that mirrors these recent debates: What makes for a valid legal argument?

Part I Conclusion of Treaties, 4 Legal Consequences of an Impermissible Reservation to a Human Rights Treaty: Where Do We Stand?

2011 ◽  
Author(s):  
Simma Bruno ◽  
Hernández Gleider I
Keyword(s):  
Human Rights ◽  
International Law ◽  
The State ◽  
The Body ◽  
Special Rapporteur ◽  
Central Question ◽  
Human Rights Treaties ◽  
International Law Commission ◽  
Legal Consequences ◽  
Law Commission

The Vienna Convention's regime on reservations is particularly unfit to cope with the specific characteristics of human rights treaties due to the very limited and particular role played by reciprocity and the ‘inward-targeted’ nature of the obligations stipulated in such instruments. Regional human rights courts and UN human rights treaty bodies have developed certain methods of monitoring the reservations practice of states parties to the respective instruments, but a central question has hitherto remained very controversial, namely that of the legal consequences of a reservation to a human rights treaty which is considered incompatible with that treaty's object and purpose and therefore impermissible. After many years of dealing with the topic of reservations, the UN International Law Commission has finally addressed this issue: Special Rapporteur Alain Pellet has proposed a solution which finds itself essentially in accord with the ‘severability’ doctrine advocated by the human rights community, reconciling this approach and the principle of treaty consent through the introduction of a presumption of severability of an invalid reservation from the body of a human rights treaty, to which the State making such a reservation will then remain bound in full. This chapter supports the Special Rapporteur's proposal, traces its development, and discusses both the advantages and the specific challenges posed by a presumption of severability.

The Place of Customary Norms in Climate Law: A Reply to Zahar

Climate Law ◽  
2018 ◽  
Vol 8 (3-4) ◽  
pp. 261-278 ◽  
Author(s):  
Benoit Mayer
Keyword(s):  
Climate Change ◽  
International Law ◽  
Legal Order ◽  
Harm Principle ◽  
Legal Argument ◽  
Customary International Law ◽  
International Legal Order ◽  
No Harm Principle

In his essay on the thesis of my book, Alexander Zahar objects to my characterization of customary international law as one of the sources of the international law on climate change and, in particular, to my conclusion about the relevance of the no-harm principle. I disagree. In the first part of his essay, Zahar’s analysis of the no-harm principle is limited to arguments by analogy, but a valid international legal argument can be based on deduction from axiomatic premises of the international legal order. In the second part of his essay, Zahar claims that the UNFCCC regime excludes the application of the no-harm principle when, in reality, the UNFCCC regime really seeks to facilitate the implementation of general international law.

scholarly journals Humanitarian Intervention and Pretexts for War

2006 ◽  
Vol 100 (1) ◽  
pp. 107-141 ◽  
Author(s):  
Ryan Goodman
Keyword(s):  
International Law ◽  
Legal Status ◽  
Humanitarian Intervention ◽  
Empirical Studies ◽  
Potential Effect ◽  
Central Question ◽  
Global Order ◽  
Military Interventions ◽  
Ulterior Motives ◽  
The Impact

The legal status of humanitarian intervention poses a profound challenge to the future of global order. The central question is easy to formulate but notoriously difficult to answer: Should international law permit states to intervene militarily to stop a genocide or comparable atrocity without Security Council authorization? That question has acquired even greater significance in the wake of military interventions in Kosovo and Iraq, and nonintervention in the Sudan. Concerted deliberation on these issues, however, has reached an impasse. A key obstacle to legalizing unilateral humanitarian intervention (UHI) is the overriding concern that states would use the pretext of humanitarian intervention to wage wars for ulterior motives. In this article, I argue that it is just as likely, or even more likely, that the impact on states would be the opposite. Drawing on recent empirical studies, I contend that legalizing UHI should in important respects discourage wars with ulterior motives, and I discuss changes to international legal institutions that would amplify that potential effect.

Title III of the Helms-Burton Act Is Consistent with International Law

1996 ◽  
Vol 90 (3) ◽  
pp. 434-440 ◽  
Author(s):  
Brice M. Clagett
Keyword(s):  
United States ◽  
European Union ◽  
International Law ◽  
The United States ◽  
The European Union ◽  
Legal Argument ◽  
Customary International Law ◽  
Title Iii ◽  
Moral High Ground ◽  
Extraterritorial Jurisdiction

The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, otherwise known as the Helms-Burton Act, became law on March 12, 1996. Title III of the legislation creates a federal cause of action, on behalf of U.S. citizens whose property was confiscated without compensation by Cuba, against those who “traffic” in that property. Several governments—notably Canada, Mexico and those of the European Union, whose corporate citizens are the principal “traffickers”—have denounced the legislation as an exercise of extraterritorial jurisdiction that violates customary international law. These governments apparently see nothing wrong with permitting—even encouraging—their nationals to use and profit from property that rightfully belongs to others. The United States not only commands the moral high ground on this issue; it also has the better of the legal argument.

scholarly journals Entre a apologia e a utopia: a política do Direito Internacional

2018 ◽  
Vol 15 (1) ◽  
Author(s):  
Martti Koskenniemi
Keyword(s):  
International Law ◽  
Critical Legal Studies ◽  
Legal Argument ◽  
Legal Studies

Esta é uma síntese preliminar do estruturalismo abordado em meu livro From Apology to Utopia: The Structure of International Legal Argument [“Da apologia à utopia: a estrutura do argumento jurídico internacional”] (Helsinki, 1989). O texto foi publicado no primeiro número do European Journal of International Law, em 1990, e serve de base para a leitura de todo o meu trabalho posterior. O artigo é inspirado em escritos ligados à tradição dos Estudos Críticos do Direito (Critical Legal Studies) nos Estados Unidos, sobretudo os do professor David Kennedy (Faculdade de Direito de Harvard). Contudo, remete também à linguística estruturalista (Saussure), à teoria da argumentação (Perelman) e ao misto de hermenêutica analítica e teoria crítica que constituiu a ortodoxia da teoria finlandesa do direito nos anos 1980. O objetivo central aqui é mostrar de que modo a indeterminação opera no âmbito da argumentação jurídica internacional. O texto encaminha-se a uma crítica imanente do direito internacional: isto é, a uma crítica pautada em premissas que são elas próprias adotadas pelo discurso profissional do direito internacional . Na medida em que não há fechamento necessário a esse discurso, mas os argumentos prosseguem interminavelmente, qualquer fechamento deve proceder de fora das estruturas do próprio direito, podendo ser caracterizado como uma política do direito internacional.

International law, politics and opposition to the Iraq War

2021 ◽  
Vol 9 (2) ◽  
pp. 169-195
Author(s):  
Robert Knox
Keyword(s):  
International Law ◽  
Iraq War ◽  
Legal Argument ◽  
Political Consequences

Abstract A key feature of the Iraq war was the prominence of international legal argument. This article argues that the motif of the ‘illegal war’ was crucial in mobilisations against the war. It traces the reasons for the prominence of this ‘illegal war’ motif and the wider political consequences of its adoption.

Conclusions

2020 ◽  
pp. 288-318
Author(s):  
J.F.R. Boddens Hosang
Keyword(s):  
International Law ◽  
Conceptual Model ◽  
Use Of Force ◽  
Legal Framework ◽  
Legal Aspects ◽  
Central Question ◽  
Military Operations ◽  
Applicable Law ◽  
Introductory Discussion

This study has sought to contribute to the communication between the academic analysis of the legal aspects of the use of force and the realm of pragmatic application of the rules on the use of force during the conduct of military operations, presenting the case for the need, indeed necessity, for both these realms to remain connected. This chapter presents a conceptual model of rules of engagement (ROE) on the basis of the constituent chapters of the book, drawing on the introductory discussion of the classic ROE model in Chapter 1. It re-examines the influence of political, operational, and legal considerations on ROE and describes the overall function of ROE in terms of applicable law and in the context of the international law of military operations. Drawing on the underlying conclusions from this study, the main questions discussed in the Introduction will be addressed in order to answer the central question: what is the function of ROE and derivative (or similar) rules on the use of force in the context of the legal framework governing the use of force during military operations.

Sources of International Organizations’ Law

2018 ◽  
Author(s):  
August Reinisch
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
International Organizations ◽  
Fundamental Question ◽  
Central Question ◽  
Legal Personality ◽  
The Right ◽  
International Legal Personality ◽  
Considerable Period ◽  
Practical Implications

This chapter notes that for a considerable period, international organizations scholarship was preoccupied with establishing international organizations as actors enjoying their own international legal personality. With the increase and diversification of tasks fulfilled by such organizations, the question has come to the fore as to what extent these subjects of international law may become responsible for their actions. This debate has overshadowed the underlying and more fundamental question of what kinds of obligations can be identified as binding upon international organizations. According to this chapter, the latter central question requires one to turn to the sources of international organizations’ law. It places special emphasis on the practical implications of identifying the right sources for accountability issues, whether they concern UN embargoes, targeted sanctions, peacekeeping, or the administration of (criminal) justice by international organizations.

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