The international law of jurisdiction: A TWAIL perspective

2021 ◽  
pp. 1-26
Author(s):  
B. S. Chimni
Keyword(s):  
International Law ◽  
International System ◽  
Modern State ◽  
Colonial Era ◽  
Legal Rules ◽  
System A ◽  
Deep Appreciation ◽  
Territorial Organization ◽  
Extraterritorial Jurisdiction ◽  
The One

Abstract The concept of jurisdiction is a relatively undertheorized category of international law. Mainstream international law scholarship advances an ahistorical and asocial account of the rules of jurisdiction in international law. The present article contends that any serious understanding of the categories and rules of jurisdiction, in particular that of extraterritorial jurisdiction, calls for deep appreciation of the evolving material structures over time. It argues that the key factors that have influenced the evolution and development of the doctrine, rules, and practices of jurisdiction are the emergence of the modern state, capitalism, and imperialism. In order to appreciate this contention there is a need to undertake on the one hand a genealogical analysis of modern state and capitalism and on the other hand problematize the categories ‘territory’ and ‘extraterritorial’. The internal relationship between capitalism and imperialism has meant that, despite the territorial organization of the international system, a process of harmonization of legal rules has taken place across geographical spaces in both colonial and postcolonial eras. The outcome is a critical loss of policy and legal space for nations of the Global South. In the colonial era the outcome was achieved through legislation in the instance of colonized nations and through capitulation regimes in the case of semi-colonies. The strategy of advanced capitalist states in the postcolonial era for achieving harmonization of laws has been multi-layered and multi-dimensional. The article concludes by touching on two models of reform of the rules and practices of jurisdiction viz., liberal and subaltern internationalism.

scholarly journals Comparative International Law

2018 ◽  
Keyword(s):  
International Law ◽  
International Norms ◽  
Domestic Institutions ◽  
Legal Norms ◽  
Legal Rules ◽  
Diverse Backgrounds ◽  
Geographic Differences ◽  
Similarities And Differences ◽  
Cross Country ◽  
The One

By definition, international law, once agreed upon and consented to, applies to all parties equally. It is perhaps the one area of law where cross-country comparison seems inappropriate, because all parties are governed by the same rules. However, as this book explains, states sometimes adhere to similar, and other times adopt different, interpretations of the same international norms and standards. International legal rules are not a monolithic whole, but are the basis for ongoing contestation, in which states set forth competing interpretations. International norms are interpreted and redefined by national executives, legislatures, and judiciaries. These varying and evolving interpretations can, in turn, change and impact the international rules themselves. These similarities and differences make for an important, but thus far largely unexamined, object of comparison. This is the premise for this book, and for what the editors call “comparative international law.” This book achieves three goals. The first is to show that international law is not a monolith. The second is to map the cross-country similarities and differences in international legal norms in different fields of international law, as well as their application and interpretation with regards to geographic differences. The third is to make a first and preliminary attempt to explain these differences. The book’s contributors include leading international law and comparative law scholars with diverse backgrounds, experience, and perspectives. It is organized into three broad thematic sections, exploring: conceptual matters, domestic institutions and comparative international law, and comparing approaches across issue-areas.

Bridging the Conceptual Chasm: Superior Responsibility as the Missing Link between State and Individual Responsibility under International Law

2005 ◽  
Vol 18 (4) ◽  
pp. 795-828 ◽  
Author(s):  
NATALIE L. REID
Keyword(s):  
International Law ◽  
Theoretical Basis ◽  
International System ◽  
Practical Method ◽  
Individual Responsibility ◽  
Missing Link ◽  
Legal Rules ◽  
Conflict Situations ◽  
Or Groups ◽  
Superior Responsibility

Commonly accepted distinctions between state and individual responsibility have created a conceptual chasm between the two sets of legal rules, which is in turn reinforced by different underlying theoretical conceptions of the international system. As a result of this conceptual chasm, current understandings of responsibility fail to describe adequately either the sources of harm to individuals or groups within states, or the changing relationships between individuals, non-state groups, and states. The doctrine of superior responsibility, however, offers the possibility for reconciliation of state and individual responsibility rules, by providing a theoretical basis and a practical method of developing understandings of liability for breaches of fundamental norms that more accurately reflect the channels of responsibility in contemporary conflict situations.

scholarly journals International Legal Custom аs an Object of Interpretation: Modern Approaches and Discussions

2021 ◽  
pp. 1-7
Author(s):  
Svitlana Karvatska
Keyword(s):  
International Law ◽  
International System ◽  
State System ◽  
Community Practice ◽  
Liberal State ◽  
New Members ◽  
Social Facts ◽  
System A ◽  
Consistent Method ◽  
Common Understanding

The article determines that the transition from a liberal state system to a welfare state system has adapted the concept of international legal custom and the correlation between its two elements. With the emergence of new members of the international system, a new environment has emerged where there is no clear common understanding of the definition and content of international law rules. The lack of an effective, consistent method of identifying international custom dictates the requirement to seek an effective methodology for interpreting international legal customs actively. The article finds out that often competing interpretations arise about the same practice. Therefore, it is necessary to find the interpretation offering more tools for practice, with other things being equal. If a deductive methodology seeks a connection between principle and law, an inductive one looks for social facts that support common practice. It is proved that a qualitatively new constructive interpretation has the potential to provide a better interpretation of international community practice. In conclusion, it is stated that the result of constructive interpretation should be the orientation of the goal into practice.

scholarly journals THE RULE OF LAW AND THE LIMITS OF ANARCHY

Legal Theory ◽  
2021 ◽  
pp. 1-26
Author(s):  
Carmen E. Pavel
Keyword(s):  
Coercive Force ◽  
International Law ◽  
Rule Of Law ◽  
Basic Rule ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Legal Rules ◽  
Moral Equality ◽  
Legal Remedies ◽  
The One

Abstract Anarchy is often contrasted with law, order, or security. But anarchist societies, by which I mean societies that lack a monopoly of coercive force, need not be lawless. They can develop sophisticated legal systems that regulate the behavior of their members and protect their rights. International law, market anarchism, and other models of anarchism such as the one proposed by Chandran Kukathas already exhibit or could plausibly exhibit complex legal rules and institutions. I will show that insofar as these models rely on consent, they all share similar structural flaws, namely, that they cannot meet basic rule-of-law values such as equality before the law and access to legal remedies for wrongs that embody and respect individual moral equality, even minimally conceived. The implication of this argument is not to vindicate state-based legal systems. Rather it is to show that legal systems, state-based or not, must have a strong nonconsensual, coercive element: the process of making, applying, and enforcing law must, to some extent, be severed from consent if law is to perform its function of providing for minimal justice.

scholarly journals International criminal courts: Between law, justice, reconciliation and rights of victims

2011 ◽  
Vol 63 (4) ◽  
pp. 536-566
Author(s):  
Dragan Jovasevic
Keyword(s):  
International Law ◽  
International Criminal ◽  
International System ◽  
Criminal Prosecution ◽  
Criminal Courts ◽  
Legal Rules ◽  
Criminal Sanctions ◽  
Criminal Charges ◽  
Ancient Times ◽  
Important Form

Since the ancient times till the present the international community has provided various forms of co-operation for the purpose of criminal prosecution and punishment of perpetrators of the most serious criminal acts that in the most severe and violent ways violate the rules of international law breaching or jeopardising the humanity and other property, which are protected by the international system of legal rules. Among them the most important form consists of the establishment and acting of international criminal courts that in the interest of justice and in the name of the civilized part of the mankind or enlightened peoples presses criminal charges and pronounces sentences and other criminal sanctions against perpetrators of international criminal acts. There are several kinds of international judicial bodies with different law features and duration. The paper deals with their characteristics, roles and organization both from the theoretical and practical aspects.

scholarly journals The Issues of Secession in the Process of the Rise and Fall of States in the Light of International Law

2019 ◽  
Vol 8 ◽  
Author(s):  
Boubacar Sidi Diallo
Keyword(s):  
International Law ◽  
International System ◽  
Point Of View ◽  
Global Perspective ◽  
Self Determination ◽  
Simple Fact ◽  
The One ◽  
The Right ◽  
Constituent Elements ◽  
Secessionist Movement

The aims of this contribution is to check the validity of the old theory, which goes back to Jellinek but is still dominant, which states that secession as well as the process of forming a new state, fall under the scope of a “simple fact” and thereby escape through definition to any law of way. According to this theory, secession is not a question of “Law” but a question of pure fact, failure or success: if a secessionist movement succeeds in establishing a new effectiveness, that is to say, puts in place the “Constituent elements” of a state, a new state is born. It is interesting to observe that with the phenomenon of the rise or the collapse of States, from the global perspective of international order and especially from the point of view of international law, the States concerned are, in practice, not simply left to their fate. On the contrary, the rise or the collapse of a State anywhere in the world is seen as a matter of concern for the international community, since the international system as a whole is felt to be affected. In such cases, international reactions have not been manifested primarily through the States as such, either indi-vidually or together. Basically, these reactions had to cope with the dilemma of choos-ing between two fundamental principles of legitimacy in international law: on the one hand, the sovereignty and equality of States and, on the other, the right of peoples to self-determination.

3. Locating law in the international system

2021 ◽  
pp. 48-68
Author(s):  
Nicole Scicluna
Keyword(s):  
International Law ◽  
International System ◽  
The Body ◽  
Customary International Law ◽  
Legal Rules ◽  
System P ◽  
The Relationship ◽  
Domestic Law ◽  
Domestic Level ◽  
Law Making

This chapter examines the sources of international law. International legal rules are not as easily located as their domestic law counterparts. Whereas at the domestic level, only a relatively small number of bodies are endowed with law-making powers, at the international level, all states have law-making capacity. Moreover, state acts are not the only source of international legal rules. The result is a mosaic of law-making processes, forums, and regimes. The chapter focuses on the two most significant sources of international law: treaties and customary international law. It then turns to the relationship between international law-making and the principle of state sovereignty. Finally, the chapter considers the body of non-binding norms, which increasingly permeates and regulates all facets of international life. This so-called soft law takes many forms; it is often highly influential in its own right and may harden into binding law over time.

International Law in a Changing International System

1999 ◽  
Vol 58 (1) ◽  
pp. 78-95 ◽  
Author(s):  
D.B.E. Rosalyn Higgins
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
International System ◽  
The United States ◽  
International Markets ◽  
Modern Technology ◽  
Careful Monitoring ◽  
The United Nations ◽  
The One

TO see what international law can offer in an apparently chaotic and fast changing world is far from easy. But it is only by examining and trying to understand the evolving international system that some answers may be found, because international law and international relations are in a symbiotic relationship.The characterising features of the contemporary international system are globalisation on the one hand and a unipolar power structure on the other. The former is having a significant impact on international law as by its very nature actors are engaged in transactions across State boundaries in alliances that are not bounded by nationality. Modern technology facilitates these alliances of interest and gives an unprecedented voice to non-State actors, whether in human rights, in environmental matters or in international markets.The concentration of military power in the United States had led to various incremental changes in authorisations of force by the United Nations, whether for peacekeeping or for enforcement actions. The evolving relationship between the United Nations and NATO has negative as well as positive factors and needs careful monitoring.

The Legality of Suicide Tourism

2019 ◽  
pp. 65-88
Author(s):  
Daniel Sperling
Keyword(s):  
International Law ◽  
Assisted Suicide ◽  
Home Country ◽  
The Other ◽  
Soft Law ◽  
Other Hand ◽  
Extraterritorial Jurisdiction ◽  
The One ◽  
Law Regulation

This chapter examines the alternatives that countries of origin and countries where assisted suicide is legal may exercise with regard to suicide tourism. Specifically, it considers whether actions to limit or prohibit travel for assisted suicide or access to it within a person’s home country can be legally valid. On the one hand, legally restricting access to assisted suicide to residents only or to patients who have had a long-standing relationship with prescribing doctors suffers from much criticism and is difficult to justify. On the other hand, from the perspective of countries of origin, it is difficult and inappropriate to apply the doctrine of extraterritorial jurisdiction to the criminality of assisted suicide. The chapter also considers the strength of other suggestions in relation to international law, particularly the idea of ‘soft law’ regulation of the practice.

scholarly journals Right to collective action in cross-border employment contexts: a fundamental social right not yet covered by EU private international law

2016 ◽  
Vol 2 ◽  
pp. 20-38
Author(s):  
Cinzia Peraro
Keyword(s):  
Collective Action ◽  
International Law ◽  
Social Rights ◽  
Private International Law ◽  
Constitutional Courts ◽  
European Union Law ◽  
System A ◽  
European Court ◽  
The One ◽  
The Right

The purpose of this article is to describe the right to collective action in crossborder employment contexts, recognised as a fundamental social right at the national and European levels. On the one hand, some national Constitutional Courts, such as the Portuguese and Italian ones, have dealt with social rights and the economic crisis, and have clearly stressed the prevalence of constitutional social rights over austerity measures. On the other hand, Council of Europe documents and European Union law recognise social rights, but they do not offer a proper means of protection. The European Court of Justice case-law shows a complex interrelation between social rights and economic freedoms. The main issue concerns the existing EU private international law on collective action, which has led to an inconsistent system. A new European collective action framework could be a possible solution to effectively guarantee fundamental social rights.

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