Access to International Justice in Relation to the Interaction between International Law and Domestic Law

2011 ◽  
pp. 76-112
Author(s):  
Antônio Augusto Cançado Trindade
Keyword(s):  
International Law ◽  
International Justice ◽  
Domestic Law

Domestic Anti-Avoidance Legislation in Relation to Tax Treaty Law

2017 ◽  
Vol 6 (2) ◽  
pp. 312
Author(s):  
Shkumbin Asllani
Keyword(s):  
International Law ◽  
Tax Avoidance ◽  
International Taxation ◽  
Main Principle ◽  
Legal Practice ◽  
Tax Treaties ◽  
International Tax ◽  
Tax Payers ◽  
The Relationship ◽  
Domestic Law

In today’s international taxation most of the developing countries enter into tax treaties which are drafted in line with the OECD MC to eliminate double taxation. Yet, is well-known fact that tax treaties in practice are abused by tax payers, therefore, majority of states have introduce legislation specifically designed to prevent tax avoidance and protect their domestic interests. In legal practice and literature the act of overriding international tax treaties and denying treaty benefits in favour of domestic law provisions threatens main principle of international law and therefore is questionable to what extend the relationship between domestic law and international tax treaty agreements bridges the international norms.

A Union of Peoples

2020 ◽  
Author(s):  
Pavlos Eleftheriadis
Keyword(s):  
European Union ◽  
International Law ◽  
Political Theory ◽  
Domestic Institutions ◽  
Eu Law ◽  
The European Union ◽  
Rival Theory ◽  
Law Of Nations ◽  
Domestic Law ◽  
The Eu

This book offers a legal and political theory of the European Union. Many political and legal philosophers compare the EU to a federal union. They believe that its basic laws should be subject to the standards of constitutional law. They thus find it lacking or incomplete. This book offers a rival theory. If one looks more closely at the treaties and the precedents of the European courts, one sees that the substance of EU law is international, not constitutional. Just like international law, it applies primarily to the relations between states. It binds domestic institutions directly only when the local constitutions allow it. The member states have democratically chosen to adapt their constitutional arrangements in order to share legislative and executive powers with their partners. The legal architecture of the European Union is thus best understood under a theory of dualism and not pluralism. According to this internationalist view, EU law is part of the law of nations and its distinction from domestic law is a matter of substance, not form. This arrangement is supported by a cosmopolitan theory of international justice, which we may call progressive internationalism. The EU is a union of democratic peoples, that freely organize their interdependence on the basis of principles of equality and reciprocity. Its central principles are not the principles of a constitution, but cosmopolitan principles of accountability, liberty, and fairness,

“Be Karbala Miravim!”

2017 ◽  
Author(s):  
Anicée Van Engeland
Keyword(s):  
At Risk ◽  
International Law ◽  
Hybrid System ◽  
Legal System ◽  
Iraq War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Standards ◽  
Domestic Law

This chapter considers the extent to which Islamic governance can integrate international humanitarian law (IHL) into its own legal system by examining the case of Iran. It addresses the consequences of the emergence of an Islamic-universal hybrid legal system. The stakes are high because IHL’s efficiency and necessity have been questioned: The existence of the Iranian hybrid system of law can be perceived as a threat by scholars arguing that international law is at risk of fragmentation due to the variety of domestic and regional approaches to fundamental legal standards. The importance of those stakes is illustrated by the Iran-Iraq War: The process of mixing a universal secular legal system with a religious domestic law occurred at a crucial time when Iran was at war with Iraq, with clear effects on the protection of civilians and the conduct of hostilities.

scholarly journals The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover
Keyword(s):  
International Law ◽  
Legal Status ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Potential Impact ◽  
Human Rights Norms ◽  
Domestic Law ◽  
Court Of Appeal

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

Dual Nationality and International Criminal Court Jurisdiction

2020 ◽  
Author(s):  
Andrew Wolman
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Functional Approach ◽  
Criminal Court ◽  
State Party ◽  
South Korean ◽  
Dual Nationality ◽  
Municipal Law ◽  
Domestic Law

Abstract The International Criminal Court (ICC) can exercise jurisdiction over nationals of states parties. However, it has never been clear whether the Court will automatically recognize a nationality that has been conferred by a state party under its domestic law, nor what criteria it would use to evaluate that nationality should it not be automatically accepted. In December 2019, the Office of the Prosecutor made its first formal pronouncement on the question, finding that the ICC does not have jurisdiction over North Koreans, despite their being South Korean nationals under South Korean law, because North Koreans are not able to exercise their rights as South Koreans until accepted as such by application, and on occasion their applications might be refused. In this article, I reject the Prosecutor’s analysis as misguided. I also reject the other main approaches to nationality recognition suggested by scholars, namely a ‘genuine link’ requirement, a deferral to municipal law, and a deferral to municipal law except where a conferral of nationality violates international law. Instead, I propose a functional approach that would respect municipal conferral of nationality unless that conferral unreasonably interferes with the sovereign interests of a non-state party.

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.

The Judiciary, International and National, and the Development of International Law

1996 ◽  
Vol 45 (1) ◽  
pp. 1-12 ◽  
Author(s):  
R. Y. Jennings
Keyword(s):  
International Law ◽  
International Justice ◽  
Teaching Staff ◽  
London School ◽  
International Studies ◽  
Public International Law ◽  
Legal Adviser ◽  
Foreign Office ◽  
London School Of Economics ◽  
Law Reports

TheAnnual Digest of Public International Law Cases—the ancestor of theInternational Law Reports—was first published “under the direction” of the Department of International Studies of the London School of Economics. The “chief inspirers”, to use Fitzmaurice's phrase, were Arnold McNair and Hersch Lauterpacht, the latter then on the teaching staff of the School. There was also an Advisory Committee of Sir Cecil J. B. Hurst, a former President of the Permanent Court of International Justice and later Legal Adviser to the Foreign Office; W. E. Beckett, also of the Foreign Office; A. Hammarksjöld, the Registrar of the Permanent Court of International Justice, and Sir John Fischer Williams of Oxford and the Reparation Commission.

The Versailles Peace Treaty Before the Permanent Court of International Justice: Tracing the Legalism of the Paris Settlement

2021 ◽  
Vol 62 (1) ◽  
pp. 129-162
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Case Law ◽  
International Justice ◽  
Second Step ◽  
Peace Treaty ◽  
International Organisations ◽  
Legal Form ◽  
The Concept Of Law ◽  
Post War ◽  
Just Peace

Abstract: The concept of international law underlying the Versailles Peace Treaty is marked by a complex and ambivalent combination of references to just peace and the use of the legal form. This article analyses the concept of law and the use of legal techniques and institutions in the Paris settlement, and connects it to various contemporaneous strands of ‘legalism' and to the transformation from (classical) nineteenth-century to (modern) twentieth-century international law. In a second step, the article turns to how the ambivalent legalism in the Versailles Peace Treaty impacted on the respective case law of the Permanent Court and how this case law connects to ‘modern' approaches to international law. While, in substance, the cases involving the Versailles Peace Treaty raised issues of both post-war settlement and international organisation, in doctrinal terms, the Court tentatively developed a concept of international law that squares with modern approaches. This can be demonstrated by examination of the case law, which contributed to the law of international organisations, redefined sovereignty, and developed the humanitarian dimension of international law.

THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS AND INVESTMENT TREATY ARBITRATION: A LIMITED RELATIONSHIP

2015 ◽  
Vol 64 (4) ◽  
pp. 905-933
Author(s):  
Jarrod Hepburn
Keyword(s):  
International Law ◽  
Public Law ◽  
Private Law ◽  
Applicable Law ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
General Principles Of Law ◽  
Domestic Law ◽  
Investment Treaty Arbitration

AbstractThe UNIDROIT Principles of International Commercial Contracts have appeared in a small but steady trickle of investment treaty arbitrations over the last decade. This article considers the use of the Principles by investment tribunals on questions of both domestic law and international law. It suggests that reference to the Principles can play an important legitimating role on questions of domestic law, but that this should not replace reference to the applicable law. On questions of international law, reference to the Principles may be justified by resort to the general principles of law. However, the article contends that there is only a limited role for the UNIDROIT Principles where the primary and secondary rules of investment protection are already found in treaties and custom. In addition, while general principles have historically been drawn from domestic private law, there is increasing recognition that general principles of public law are more relevant to investment arbitration. Given this, arbitrators resolving questions of international law must be cautious in references to the UNIDROIT Principles, a quintessentially private law instrument.

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