Part I Conclusion of Treaties, 1 Are Agreements between States and Non-State Entities Rooted in the International Legal Order?

2011 ◽  
Author(s):  
Olivier Corten ◽  
Pierre Klein
Keyword(s):  
International Law ◽  
Political System ◽  
Affirmative Answer ◽  
Legal Order ◽  
Vienna Convention ◽  
Clear Cut ◽  
Peace Agreements ◽  
National Jurisdiction ◽  
International Legal Order ◽  
Made In

Can peace agreements concluded between a State and a non-State entity produce legal effects in the international sphere, as mentioned in Article 3 of the Vienna Convention on the Law of Treaties? Could it be considered that, following the conclusion of such agreements, some areas that were traditionally conceived as pertaining to the national jurisdiction of States (such as the use of violence within national borders, or the choice of a political system) are as of now governed by international law? On the basis of numerous agreements reviewed in this study, a clearly affirmative answer would appear excessive. As far as the international legal effects of such instruments are concerned, much will depend on the specificities of each agreement and on the way it has been implemented. Most of these agreements prove to be rather ambiguous, a significant portion of their components evidencing their rooting in the domestic legal order. This ambiguity finds confirmation in the very pragmatic treatment of peace agreements by the Security Council and States when they call for compliance with these instruments. In the vast majority of cases, such demands are made in the name of the maintenance of international peace and security, without much attention being paid to the characterization in legal terms of the parties' undertakings under these agreements. It therefore appears difficult to reach clear-cut conclusions as to the legal effects of such peace agreements in the international sphere — and, as a consequence, as to their possible characterization as ‘treaties’ under international law.

The Development of International Law Since the War

1928 ◽  
Vol 22 (2) ◽  
pp. 330-350 ◽  
Author(s):  
Manley O. Hudson
Keyword(s):  
International Law ◽  
Legal Order ◽  
World War ◽  
The World ◽  
International Legal Order ◽  
The Law ◽  
Made In

We are now approaching the end of the first decade following the World War. Perhaps we are sufficiently removed from the heat and passion of that struggle to attempt to gauge the progress which the world has made in the development of international law since it was ended. Ten years is a brief period in any field of history; but before this decade was begun, most of us felt that it was going to see great things accomplished toward broadening and strengthening and extending the law by which the relations of states are governed. The war brought a challenge to our international legal order which could hardly have failed to create for our generation an opportunity to leave an impression on international law, such as has been left by no other generation in the three hundred years since the time of Grotius. As the decade is ending, and as our generation begins to find its energies so absorbed in other tasks, an appraisal of the progress we have achieved may enable us to judge the use we have made of our opportunity and the extent to which it still exists.

Part III Observance and Application of Treaties, 14 Treaties Establishing Objective Regimes

2011 ◽  
Author(s):  
Salerno Francesco
Keyword(s):  
International Law ◽  
Legal Order ◽  
Customary Law ◽  
Vienna Convention ◽  
Principle Of Relativity ◽  
International Legal Order ◽  
The Absolute ◽  
The Law

The issue of treaties establishing objective regimes has been neglected by the Vienna Convention on the Law of Treaties. Building on the principle of relativity of treaties, the Convention only deals with the effects of specific treaty rules on third states. This chapter argues that third states never acquire the same status of states parties, even when they consent to the specific treaty rules that affect them. Analysing the significance of treaties establishing objective regimes under general international law, it clarifies that such treaties may affect third states even when they do not embody rules of customary law. Due to the relevance for the international legal order of the unique erga omnes regime created by the treaty, the situation regulated by it can no longer fall within the scope of the absolute ‘freedom’ previously accorded to third states.

Part IV Treaty Application, 16 State Succession in Respect of Treaty Relationships

2020 ◽  
Author(s):  
Hafner Gerhard ◽  
Novak Gregor
Keyword(s):  
International Law ◽  
Legal Order ◽  
Vienna Convention ◽  
Customary International Law ◽  
Progressive Development ◽  
Current State ◽  
International Legal Order ◽  
State Succession ◽  
State Of Affairs ◽  
Order State

This chapter returns to the international frame, asking how treaties apply in cases of disruption to the international legal order — State succession — a topic addressed by the 1978 Vienna Convention on Succession of States in respect of Treaties (VCSST). The present state of affairs relating to treaty succession suggests that only some of the VCSST’s provisions can serve as a reliable guide to the current State of customary international law (e.g. Article 11’s continuation of all boundary regimes, Article 15’s ‘moving treaty boundaries’ rule). Others constitute progressive development of international law (e.g. Article 31 in cases of incorporation; Article 34 in cases of separation). In any case, modern treaty succession distinguishes not only among the different cases of State succession, such as merger or dismemberment, but also among specific categories of treaties that are subject to different rules or principles. It is therefore difficult to identify a generally applicable legal regime of treaty succession.

Jus Cogens: A Complex Case of Constitutional Reasoning in International Law

2020 ◽  
Vol 6 (3) ◽  
pp. 249-262
Author(s):  
Miodrag Jovanović
Keyword(s):  
International Law ◽  
Legal Order ◽  
Complex Case ◽  
Vienna Convention ◽  
International Governance ◽  
Teleological Argument ◽  
International Legal Order ◽  
State Actor ◽  
Jus Cogens ◽  
Peremptory Norms

Article 53 of the Vienna Convention on the Law of Treaties famously introduced a special class of international legal rules - jus cogens norms - without specifying its content. The paper proceeds by adopting the heuristic framework of constitutionalization of international law, arguing that jus cogens norms contribute to at least two constitutionalist functions - that of limiting the international governance and hierarchizing international legal order. Hence, it is possible to argue that jus cogens reasoning is a specific type of constitutional reasoning. Despite stipulated formal qualities of jus cogens norms, in trying to establish their content state actors are in the situation similar to constitutional adjudicators dealing with underdetermined legal content of a constitutional text. What directs the process of jus cogens reasoning is, thus, the particular nature of the subject-matter with which those norms deal. The last part of the paper provides the analytical reconstruction of the jus cogens constitutional reasoning, focusing on the process of ascertainment, which is to be taken by the community of states. It is argued that what ascertainment requires is, inter alia, resorting to a unique interpretative tool - reverse teleological argument - with the use of which the state actor can extract from the fundamental values of international legal order a class of peremptory norms of international law.

Treaty withdrawal and recalcitrant States

2020 ◽  
Vol 9 (2) ◽  
pp. 225-240
Author(s):  
Joseph Crampin
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Order ◽  
Vienna Convention ◽  
High Profile ◽  
Binding Force ◽  
International Legal Order ◽  
International Legal System ◽  
The Law

The recent prevalence of high-profile unilateral treaty withdrawals raises broader questions over trust in treaty-making. Given the foundational importance of trust in treaties to international law, these withdrawals present risks to the international legal order generally. The issue for international law is how it can regulate treaty withdrawal in a way that preserves trust in the international legal system. The problem of trust is twofold. If international law adopts too permissive a stance towards unilateral withdrawal, then this will undermine trust in the binding force of treaties: pacta sunt servanda. If it is too restrictive, it will undermine the authority of international law, since it will result in situations in which recalcitrant States (ie States which have decided no longer to comply with their obligations) disobey, and are seen to disobey, their obligations. The paper seeks to explore this tension that underlies the regulation of treaty withdrawal. First, it analyses historical approaches to the problem, and, second, how the Vienna Convention on the Law of Treaties has sought to resolve it. It then examines how the principle is and can be used to achieve a balance between integrity and authority that can assist international law in regulating withdrawal and recalcitrance in a manner that preserves trust in treaty-making.

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

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