1 Introduction

2015 ◽  
Author(s):  
Azaria Danae
Keyword(s):  
International Law ◽  
Dual Function ◽  
Customary International Law ◽  
Key Concepts ◽  
Scope Of Application ◽  
Treaty Interpretation ◽  
International Responsibility ◽  
The Relationship

Chapter 1 illustrates the importance of means of transportation in the development of international law, and the modern relevance of transit of energy via pipelines in this respect. The chapter sets the framework and method used in the study. Key concepts (transit, energy, and pipelines) and the scope of application of the treaties (ratione loci and ratione materiae) examined in the study are explained. It explains the rules of treaty interpretation that are used in the study for determining the scope and content of obligations regarding transit of energy, for identifying the nature of these obligations with a view to establishing standing to invoke international responsibility in case of their breach, and for determining the relationship between treaty rules and customary international law. It focuses on the role of subsequent agreements and practice, which is extensively used in this study as a means of treaty interpretation. The elements of an internationally wrongful act are then discussed. Emphasis is placed on attribution of conduct of private entities, and on the dual function of countermeasures under the law of international responsibility.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

5 Responses to Breaches under the Law of Treaties

2015 ◽  
Author(s):  
Azaria Danae
Keyword(s):  
International Law ◽  
Customary International Law ◽  
Treaty Law ◽  
Treaty Interpretation ◽  
International Responsibility ◽  
The Law ◽  
Special Rules

Chapter 5 addresses unilateral treaty law responses available to treaty parties against breaches of transit obligations therein, and examines whether the exceptio non adimpleti contractus has a separate existence to the rule concerning responses to material breaches under the law of treaties. It illustrates that there may be special rules in treaties that displace treaty law responses under customary international law. The analysis distinguishes treaty law responses (and the exceptio non adimpleti contractus) from countermeasures. It demonstrates that even though unilateral responses under the law of treaties may be available to treaty parties other than the defaulting transit treaty party in response to a material breach of the treaty establishing transit of energy obligations (or non-performance may as a matter of treaty interpretation be allowed by virtue of the exceptio), these do not overlap and do not exclude countermeasures under the law of international responsibility.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

scholarly journals Heads of State Immunities, International Crimes and President Bashir’s Visit to South Africa

2018 ◽  
Vol 18 (4) ◽  
pp. 577-622 ◽  
Author(s):  
Guénaël Mettraux ◽  
John Dugard ◽  
Max du Plessis
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Crimes ◽  
Judicial Practice ◽  
Novel Approach ◽  
Heads Of State ◽  
The Relationship

The relationship between international crimes and sovereign immunities has bedevilled judicial practice and legal scholarship and created an apparently irreconcilable tension between the two notions. Part of the difficulty in addressing this tension derives from the approach to resolving it. This paper proposes a novel approach, viewing the relationship specifically from the perspective of international criminal law and looking at the three core functions of immunities in that context. The authors conclude that customary international law excludes immunities as defence or bar to jurisdiction for core international crimes regardless of the nature of the jurisdiction concerned, the position of the accused, or the capacity in which the accused acted. When interpreted within that framework, the ICC Statute provides for clear limitations to the role of immunities in ICC proceedings and avoids the pitfalls that have thus far marred the ICC’s approach to the law of immunities.

Part III General International Law, Ch.25 Cultural Heritage and State Succession

2020 ◽  
Author(s):  
Jakubowski Andrzej
Keyword(s):  
Cultural Heritage ◽  
International Law ◽  
Cultural Property ◽  
Theory And Practice ◽  
Customary International Law ◽  
International Responsibility ◽  
State Succession ◽  
State Archives ◽  
The Relationship ◽  
Protection Of Cultural Heritage

This chapter describes the relationship between the evolving international law regime for the protection of cultural heritage and the theory and practice of State succession. State succession in respect of cultural heritage has usually been associated with the allocation and division of movable cultural treasures following territorial transfers. Hence, much of the doctrinal effort has focused on the principles and criteria governing the passing of State cultural property and attempted to respond to the topical question of to whom cultural property belongs. The chapter then looks at the codified sources of the law on State succession. It also examines the consequences of State succession relating to distinct pre-existing legal situations: State archives and property; international cultural heritage obligations arising from treaties and customary international law; and international responsibility for cultural heritage wrongs committed prior to the date of succession.

The Relationship between unclos and imo Instruments

2017 ◽  
Vol 2 (2) ◽  
pp. 201-246
Author(s):  
Robert Beckman ◽  
Zhen Sun
Keyword(s):  
International Law ◽  
Environmental Performance ◽  
Legal Framework ◽  
Historical Background ◽  
Law Of The Sea ◽  
Customary International Law ◽  
International Shipping ◽  
United Nations Convention ◽  
The Relationship

The 1982 United Nations Convention on the Law of the Sea (unclos) is widely viewed as a “constitutive” instrument that provides a legal framework that is being filled in, rounded out and complemented by existing and subsequently enacted international agreements and customary international law. The International Maritime Organization (imo) is the preeminent international organization with competence to establish international rules and standards for the safety, security and environmental performance of international shipping. In other words, on matters relating to international shipping, unclos outlines the rights and obligations of States parties in various maritime zones that must be exercised and fulfilled through implementation instruments under the auspices of imo. This article will examine and discuss the relationship between unclos and imo instruments. First, it will provide an overview of imo, including its historical background, its mandates and structure, and the major instruments that are under its auspices. It will then look at the relationship between unclos and imo, and discuss how imo and its instruments have been incorporated into unclos. Furthermore, it will discuss the role of imo and its instruments in assisting States to exercise their rights and fulfil their obligations under unclos.

4 Legal Acts, 4.3 Military and Paramilitary Activities in and Against Nicaragua ( Nicaragua v United States of America ), Merits, Judgment, [1986] ICJ Rep 14

2016 ◽  
Author(s):  
de Chazournes Laurence Boisson ◽  
Gadkowski Andrzej
Keyword(s):  
International Law ◽  
International Organizations ◽  
Customary Law ◽  
Customary International Law ◽  
United Nations General ◽  
Legal Nature ◽  
Treaty Interpretation ◽  
The Military ◽  
The Impact

International organizations can contribute to the formation of international law as can be seen from the Military and Paramilitary Activities in and against Nicaragua case. The legal nature and effects of acts of international organizations, in relation to the principles of non-intervention and the non-use of force, are discussed having reference to the resolutions of the United Nations General Assembly, of the Organization of American States, and to the Helsinki Final Act. The impact and effect of unilateral acts of international organizations are analyzed in a wide context—that of international law-making and the sources of international law. Focus is put on the twofold relationship between acts of international organizations and customary international law, that is as evidence of customary law and with respect to its impact on its creation. Remarks are also made on the role of these acts in treaty interpretation.

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

scholarly journals Designing for international law: The architecture of international organizations 1922–1952

2020 ◽  
pp. 1-22
Author(s):  
Miriam Bak McKenna
Keyword(s):  
New York ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Labour Organization ◽  
The Relationship ◽  
Physical Manifestation ◽  
Insight Into ◽  
Do So

Abstract Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

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