The Oxford Handbook of the Sources of International Law

2018 ◽  
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
Public Authority ◽  
Legal Rules ◽  
Systematic Overview ◽  
International Legal Order ◽  
Key Issues ◽  
Different Levels

The question of the sources of international law inevitably raises some well-known scholarly controversies: where do the rules of international law come from? Through which processes are they made? How are they ascertained? Where does the international legal order begin and end? These traditional questions bear on at least two different levels of understanding. First, how are international norms validated as rules of international ‘law’, i.e. legally binding norms? This is the static question of the pedigree of international legal rules and the boundaries of the international legal order. Secondly, what are the processes through which these rules are made? This is the dynamic question of the making of these rules and of the exercise of public authority in international law. This book explores the various facets of the sources of international law. It provides a systematic overview of the key issues and debates around the sources of international law, including recent contestations thereof. It also offers an authoritative theoretical guide for anyone studying or working within but also outside international law wishing to understand one of its most fundamental questions.

4. International law and municipal law

2019 ◽  
pp. 78-102
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Common Source ◽  
National Regulation ◽  
Legal Rules ◽  
International Legal Order ◽  
Municipal Law ◽  
State Relations ◽  
The Relationship

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.

Carl Schmitt’s Critique of Kant

2012 ◽  
Vol 40 (6) ◽  
pp. 688-713 ◽  
Author(s):  
Seyla Benhabib
Keyword(s):  
World War I ◽  
International Law ◽  
International Norms ◽  
Legal Order ◽  
World War ◽  
Top Down ◽  
The Earth ◽  
International Legal Order ◽  
The Relationship

Carl Schmitt’s critique of liberalism has gained increasing influence in the last few decades. This article focuses on Schmitt’s analysis of international law in The Nomos of the Earth, in order to uncover the reasons for his appeal as a critic not only of liberalism but of American hegemonic aspirations as well. Schmitt saw the international legal order that developed after World War I, and particularly the “criminalization of aggressive war,” as a smokescreen to hide U.S. aspirations to world dominance. By focusing on Schmitt’s critique of Kant’s concept of the “unjust enemy,” the article shows the limits of Schmitt’s views and concludes that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be at times, this needs to be interpreted as one of mediation and not domination.

scholarly journals The Efficacy of Targeted Sanctions in Enforcing Compliance with International Law

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 163-168
Author(s):  
Alexandra Hofer
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
International Legal Order

In the international legal order, sanctions are valued for their coercive and stigmatizing functions. Through the imposition of financial or other costs, these measures seek to induce compliance with international law by those who are targeted. They also aim to signal the sender's commitment to the violated norm and stigmatize an actor responsible for wrongful behavior. In light of these functions, this essay examines the factors to assess when evaluating the efficacy of unilateral targeted sanctions in enforcing international law. The issue is relevant not only for political scientists, but also for international lawyers interested in ensuring compliance with international norms.

11. Normative Interactions: Implementation and Hierarchy of Norms

2020 ◽  
pp. 218-242
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Legal Rules ◽  
International Legal Order ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
National Systems ◽  
Domestic Level

This chapter deals with some fundamental realities of international law as a body of legal rules which traditionally requires implementation at domestic level through transposal. In so doing it discusses the traditional theoretical distinction between monism and dualism, as abstract approaches to the relationship between domestic and international legal order. It then tackles the issue of the effects (including direct effects) that international law may have in concrete situations within national systems, as a consequence of, or, in some instances even irrespective of, transposal through national legislation. Thirdly, the chapter discusses the ‘verticalization’ of the international legal order with the affirmation in the second half of the twentieth century of the notion of jus cogens (or peremptory norms) and the effects this has (or might have) within international law and in its relationships with municipal laws.

scholarly journals INTERNATIONAL LEGAL ORDER: CURRENT DEVELOPMENTS OF LEGAL PHENOMENA (THEORETICAL ASPECTS)

2017 ◽  
pp. 79-87
Author(s):  
I. Zabara
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal Order ◽  
First Line ◽  
International Legal Order ◽  
Regional Order ◽  
Key Issues ◽  
National Transformation ◽  
The Relationship

The article deals with the theoretical aspects of the key issues of international legal order. The author describes the phenomenon of international legal order based on conceptual views of representatives of modern Ukrainian school of international law. The author examines and summarizes the international legal doctrinal views which define and determine the formation of modern international legal order. The author identifies several fundamental areas of international legal order. The first line shows the sectoral focus of research. The author notes that in this line of questions explored the legal basis of international legal order in certain areas of international law; conceptual aspects of formation of international legal order in a particular area of international law; the relationship between the principles of international law and the principles of international legal order; the role of international law and its subjects in the development of international law in certain areas. Within this framework have been identified and studied the principles of international legal order in the spatial (space, sea) branches of international law, and in some areas the actual activities of international law. The second trend reflects the regional focus of research of international legal order. The author notes that within the area studied questions of general principles of formation and development of regional order; especially the formation and development of some regional order; regional impact of law enforcement on the national transformation of individual states. Within this framework singled out themes, covering the European legal order, Asian international legal order, African legal order, American legal order and other types of international legal order.

scholarly journals Community Interest and the International Public Legal Order

2021 ◽  
Author(s):  
Sarah Thin
Keyword(s):  
International Law ◽  
Legal System ◽  
Future Development ◽  
Legal Order ◽  
Public Authority ◽  
International Level ◽  
The Public ◽  
Community Interest ◽  
International Legal Order ◽  
International Legal System

AbstractTraditional ideas about the private nature of the international legal order are increasingly being forced to contend with the development of public legal elements at the international level. The notion of the international community interest is key to understanding these developments and, as such, has transformed our understanding of international law. There are many different approaches to the public/private distinction in law, broadly categorised into relational, public authority, and interest-based approaches. These can be reduced to four key elements of publicness: the existence of a community or public; the universality of the public regime in question with its own boundaries; normative and institutional hierarchies; the objectivity of obligation and responsibility. The development of the community interest and related norms of international law can be seen to have introduced and strengthened all of these elements of publicness within the international legal system. It is thus on its way to becoming an international public legal order. This has important implications for our understanding of international law and the future development of the international legal order.

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.

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