Sources and the Hierarchy of International Law

2018 ◽  
Author(s):  
Mario Prost
Keyword(s):  
International Law ◽  
Legal Subjects ◽  
Law Making

This chapter maintains that the doctrine of sources is constructed around a set of shared intuitions and accepted wisdom. One of them is that there exists no hierarchy among sources of international law and that these are, to all intents and purposes, of equal rank and status. The chapter takes a critical look at this ‘non-hierarchy’ thesis, arguing that it is descriptively problematic as it tends to conceal the fact that international legal actors (States, judges, scholars) constantly establish more or less formalized hierarchies of worth and status among law-making processes. These are, admittedly, soft and transient hierarchies that very much depend on contexts, circumstances, the identity of the legal subjects, and the projects they pursue. But these are hierarchies nonetheless inasmuch as that they involve a differentiation of sources ‘in a normative light’.

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.

Revisiting Security Council action on terrorism: New threats; (a lot of) new law; same old problems?

2021 ◽  
pp. 1-30
Author(s):  
David McKeever
Keyword(s):  
International Law ◽  
Security Council ◽  
Counter Terrorism ◽  
Un Security Council ◽  
New Type ◽  
Recent Activity ◽  
Legislative Activity ◽  
Recent Action ◽  
Organizing Principles ◽  
Law Making

Abstract The devastating events of 9/11 triggered the adoption of Resolution 1373 (2001) by the UN Security Council, a contentious development which was much debated and was widely seen as presaging a new type of activity by the Security Council – legislating for all UN member states. And yet, in the counter-terrorism sphere at least, the Council’s legislative activity in the years following 9/11 was relatively modest. Both quantitatively and qualitatively, that activity has been far exceeded by the Council’s response to the emergence of ISIL in 2014. This more recent activity is of interest beyond the confines of counter-terrorism, but has received far less scrutiny to date. This article will remedy this gap, revisiting, in light of the recent activity, the relative merits and disadvantages of making counter-terrorism law through Security Council resolutions. It makes two main contentions. The first is that – due to some factors which were anticipated in the early 2000s and many which were not – Security Council resolutions on terrorism constitute a distinctive category of international law-making and pose serious challenges for the application of organizing principles and processes of general international law. The second is that, for these reasons as well as doubts as to the necessity and efficacy of recent action, making counter-terrorism law through Security Council resolutions should be the exception rather than the norm.

Know Your Rights: The (un)making of the colonial legal subjects in rural North India, circa 1770–1857

2021 ◽  
pp. 1-31
Author(s):  
DU FEI
Keyword(s):  
Rural Population ◽  
East India Company ◽  
North India ◽  
Extensive Discussion ◽  
British Rule ◽  
State Bureaucracy ◽  
Revenue Administration ◽  
Legal Subjects ◽  
Education And Law ◽  
Law Making

Abstract This article examines the entanglement of administration, education, and law in North India under early British rule. While there exists extensive discussion on each of these three themes, historians have not paid enough attention to the processes in which, by the mid-nineteenth century, the official minds of the East India Company gradually came to imagine its revenue administration in North India at the institutional intersection of state bureaucracy, village schools, and the law courts. I will argue in this article that through this intersection of knowledge/law-making, the Company wished to foster an ‘enlightened’ but simultaneously obedient subjecthood among the Indian rural population. The contested relationship between the state, the local Indian officials, and the villagers in general, however, thwarted this patronizing ambition.

scholarly journals Sovereignty, Accountability, and the Wealth Fund Governance Conundrum

2011 ◽  
Vol 1 (2) ◽  
pp. 289-320 ◽  
Author(s):  
Anna GELPERN
Keyword(s):  
International Law ◽  
Portfolio Investment ◽  
Sovereign Wealth Funds ◽  
Fund Governance ◽  
A Site ◽  
Law Making

Sovereign wealth funds—state-controlled transnational portfolio investment vehicles—began as an externally imposed category in search of a definition. SWFs from different countries had little in common and no desire to collaborate. This article elaborates the implications of diverse public, private, domestic, and external demands on SWFs, and describes how their apparently artificial grouping became a site for innovation in international law-making.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

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