Sources and the Legitimate Authority of International Law

2018 ◽  
Author(s):  
Richard Collins
Keyword(s):  
International Law ◽  
The Other ◽  
Customary Law ◽  
Legitimate Authority ◽  
Formal Assessment ◽  
Normative Evaluation

This chapter is concerned with international law’s claim to legitimate authority and the role played by the doctrine of sources in meeting this claim. It argues that the kind of formal assessment of legality inherent in sources doctrine expresses a specific view of the legitimate authority of international law. Here, the chapter tries to defuse two misleading lines of attack: one based on the vagaries of the processes of customary law formation and ascertainment and the other based upon the exhaustiveness of sources doctrine as traditionally conceived. As this chapter shows, both criticisms miss their target by overplaying what is at stake in this view of international law’s legitimate authority. Whilst the chapter therefore defends this ‘doctrinal’ view, it nonetheless shows how a broader theory of the legitimacy of international law will necessarily have to balance content-dependent and content-independent normative evaluation.

Power to Resort to Equity

2021 ◽  
pp. 104-136
Author(s):  
Catharine Titi
Keyword(s):  
International Law ◽  
General Principle ◽  
The Other ◽  
Customary Law ◽  
Complex Relationship ◽  
Customary International Law ◽  
Formidable Challenge ◽  
Repeated Use ◽  
General Principles Of Law ◽  
The One

The chapter documents the complex relationship between, on the one hand, equity and international law and, on the other, principles and rules, and it discusses equity as a source of international law. The thrust of its argument is that equity is a source of international law, which means that international adjudicators have the power to apply it. While conceding that the felicitous conjunction of law and equity presents a formidable challenge, the chapter suggests that equity can only be conceived as forming part of the law. After discussing equity embedded in conventional law, the chapter turns to customary international law, general principles of law, and general principles of international law. It puts forward the argument that equity is a general principle of international law of a customary law nature, having mutated from a general principle of law through its repeated use at the international level.

From Abundance to Indeterminacy: The Precautionary Principle and Its Two Camps of Custom

2014 ◽  
Vol 3 (2) ◽  
pp. 323-339
Author(s):  
Ole W. Pedersen
Keyword(s):  
International Law ◽  
Precautionary Principle ◽  
The Other ◽  
Customary Law ◽  
Customary International Law ◽  
The Precautionary Principle ◽  
Cross Border ◽  
Current State ◽  
State Practice ◽  
Indus Waters Treaty

AbstractThe question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

scholarly journals Unpalatable Decisions By International Court Of Justice (ICJ) And Palatable Solutions By Islamic International Law (siyar)

2016 ◽  
Author(s):  
Muhammad Naguib Abdul Malik
Keyword(s):  
International Law ◽  
Islamic Law ◽  
The Other ◽  
Customary Law ◽  
International Court Of Justice ◽  
Joint Development ◽  
Court Of Justice ◽  
International Court ◽  
Maritime Boundary ◽  
The Icj

This article demonstrates that the cases decided by the ICJ and the arbitration tribunals are judge made law and are not derived from the rules of customary law. Judge made law, as enunciated by the ICJ and the arbitration tribunals are very general and imprecise. The decisions made by the ICJ and the arbitration tribunals beget unpredictability or unexpected results. Normally, state parties are not happy with the decision made by the ICJ and the arbitration tribunals and the discontented states are unable to take any actions as state parties need to comply with the decision of the ICJ. In this Article, two (2) cases, one in South America and the other one in Africa, were discussed in detail. The outcome of these two (2) cases is not palatable to some state parties. Since the decisions are not predictable and the outcome is not palatable to some state parties, this Article looks at possible solutions which are being offered in International Islamic Law (Siyar). Keywords: Islamic International Law (Siyar), International Court of Justice (ICJ), Judge Made Law, Maritime Boundary Delimitations, Unpredictable Results, The Principle of Joint Administration, The Principle of Joint Development.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Religious Zionism, Jewish Law, and the Morality of War

2017 ◽  
Author(s):  
Robert Eisen
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Jewish Law ◽  
Jewish State ◽  
Moral Issues ◽  
Law And Ethics ◽  
Present Book ◽  
History Of ◽  
State Of Israel ◽  
Morality Of War

When the state of Israel was established in 1948, it was immediately thrust into war, and rabbis in the religious Zionist community were challenged with constructing a body of Jewish law to deal with this turn of events. Laws had to be “constructed” here because Jewish law had developed mostly during prior centuries when Jews had no state or army, and therefore it contained little material on war. The rabbis in the religious Zionist camp responded to this challenge by creating a substantial corpus of laws on war, and they did so with remarkable ingenuity and creativity. The work of these rabbis represents a fascinating chapter in the history of Jewish law and ethics, but it has attracted relatively little attention from academic scholars. The purpose of the present book is therefore to bring some of their work to light. It examines how five of the leading rabbis in the religious Zionist community dealt with key moral issues in the waging of war. Chapters are devoted to R. Abraham Isaac Kook, R. Isaac Halevi Herzog, R. Eliezer Waldenberg, R. Sha’ul Yisraeli, and R. Shlomo Goren. The moral issues examined include the question of who is a legitimate authority for initiating a war, why Jews in a modern Jewish state can be drafted to fight on its behalf, and whether the killing of enemy civilians is justified. Other issues examined include how the laws of war as formulated by religious Zionist rabbis compares to those of international law.

THE LIBERAL CONSTITUTION AND FOREIGN AFFAIRS

2010 ◽  
Vol 28 (1) ◽  
pp. 115-149
Author(s):  
Fernando R. Tesón
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Foreign Affairs ◽  
Customary Law ◽  
Trade Barriers ◽  
Customary International Law ◽  
Liberal Government ◽  
The Government ◽  
Improved Methods ◽  
The U.S

AbstractScholars have debated the meaning of the foreign-relations clauses in the U.S. Constitution. This essay attempts to outline the foreign-relations clauses that an ideal constitution should have. A liberal constitution must enable the government to implement a morally defensible foreign policy. The first priority is the defense of liberty. The constitution must allow the government to effectively defend persons, territory, and liberal institutions themselves. The liberal government should also contribute to the advancement of global freedom, subject to a number of conditions, especially cost. The essay recommends improved methods to incorporate treaties and customary international law into the constitutional structure. Treaties should be approved by the whole legislature and should generally be self-executing. Customary law should be genuine, not fake, and consistent with liberal principles. Finally, based on economic theory and evidence, the essay recommends that liberal constitutions prohibit the government from erecting trade barriers. It concludes by tentatively proposing concrete constitutional language to implement these recommendations.

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.

The Agreement between Greece and Italy on the Delimitation of their Respective Maritime Zones: An Italian Perspective

2021 ◽  
Vol 30 (1) ◽  
pp. 283-294
Author(s):  
Marina Mancini
Keyword(s):  
Continental Shelf ◽  
International Law ◽  
The Other ◽  
Boundary Line ◽  
Great Success ◽  
Ionian Sea ◽  
National Interests ◽  
The Mediterranean

In 2020 Greece and Italy concluded a maritime delimitation agreement, extending the already-established boundary line between their respective continental shelf areas to the other maritime areas to which they are entitled under international law. The Greek authorities hailed the agreement as a great success, stressing that it fully reflects their position vis-à-vis maritime delimitation in the Mediterranean and it meets their national interests in the Ionian Sea. This article critically analyzes the agreement, in the light of various recent events, and it finds that it serves Italian interests too. In particular, the 2020 Italo-Greek agreement furthers Italy’s growing interest in delimiting the maritime zones to which it is entitled under international law, so as to prevent its rights and jurisdiction over them being impaired by the proclamation of overlapping zones by its neighbours. It also sets the stage for future proclamation by Italy of an EEZ covering the waters adjacent to its territorial sea in the Ionian Sea.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

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