Viet Nam

General Principles Of Law ◽

Two Phases ◽

Case Basis

This chapter explores international law in Viet Nam. It is difficult to comprehensively conceptualize international law in Viet Nam’s legal system. There is no formal documentation concerning two of the main sources of public international law: international custom and general principles of law. Treaties, by contrast, are dealt with in great detail. Viet Nam adopts a modified monist approach by maintaining the primacy of the Constitution and the priority of treaties and incorporating treaties into the muninipal law on a case-by-case basis. The use of treaties in Viet Nam can be divided into two phases: (i) colonial times and (ii) since independence in 1945 when modern Viet Nam, proactively relying on international law in the quest for ultimate independence and unification in 1975 and since, started a period of robust engagement in the international legal order. The chapter finally looks at Viet Nam’s current practice of concluding and enforcing treaties.

2000–2020: twenty years later, where are we in terms of the unity of international law?

Cambridge International Law Journal ◽

10.4337/cilj.2020.01.01 ◽

2020 ◽

Vol 9 (1) ◽

pp. 6-23

Author(s):

Pierre-Marie Dupuy

Keyword(s):

International Relations ◽

United Nations ◽

International Law ◽

Rule Of Law ◽

Legal Order ◽

The Hague ◽

Peremptory Norms ◽

International Rule

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

The Nomadic Sense of Law in an International Constitutionalism

Max Planck Yearbook of United Nations Law Online ◽

10.1163/18757413_022001011 ◽

2019 ◽

Vol 22 (1) ◽

pp. 234-283

Author(s):

William E. Conklin

Keyword(s):

International Law ◽

The State ◽

Legal Order ◽

The Social ◽

History Of ◽

Nomadic Communities ◽

Legal Space ◽

International Constitutionalism

This article examines the place of Nomadic peoples in an international constitutionalism. The article claims that an important element of a Nomadic culture is its sense of law. Such a sense of law differs from a constitutionalism which has privileged fundamental principles aimed to constrain acts of the executive arm of the State. Such a constitutionalism is shared by many contemporary domestic legal orders. Public international law also takes such a constitutionalism for granted. In the focus upon rules to constrain the executive arm of the State, the sense of law in Nomadic communities has slipped through arguments which the jurist might consider inclusive of the protection of such communities. This problem is nested in a legacy which has weighted down the history of European legal thought. The article initially identifies three forms of nomadism. The social phenomenon of nomadism has been the object of juristic commentary since the Greeks and Romans. The image of Nomadic peoples in such a legacy has imagined Nomadic peoples as lawless although the article argues that a sense of law has existed in such communities. Such a sense of law contradicts a State-centric international legal order. Public international law has reserved a special legal space relating to Nomadic peoples. The article identifies four arguments which might be rendered to protect Nomadic peoples in such a State-centric international community. Problems are raised with each such argument

К вопросу о понятии и сущности правового государства

10.18411/lj-02-2021-213 ◽

2021 ◽

Vol 70 (6) ◽

pp. 64-67

Author(s):

И.И. Ларинбаева ◽

А.Р. Насыров ◽

Р.А. Иксанов

Keyword(s):

Rule Of Law ◽

Legal System ◽

Legal Order ◽

The Rule Of Law ◽

General Principles Of Law ◽

International Legal System

The article examines the issues of the formation of the rule of law, the influence of general principles of law on this process, as well as the importance of constitutionalism on the development of the concept of the rule of law. It is noted that the model of the rule of law is embedded in the construction of the international legal system. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order.

4. International Law and Domestic Law

Cases & Materials on International Law ◽

10.1093/he/9780198727644.003.0004 ◽

2016 ◽

Author(s):

Martin Dixon ◽

Robert McCorquodale ◽

Sarah Williams

Keyword(s):

International Law ◽

International Society ◽

Legal System ◽

International Community ◽

Legal Order ◽

State Sovereignty ◽

National Legal System ◽

Municipal Law ◽

Domestic Law

The interaction between international law and domestic (or national or ‘municipal’) law demonstrates the struggle between State sovereignty and the international legal order. While the international legal order seeks to organise international society in accordance with the general interests of the international community, State sovereignty can be used to protect a State against the intervention of international law into its national legal system. This chapter discusses theories about the relations between international law and national law; national law on the international plane; international law on the national plane; and examples of international law on the national plane.

The Islamic Law of War and Peace and the International Legal Order: Convergence or Dissonance?

The Justification of War and International Order ◽

10.1093/oso/9780198865308.003.0021 ◽

2021 ◽

pp. 379-394

Author(s):

Sohail H. Hashmi

Keyword(s):

International Law ◽

Classical Theory ◽

Islamic Law ◽

World Order ◽

Legal Order ◽

War And Peace ◽

State Practice ◽

Mutual Relations

Sohail Hashmi introduces Part VI on non-Western perspectives on the justification of war and international order by engaging with Islamic discourses on war and peace: Muslim jurists working in the eighth through the fourteenth centuries developed a wide-ranging theory of world order (siyar) that elaborated laws of war (jihad) and peace. This theory was never fully implemented in state practice, but given the conservatism of Muslim jurisprudence in later centuries, it was neither revised nor renounced. Thus, this classical theory exists as a sort of parallel legal system to public international law today, confronting modern Muslims with questions of conflict or compatibility between the two. Three broad Muslim responses may be discerned: assimilation, accommodation, and rejection. The assimilationists treat the classical theory largely as a historical and now obsolete conception of world order. They accept the universality of international law and argue that most Muslims do so as well. The accommodationists claim that while international law appropriately governs the conduct of Muslim states in international society as a whole, Islamic law should have a role in the mutual relations of Muslim states. In other words, they see the potential for an Islamic international law alongside public international law. The rejectionists view international law as an alien code imposed on Muslims by Europeans. They affirm the superiority of Islamic law over international law and call for its application by Muslim states, not just in their mutual relations, but with non-Muslim states as well. Of these three positions, Muslim scholarship and practice overwhelmingly favour the assimilationist or accommodationist views. The rejectionist position is propounded by a limited number of the most conservative scholars and activists.

Coordination of Different Principles and Values in International Law

Volume 61 · 2018 - German Yearbook of International Law ◽

10.3790/gyil.61.1.209 ◽

2019 ◽

Vol 61 (1) ◽

pp. 209-250

Author(s):

Riccardo Pisillo Mazzeschi

Keyword(s):

Human Rights ◽

International Law ◽

Legal System ◽

Legal Order ◽

Transition Phase ◽

Access To Justice ◽

A Value ◽

Jus Cogens ◽

Ideological Change

The theme of coordination between different principles and values is becoming central to contemporary international law. This is because the latter has become a broad and complex legal system and is going through a phase of profound transformation. This also implies a paradigmatic and ideological change of the international legal order, which tends to shift from a law of rules to a law of values. In this transition phase, conflicts occur especially between the principles of ‘old’ international law and the principles of ‘new’ international law. In this paper it is claimed that, in international law, three different methods are used to try to resolve the antinomies between conflicting principles: a) a ‘traditional positivist’ method; b) a ‘modern positivist’ method; c) a ‘value-based’ method. These three methods are strictly linked to three different conceptions on the sources of general international law and on the means for identification of that law. This article examines separately the three methods and the practical results to which they arrive, using as a main example the conflict between principles on international immunities and principles on fundamental human rights. The conclusion is that the interpreter should today avoid the ‘traditional positivist’ method, because it is now unsuitable for the reality of contemporary international law. Instead, he should use both the ‘modern positivist’ method and the ‘value-based’ method, coordinating them among themselves. Keywords: Conflicting Principles, Antinomies, Sources of International Law, Jus Cogens, Immunities, Fundamental Human Rights, Access to Justice, Balancing

Treaty withdrawal and recalcitrant States

Cambridge International Law Journal ◽

10.4337/cilj.2020.02.06 ◽

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 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.

On the Implementation of International Law in the Constitutional Legal System of Russia: Theory and Practice

Sociology and Law ◽

10.35854/2219-6242-2021-2-66-71 ◽

2021 ◽

pp. 66-71

Author(s):

Yu. V. Mishalchenko ◽

N. V. Bugel’ ◽

E. L. Egorova

Keyword(s):

International Law ◽

Legal System ◽

National Level ◽

Legal Order ◽

Theory And Practice ◽

European Court ◽

Actual Direction ◽

Mechanism Of Interaction ◽

Sociocultural Processes

Implementation of international law at the national level continues to be an actual direction for both theoretical and practical studies. Within the framework of the processes of globalization and integration, this issue is of particular importance. This article examines the theoretical aspects of the implementation of International Law in the constitutional legal system, as well as the features of the practice of making decisions by the European Court of Human Rights in modern conditions. The influence of sociocultural processes taking place in Western European countries on the interaction of national and international legal order. The purpose of the work is to analyze the theoretical and practical aspects of the implementation of International Law in the national legal system within the framework of integration processes that have a direct impact to the main spheres of society. In the course of the research have been used: formal logical and technical-legal methods. The authors made a number of conclusions about the modern mechanism of interaction between the national and international legal order.

The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law

International and Comparative Law Quarterly ◽

10.1017/s0020589300062862 ◽

1999 ◽

Vol 48 (1) ◽

pp. 3-19 ◽

Cited By ~ 2

Author(s):

Mariano J. Aznar-Gomez

Keyword(s):

International Law ◽

Nuclear Weapons ◽

Case Law ◽

Legal Order ◽

Advisory Opinion ◽

International Court Of Justice ◽

Court Of Justice ◽

International Court ◽

International Legal Order

Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

Community Interest and the International Public Legal Order

Netherlands International Law Review ◽

10.1007/s40802-021-00186-7 ◽

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 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.