Case Law in Russian Approaches to International Law

2018 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
Case Law ◽  
Main Method ◽  
International Courts ◽  
Russian State ◽  
State Practice ◽  
Structural Differences ◽  
History Of ◽  
History Of International Law ◽  
Distinct Approach

In her comparative study on the use of case law in international law textbooks, Anthea Roberts demonstrates a number of structural differences between textbooks in different countries. This chapter further explores the Russian situation and asks whether Roberts’s comparative findings regarding Russian international law textbooks reflect the dominant approach in Russian international law scholarship, and whether they also reflect a distinct approach in Russian state practice. It then discusses what might explain both Russian scholarly and governmental approaches and, finally, what international lawyers can learn from this practice in the context of comparative international law. Cautiousness about case law and international courts has historically been characteristic of the Russian approach to international law. The main method used in this chapter is a historical one, because only the history of international law and its ideas can teach us how concrete legal-political circumstances in a country have come into being.

scholarly journals Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity

2020 ◽  
Vol 22 (2-3) ◽  
pp. 218-245
Author(s):  
Hendrik Simon
Keyword(s):  
International Law ◽  
The Other ◽  
The Political ◽  
Law And Politics ◽  
State Practice ◽  
Long Time ◽  
History Of ◽  
History Of International Law ◽  
Modern War ◽  
War Discourse

Abstract The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way. Contradicting this impression, the article turns to the politics of legal scholars in the genesis of the modern war discourse. It reflects on the fateful entanglement of violence, law and politics, but nevertheless distinguishes between ‘objective’ and ‘political’ scholarship on the basis of Hans Kelsen’s work. Furthermore, the article illustrates the politicisability of legal scholars in selected historical cases of the ‘long 19th century’ (1789–1918). In all cases, two hearts pounded in lawyers’ chests: one scientific, the other political. As will be shown, the modern war discourse is shaped by a phenomenon that enables scholars to expand the intrinsic limits to the political instrumentalisation of law: ‘multi-normativity’.

Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited

2012 ◽  
Vol 25 (4) ◽  
pp. 909-934 ◽  
Author(s):  
CHRISTINA BINDER
Keyword(s):  
International Law ◽  
International Investment ◽  
State Responsibility ◽  
International Human Rights Law ◽  
International Investment Law ◽  
Force Majeure ◽  
State Practice ◽  
History Of ◽  
The Law ◽  
History Of International Law

AbstractStability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

Introduction

2020 ◽  
pp. 1-11
Author(s):  
Gabriela A. Frei
Keyword(s):  
International Law ◽  
Research Area ◽  
Reference Points ◽  
Maritime Law ◽  
Starting Point ◽  
State Practice ◽  
Close Relationship ◽  
History Of ◽  
History Of International Law ◽  
Definition Of

The Introduction provides an outline of the theme of the book, explaining the focus on state practice, custom, and the codification of international maritime law. State practice and custom were important reference points for the codification of international maritime law, and William E. Hall’s definition of international law serves as a starting point for the reflection on the importance of state practice for the making of international law. History was also an important reference point for early international lawyers, and Theodore D. Woolsey’s explanation helps to understand the close relationship between history and law more generally. The history of international law has become a vibrant research area in recent decades thanks to Martti Koskenniemi, whose works have contributed to the understanding of the construction of a legal argument and the philosophical basis of international law.

Sources in the Meta-History of International Law

2018 ◽  
Author(s):  
Mark Weston Janis
Keyword(s):  
World War I ◽  
International Law ◽  
Scientific Revolution ◽  
Case Law ◽  
New Paradigm ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
History Of ◽  
History Of International Law

This chapter introduces a ‘meta-theory’ of international law. It employs the insights of Thomas Kuhn, who argued that once a paradigm has been accepted by a scientific community, most scientists accept it without much question. When the paradigm is overwhelmed, a ‘scientific revolution’—a new paradigm—emerges. The paradigm for the sources of international law is Article 38 of the International Court of Justice (ICJ) Statute, which emerged during and after World War I when international lawyers, faced with the horrors of that awful conflict, lost faith in their old discipline, thereby initiating Kuhn’s scientific revolution. Nowadays, Article 38 remains an attractive paradigm: first because the ICJ and its Statute are almost universally accepted; secondly, because it is neatly formulated; thirdly, because the paradigm has been confirmed in case law and commentary; and fourthly, because it is widely taught.

scholarly journals Historical Overview of Jus Cogens Norms, Their Applicability by International Courts and Necessity for Unification

2019 ◽  
Vol 3 (15) ◽  
pp. 68-82
Author(s):  
Valeza Ukaj-Elshani
Keyword(s):  
International Law ◽  
World Wide ◽  
Early History ◽  
Vienna Convention ◽  
Historical Overview ◽  
International Courts ◽  
History Of ◽  
History Of International Law ◽  
Jus Cogens

The principal aim of this paper is the need for standardization of jus cogens norms, which besides their definition by the Vienna Convention on the Law of Treaties have been further developed by international courts. The paper is divided in four parts that include the characterization of jus cogens norms, their development in the early history of international law, the development of these norms by international and regional courts and ends with the need of unification of jus cogens norms. A general conclusion thus can be drawn. The international courts, in order not to become inclined to use controversial terms of jus cogens norms, necessitate for a harmonized system and standardization of these norms in order to further develop jus cogens norms. Thus, the fulfillment of these norms through standardization allows us to think that one day all international wrongful acts will become at some point world-wide derogatory. Šī raksta galvenais mērķis ir vajadzība standartizēt jus cogens normas, kuras papildus to definīcijai Vīnes konvencijā par starptautisko līgumu tiesībām ir tālāk attīstījušas starptautiskās tiesas. Šis raksts ir sadalīts četrās daļās, kas ietver jus cogens normu raksturošanu, to attīstību starptautisko tiesību agrākajā vēsturē, šo normu izstrādi starptautiskajās un reģionālajās tiesās un noslēgumā – nepieciešamību unificēt jus cogens normas. Raksta noslēgumā iespējams izteikt galvenos secinājumus par analizēto jautājumu. Starptautiskās tiesas, lai nebūtu spiestas izmantot pretrunīgus jus cogens normu terminus, ir aktualizējušas nepieciešamību pēc vienotas sistēmas un šo normu unifikācijas / standartizācijas, lai turpinātu attīstīt jus cogens normas un to piemērošanu.

The Renaissance of Roman Colonization

2020 ◽  
Keyword(s):  
International Law ◽  
Roman History ◽  
Italian Renaissance ◽  
Ancient Rome ◽  
Legal Interpretation ◽  
Colonial Discourse ◽  
Property Distribution ◽  
Carlo Sigonio ◽  
History Of ◽  
History Of International Law

The colonization policies of Ancient Rome followed a range of legal arrangements concerning property distribution and state formation, documented in fragmented textual and epigraphic sources. Once antiquarian scholars rediscovered and scrutinized these sources in the Renaissance, their analysis of the Roman colonial model formed the intellectual background for modern visions of empire. What does it mean to exercise power at and over distance? This book foregrounds the pioneering contribution to this debate of the great Italian Renaissance scholar Carlo Sigonio (1522/3–84). His comprehensive legal interpretation of Roman society and Roman colonization, which for more than two centuries remained the leading account of Roman history, has been of immense (but long disregarded) significance for the modern understanding of Roman colonial practices and of the legal organization and implications of empire. Bringing together experts on Roman history, the history of classical scholarship, and the history of international law, this book analyses the context, making, and impact of Sigonio’s reconstruction of the Roman colonial model. It shows how his legal interpretation of Roman colonization originated and how it informed the development of legal colonial discourse, from visions of imperial reform and colonial independence in the nascent United States of America, to Enlightenment accounts of property distribution, culminating in a specific juridical strand in twentieth-century Roman historiography. Through a detailed analysis of scholarly and political visions of Roman colonization from the Renaissance until today, this book shows the enduring relevance of legal interpretations of the Roman colonial model for modern experiences of empire.

Sign in / Sign up

Export Citation Format

Share Document