A Venture into Legal Theory

2021 ◽  
pp. 93-107
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
Legal Theory ◽  
Legal Pluralism ◽  
Point Of View ◽  
International Organization ◽  
Legal Systems ◽  
Novel Theory ◽  
Fragmentation Of International Law

This chapter presents a novel theory on the concept of an international organization. It discusses the meaning of legal systems in legal pluralism, against the background of the fragmentation of international law and interlegality. It relies on the analytical theory of Hart and the institutionalism of Santi Romano. Two notions are applied to international organizations: relative/absolute legality and original/derived legal systems. The absolute legality of the rules of international organizations is a combination of the derivative nature of the legal system that produces them and the point of view of the legal system in which the rules are implemented. The conclusion is that international organizations are dual entities: ‘international organization means an institution established by a treaty or other instrument governed by international law and capable of creating a legal system which derives from international law and that produces law which is at the same time internal and international’.

Liability of international organizations

1988 ◽  
Vol 1 (1) ◽  
pp. 3-14 ◽  
Author(s):  
Henry G. Schermers
Keyword(s):  
International Law ◽  
International Organizations ◽  
Point Of View ◽  
International Organization ◽  
Theoretical Point ◽  
Governmental Organizations ◽  
Legal Questions ◽  
Legal Literature ◽  
Financial Obligations

When in 1985 the International Tin Council was unable to meet its financial obligations, various legal questions arose. It appears that the question of liability of international organizations has, up till now, not been adequately addressed. The article written by Professor Henry G. Schemers is a first attempt in legal literature to examine the liability of international organizations from a theoretical point of view. The author concludes that the principle that everybody is liable for his debts does not apply to international governmental organizations. The liability of governments is, in the eyes of the author, not limited when they perform some of their tasks through an international organization, unless there is an express provision to this effect. However, in general international law is insufficiently developed with respect to the payment of debts of international organizations.

Sources and the Subjects of International Law

2018 ◽  
Author(s):  
Robert McCorquodale
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
Legal Pluralism ◽  
Armed Groups ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
Multiple Actors ◽  
Law Making

This chapter explores the range of participants involved in international law-making, including corporations, non-State armed groups, and non-governmental organizations, in addition to States and international organizations. The approach taken in this chapter is that of global legal pluralism, which recognizes that there can be multiple actors participating in a legal system to create law, and which accepts disparities in powers. In addition, the chapter indicates that the terminology of ‘subjects’ is deeply problematic in international law and should be abandoned.

Introduction

2021 ◽  
pp. 1-14
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Legal Systems ◽  
Main Claim ◽  
Legal Scholarship ◽  
Legal Nature ◽  
Definition Of ◽  
Common Understanding

The introductory chapter presents the relevance of the topic in the framework of the practice of international organizations and existing legal scholarship. In particular, it describes how scholars and practitioners do not share a common understanding of what an international organization is and the consequences of this absence of agreement. The main claim is that in order to conceptualize international organizations we have to look at the characteristics of the legal systems they develop and the legal nature of their rules. Four main theses are presented: functionalism (international nature), constitutionalism (internal nature), exceptionalism (only some organizations develop internal rules), and informalism (only some rules have an internal nature). Finally, it sets up the aim of the book: to analyse different conceptualizations, to assess the existence of a general regulatory framework, and to provide a definition of the concept of an international organization in international law.

Conclusion

2021 ◽  
pp. 208-210
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Member States ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law

This chapter summarizes the main findings of the book. The concept of an international organization is defined by looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. The effects of the dual legal nature are discussed by analysing international responsibility, the law of treaties, and the validity of organizations’ acts. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities.

scholarly journals Reform of the legal system of Ukraine under the influence of international law

2021 ◽  
pp. 35-40
Author(s):  
V. MANGORA
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
Legal Systems ◽  
Harmonization Of Law

The article examines the features of reforming the legal system of Ukraine under the influence of the international law. The main means of convergence of the national legal systems are identified. The main directions of influence of the international law on national legal systems are described, such as: convergence of the national legal systems, unification of law, harmonization of law, activity of international organizations, creation of model laws. The main means of convergence of the national legal systems are identified. Proposals for reforming the legal system of Ukraine under the influence of international law have been developed.

scholarly journals Intrusion of international law into the national legal system

2021 ◽  
Vol 5 (1) ◽  
pp. 40-57
Author(s):  
V. F. Anisimov ◽  
Yu. V. Truntsevskiy
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal System ◽  
The State ◽  
Point Of View ◽  
Legal Systems ◽  
Foreign Law ◽  
National Legal System ◽  
International Obligations ◽  
The Law

The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.

The Concept of an International Organization in International Law

2021 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Framework ◽  
International Organization ◽  
Legal Systems ◽  
Legal Concept ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
Comprehensive Study

Despite their exponential growth in number and activities, international law lacks a comprehensive legal concept of an international organization. The book tackles this topic from the perspective of the legal nature of the legal systems developed by international organizations. It is the first comprehensive study of the different concepts under which international organizations’ legal systems are commonly understood: functionalism, constitutionalism, exceptionalism, informalism. It has a threefold purpose: to trace the historical origins of the different concepts of an international organization, to describe four families under which these different notions are subsumed, and to propose a theory which defines international organizations as ‘dual entities’. The concept of an international organization is defined looking at the nature of the legal systems they develop. The notion of ‘dual legal nature’ describes how organizations create particular legal systems that derive from international law. This peculiar condition affects the law they produce, which is international and internal at the same time. This conceptualization allows the development of a common legal framework applicable to all international organizations, despite their differences in terms of powers, membership, size, and other descriptive features. In particular, the most valuable consequence of this conceptualization is to rebut a frequent argumentative motif, under which organizations are either perceived as vehicles for member states’ interests or as autonomous entities. The effects of the dual legal nature are discussed, analysing international responsibility, the law of treaties, and the validity of organizations’ acts.

scholarly journals Designing for international law: The architecture of international organizations 1922–1952

2020 ◽  
pp. 1-22
Author(s):  
Miriam Bak McKenna
Keyword(s):  
New York ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Labour Organization ◽  
The Relationship ◽  
Physical Manifestation ◽  
Insight Into ◽  
Do So

Abstract Situating itself in current debates over the international legal archive, this article delves into the material and conceptual implications of architecture for international law. To do so I trace the architectural developments of international law’s organizational and administrative spaces during the early to mid twentieth century. These architectural endeavours unfolded in three main stages: the years 1922–1926, during which the International Labour Organization (ILO) building, the first building exclusively designed for an international organization was constructed; the years 1927–1937 which saw the great polemic between modernist and classical architects over the building of the Palace of Nations; and the years 1947–1952, with the triumph of modernism, represented by the UN Headquarters in New York. These events provide an illuminating allegorical insight into the physical manifestation, modes of self-expression, and transformation of international law during this era, particularly the relationship between international law and the function and role of international organizations.

The Fifty-Sixth Session of the International Law Commission

2005 ◽  
Vol 99 (1) ◽  
pp. 211-221 ◽  
Author(s):  
Michael J. Matheson
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Diplomatic Protection ◽  
Sixth Session ◽  
International Liability ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.

Piercing the Corporate Veil: The Responsibility of Member states of an International Organization

2011 ◽  
Vol 8 (2) ◽  
pp. 291-347 ◽  
Author(s):  
Odette Murray
Keyword(s):  
Decision Making ◽  
Member State ◽  
International Law ◽  
International Organizations ◽  
Good Faith ◽  
International Organization ◽  
Member States ◽  
Draft Article ◽  
Legal Limit ◽  
Primary Rule

AbstractThis paper applies two manifestations of the principle of good faith – pacta sunt servanda and the doctrine of abuse of rights – to the complex relationship between member states and international organizations. The paper argues that these existing doctrines operate as a legal limit on the conduct of states when creating, controlling and functioning within international organizations. The paper begins by exploring an innovative provision in the International Law Commission's recently finalised Draft Articles on the Responsibility of International Organisations – Draft Article 61 – according to which a member state will bear international responsibility for the act of an international organization where the member state uses the organization to circumvent its own international obligations. Examining the development of Draft Article 61 and the jurisprudence upon which it is based, this paper argues that the principle which the Commission in fact seeks to articulate in Draft Article 61 is that of good faith in the performance of treaties. As such, being based on a primary rule of international law, this paper queries whether Draft Article 61 belongs in a set of secondary rules. The paper then considers the role of states in the decision-making organs of international organizations and argues that the widely held presumption against member state responsibility for participation in decision-making organs can and should be displaced in certain cases, in recognition of the various voting mechanisms in international organizations and the varied power which certain states may wield. The paper argues that the doctrine of abuse of rights operates as a fundamental legal limit on the exercise of a member state's voting discretion, and thereby forms a complementary primary obligation placed on states in the context of their participation in international organizations.

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