Intentional Citizenship and Historical Wrongs

2021 ◽  
pp. 185-209
Author(s):  
Avia Pasternak
Keyword(s):  
International Law ◽  
Regime Change ◽  
The State ◽  
Common View ◽  
Public International Law ◽  
The Past ◽  
The Common

Chapter 7 examines the problem of the distributive effect with regard to historical wrongdoings. It is commonly thought that present-day states have remedial obligations to the descendants of victims of their historical wrongs. But should present-day citizens pay for wrongs committed by their state in the past? The chapter examines how the intentional participation framework can address this challenge. It shows that citizens who are intentional participants in their state can be expected to accept a nonproportional share of the burdens of their state remedial responsibilities, even for historical wrongs that were committed before their lifetime. However, it also suggests that the state’s internal regime structure affects the scope of intentional citizenship in the state. As it shows, this restriction challenges the common view in public international law, according to which internal regime change does not affect the compensatory liabilities of a state for its past wrongdoings.

scholarly journals An Analysis of Principle of Erga Omnes Partes with Special Reference to the Case of Belgium v. Senegal, 2012

2018 ◽  
pp. 193-198
Author(s):  
Prajwol Bickram Rana
Keyword(s):  
International Law ◽  
The State ◽  
Common Interest ◽  
International Court Of Justice ◽  
Public International Law ◽  
The Public ◽  
International Court ◽  
Convention Against Torture ◽  
The Common ◽  
Legal Consequences

In the Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal case), the International Court of Justice for the very fi rst time declared the country's standing before the court on the basis of erga omnes partes as admissible. The court found that Belgium had the standing to claim the responsibility of Senegal for the alleged breach under the Convention against Torture on the basis of being a party of the same convention. The court described erga omnes partes as the obligation that the state party has to all the other state parties of the convention, the court further stated that it arises due to the common interest of the state parties of a convention. Many sitting judges of the court rejected the reasoning of the majority decision and some gave a dissenting opinion. The present paper assesses the concept of erga omnes partes in the public international law and the legal consequences of erga omnes partes in the future development of public international law. The scope of the present paper is limited within the issue of admissibility of the case with the specifi c focus on the concept of erga omnes partes and does not deal with the merits or other issues raised before the court.

Statehood and the State-Like in International Law

2019 ◽  
Author(s):  
Rowan Nicholson
Keyword(s):  
Hong Kong ◽  
International Law ◽  
The State ◽  
Alternative Methods ◽  
Important Conclusion ◽  
Territorial Integrity ◽  
The Past ◽  
Imperial China ◽  
Peremptory Norms ◽  
Legal Sense

If the term were given its literal meaning, international law would be law between ‘nations’. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities. An important conclusion of the book is that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state: subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Another conclusion is that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; pre-colonial African chiefdoms; ‘states-in-context’, an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.

Taxation Measures under the Energy Charter Treaty after the Yukos Awards Articles 21(1) and 21(5) Revisited

2019 ◽  
Vol 34 (1) ◽  
pp. 85-106
Author(s):  
Sebastián Green Martínez
Keyword(s):  
International Law ◽  
The State ◽  
Foreign Investor ◽  
Sovereign Power ◽  
Bad Faith ◽  
Public International Law ◽  
Host State ◽  
General Revenue ◽  
Energy Charter Treaty ◽  
Bona Fide

Abstract As the number of investment arbitrations under the Energy Charter Treaty has soared in recent years, parties and arbitrators have faced arguments concerning its Article 21 on taxation measures, which had seldom been applied before. In 2014, the tribunal ruling on the Yukos trilogy held that even though Article 21 excludes taxation from the scope of the treaty, the carve-out could apply “only to bona fide taxation actions, i.e., actions that are motivated by the purpose of raising general revenue for the State”. Article 21 also provides that in cases regarding expropriation “[t]he Investor or the Contracting Party alleging expropriation shall refer the issue of whether the tax is an expropriation or whether the tax is discriminatory to the relevant Competent Tax Authority. Failing such referral by the Investor” in cases of investor-state arbitration, the tribunal “shall make a referral to the relevant Competent Tax Authorities”. The Yukos tribunal considered said referral to be a futile exercise when it is unequivocal that the host State acted in bad faith towards the foreign investor. As a consequence of the Yukos trilogy, the Energy Charter Secretariat has published a report on the issue that recommends potential amendments to clarify Article 21. A number of investor-state arbitral tribunals have also addressed these issues since the Yukos trilogy. Taking a public international law approach, this article critically explores awards and decisions rendered by those tribunals, paying particular attention to their findings on Article 21 vis-à-vis the sovereign power to tax. This article concludes that recent awards dealing with Article 21 arguments have struck an appropriate balance between the prerogatives of States and their obligations under the Energy Charter Treaty. Thus, the article affirms that no amendment seems necessary.

Book I Diplomacy in General, 4 The State: Its Concept as a Legal Person in International Law

2016 ◽  
Author(s):  
Fox Hazel
Keyword(s):  
International Law ◽  
International Community ◽  
The State ◽  
International Organization ◽  
Legal Person ◽  
International Affairs ◽  
Public International Law ◽  
Role Of The State

This chapter addresses the State as the prime actor in the conduct of diplomacy and examines the State’s status as a legal person as defined by international law. To understand the role of the State in international affairs, it is essential to appreciate that it is both a maker and a subject of international law. It has been and continues to be instrumental in the formation of public international law. The chapter thus presents four topics to explain the nature and scope of the powers and activities of the State in international affairs. These are: the qualifications for statehood, recognition of the State as a member of the international community, the State compared to an international organization as a legal person and other entities having lesser rights in international law, and sovereignty as an attribute of the State.

The principle of subsidiarity as a constitutional principle in international law

2013 ◽  
Vol 2 (1) ◽  
pp. 37-62 ◽  
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
State Sovereignty ◽  
Public International Law ◽  
Constitutional Principle ◽  
The Us ◽  
State Compliance ◽  
State Consent

AbstractThis paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

scholarly journals No cosmopolitan morality without state sovereignty

2017 ◽  
Vol 43 (10) ◽  
pp. 1072-1094 ◽  
Author(s):  
Kjartan Koch Mikalsen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Political Legitimacy ◽  
Legal Order ◽  
State Sovereignty ◽  
Bodily Integrity ◽  
Common View ◽  
Ultimate Concern ◽  
International Legal Order ◽  
The Common

This article takes issue with the common view that cosmopolitan normative commitments are incompatible with recognition of state sovereignty as a basic principle of international law. Against influential cosmopolitans, who at best ascribe a derivative significance to the sovereignty of states, the article argues that state sovereignty is not only compatible with, but also essential to the recognition of individuals as units of ultimate concern. The argument challenges a problematic distributive conception of justice underlying many cosmopolitans’ support for reforms of the international legal order towards a system where respect for basic human rights is the only criterion for political legitimacy. An alternative relational conception of justice makes it possible to see why there is an internal connection between the rights of individuals and the rights of states. The argument adds up to a novel defence of the so-called domestic analogy, which regards the territorial integrity of states as an international parallel to the bodily integrity of individuals.

On the mortality and management of a ubiquitous musteloid: the common raccoon

2018 ◽  
Author(s):  
Samuel I. Zeveloff
Keyword(s):  
North America ◽  
Current Distribution ◽  
The State ◽  
Past Century ◽  
The Past ◽  
The Common

This chapter initially provides an overview of the current distribution and status of the common raccoon in North America. Its overall numbers and distribution, and even its utilization of certain habitats have changed dramatically; all largely within the past century. This contribution then examines how the numbers of raccoons that are killed or ‘harvested’ have changed during the last century. The term ‘harvest’ is commonly used by wildlife managers in North America to refer to the number of animals taken by hunters and trappers, for sport, or to utilize and sell their fur. The policies that determine raccoon exploitation by such practices are herein reviewed. There is an assessment of whether and how population variables are considered in establishing these hunting and trapping policies. Ultimately, this analysis reveals the state of raccoon management and offers thoughts about its potential paths.

A New Jurisprudential Framework for Jurisdiction

2017 ◽  
Author(s):  
Dan Jerker B. Svantesson
Keyword(s):  
International Law ◽  
The State ◽  
Private International Law ◽  
Public International Law ◽  
The Core ◽  
Legitimate Interest

This chapter advances a new jurisprudential framework for jurisdiction and discusses it in detail, outlining how it may be applied, and responds to some potential concerns that may be raised against the framework. The framework is focused on: (1) there being a substantial connection between the state claiming jurisdiction and the matter; (2) the state claiming jurisdiction having a legitimate interest in the matter; and (3) a balancing of that state’s interest with other relevant interests. As this framework represents the core of jurisdiction in both public international law and in private international law, it effectively unifies those two disciplines commonly viewed as distinct.

The Common Approach to Article 1: The Scope of Each State’s Obligation to Ensure Respect for the Geneva Conventions

2020 ◽  
Vol 25 (1) ◽  
pp. 101-115
Author(s):  
Verity Robson
Keyword(s):  
International Law ◽  
Good Faith ◽  
Public International Law ◽  
Ordinary Meaning ◽  
Geneva Conventions ◽  
Or Groups ◽  
The Common

Abstract Common Article 1 of the Geneva Conventions of 1949 is foundational, but not exceptional: the duty to respect and ensure respect for the Conventions must be considered within the framework of public international law as a whole. The Article obliges each High Contracting Party and its organs to respect the Geneva Conventions, and to ensure respect for these Conventions by the population over which it exercises authority and any other persons or groups whose conduct is attributable to it. This scope is demonstrated by the ordinary meaning of the term, subsequent agreements, subsequent practice and other relevant rules of international law, and confirmed by reference to the travaux preparatoires. In particular, erga omnes status does not affect it. As a matter of good faith performance of the Conventions, each High Contracting Party also has a duty not to encourage violations by others. Common Article 1 does not require, as some authors have argued, the prevention or termination of breaches of the Geneva Conventions by other parties to conflict, but High Contracting Parties may choose to take steps toward doing so, as a matter of policy.

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