Rules and Exceptions, in Law and Elsewhere

2020 ◽  
pp. 35-54
Author(s):  
Giovanni Sartor
Keyword(s):  
International Law ◽  
Inhibitory Input ◽  
Internal Structures ◽  
The Law ◽  
Rule System ◽  
And Function ◽  
Rule Systems ◽  
Rules And Exceptions

The structure of rule systems in different domains is addressed. A rule system is viewed as a mechanism delivering certain outputs (the system’s conclusions) given certain external inputs, and certain internal structures and processes. It is specified what it means for a rule system to consist of rules and exceptions rather than of flat rules. It is argued that there are three main exception structures: inhibitory input links, inhibitory rules, and prioritized conflicting rules. These structures can be found in many rule systems, including the law, and international law in particular. They make it so that rule systems provide defeasible outputs in response to incoming signals, namely outputs that may no longer be provided when a larger input set is given. It is argued that the current jurisprudential debate on rules and exceptions (as well as the debate on defeasibility) needs to be lifted beyond the law for clarity to be achieved on the existence, genesis, and function of systems of rules and exceptions.

scholarly journals Informal Regulation and the Hyper-Responsiveness of International Law

AJIL Unbound ◽  
2018 ◽  
Vol 112 ◽  
pp. 97-101 ◽  
Author(s):  
Theresa Reinold
Keyword(s):  
International Law ◽  
Legal Scholarship ◽  
Jus Ad Bellum ◽  
The Law ◽  
And Function ◽  
Informal Regulation

Monica Hakimi has offered a thought-provoking and timely analysis of how the jus ad bellum operates, placing on the agenda of international legal scholarship a regulatory dynamic that has thus far remained underappreciated. While I believe that a discussion of this dynamic is overdue and thus welcome her plea to take informal regulation seriously, I find some of her underlying assumptions about the nature and function of international law problematic. Therefore, rather than applaud the manifold insightful points Hakimi makes, this essay zeroes in on two related assumptions in her article that I find questionable: first, Hakimi's reasoning about the law-creating effects of informal regulation and, on a related note, the distinction between legality and legitimacy; and second, her tendency to embrace uncritically the particularistic nature of informal regulation. Both points implicate what I term the “hyper-responsiveness” of the law, that is, the (problematic) notion that every momentary political constellation should be reflected in the content of the law. In embracing law's hyper-responsiveness, Hakimi's article sidesteps a discussion of the ambivalent implications of informal regulation.

UN Convention on State Immunity: Form and Function

2006 ◽  
Vol 55 (2) ◽  
pp. 407-410 ◽  
Author(s):  
Richard Gardiner
Keyword(s):  
International Law ◽  
Customary Law ◽  
Vienna Convention ◽  
Form And Function ◽  
National Courts ◽  
State Immunity ◽  
Adoption And Implementation ◽  
The Law ◽  
And Function ◽  
Number Of Parties

The eventual product of the International Law Commission's (ILC) work on state immunity hasbeen in the form of a Convention. This prompts the question whether widespread ratification (or accession etc) will be necessary for clear rules of international law on state immunity to become firmlyestablished or whether a substantial codifying effect could be achieved even if the Convention does not attract a great number of parties. The latter has sometimes been said of much of the Vienna Convention on the Law of Treaties. As the law on state immunity has undergone much of its substantial development by practice of national courts (albeit that the piecemeal adoption and implementation of treaties has played some part), could this process not simply continue with the Convention providing guidance or a model? If the trend from absolute to restrictive immunity could occur by development of customary law, are there not still adequate means of consolidating customary law without the need for states actually to become parties to the treaty?

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

«Soft law» in the law of the Eurasian Ec onomic Union: place and possibility of challenging

2020 ◽  
Vol 9 ◽  
pp. 35-42
Author(s):  
P.P. Myslivsky ◽  
◽  
I.N. Shchurova
Keyword(s):  
International Law ◽  
International Organizations ◽  
Soft Law ◽  
Binding Force ◽  
Eurasian Economic Union ◽  
Economic Commission ◽  
Economic Union ◽  
The Law

In international law, there are sources that do not formally have binding force, but may indicate the emergence of the opinio juris of states, as well as emerging practice. The Eurasian Economic Union also issues acts that are not formally binding: they are adopted by the Eurasian Economic Commission in the form of recommendations. In addition, the Union takes into account the recommendatory acts of other international organizations. At present, the practice of the EAEU Court indicates that this body takes into account “soft law” in the course of argumentation, but proceeds from the impossibility of challenging acts that are recommendations of the EEC. The authors give ways to establish the possibility of challenging the EEC recommendations in the EAEU Court.

Defensive Deterrence

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Practical Problem ◽  
Strategic Thinking ◽  
National Defense ◽  
Global Security ◽  
Defense Strategy ◽  
Essential Component ◽  
The Law ◽  
Compliance With The Law ◽  
The Military

This chapter deals with the lack of coherency between strategic reality—which uses deterrence as an essential strategic tool—and the prevailing law. Deterrence is a tool for enforcing compliance with the law; it promotes the containment of potential conflicts. It is pivotal in strategic thinking and, in many cases, an essential component of the national-defense strategy of law-abiding states. But although deterrence is central to the management of global security, in current international law deterrence considerations are perceived with suspicion and mistrust. It is perceived as an unlawful punitive measure. The lack of consensus on lawful deterrence, however, might create a vacuum that invites aggressors and transgressors. This chapter offers normative suggestions for introducing defensive deterrence and overcoming the practical problem of putting it into practice within the current contours of the law, by using the military professionalism criterion.

Military Professionalism and Humanitarian Law

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Humanitarian Law ◽  
New Paradigm ◽  
The Core ◽  
Humanitarian Mission ◽  
Self Defense ◽  
Professional Perspective ◽  
The Law ◽  
Preemptive Strike ◽  
Military Professionalism

This book seeks to revitalize the humanitarian mission of the international law governing armed conflict, which is being frustrated due to states’ actual practice. In order to achieve its two aims—creating an environment in which full abidance by the law becomes an attainable norm, thus facilitating the second and more important aim of reducing human suffering—it calls for the acknowledgment of realpolitik considerations that dictate states’ and militaries’ behavior. This requires recognition of the core interests of law-abiding states, fighting in their own self-defense—those that, from their militaries’ professional perspective, are essential in order to exercise their defense. Internalizing the importance of existential security interests, when drawing the contours of the law, should not automatically come at the expense of the core values of the humanitarian agenda—for example, the distinction rule. Rather, it allows more room for the humanitarian arena. The suggested tool to allow for such an improved dialogue is the standards and principles of military professionalism. Militaries function in a professional manner; they respect their respective doctrines, operational principles, fighting techniques, and values. Their performances are not random or incidental. The suggested paradigm surfaces and leverages the constraining elements hidden in military professionalism. It suggests a new paradigm in balancing the principles of military necessity and humanity, it deals with the legality of a preemptive strike and the leveraging of military strategy as a constraining tool, and it offers a normative framework for introducing deterrence within the current contours of the law.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

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