Irresolvable Norm Conflicts in International Law

2017 ◽  
Author(s):  
Valentin Jeutner
Keyword(s):  
International Law ◽  
Practical Investigations ◽  
Legal Scholarship ◽  
Limited Ability ◽  
Legal Norms ◽  
The Third ◽  
Decision Making Processes ◽  
Legal Actor ◽  
Definition Of ◽  
Law Making

Conventionally, international legal scholarship concerned with norm conflicts focusses on identifying how international law can or should resolve them. This book adopts a different approach. It focusses on identifying those norm conflicts that law cannot and should not resolve. The book offers an unprecedented, controversial, yet sophisticated, argument in favour of construing such irresolvable conflicts as legal dilemmas. Legal dilemmas exist when a legal actor confronts a conflict between at least two legal norms that cannot be avoided or resolved. Addressing both academics and practitioners, the book aims to identify the character and consequences of legal dilemmas, to distil their legal function within the sphere of international law, and to engender and contribute to serious theoretical and practical investigations into the conditions that lead to a legal dilemma. The argument unfolds in three parts. The first part proposes a definition of legal dilemmas and distinguishes the term from numerous related concepts. Based on this definition, the second part scrutinises international law’s contemporary norm conflict resolution and accommodation devices in order to identify their limited ability to resolve certain kinds of norm conflicts satisfactorily. Against the background of the limits identified in the second part, the third part outlines and evaluates the book’s proposed method of dealing with legal dilemmas. In contrast to conventional approaches that recommend dealing with irresolvable norm conflicts by means of non liquet declarations, judicial law-making or balancing test, the book’s proposal envisions that irresolvable norm conflicts are dealt with by judicial and sovereign actors in a complementary fashion. According to the proposal, judicial actors should openly acknowledge irresolvable conflicts and sovereign actors should decide with which norm they will comply. Subsequently, judicial actors should hold the sovereign actor responsible for the violation of any prescriptive norm the sovereign chose to impair. The book concludes with the argument that analysing various aspects of international law through the lenses of the concept of a legal dilemma enhances international law’s conceptual accuracy, facilitates more legitimate decision-making processes and maintains international law’s dynamic responsiveness.

scholarly journals “ATOMIC LAW” OR “NUCLEAR LAW”? AN ACADEMIC DISCUSSION REVISITED

2018 ◽  
Vol 5 (3) ◽  
pp. 135-151
Author(s):  
J. Handrlica
Keyword(s):  
Ionizing Radiation ◽  
International Law ◽  
Nuclear Energy ◽  
Popular Literature ◽  
Atomic Energy ◽  
Soft Law ◽  
Legal Scholarship ◽  
National Legislation ◽  
Legal Norms ◽  
Energy Law

The terms “atomic law” and “nuclear law” are regularly being (to a certain part as synonyms) used in both scientific and popular literature to refer to a body of legal norms, governing peaceful uses of nuclear energy and ionizing radiation, as provided by sources of international law (“international atomic law,” or “international nuclear law”), national legislation and a complex body of unbinding norms (soft law). Further, several other variations of these terms are also regularly used (such as “atomic energy law,” “nuclear energy law,” “international nuclear law,” “law of the atomic/nuclear energy,” etc.). This contribution aims to identify the origins of this terminological labyrinth and to deal with the perception of these terms in the legal scholarship. Further, this contribution deals with the recent perception of these terms in the legal science of major States, using nuclear energy for peaceful purposes. This article aims to clarify the existing terminology, which is to large extent being used in the literature without an appropriate explanation. The author pleads for a consequent use of the term “nuclear law” (droit nucléaire, yadernoe pravo, Nuklearrecht, derecho nuclear, diritto nucleare) and presents arguments for such conclusion.

Do Discrimination and Inequality Exist in the Russian Legal System? International Law, National Legislation and Judicial Practice

2009 ◽  
Vol 34 (3) ◽  
pp. 211-238
Author(s):  
Sergei Iu. Marochkin
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Legal Norms ◽  
Judicial Practice ◽  
Administration Of Justice ◽  
Russian Constitution ◽  
Protection Of Human Rights ◽  
Negative Phenomena ◽  
Law Making

AbstractIn this article, the author discusses the problem of ensuring equality and non-discrimination in a legal system. Equality and non-discrimination constitute universally recognized standards in the protection of human rights. At the same time, one can hardly assert that the universal community has put an end to discrimination. The author considers the problem as applied to the Russian legal system. The standard is incorporated in the Russian Constitution still remains topical in Russia. Based on his analysis of legislation and judicial practice, the author concludes that the problem reveals itself on the levels of both law-making and law application, the latter including administration of justice. As one of the conclusion, the author raises a question: is legal discrimination inherent in a legal system like other negative phenomena, such as delinquency, incoherencies, lacunas, defects, conflicts of legal norms and breaches of law-making procedural rules?

scholarly journals Democratic Legitimacy between Port-au-Prince and Cairo: A Reply to Erika de Wet

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 208-212 ◽  
Author(s):  
Jure Vidmar
Keyword(s):  
Cold War ◽  
International Law ◽  
Political System ◽  
Democratic Legitimacy ◽  
Post Cold War ◽  
Legal Scholarship ◽  
Democratic Government ◽  
Normative Force ◽  
Per Se ◽  
Definition Of

In the 1990s, international legal scholarship was marked by democratic idealism and the belief that democracy had become the only legitimate political system. The more radical proposals even speculated about legality of pro-democratic intervention. Such re-conceptualizations of international law were met with determined criticism. However, even skeptical voices were willing to admit that democracy nevertheless did have some limited normative force in post-Cold War international law. While it would be an exaggeration to say that nondemocratic governments are illegitimate per se, a consensus started to emerge that international law prohibited at least a coup against a democratic government. In the absence of a workable definition of substantive democracy for international law purposes, a democratic government was understood as an authority which comes to power in an electoral process that is reasonably free and fair.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals PRINCIPLES OF INTERNATIONAL LAW AND THEIR ROLE IN CONFLICT RESOLUTION IN KOSOVO AND CRIMEA. Part 2

2019 ◽  
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Local Authorities ◽  
Territorial Integrity ◽  
Legal Norms ◽  
Conflict Situations ◽  
History Of ◽  
Definition Of ◽  
The Right

The second part of the article considers the issue of the contradiction of the realization of the right to self-determination and the principle of territorial integrity of Serbia and Ukraine on the example of Kosovo and Crimea. It presents an analysis of the legitimacy of the will expression of Kosovars and Crimeans and its compliance with the norms of international law. The preconditions and factors of the ethnopolitical conflict are examined and the main problematic issues that caused controversies between the central and local authorities in Kosovo and Crimea are identified. The article emphasizes that the result of the plebiscites in Kosovo (1998) and Crimea (2014) was the declaration of independence, denied by central authorities of Serbia and Ukraine and met with mixed reactions by the international community. The self-proclaimed republics have only external features of statehood and are subject to external administration of other countries. A latent opposition of geopolitical opponents in the international arena is noted, which is to some extent traced through the position on the recognition / non-recognition of Kosovo and Crimea. The article draws attention to the fact that inconsistent interpretations of certain principles of international law promote secession movements in countries where conflicts periodically arise between central and local authorities. The emphasis is placed on the necessity of a clearer definition of the aforementioned international legal norms and obligations undertaken by subjects of international law. The article holds that in order to avoid such situations as in Kosovo or Crimea, to eliminate conflicts related to the possibility of an ambiguous interpretation and application of the principles of international law, an internationally recognized system of more stringent and comprehensive measures should be introduced to cease and prevent threats to the territorial integrity of countries. A strong position of the international community on the abovementioned principles with the history of the liberation movements of these peoples taken into account should become the measure precluding the aggravation of conflict situations related to the aspiration of peoples for self-determination.

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.

Transnational Constitutional Law

2021 ◽  
pp. 134-156
Author(s):  
Chris Thornhill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Political System ◽  
Legal Order ◽  
Global Society ◽  
Relative Autonomy ◽  
Legal Norms ◽  
Nation States ◽  
Political Perspective ◽  
Definition Of

This chapter presents an account of the constitutional law of transnational society from a distinctively political perspective. It uses a neoclassical definition of the constitution as the legal norms that frame the actions of a political system to examine and construct constitutional functions that reach beyond the legal systems of nation-states. It advances the thesis that the concept of transnational constitutional law can be applied to three separate legal-political domains in contemporary global society. This concept can be used to analyze constitutional aspects of international law, and it can be applied to national constitutional law, both of which have a strong transnational dimension and are supported by normative elements that are formed through transnational processes. This concept can also be applied to characterize and examine an emergent, conclusively transnational legal order, in which legal formation occurs in more spontaneous and contingent fashion. In each domain, constitutional norms produce an underlying inclusionary structure for distinct political functions in society, and transnational constitutional law is defined, most essentially, by its ability to support the relative autonomy of political exchanges and political interactions.

Labels as the Visible Part of International Law’s Invisible Frames

2021 ◽  
pp. 141-152
Author(s):  
Margherita Melillo
Keyword(s):  
International Law ◽  
Tobacco Control ◽  
Primary Sources ◽  
The Third ◽  
Visible Part ◽  
History Of ◽  
Law Making

The chapter explores how labels can be used in international law-making to reinforce cognitive associations. Its first section defines the notion of labels and explains the relevance of labels in the literature on framing. The second section presents an empirical case-study on the use of frames and labels: the history of negotiations of the WHO Framework Convention on Tobacco Control (FCTC). Drawing on primary sources and on the travaux préparatoires, the chapter reviews how the making of the FCTC was supported by framing and labelling. Finally, the third section of the chapter reflects on how analysing labels can enhance our understanding of international law.

3 The Third Element

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
North Sea ◽  
International Court Of Justice ◽  
Customary International Law ◽  
The Third ◽  
The North ◽  
International Court ◽  
The North Sea ◽  
Definition Of ◽  
Constitutive Element

This chapter focuses on the norm-creating character of the standard whose customary status is tested as another possible constitutive element of customary international law. It examines the third constitutive element of customary international law, which is the common recognition by international law of the enormous definitional powers to the International Court of Justice when it comes to the custom-identification criteria. It also explores the discursive performance that consists of the constant turning of a blind eye to a specific claim made by the Court in the 1969 North Sea Continental Shelve. The chapter highlights the 1969 North Sea Continental Shelf wherein the Court confirmed the dualistic approach and the consciousness of having a duty may be in order to offer an articulate definition of opinio juris for the first time. It argues that the requirement that the standard whose customary status is tested must be norm-creating as it was prescribed by the Court in the North Sea Continental Shelfcase.

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