Regulatory Standards, Legitimate Authority and the Adjudicatory Role

2021 ◽  
pp. 279-304
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Regulatory Action ◽  
Legitimate Authority ◽  
Political Involvement ◽  
International Courts ◽  
Regulatory Standards

Part V contains two chapters, Chapter Nine and Chapter Ten. These chapters return to the conceptual questions raised by the emergence of global regulatory standards in international courts and tribunals. Chapter Nine evaluates overall how the standards preserve, enhance or undermine international law’s claim to legitimate authority. Broadly, the standards appear to strengthen traditional procedural justifications of authority. However, substantively they contribute only partially to an ideal balancing of international interests and do not promise the co-ordination between domestic and international legal orders needed for international law better to serve its subjects by better balancing competing global interests. More is not to be expected, though. International courts and tribunals remain formally and socially constrained; inter alia the parties’ pleadings are often influential. Greater international political involvement in the development of global regulatory standards would be appropriate, especially in relation to the possible future adoption of regulatory coherence tests that might require proportionality in regulatory action.

Due Regard and Due Diligence

2021 ◽  
pp. 89-132
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Due Diligence ◽  
International Courts ◽  
Legal Obligations ◽  
Regulatory Standards ◽  
Rights And Interests

Chapter Four examines the practice in the same international courts as Chapter Three, this time focusing on ‘due regard’ and ‘due diligence’. These emerging regulatory standards require that States have due regard for one another’s rights and interests, and that States exercise due diligence in the control of activity that may cause transboundary harm. As in Chapter Three, the standards seen in these cases are often accommodating of domestic authority. Due diligence, particularly, significantly accommodates domestic authority. International legal obligations for States to control private conduct and prevent transboundary harm are understood only as obligations of conduct or limited due diligence obligations. This tends to leave international law less equipped to mandate the action from States that will better fulfil States’ combined substantive needs. The emerging global regulatory standards thus appear to do too little to enhance traditional substantive justifications for international law’s claim to legitimate authority.

Introducing Regulatory Standards

2021 ◽  
pp. 19-48
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Legal Order ◽  
Legitimate Authority ◽  
Due Diligence ◽  
Regulatory Standards ◽  
The Future ◽  
Regulatory Measures

The three global regulatory standards seen in the disputes studied in this book comprise: a regulatory coherence standard calling for certain relationships between regulatory measures and their purposes, a standard requiring that a regulating State has demonstrated due regard for the interests of other States, and a standard requiring the exercise of due diligence in the exercise of States’ obligations to prevent transboundary harm. These three core regulatory standards consistently characterise the environmental and health disputes in this book, and they appear to be gaining status as global regulatory standards for the future. The appearance of regulatory standards is best understood as an aspect of the functioning of the plural world legal order rather than as a constitutionalisation of this order in a stronger sense. Theories of legitimate authority in plural legal orders cast valuable light on the legitimacy of the emerging standards-enriched international law.

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.

Religious Zionism, Jewish Law, and the Morality of War

2017 ◽  
Author(s):  
Robert Eisen
Keyword(s):  
International Law ◽  
Legitimate Authority ◽  
Jewish Law ◽  
Jewish State ◽  
Moral Issues ◽  
Law And Ethics ◽  
Present Book ◽  
History Of ◽  
State Of Israel ◽  
Morality Of War

When the state of Israel was established in 1948, it was immediately thrust into war, and rabbis in the religious Zionist community were challenged with constructing a body of Jewish law to deal with this turn of events. Laws had to be “constructed” here because Jewish law had developed mostly during prior centuries when Jews had no state or army, and therefore it contained little material on war. The rabbis in the religious Zionist camp responded to this challenge by creating a substantial corpus of laws on war, and they did so with remarkable ingenuity and creativity. The work of these rabbis represents a fascinating chapter in the history of Jewish law and ethics, but it has attracted relatively little attention from academic scholars. The purpose of the present book is therefore to bring some of their work to light. It examines how five of the leading rabbis in the religious Zionist community dealt with key moral issues in the waging of war. Chapters are devoted to R. Abraham Isaac Kook, R. Isaac Halevi Herzog, R. Eliezer Waldenberg, R. Sha’ul Yisraeli, and R. Shlomo Goren. The moral issues examined include the question of who is a legitimate authority for initiating a war, why Jews in a modern Jewish state can be drafted to fight on its behalf, and whether the killing of enemy civilians is justified. Other issues examined include how the laws of war as formulated by religious Zionist rabbis compares to those of international law.

A Typology of International Judicial Practices

2018 ◽  
Author(s):  
Jeffrey L Dunoff ◽  
Mark A Pollack
Keyword(s):  
International Law ◽  
Practice Theory ◽  
Third Parties ◽  
International Courts ◽  
Everyday Practices ◽  
The Everyday ◽  
Judicial Opinions

This chapter discusses the inner working of ICs, such as the drafting of judicial opinions; practices concerning separate opinions; the role of language and translation; and the roles of third parties. It also presents a preliminary effort to identify and examine the everyday practices of international judges. In undertaking this task, the authors draw selectively upon a large literature on ‘practice theory’ that has only rarely been applied to international law in general or to international courts in particular. A typology and synoptic overview of practices is presented.

Legitimacy

2019 ◽  
Keyword(s):  
International Law ◽  
The State ◽  
State Sovereignty ◽  
International Courts ◽  
The Rule Of Law ◽  
State Legitimacy ◽  
The Relationship ◽  
Supranational Institutions

This collection brings together scholars of jurisprudence and political theory to probe the question of ‘legitimacy’. It offers discussions that interrogate the nature of legitimacy, how legitimacy is intertwined with notions of statehood, and how legitimacy reaches beyond the state into supranational institutions and international law. Chapter I considers benefit-based, merit-based, and will-based theories of state legitimacy. Chapter II examines the relationship between expertise and legitimate political authority. Chapter III attempts to make sense of John Rawls’s account of legitimacy in his later work. Chapter IV observes that state sovereignty persists, since no alternative is available, and that the success of the assortment of international organizations that challenge state sovereignty depends on their ability to attract loyalty. Chapter V argues that, to be complete, an account of a state’s legitimacy must evaluate not only its powers and its institutions, but also its officials. Chapter VI covers the rule of law and state legitimacy. Chapter VII considers the legitimation of the nation state in a post-national world. Chapter VIII contends that legitimacy beyond the state should be understood as a subject-conferred attribute of specific norms that generates no more than a duty to respect those norms. Chapter IX is a reply to critics of attempts to ground the legitimacy of suprastate institutions in constitutionalism. Chapter X examines Joseph Raz’s perfectionist liberalism. Chapter XI attempts to bring some order to debates about the legitimacy of international courts.

Latin America’s Evolving Contribution to Peaceful Change in the International System

2020 ◽  
Author(s):  
Harold A. Trinkunas
Keyword(s):  
Latin America ◽  
International Law ◽  
Structural Changes ◽  
International System ◽  
Regional Organizations ◽  
International Courts ◽  
Interstate Disputes ◽  
System P ◽  
Soft Balancing ◽  
Interstate System

Latin America has long aspired for an interstate system based on the principles of nonintervention and adherence to international law. Over time, the region has become increasingly free of war, and interstate disputes are frequently settled via diplomacy or by international courts. But it has achieved a largely “negative” peace as peaceful relations in the region are neither the result of nor have produced deeper commercial integration, effective regional organizations, or epistemic security communities. This chapter examines realist, liberal, and constructivist explanations to explain the sources of peace and peaceful change in Latin America, as well as how structural changes in the international system have affected the region. In particular, it analyzes how Latin America’s relative weakness in terms of material capabilities has led it to rely on diplomacy, “soft balancing,” and norms entrepreneurship in international law to secure its interest in a progressively more peaceful and rule-bound international order.

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