The Systemic Character of International Law

Rule Systems ◽

This chapter examines various conflict resolution approaches. The question of how the heterogeneous and pluralistic character of international law as a whole and the resulting overlaps, linkages, and tensions amongst different rules and rule-systems can be addressed depends much on how international law as such is perceived and understood. This chapter thus examines several distinct approaches to this issue in order to develop a functional method for the purpose of analysing legal relationships. It first discusses the International Law Commission (ILC) approach, which provides a set of general legal techniques to resolve overlaps, tensions, and conflicts between rules on an ad hoc basis as they arise. The chapter then criticises this approach and speculates on the possibility of a minimalist approach to an international legal system. Next, it analyses the societal differentiation and systems-theory, and finally examines a functional approach in search for relationships between legal rules.

Approaches for Analysing Norm Relationships

10.1093/oso/9780199663392.003.0003 ◽

2017 ◽

Author(s):

Henning Grosse Ruse-Khan

Keyword(s):

Conflict Resolution ◽

Intellectual Property ◽

International Law ◽

Structure Building ◽

Analytical Structure ◽

Rules And Principles ◽

Logical Order ◽

Rule Systems ◽

This chapter discusses conflict-resolution tools and develops an analytical structure building on rules and principles in international intellectual property (IP) treaties, other rule-systems, and general international law to define norm relationships of interpretation and of conflict. Several tools are taken from the ‘toolbox’ developed in the Fragmentation Report of the International Law Commission and other fragmentation literature. Depending on the type of relationship at stake, the most appropriate legal tools to address them may vary. The ILC Report and Conclusions provide for some of the tools and to some extent for an analytical structure, a logical order for examining these relationships. As the chapter shows, for some types of legal relations other approaches are more adequate. They hence complement the ILC principles and need to be integrated in the set of tools available.

Immunity of International Organizations

International Organizations Law Review ◽

10.1163/15723747-01002003 ◽

2014 ◽

Vol 10 (2) ◽

pp. 276-286

Author(s):

Johan G. Lammers

Keyword(s):

International Law ◽

International Organizations ◽

Ad Hoc ◽

General Assembly ◽

In December 1958, the General Assembly invited the International Law Commission to consider the question of relations between states and intergovernmental international organizations after undertaking a study of diplomatic intercourse and immunities, consular intercourse and immunities and ad hoc diplomacy. This paper presents a brief overview of the work of the ilc over a period of 30 years, which was led by two Special Rapporteurs: Abdullah El-Erian (1962–1979); and Leonardo Díaz González (1979–1992). In 1992, the ilc decided to discontinue its work on this topic: this paper will outline the main reasons given by the ilc for this decision, and draw some conclusions from the work of the ilc in this area.

The International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts Adopted on Second Reading

Leiden Journal of International Law ◽

10.1017/s0922156502000390 ◽

2002 ◽

Vol 15 (4) ◽

pp. 891-919 ◽

Cited By ~ 2

Author(s):

Stephan Wittich

Keyword(s):

International Law ◽

Legal System ◽

General Assembly ◽

International Crimes ◽

Sensitive Areas ◽

International Legal System ◽

In 2001 the International Law Commission finally adopted on second reading the Draft Articles on Responsibility of States for Internationally Wrongful Acts and the commentaries thereto, thereby successfully concluding almost half a century of work on the topic by the ILC. Subsequent to the adoption, the General Assembly welcomed the conclusion of the work of the ILC. This article highlights the main changes made during the second reading 1998–2001, among them the issue of international crimes, the concept of injured state and countermeasures. While the 59 articles are the result of compromise, they undoubtedly are a major achievement in one of the most important and most sensitive areas of international law. Ultimately they may be a useful tool to promote the enforcement of community interests in the international legal system.

Customary International Law and the General Principles of Law Recognized by Civilized Nations

International Community Law Review ◽

10.1163/18719732-12341404 ◽

2019 ◽

Vol 21 (3-4) ◽

pp. 307-324

Author(s):

Michael Wood

Keyword(s):

International Law ◽

Recent Work ◽

Legal System ◽

Customary International Law ◽

General Principles Of Law ◽

International Legal System ◽

The Relationship ◽

Abstract This article looks beyond customary international law and asks whether the source of international law listed in Article 38, paragraph 1(c) of the ICJ Statute (‘the general principles of law recognized by civilized nations’) might join the dance. Is there a risk that general principles of law may be too easily invoked where no applicable treaty or rule of customary international law can be identified? In emphasizing the distinction between customary international law and general principles of law, the article first recalls relevant recent work of the International Law Commission. It then addresses the term ‘general international law’ and certain problems related to it, and raises questions concerning the relationship between customary international law and general principles of law. Before drawing some conclusions, reference is also made to the place of general principles of law within the international legal system.

The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations An Appraisal of the ‘Copy-Paste Approach’

International Organizations Law Review ◽

10.1163/15723747-00901001 ◽

2012 ◽

Vol 9 (1) ◽

pp. 53-66 ◽

Cited By ~ 2

Author(s):

Christiane Ahlborn

Keyword(s):

International Law ◽

International Organizations ◽

Legal Reasoning ◽

International Organization ◽

Considerable Uncertainty ◽

Legal Rules ◽

International Responsibility ◽

In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO by the International Law Commission (ILC). On the basis of a brief introduction to the concept of analogies in international law, it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing the ARIO with the ILC’s Articles on State Responsibility (ASR), it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States. Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility. This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility.

Status of Forces under the UN Convention on State Immunity

International and Comparative Law Quarterly ◽

10.1093/iclq/lei090 ◽

2006 ◽

Vol 55 (2) ◽

pp. 427-436 ◽

Cited By ~ 3

Author(s):

Andrew Dickinson

Keyword(s):

United Nations ◽

International Law ◽

Ad Hoc ◽

General Assembly ◽

State Immunity ◽

Deep Appreciation ◽

Un General Assembly ◽

United Nations Convention ◽

The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the UN General Assembly on 2 December 2004.1 The General Assembly recorded, in the first paragraph of its resolution adopting the Convention, its ‘deep appreciation to the International Law Commission and the Ad Hoc Committee on jurisdictional Immunities of States and their Property for their valuable work on the law of jurisdictional immunities of States and their property’. Whatever view one takes as to the merits of the Convention text or the prospects of its success,2 it cannot be doubted that this acknowledgment was well deserved—it is, if anything, an understatement to describe the conclusion of a detailed international instrument on state immunity, embodying the restrictive theory of immunity, as a ‘diplomatic triumph’.

Non-State Actors from the Perspective of the International Law Commission

SSRN Electronic Journal ◽

10.2139/ssrn.2220114 ◽

2011 ◽

Author(s):

Gentian Zyberi

Keyword(s):

International Law ◽

State Actors ◽

The Requisite Rigour in the Identification of Customary International Law: A Look at the Reports of the Special Rapporteur of the International Law Commission

SSRN Electronic Journal ◽

10.2139/ssrn.3135716 ◽

2017 ◽

Author(s):

Noora Arajjrvi

Keyword(s):

International Law ◽

Special Rapporteur ◽

Customary International Law ◽

On the Road to Vienna

10.1093/oso/9780198795940.003.0005 ◽

2017 ◽

Author(s):

Kai Bruns

Keyword(s):

Cold War ◽

International Law ◽

The Road ◽

Progressive Development ◽

History Of ◽

On The Road ◽

The Cold War ◽

This chapter focuses on the negotiations that preceded the 1961 Vienna Conference (which led to the conclusion of the VCDR). The author challenges the view that the successful codification was an obvious step and refers in this regard to a history of intense negotiation which spanned fifteen years. With particular reference to the International Law Commission (ILC), the chapter explores the difficult task faced by ILC members to strike a balance between the codification of existing practice and progressive development of diplomatic law. It reaches the finding that the ILC negotiations were crucial for the success of the Conference, but notes also that certain States supported a less-binding form of codification. The chapter also underlines the fact that many issues that had caused friction between the Cold War parties were settled during the preparatory meetings and remained largely untouched during the 1961 negotiations.

Due diligence as a secondary rule of general international law

Leiden Journal of International Law ◽

10.1017/s0922156521000030 ◽

2021 ◽

pp. 1-30

Author(s):

Richard Mackenzie-Gray Scott

Keyword(s):

International Law ◽

Due Diligence ◽

Legal Practice ◽

Formed Part ◽

Domestic Law ◽

Secondary Rule ◽

Law Making ◽

Law Commission ◽

Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.