Approaches for Analysing Norm Relationships

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Conflict Resolution ◽  
Intellectual Property ◽  
International Law ◽  
Structure Building ◽  
Analytical Structure ◽  
Rules And Principles ◽  
Logical Order ◽  
International Law Commission ◽  
Rule Systems ◽  
Law Commission

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.

The Systemic Character of International Law

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
Functional Method ◽  
Functional Approach ◽  
Legal Rules ◽  
Minimalist Approach ◽  
International Legal System ◽  
International Law Commission ◽  
Rule Systems ◽  
Law Commission

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.

The Travaux Préparatoires of the Vienna Convention on the Law of Treaties

1971 ◽  
Vol 65 (5) ◽  
pp. 705-712 ◽  
Author(s):  
Herbert W. Briggs
Keyword(s):  
International Law ◽  
Fundamental Importance ◽  
Vienna Convention ◽  
Rules And Principles ◽  
International Tribunals ◽  
The Law ◽  
International Law Commission ◽  
Law Commission ◽  
General Acceptability ◽  
The Way

The fundamental importance of the codification of the law of treaties by the International Law Commission and the Vienna Conference will gain increasing recognition as the rules and principles embodied in the 1969 Vienna Convention on the Law of Treaties are applied in the practice of states and the jurisprudence of international tribunals. Inevitably the records of this great codification will be searched and researched, by scholars as well as by legal advisers, and for a variety of reasons: What is the function of a particular rule? What r61e was it designed to play in the relations of states and in the international legal community? What does it require in the way of performance or abstention? Is it a residual rule, binding upon states if no other solution is agreed on? Why was the rule given the particular formulation found in the Vienna Convention,and what alternative formulations were rejected? Since the entry into force of the Vienna Convention will be delayed until after thirty-five states have ratified or acceded to it (Article 84), what assessment of the general acceptability of a particular provision can be gained from a study of the drafting record or from the number of affirmative or negative votes or abstentions?

On the Road to Vienna

2017 ◽  
Author(s):  
Kai Bruns
Keyword(s):  
Cold War ◽  
International Law ◽  
The Road ◽  
Progressive Development ◽  
History Of ◽  
On The Road ◽  
The Cold War ◽  
International Law Commission ◽  
Law Commission

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

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
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.

The Fifty-Sixth Session of the International Law Commission

2005 ◽  
Vol 99 (1) ◽  
pp. 211-221 ◽  
Author(s):  
Michael J. Matheson
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflict ◽  
Diplomatic Protection ◽  
Sixth Session ◽  
International Liability ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.

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