International Law in Chinese Courts

2019 ◽  
pp. 547-564
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Professional Competence ◽  
National Courts ◽  
Major Development ◽  
Chinese Perspective ◽  
The Status ◽  
Major Factors ◽  
Private Actors ◽  
The Comparative Study

This chapter adds a Chinese perspective to the comparative study of how national courts treat international law. The chapter finds that the application of international law in Chinese courts is influenced by several major factors, including China’s ambivalence toward international law, the role that the judiciary plays in China’s national governance, and the professional competence of Chinese judges. In particular, the failure of China’s Constitution to specify the status of international law makes secondary laws less likely to embrace international law: many secondary laws do not mention international law at all; only a modest number of secondary laws automatically incorporate international law. This also means that Chinese judges are discouraged from invoking international law in adjudicating disputes. However, in line with and in support of China’s economic opening policy since the late 1970s, Chinese judges regularly apply those treaties that deal with commercial relations between private actors. A major development is that, as China rises as a great power, Chinese courts have begun to prudently become more involved in foreign relations by applying international law.

Global Regulatory Standards in Environmental and Health Disputes

2021 ◽  
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

International Law in American Courts

2020 ◽  
pp. 145-178
Author(s):  
Gary Born
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Current Treatment ◽  
Federal Courts ◽  
National Interests ◽  
Public And Private ◽  
State Involvement ◽  
System P ◽  
The Status

This chapter looks at the grave flaws in the current treatment of international law in American courts. Both the status and content of public and private international law in the United States are uncertain, frequently governed by contradictory or parochial rules of State law; the resulting body of international law that is applied by U.S. courts is unpredictable and incoherent. Over the past fifty years, U.S. federal courts have also increasingly marginalized both international law and the role of American courts in resolving international disputes. This treatment of international law threatens serious damage to historic U.S. values and frustrates vitally important national policies. The chapter then considers how the current treatment of international law in American courts is also contrary to the U.S. Constitution’s allocation of authority over the nation’s foreign relations and international trade, which vests the federal government with both plenary and exclusive authority over U.S. foreign relations and commerce, while, exceptionally, forbidding State involvement in either field. Moreover, this treatment conflicts with vital national interests and policies in both fields, frustrating long-standing national interests in the nation’s compliance with international law and development of the international legal system.

Part VI Human Rights and General International Law, Ch.33 Transnational Litigation: Jurisdiction and Immunities

2013 ◽  
Author(s):  
Keitner Chimène I
Keyword(s):  
Human Rights ◽  
International Law ◽  
Foreign Relations ◽  
Court Cases ◽  
Human Rights Abuses ◽  
National Courts ◽  
State Actors ◽  
Human Rights Norms

This article examines the issues of jurisdiction and immunities in transnational human rights litigation. It discusses the bases of asserting jurisdiction and highlights the problem in achieving consensus about the rules governing foreign official immunity. It analyses several relevant court cases including claims against foreign states, against current or former foreign officials and against non-state actors. This article argues that the horizontal enforcement of human rights norms by national courts carries the potential for both salutary and disruptive effects. It explains that while it can provide an avenue for victims of human rights abuses to obtain redress for their injuries, it can also interfere with the conduct of foreign relations with states that do not recognize the validity of national proceedings.

Five Conceptions of the Function of Foreign Relations Law

2019 ◽  
pp. 20-43
Author(s):  
Campbell McLachlan
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Essential Point ◽  
Public Power ◽  
Applicable Law ◽  
The Public ◽  
Domestic Courts ◽  
The Comparative Study ◽  
Peremptory Norms

The comparative study of foreign relations law must first grapple with a conundrum: outside the United States, the field enjoys no wide currency or commonly accepted scope, yet the set of problems with which it is concerned arise at an interface with which all states must engage: between international law and national constitutional law. This chapter argues that the essential point of departure for effective comparative analysis is to adopt a functional approach, identifying what functions foreign relations law performs. In doing so, it identifies five different conceptions of the function of foreign relations law that shape the way in which jurists have approached the field. These conceptions are: (1) exclusionary: to separate the international from the national, taking the exercise of foreign relations out of the purview of national law; (2) internationalist: to mediate the inward reception of international law into the domestic legal system; (3) constitutional: to distribute the exercise of the foreign relations law between the organs of government; (4) diplomatic: to facilitate the diplomatic relations of the state with other states; and (5) allocative: to allocate jurisdiction and applicable law in matters concerning the exercise or enforcement of the public power of states. The chapter critically assesses the persuasive power and the potential shortcomings of each of these conceptions. Using the example of domestic cases engaging peremptory norms, it shows how the allocative approach helps to give a better explanation of when and why domestic courts intervene to enforce or apply such rules.

The Constitution of the United States and Foreign Relations

2019 ◽  
Author(s):  
Martin S. Flaherty
Keyword(s):  
United States ◽  
Foreign Policy ◽  
International Law ◽  
Legal System ◽  
Foreign Relations ◽  
The United States ◽  
Customary International Law ◽  
The Us ◽  
The Status ◽  
Executive Agreements

Foreign relations under the US Constitution starts with the paradox, also seen in domestic matters, of relatively scant text providing guidance for the exercise of vast power. Founding understandings, structural inference, and ongoing constitutional custom and precedent have filled in much, though hardly all, of the framework over the course of two hundred years. As a result, two basic questions frame the relationship between the Constitution and US foreign policy: (1) which parts of the US government, alone or in combination, properly exercise authority in the making of foreign policy; and (2) once made, what is the status of the nation’s international legal obligations in the US domestic legal system. The making of American foreign policy is framed by the Constitution’s commitment to separation of powers. Congress, the president, and the courts are all allocated discrete yet significant foreign affairs authority. Determining the exact borders and overlaps in areas such as the use of military force, emergency measures, and treaty termination continues to generate controversy. The status of international law in the US legal system in the first instance turns on whether resulting obligations derive from agreements or custom. The United States enters into international agreements in three ways: treaties, congressional-executive agreements, and sole executive agreements. Complex doctrine deals with the domestic applicability of treaties in particular. US courts primarily apply customary international law in two basic ways. They can exercise a version of their common lawmaking authority to fashion rules of decision based on international custom. They also apply customary international law when incorporated into domestic law by statute.

scholarly journals Information Wars and Sanctions of the International Olympic Committee as Means of Political Pressure on the Russian Sport and Public Opinion

2018 ◽  
Vol 5 (3) ◽  
pp. 22-28
Author(s):  
V A Jilkine
Keyword(s):  
Human Rights ◽  
Public Opinion ◽  
International Law ◽  
Sport Management ◽  
International Olympic Committee ◽  
Political Pressure ◽  
National Courts ◽  
The Status ◽  
Run Up ◽  
The Right

Combating doping has turned into a subject of harsh political pressure on Russia and the Russian public opinion in the run-up to the presidential elections in Russia in 2018. The Executive Board of the International Olympic Committee has suspended the activities of the Russian Olympic Committee and allowed the Russian athletes to perform in PyeongChang Games-2018 under the Olympic f lag in the status of «Olympic Athletes from Russia». The article considers the violated fundamental principles and norms of the international law and the human rights enshrined by the Universal Declaration of Human Rights and the Convention for the Protection of Rights and Fundamental Freedoms and guaranteed by constitutions of civilized states and by the Olympic Charter Rules. The decline of Russian representation in international organizations has resulted in the violation of the fundamental principles and essential values of Olympism, the Olympic Charter and in infringement of human rights and liberties. The Olympic Charter permits the athletes to challenge penalties relating to participation in the Olympic Games exclusively in the Court of Arbitration for Sport (CAS). The study of judicial practice and legal precedents in national courts gives credence to the right of any person/entity to judicial protection of honour, dignity and business reputation from distribution of unfaithful defamatory information and to the right to demand compensation of losses and non- pecuniary damage at civil courts.The article gives some examples of athletes applying to the national courts with legal claims for compensation for professional and non-pecuniary damage. The issues of defence of the National Olympic Committee, the Paralympic Committee, the interests and professional reputation of athletes of the great sporting empire should be handled originally at the governmental level, with involvement of international law counsellors. It is necessary to reform the sports system and the anti-doping laws. WADA (World Anti-Doping Agency) activities and the sport management system should be transparent, comprehensible and verifiable.

Toward the Fifth Restatement of U.S. Foreign Relations Law

2020 ◽  
pp. 335-358
Author(s):  
Pamela K. Bookman
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Public International Law ◽  
State Practice ◽  
The World ◽  
The Status ◽  
International Adjudication

This chapter discusses the debate that the Fourth Restatement of Foreign Relations Law of the United States has sparked regarding the status of adjudicative jurisdiction under public international law. The Fourth Restatement has received considerable attention for its conclusion that adjudicative jurisdiction is not a concern of public international law. But exercises of adjudicative jurisdiction around the world are not static. Innovations and expansions of international adjudication in courts around the world are in process and looming on the horizon. This chapter surveys these developments and considers whether they could lead the next Restatement to alter its position on adjudicative jurisdiction. It also evaluates how these developments could translate into state practice and expressions of opinio juris that might affect the international law status of adjudicative jurisdiction.

Introduction

2021 ◽  
pp. 3-18
Author(s):  
Caroline E. Foster
Keyword(s):  
Decision Making ◽  
International Law ◽  
Regulatory Standards ◽  
Wide Range ◽  
International Authority ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

The reasoning of international adjudicatory bodies in regulatory disputes is gradually producing a set of ‘global regulatory standards’ conditioning the exercise of States’ regulatory freedom and obligations. Global regulatory standards sit at the meeting point between domestic and international authority in a wide range of regulatory fields. Their emergence is the result of the increasing interdependence among States reflected in international law at the present time in history. This book enquires into the legitimacy of this new ‘standards-enriched’ international law, examining the part played by international courts and tribunals in its articulation, the interpretive techniques employed and the influence of the pleadings. These analyses point to the need for political attention to the emerging global regulatory standards, particularly if the relationship between international and domestic authority is to be governed through requirements for proportionality in domestic decision-making. The book goes on to examine a range of further challenges and opportunities arising in connection with the emergence of global regulatory standards. These include the accompanying reconception of sovereignty as conferred power, the need to address the fragmentation of international law, and the potential for developments in the status of private actors within international law.

Foreign Relations Law in the Constitutions and Courts of Commonwealth African Countries

2019 ◽  
pp. 581-600 ◽  
Author(s):  
Ernest Yaw Ako ◽  
Richard Frimpong Oppong
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
Comparative Research ◽  
Critical Role ◽  
Research Approach ◽  
African Countries ◽  
The World ◽  
The Status

This chapter examines the laws and jurisprudence in Commonwealth African countries that implicate their interactions with the rest of the world. It uses a qualitative comparative research approach to examine their laws and values relevant to such interactions. The chapter analyzes the status and relationship between international law and the constitutions of these states by examining themes such as the extent to which international values are reflected in their constitutions; how foreign relations authority is constitutionally allocated; and treaty-making powers and implementation mechanisms. The chapter discusses the extent to which courts in Commonwealth Africa are prepared to intervene or judicially review matters that may be deemed as pertaining to foreign relations. Although none of the constitutions in these countries give their courts an express role in foreign relations matters, the existing jurisprudence suggests that courts have a critical role to play and have intervened in some cases to ensure adherence to constitutional norms.

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