Ambivalent Self-Determination

2021 ◽  
pp. 280-294
Author(s):  
Maria Cahill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Self Determination ◽  
International Treaties ◽  
International Treaty ◽  
Atypical Case ◽  
Correct Procedure ◽  
The Eu

This chapter focuses on the interface between international law and Irish constitutionalism. Part I examines how Ireland achieved constitutional self-determination first on the basis of and then in violation of an international treaty. The remainder of the chapter concentrates on the place of international law within the framework provided by the 1937 Constitution. Part II highlights how constitutional law has, in general, required that international treaties may neither displace the content of the Constitution nor curtail the competences of the legislature or the courts; as such, it seeks to preserve self-determination as substantive constitutional integrity. Part III focuses on the atypical case of the EU, for which the concept of self-determination used is consciously ambivalent about substantive constitutional integrity, tolerating significant compromises as long as they are made using the correct procedure: in other words, self-determination is reconceived as procedural constitutional integrity.

BERLAKU DAN KEABSAHAN PERJANJIAN INTERNASIONAL DALAM PANDANGAN HUKUM INTERNASIONAL

2019 ◽  
Vol 1 (1) ◽  
pp. 95-103
Author(s):  
Komang Sukaniasa
Keyword(s):  
International Law ◽  
International Agreements ◽  
The State ◽  
International Agreement ◽  
International Treaties ◽  
International Treaty ◽  
Binding Force ◽  
International Rights ◽  
Legal Consequences ◽  
Made In

International agreements are agreements between international subjects that give rise to binding obligations in international rights, which can be bilateral or multilateral. Based on these opinions, an understanding can be taken that international treaties are agreements or agreements entered into by two or more countries as subjects of international law that aim to cause certain legal consequences. International agreements, whether ratified or through approval or acceptance or accession, or other methods that are permitted, have the same binding force as ratified international treaties established in the Ratification Law of International Treaties. Once again, it is equally valid and binding on the state. Therefore, the authors consider that the position of international treaties are not made in the form of the Ratification Act of the International Agreement but are binding and apply to Indonesia. Then Damos Dumoli Agusman argues that ratification originates from the conception of international treaty law which is interpreted as an act of confirmation from a country of the legal acts of its envoys or representatives who have signed an agreement as a sign of agreement to be bound by the agreement.

scholarly journals “Judicial Convention” as a New Stage in the Recognition and Enforcement of Foreign Judgments

Lex Russica ◽  
2019 ◽  
pp. 84-103
Author(s):  
O. F. Zasemkova
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Treaties ◽  
Draft Convention ◽  
The Usa ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
The Hague ◽  
The Impact ◽  
The Eu

In May 2018, at the 4th and final meeting of the Special Commission of the Hague Conference on Private International Law, the draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters that had been developed since 1992 was represented. It is expected that after the Diplomatic Session that will be held in the mid-2019 the draft will be finalized and the Convention will be adopted and opened for signature.In this regard, the article attempts to analyze the main provisions of the draft Convention and assess the appropriateness for the Russian Federation to access it, taking into account the fact that Russia has a limited number of international treaties permitting recognition and enforcement of foreign judgments in Russia and decisions of Russian courts abroad. Based on the results of the analysis, the author concludes that the adoption of this Convention will provide for a simple and effective basis for the recognition and enforcement of foreign judgments eligible for States with different legal, social and economic circumstances. This, in turn, will increase the practical value of court decisions ensuring the most comprehensive protection of the rights and interests of the party in whose favour the decision has been made and, as a consequence, will contribute to the attractiveness of this method of dispute resolution for parties involved in cross-border private law relations.However, the mixed attitudes of the EU and the USA to the Draft Convention raises the question of their accession to the future Convention and may significantly reduce the impact of the adoption of the document under consideration.

Human Rights

2005 ◽  
Author(s):  
Keith Ewing
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Legal Systems ◽  
International Treaties ◽  
Municipal Law

This article begins with a brief discussion of what human rights are. It then considers the international treaties which have emerged to protect human rights in national legal systems, focusing on aspects of the scholarship which has developed alongside the cascade of these rights from international law to constitutional law to ordinary municipal law. This is a process which has been controversial as human rights and democracy are seen by some to be mutually dependent, but by others to be engaged in an abrasive struggle for superiority on the battleground of ideas.

Stages of the formation of treaty law in the history of international law

2021 ◽  
pp. 90-95
Author(s):  
Marina Okladnaya ◽  
Anastasia Pererodova
Keyword(s):  
International Relations ◽  
International Law ◽  
Main Body ◽  
International Treaties ◽  
International Treaty ◽  
Treaty Law ◽  
History Of ◽  
The Law ◽  
History Of International Law ◽  
Historical Periods

Problem setting. An international treaty is an agreement between two or more subjects of international relations concerning the establishment, modification or termination of mutual rights and obligations. In modern time an international treaty is the universal and primary source of international law and, at the same time, the law of treaties as a branch of international law occupies a central place in this system. The role of the treaty is constantly increasing, so it is important to study how treaty law was formed in order to understand how it has changed over history, and what factors have influenced the formation of the main branch of international law. Analysis of recent researches and publications. The law of international treaties causes increased attention of lawyers to the study, research and analysis of its main aspects. Among the domestic and foreign scholars who have made a significant contribution to the study of the law of treaties can be distinguished such as V. Butkevich, Y. Brownlie, A. Talalaev, O. Merezhko, O. Nazarenko, F. Martens, V. Shurshalov, I. Lukashuk, O. Zadorozhniy and others. Target of research. Study of international treaty at different stages of formation of international law, analysis and comparison of forms, content, functions and significance of the treaty in different historical periods. Article’s main body. The article is devoted to the development and formation of the basic branch of international law – treaty law. It studies the stages of formation of the institute of treaty law during different periods of history, identifies the features of the treaty at each stage of formation. Conclusions and prospects for the development. The agreement is an important and necessary instrument of interaction and communication between people, it establishes ties between peoples and states, helps to resolve conflicts, that is why the signing of treaties is a significant mechanism for the regulation of human relations since ancient times. In this article we have traced how different historical periods influenced the formation of international treaty law, which events were of key importance for the development of international law in general. Throughout the history of international law, the treaty has undergone a number of transformations of its forms, types and procedures of conclusion. The treaty form of consolidation of international relations is the basis of stability and efficiency of the legal order in international law. At the present time, the law of international treaties is a self-sufficient, developed branch and system of international law. It is the key branch of international law with its institutions, low basic principles, and continues to develop rapidly and irreversibly.

Constitutional Protection of the Right to Self-Determination

2021 ◽  
pp. 1-21
Author(s):  
Marishet Mohammed Hamza
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Democratic Republic ◽  
Self Determination ◽  
Comparative Perspective ◽  
Constitutional Protection ◽  
Domestic Legislation ◽  
The Right ◽  
Legal Right

Abstract The right to self-determination is an essential international law principle that holds an erga omnes character. Also, the right is often enshrined under domestic legislation, including constitutions. The 1995 Federal Democratic Republic of Ethiopia Constitution (fdre Constitution) is one such constitution and, uniquely, it explicitly recognizes the right to self-determination including the right of secession as an unconditional right of the nations, nationalities, and peoples in Ethiopia. This paper selects the fdre Constitution and analyses whether such constitutional law frameworks better address some of the contentious matters concerning the right to self-determination under international law. In a comparative perspective (with international law), the article analyses, inter alia, how the fdre Constitution approach the questions of who the subjects of the right to self-determination are, and the substantive guarantees for exercising internal and external aspects of the right to self-determination with particular emphasis on secession as a legal right.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 49 Turkey: Turkish Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Ekşi Nuray
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Treaties ◽  
International Treaty ◽  
Foreign Nationals ◽  
Procedural Law ◽  
Commercial Code ◽  
Turkish Commercial Code ◽  
The Hague ◽  
Nationality Law

This chapter explores Turkish perspectives on the Hague Principles. The content of Turkish Private International Law is highly comprehensive. In addition to choice of law and international procedural law, it also covers nationality law, as well as the law on foreign nationals. Private international law rules and issues regarding international procedural law are codified in Law No 5718 on Private International Law and Procedural Law (PILA), which has been in force since 2007. Besides the PILA, the Turkish Commercial Code contains conflict of laws rules regarding bills of exchange, checks, and promissory notes. According to Article 1(2) PILA, the application of international treaties ratified by Turkey takes priority over the application of PIL rules. Consequently, in each case, the court, before taking into account PILA’s Articles, has to determine whether any international treaty exists regarding international commercial contracts. If an international treaty exists, then it takes priority unless otherwise expressed in the treaty itself. For the time being, the Turkish Parliament has no intention to revise the PILA and supplement it with the Hague Principles.

Striking a Balance between Free Association and Regulating Membership of a ‘Community’: Exploring s 235 of the Constitution of South Africa

2021 ◽  
Vol 28 (1) ◽  
pp. 91-116
Author(s):  
Bertus De Villiers
Keyword(s):  
South Africa ◽  
International Law ◽  
Judicial Review ◽  
Constitutional Law ◽  
Free Association ◽  
Self Determination ◽  
Freedom Of Association ◽  
Essential Question ◽  
Universal Standard

Section 235 of the Constitution of South Africa contains a promise of potential self-determination of language and cultural communities. An essential question arising from this promise is how an individual’s freedom of association interacts with the ability of a community to determine its membership. This article reflects on this question with reference to standards developed in international law and practices in the constitutional law of selected case studies. Whereas international law sets a universal standard of free association, states have developed practices whereby the individual’s right to free association is recognised, but where there are also some measures allowed to ensure that an individual is indeed accepted by and part of the community. Any conflicts that arise are, generally speaking, subject to a form of judicial review.

Weak Members and the Enforcement of EU Law

2017 ◽  
Author(s):  
Michael Ioannidis
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Constitutional Law ◽  
Weak States ◽  
Eu Law ◽  
Eurozone Crisis ◽  
Member States ◽  
The Rich ◽  
The Eu

This chapter focuses on cases where the presumption that all Member States are effective in enforcing their law does not hold: when Member States show structural, persistent, and cross-sector ineffectiveness in enforcing their law. Borrowing from literature on international law as well as insights from the rich research on EU compliance, this chapter develops three main points. The first is that, on some occasions, the EU might face a similar challenge with that of international law when dealing with weak states. To describe such cases of structural ineffectiveness, this chapter develops the concept of ‘weak member’. The second point is that these problems can be captured through the lens of EU constitutional law, and more specifically as Rule of Law problems. The last point is to present some of the measures taken during the Eurozone crisis to respond to this type of problem with regard to Greece.

An apple of discord: pre-trial procedure in international justice and in the jurisprudence of the EAEU Court

2021 ◽  
Vol 11 (2) ◽  
pp. 93-110
Author(s):  
Aleksei Ispolinov ◽  
Olga Kadysheva
Keyword(s):  
International Law ◽  
International Treaties ◽  
International Court Of Justice ◽  
International Treaty ◽  
International Courts ◽  
Eurasian Economic Union ◽  
Investment Arbitration ◽  
International Court ◽  
Prior Notification ◽  
Normative Significance

The present article assesses the approaches elaborated in the decisions of international courts and tribunals as well as in the doctrine of international law towards the legal value of pre-trial requirements. The role and significance of such requirements started to increase since almost in any case submitted to a court or arbitration the respondent states try firstly to question either jurisdiction of the court or tribunal in the specific case or admissibility of the claim. As a rule, such objections are based on allegations that the claimant failed to comply with pre-trial requirements such as direct negotiations or prior notification of the respondent about the claimant’s intention to submit the dispute for compulsory adjudication. Despite an absence of customary rule of international law about the necessity and precise content of such pre-trial requirements, international treaties stipulating compulsory dispute adjudication almost by default contain such pre-trial requirements of different kind and combination. Current jurisprudence of international courts and tribunals (International Court of Justice, Court of Eurasian Economic Union, and investment arbitration tribunals) dealing with such objections by the respondents reveals a lack of consensus in the treatment of pre-trial requirements either as jurisdictional or admissibility objections. The commentators also differ on assessment of the role and normative significance of pre-trial requirement. Nevertheless, the authors view such requirements as one of jurisdictional characteristics based on the consent of the states to limits their sovereignty by agreeing in advance in the applicable international treaty to submit any future disputes for compulsory adjudication subject to stipulated limitations and conditions, for instance, necessity for a claimant to follow certain pre-trial requirements. A claimant’s failure to follow such requirements should be considered as sufficient ground for a court or tribunal handling such claim, to declare a lack of its jurisdiction in the case and to refuse to consider the merits of the case.

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