International Legal Hierarchy Revisited – The Status of Obligations Erga Omnes

2011 ◽  
Vol 80 (1) ◽  
pp. 1-23 ◽  
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Status ◽  
Legal Evidence ◽  
The Status ◽  
Wide Scale ◽  
International Legal System ◽  
Legal Arguments ◽  
Jus Cogens ◽  
Peculiar Nature

AbstractIncreasingly, international legal arguments exploit the peculiar nature of obligations erga omnes. This practice raises questions about the precise legal status of norms expressing such obligations relative to other norms of international law. According to an oft-made suggestion, whether a norm is part of the international jus cogens or not, when it expresses obligations erga omnes it is hierarchically superior to all other norms of non-peremptory international law. This essay inquires into the justification of this theory – throughout the essay referred to as “the Theory on the Superior Status of Erga Omnes Obligations”. As shown in section 2, irrespective of whether inferential legal evidence exists or not, the Theory on the Superior Status of Obligations Erga Omnes can be explained by reference to the non-reciprocal character of such obligations. However, logic requires that the theory be restated to include also interdependent obligations and obligations erga omnes partes. As shown in section 3, although inferential legal evidence provides some support for the Theory on the Superior Status of Obligations Erga Omnes, the evidence is not entirely consistent. As shown in section 4, if the theory on the superior status of obligations erga omnes is adopted and applied on a wide scale, this will have detrimental effects on the overall understanding of international law. Rather than a more properly functioning international legal system, confusion and disorganization will ensue.

scholarly journals Evolution of Individual Status in International Law

2018 ◽  
Vol 11 (4) ◽  
pp. 116
Author(s):  
Sayel Mofleh Momani ◽  
Maher Saleh Al-Jubouri ◽  
Noor Akef Al-Dabbas
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Status ◽  
Legal Person ◽  
Legal Personality ◽  
The Status ◽  
International Legal Order ◽  
The Individual ◽  
The Right ◽  
The Relationship

Each legal system has individuals who are addressed with its rules and that the legal rules of the legal system are designed to regulate the relationship between these individuals, and one individual can have legal personality in more than one legal system. The legal personality of these individuals is highlighted by the relationship between them and the legal system in which arranges for them rights and impose obligations on them. The rights and duties of a legal person are not the same; they vary from person to person within the same legal system, and vary from one legal system to another. With regard to the international legal order, it has its own international legal persons, foremost among them States. As for the individual, his legal status under general international law is still not clearly defined and is a subject of controversy among the jurists and interpreters of international law. We will present the position of international jurisprudence on the status of the individual in the first demand, the rules of international law that address individuals directly in a second demand, and the right to submit complaints and claims at the international level in a third demand.

5 Customary International Law

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Status ◽  
Common Law ◽  
State Law ◽  
Customary International Law ◽  
Executive Authority ◽  
Law Of Nations ◽  
The Status ◽  
The U.S

This chapter considers the status in the U.S. legal system of customary international law, which was historically referred to as part of the “law of nations.” After considering what the text of the Constitution suggests about this issue, the chapter discusses how courts historically applied customary international law in cases in which it was relevant and how courts referred to it (in cases such as The Paquete Habana) as “part of our law.” The chapter also recounts the modern debates and uncertainties about the current domestic legal status of customary international law. In particular, the chapter explores the possibility that customary international law might have the status of post-Erie “federal common law” and what such a status might mean for questions of jurisdiction, preemption of state law, and limitations on congressional and executive authority. It also discusses various ways in which customary international law can be important in the U.S. legal system even if it is not applied directly by the courts, such as through the Charming Betsy canon of construction. The chapter concludes by discussing controversies concerning the Supreme Court’s consideration of foreign and international law materials when interpreting the U.S. Constitution.

scholarly journals The Impact of Thoughts in the Creation of International Law Rules: From Former Thinkers to the Future Scholars

2016 ◽  
Vol 11 (2) ◽  
pp. 33
Author(s):  
Roghieh Ebrahimi ◽  
Hossein Sharifi Tarazkouhi
Keyword(s):  
International Law ◽  
Legal System ◽  
International System ◽  
Human Sciences ◽  
Essential Component ◽  
The Future ◽  
The Status ◽  
International Legal System ◽  
The Creation ◽  
The Impact

International law as one of the human sciences which has been formed in the light of governments’ needs for regulation of relations and pertinences is a set of rules which based on the increasing complexity of international life; it has been added to its importance gradually. The international nature of rules in this science leads the main followers of international system namely government to be identified as drafters of aforementioned rules. In this research we will discussed about the status of human thoughts as the smallest subjects of international system and we try to prove this hypothesis that human thoughts had been an essential component in the formation of rules in the international legal system.

Nationality on Trial: International Private Law across the Mediterranean

2018 ◽  
Vol 73 (1) ◽  
pp. 81-113
Author(s):  
Jessica M. Marglin
Keyword(s):  
International Law ◽  
Legal System ◽  
Islamic Law ◽  
Legal Case ◽  
International Private Law ◽  
The Status ◽  
International Legal Order ◽  
History Of ◽  
International Legal System ◽  
History Of International Law

This article uses a single, transnational legal case that played out between Italy and Tunisia in the 1870s and 1880s to tell a truly global history of international law—that is, one that goes beyond the boundaries of the West. Samama v. Samama was a fabulously complicated case that dragged on in Italian courts for almost a decade. The crux of the legal arguments concerned the nationality of Nissim Samama, a Jew born in Tunis; Samama’s nationality, in turn, would determine which legal system regulated his estate. The Italian civil code enshrined respect for the national law of a foreigner, but such foreigners were presumed to be Western. A case involving the national law of Tunisia and the status of Jews called the very foundations of the international legal system into question. In putting Samama’s nationality on trial, the case opened up debate over fissures in the emerging theory of international law: How could non-Western states like Tunisia fit into an international legal order? How did Islamic law intersect with international law? What was the status of Jewish nationhood in a world increasingly based on exclusive nationalities? The Samama case offers access to the voices of European international lawyers debating the ambiguities of their field, as well as those of Maghrebis articulating their own vision of international law. The resulting arguments exposed tensions inherent to an international legal system uncomfortably balanced between universalism and Western particularism.

The Spanish Translation of Les Leçons de chimie élémentaire: On the Legal Status of Translation and its Various Values

2019 ◽  
Vol 16 (2-3) ◽  
pp. 201-215
Author(s):  
Tania P. Hernández-Hernández
Keyword(s):  
Complex Network ◽  
Latin American ◽  
Legal System ◽  
Legal Status ◽  
Spanish Translation ◽  
Cultural Economic ◽  
Translation Rights ◽  
International Legal System ◽  
Latin American Countries ◽  
Legal Battle

Throughout the nineteenth century, European booksellers and publishers, mostly from France, England, Germany and Spain, produced textual materials in Europe and introduced them into Mexico and other Latin American countries. These transatlantic interchanges unfolded against the backdrop of the emergence of the international legal system to protect translation rights and required the involvement of a complex network of agents who carried with them publishing, translating and negotiating practices, in addition to books, pamphlets, prints and other goods. Tracing the trajectories of translated books and the socio-cultural, economic and legal forces shaping them, this article examines the legal battle over the translation and publishing rights of Les Leçons de chimie élémentaire, a chemistry book authored by Jean Girardin and translated and published in Spanish by Jean-Frédéric Rosa. Drawing on a socio-historical approach to translation, I argue that the arguments presented by both parties are indicative of the uncertainty surrounding the legal status of translated texts and of the different values then attributed to translation.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

International Law within the Israel Legal System

1990 ◽  
Vol 24 (3-4) ◽  
pp. 451-484 ◽  
Author(s):  
Ruth Lapidoth
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
The State ◽  
Laws Of War ◽  
International Treaties ◽  
The Status ◽  
The Military ◽  
State Of Israel ◽  
High Seas

Since the establishment of the State and up to the present day, Israeli law has had to deal with a great number of various problems in the field of international law, e.g. whether the State of Israel is a successor to the obligations of the Mandatory government; the jurisdiction of the Israeli courts with regard to offences committed in demilitarized zones or beyond the State's boundaries (on the high seas or abroad); the immunity of foreign states and their representatives from the jurisdiction of Israeli courts and from measures of execution; the status of international organizations and of their employees; the effect and implications of official acts performed within the territory of a state which is at war with Israel; the effect of international treaties in Israel; the question whether the Eastern neighbourhoods of Jerusalem are part of Israel; various issues concerning extradition, and of course, many questions regarding the laws of war: the powers of the military governor, and in particular his power to expropriate land in the territories under Israeli control and to expel residents from the territories, the extent of his legislative powers, etc.

scholarly journals International Law in the US Legal System

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
Foreign Affairs ◽  
Sovereign Immunity ◽  
War Powers ◽  
Jus Cogens ◽  
The U.S

International Law in the U.S. Legal System provides a wide-ranging overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. Curtis Bradley explains the structure of the U.S. legal system and the various separation of powers and federalism considerations implicated by this structure, especially as these considerations relate to the conduct of foreign affairs. Against this backdrop, he covers all of the principal forms of international law: treaties, executive agreements, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as treaty withdrawal, foreign sovereign immunity, international human rights litigation, war powers, extradition, and extraterritoriality. This book highlights recent decisions and events relating to the topic, including various actions taken during the Trump administration, while also taking into account relevant historical materials, including materials relating to the U.S. Constitutional Founding. Written by one of the most cited international law scholars in the United States, the book is a resource for lawyers, law students, legal scholars, and judges from around the world.

scholarly journals The Legal Status of Archipelagos in the International Law of the Sea

2019 ◽  
Vol 2 (2) ◽  
pp. p189
Author(s):  
Maher Gamil Aboukhewat
Keyword(s):  
United Nations ◽  
International Law ◽  
Legal System ◽  
Legal Status ◽  
The Other ◽  
Law Of The Sea ◽  
Regional Security ◽  
United Nations Convention ◽  
Marine Areas ◽  
New System

The archipelagic States, which attempt to extend their control over the waters surrounding their islands, are demanding the establishment of a legal system for archipelagos in order to preserve their interests, their maritime wealth and their regional security. On the other hand, there are the great maritime States that hold on to the freedom of the sea and international navigation.The problems raised by the islands constituting the archipelago did not stand at the end of sovereignty disputes and their right to their own maritime areas, but many other problems were associated with the presence of archipelagic islands. The measurement of marine areas of archipelagic islands requires a description of how the baselines from which these areas are measured are to be drawn. Also, the measurement of marine areas of the islands of individual problems is different from those raised by the presence of the islands in the form of an archipelago. Drawing baselines also varies according to the archipelagic islands site, and whether they are located in front of the coast regions or at the entrances to the bays in these coasts, or were located in the sea or ocean.These problems remained subject to international controversy and tension until a new system of archipelagic State was adopted under Part IV of the United Nations Convention on the Law of the Sea in 1982, which represents a very important renewal of the international law of the sea.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

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