Responsibility and Immunities

2014 ◽  
Vol 11 (1) ◽  
pp. 114-171 ◽  
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
Present Contribution ◽  
Relative Growth ◽  
The Past ◽  
International Legal System ◽  
The Law ◽  
The Relationship

Over the past couple of decades, the relative growth of the human-oriented element in the international legal system has been one of the defining characteristics of the process of its evolution. Rules, instruments, practices and institutions for protecting individuals in peacetime as well as during times of war keep multiplying and becoming more imperative. How does the law respond to underlying the dilemmas this presents: through developing a system of effective remedies, or by admitting and tolerating substantial gaps in accountability? The present contribution covers the law of the responsibility of international organizations and the multiple grounds of attribution under it, mainly focusing on the International Law Commission’s Draft Articles on the Responsibility of International Organizations and their applicability in practice. It also focuses on the immunities of international organizations, their sources and scope, and on the relationship between their competing or conflicting standards. There is more inter-dependence between the standards under the law of responsibility and those under the law of immunities than often meets the eye, and such inter-dependence is dictated by the orderly operation of both these branches of international law.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

(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.

1. Foundations and structure of international law

2019 ◽  
pp. 1-20
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Legal System ◽  
Historical Overview ◽  
Public International Law ◽  
Legal Rules ◽  
System P ◽  
Rules And Principles ◽  
The Subject ◽  
International Legal System ◽  
The Relationship

This chapter introduces the subject of public international law and provides an overview of its most important elements. It begins with a brief historical overview of international law. It then presents the international legal system consisting of different structures of legal rules and principles; discusses the basis of international legal obligation; offers a brief overview of the relationship between international law and national law; and deals with the issue of enforcement. The chapter concludes with some remarks about the alleged inadequacies of international law and the tension between notions of justice and order that is so prevalent within the international legal system.

scholarly journals Conceiving International Law’s Normative Order beyond the ‘Residual Negative Principle’

2018 ◽  
Vol 87 (4) ◽  
pp. 466-484
Author(s):  
Graham Melling
Keyword(s):  
International Law ◽  
Legal System ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Legal System ◽  
The Law ◽  
Normative Order

Due to the nature of the international legal system, the International Court of Justice (icj) is regularly presented with new questions about which international law is unclear or to which it does not yet extend – and is thereby incomplete. The approach of the icj when faced with such gaps raises some fundamental questions about the nature of the international legal system and the judicial function of the icj. The purpose of this article is to revisit and the critically evaluate the issue of how the icj responds when faced with a gap or lacuna in the law.

scholarly journals Crisis, Continuity, and Change in International Investment Law and Arbitration

2021 ◽  
pp. 321
Author(s):  
Valentina Vadi
Keyword(s):  
International Law ◽  
Legal System ◽  
International Investment ◽  
International Investment Law ◽  
Continuity And Change ◽  
The Past ◽  
The Future ◽  
International Legal System ◽  
Investment Law ◽  
Wealth Of Nations

The dialectic between continuity and change lies at the heart of international law, which seeks to foster peaceful, just, and prosperous relations among nations. International law endeavors to govern the future by applying, in the present, norms that are inherited from the past. Nonetheless, everything flows and in an ever-changing world, some change is needed within the international legal system to ensure its stability especially in time of crisis. Not only can crises constitute means for the development of international law, but they can test, undermine or ultimately buttress the structure of international law. This article explores the connection between crisis, continuity, and change in international investment law and arbitration. It seeks to answer the following question: can international investment law successfully address the challenges posed by the coronavirus crisis? Or will the pandemic change the field of international investment law as we know it? After briefly discussing a range of procedural matters, the article focuses on substantive aspects, namely, the kinds of claims that can be filed, the kind of defences that can be raised, and how arbitral tribunals can adjudicate such matters. In this way, the article ultimately concludes that both continuity and change are necessary for ensuring the health and wealth of nations and justice among them.

1. Foundations and structure of international law

2021 ◽  
pp. 1-19
Author(s):  
Anders Henriksen
Keyword(s):  
International Law ◽  
Legal System ◽  
Historical Overview ◽  
Public International Law ◽  
Legal Rules ◽  
System P ◽  
Rules And Principles ◽  
The Subject ◽  
International Legal System ◽  
The Relationship

This chapter introduces the subject of public international law and provides an overview of its most important elements. It begins with a brief historical overview of international law. It then presents the international legal system consisting of different structures of legal rules and principles; discusses the basis of international legal obligation; offers a brief overview of the relationship between international law and national law; and deals with the issue of enforcement. The chapter concludes with some remarks about the alleged inadequacies of international law and the tension between notions of justice and order that is so prevalent within the international legal system.

scholarly journals The Dual Legality of the Rules of International Organizations

2017 ◽  
Vol 14 (1) ◽  
pp. 87-119 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
Security Council ◽  
International Organizations ◽  
Legal System ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

This paper examines the legal nature of the ‘rules of international organizations’ as defined by the International Law Commission in its works on the law of treaties and on international responsibility. Part 1 introduces the debate with an example concerning the nature of un Security Council anti-terrorism resolutions. Part 2 challenges the four theories of the rules envisaged by scholarship. Part 3 is an attempt to examine the characteristics of the legal system produced by international organizations taking advantage of analytical jurisprudence, developing a theory of their legal nature defined as ‘dual legality’. Part 4 concludes by appraising the effects of the dual legality looking at the law of treaties, international responsibility and invalidity for ultra vires acts.

The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law

1989 ◽  
Vol 83 (3) ◽  
pp. 513-518 ◽  
Author(s):  
I. I. Lukashuk
Keyword(s):  
International Law ◽  
Legal System ◽  
Fundamental Principle ◽  
International Order ◽  
Good Faith ◽  
International Legal System ◽  
The Law

The principle that treaty obligations must be fulfilled in good faith is one aspect of the fundamental rule that requires all subjects of international law to exercise in good faith their rights and duties under that law.In the sociopolitical sphere, this fundamental principle may be seen as manifesting the need perceived by states for an international legal system that can ensure international order and prevent arbitrary behavior and chaos. In the legal sphere, the principle is confirmation of the character of international law as law. Subjects of international law are legally bound under the principle to implement what the law prescribes.

Informal International Law-Making as a New Form of World Legislation?

2011 ◽  
Vol 8 (1) ◽  
pp. 253-265 ◽  
Author(s):  
Ramses A. Wessel
Keyword(s):  
International Law ◽  
International Organizations ◽  
Public Authority ◽  
Present Contribution ◽  
The Past ◽  
Domestic Legislation ◽  
New Form ◽  
Informal Rules ◽  
Law Making

AbstractLaw-making by formal, intergovernmental international organizations received abundant attention over the past years. The aim of the present contribution is to investigate whether the notion of 'word legislation' would also be appropriate in the case of 'informal international law-making'. It is argued that this could be the case when international public authority is exercised, in which case 'informal' rules have effects similar to domestic legislation.

State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System

2009 ◽  
Vol 78 (1) ◽  
pp. 53-72 ◽  
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Legal System ◽  
State Responsibility ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Present Essay ◽  
Legal Literature ◽  
International Legal System ◽  
The Law

AbstractIn the international legal literature, it is commonplace to talk about the law of state responsibility as secondary rules of law. The terminology emphasises that in some way or another the law of state responsibility is different from other rules of the international legal system – what international legal scholars refer to as primary rules of law. The present essay inquires into the soundness of this language. As argued, the primary-secondary rules terminology builds on two assumptions. First, it assumes that the law of state responsibility can be described as separate from the ordinary (or primary) rules of international law. Secondly, it assumes that the two classes of rules can be described as pertaining to different stages of the judicial decision-making process. As shown in this essay, neither assumption can be defended as correct.

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