Foreign act of state and empire

2020 ◽  
Vol 71 (2) ◽  
pp. 135-155
Author(s):  
Courtney Grafton
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
British Empire ◽  
Legal Reasoning ◽  
Public International Law ◽  
Sovereign Equality ◽  
English Law ◽  
The Relationship

The judicial restraint limb of the foreign act of state doctrine is presented as a time-worn doctrine dating back to the seventeenth century. Its legitimacy is indelibly wedded to its historical roots. This article demonstrates that this view is misguided. It shows that the cases which are said to form the foundation of the judicial restraint limb primarily concern the Crown in the context of the British Empire and are of dubious legal reasoning, resulting in a concept trammelled by the irrelevant and the obfuscating. It has also unnecessarily complicated important questions relating to the relationship between English law and public international law. This article suggests that the judicial restraint limb of the foreign act of state doctrine ought to be understood on the basis of the principle of the sovereign equality of states and conceptualised accordingly.

1. The nature of international law and the international legal system

2019 ◽  
pp. 1-15
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Legal System ◽  
Vertical Structure ◽  
Legal Order ◽  
Sovereign Equality ◽  
System P ◽  
International Legal System ◽  
International Adjudication ◽  
Peremptory Norms ◽  
Law Making

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Also significant is the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.

1. The nature of international law and the international legal system

2017 ◽  
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Legal System ◽  
Vertical Structure ◽  
Legal Order ◽  
Sovereign Equality ◽  
System P ◽  
International Legal System ◽  
International Adjudication ◽  
Peremptory Norms ◽  
Law Making

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Significant is also the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.

scholarly journals Cosmopolitism, Global Justice, and International Law

2005 ◽  
Vol 18 (4) ◽  
pp. 679-684
Author(s):  
ROLAND PIERIK ◽  
WOUTER WERNER
Keyword(s):  
Political Philosophy ◽  
International Law ◽  
Global Justice ◽  
Environmental Law ◽  
Moral Foundations ◽  
Global Poverty ◽  
Special Issue ◽  
Global Inequality ◽  
Sovereign Equality ◽  
Central Elements

Along with the exploding attention to globalization, issues of global justice have become central elements in political philosophy. After decades in which debates were dominated by a state-centric paradigm, current debates in political philosophy also address issues of global inequality, global poverty, and the moral foundations of international law. As recent events have demonstrated, these issues also play an important role in the practice of international law. In fields such as peace and security, economic integration, environmental law, and human rights, international lawyers are constantly confronted with questions of global justice and international legitimacy. This special issue contains four papers which address an important element of this emerging debate on cosmopolitan global justice, with much relevance for international law: the principle of sovereign equality, global economic inequality, and environmental law.

Antinomies of Power and Law: A Comment on Robert Kagan

2003 ◽  
Vol 4 (9) ◽  
pp. 871-888
Author(s):  
Andreas Paulus
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Transatlantic Relations ◽  
The Other ◽  
International Affairs ◽  
Sovereign Equality ◽  
Political Perspective ◽  
The Future ◽  
Analytical Tools

Robert Kagan's article and book on the future of transatlantic relations have gained much prominence in the debate on the reasons for and impact of the transatlantic rift on the war against Iraq. However, and regrettably, Kagan's work confirms rather than challenges the prejudices and stereotypes of both sides. After putting Kagan's approach in a political perspective, I intend to show that the antinomies used by Kagan and other participants in the debate, such as might and right, unilateralism and multilateralism, prevention and repression, hegemony and sovereign equality, democratic imperialism and pluralism, constitute useful analytical tools, but do not in any way capture the divergence of values and interests between the United States and Europe. However, the result of such an analysis does not lead to the adoption of one or the other extreme, but to the realization that international law occupies the space between them, allowing for the permanent re-negotiation of the place of “Mars” and “Venus” in international affairs.

Common Concepts of Immanuel Kant's "The Perpetual Peace" and The Charter of the United Nations

2019 ◽  
Vol 10 ◽  
pp. 47-55
Author(s):  
Aleksandra Musiał
Keyword(s):  
United Nations ◽  
International Law ◽  
International Court Of Justice ◽  
The Core ◽  
Perpetual Peace ◽  
Court Of Justice ◽  
Sovereign Equality ◽  
International Court ◽  
Rules Of Procedure ◽  
The United Nations

The essay compares selected Kantian ideas stated in The Perpetual Peace with the institutions established by the Charter of the United Nations and the Statute of the International Court of Justice. The concept of a nation and its position in international law in view of the Charter will be presented and linked with the Kantian theory of sovereignty of Nations. The core of the paper is an afterthought on the supremacy of three separate powers over the Nations, hence the question of the rules of procedure held by the International Court of Justice will be regarded as the consequence of the idea of sovereign equality. The Kantian concept: "Nations, as states, may be judged like individuals”: (Kant, 1917, p. 128) is observed from the perspective of state’s demand for independence. The institution of the International Court of Justice is presented as a universal supreme body. The key issue of the essay is the federative character of union as a guarantee of eternal peace seen as common point in both of the documents discussed.

scholarly journals State Consent and Disagreement in International Law-Making. Dissolving the Paradox

2016 ◽  
Vol 29 (2) ◽  
pp. 289-316 ◽  
Author(s):  
SAMANTHA BESSON
Keyword(s):  
International Law ◽  
Legal Positivism ◽  
Legitimate Authority ◽  
Political Equality ◽  
Reasonable Disagreement ◽  
Democratic State ◽  
Sovereign Equality ◽  
State Consent ◽  
Law Making

AbstractThis article starts with a paradox: international law-making is ridden with reasonable disagreement and yet no state can be bound by international law without its consent and hence without agreement. Breaking away from the pragmatic resignation that prevails among international law scholars on this question, the article proposes an interpretation of the role of state consent that both fits and justifies its central role in the practice of international law-making and, hopefully, strengthens the latter's legitimacy in the future. Its proposed justification actually lies in the circumstances of reasonable disagreement among democratic states and this proposal dissolves the paradox. The article argues that, in international law as it is the case domestically, consent is neither a criterion of validity of law nor a ground for its legitimate authority. It also dispels two myths about state consent: its necessary relationship to legal positivism and state sovereignty. Instead, the article argues, the role of democratic state consent is that of an exception to the legitimate authority of international law and hence to its bindingness in a concrete case. While the legitimacy of international law is not democratic, the democratic nature of states and their democratic accountability to their people matter. This is especially the case in circumstances of widespread and persistent reasonable disagreement as they prevail among democratic states in international law-making. In these circumstances, respecting the sovereign equality of democratic states by requiring their consent is the way to grant an equal voice to their people. Of course, there are limits to the democratic state exception that are inherent to both its democratic dimension (it requires respecting basic political equality) and its consensual dimension (it requires that consent is expressed in a free, fair and informed fashion). The article concludes by showing how the proposed disagreement-attuned account of democratic state consent explains various characteristics of the main international law-making processes, i.e., treaties and custom.

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