International Law and the Responsibility to Protect: Clarifying or Expanding States' Responsibilities?

2010 ◽  
Vol 2 (3) ◽  
pp. 213-231 ◽  
Author(s):  
Jennifer Welsh ◽  
Maria Banda
Keyword(s):  
International Relations ◽  
International Law ◽  
Moral Philosophy ◽  
Responsibility To Protect ◽  
Customary International Law ◽  
Legal Scholarship ◽  
The Core ◽  
Legal Obligations ◽  
The Relationship ◽  
Normative Foundations

AbstractThe Responsibility to Protect (R2P) invokes one of the most powerful moral and legal terms in contemporary international politics – namely, responsibility. The nature of the relationship between R2P and international law and morality, however, remains contested, giving rise to questions lying at the core of R2P's normative foundations. What is the source of R2P? To whom is this responsibility attributable, and under what circumstances? Does R2P give rise to legal obligations? Such questions challenge International Relations (IR) theorists to look beyond their discipline for more insightful tools and methods of analysis. In this article, we apply a broadened theoretical framework to explain the ongoing controversy about R2P. In Part II, we borrow tools from moral philosophy to identify the source and the bearer of the responsibility to protect in today's international society. In Part III, we draw on international legal scholarship to analyse whether R2P has emerged as a 'new' norm of customary international law. We find that international endorsement of R2P has helped to clarify existing obligations in international law, but that intrinsic ambiguities in its articulation currently limit R2P's capacity to entrench new obligations for states to protect strangers. At the same time, our finding that R2P is an example of 'soft law' leads us to conclude that R2P can nonetheless exert significant influence on how states interpret their legal obligations and, in the coming decade, it may also help catalyse diplomatic efforts to reform the international architecture for preventing and responding to mass atrocities.

Tracing the Legal Boundary between Empire and Multitude: Wavering with Hardt and Negri (2000–2005)

2005 ◽  
Vol 18 (3) ◽  
pp. 389-402 ◽  
Author(s):  
RONNIE LIPPENS
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Scholarship ◽  
The Core ◽  
Hardt And Negri ◽  
Core Issues

Since its publication in 2000, Hardt and Negri's book Empire has been at the centre of significant debates within international relations (IR) and international law (IL) communities, both academic and other. Hardt and Negri's recently published Multitude (2004) is likely to add momentum to these debates. Outlining the importance of both Multitude and Empire for legal scholarship and practice, this contribution sets out to give a brief overview of the core issues that are to be distinguished in the debates amongst IR and IL academics, and includes a number of criticisms that could be levelled at Hardt and Negri's work. The focus of the paper, however, is on the ambiguities that mark Hardt and Negri's flawed attempt to deal with the issue of the boundary of Empire and the liminality of (the) multitude. Indeed, this contribution maintains that precisely this rather fundamental flaw in Hardt and Negri's work is why their intellectual ‘tour de force’ is ultimately unconvincing.

5 Obligations of International Organizations, 5.2 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt , Advisory Opinion, [1980] ICJ Rep 73

2016 ◽  
Author(s):  
Brölmann Catherine
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Organization ◽  
Advisory Opinion ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Icj ◽  
Legal Character ◽  
First Time ◽  
The Relationship

The 1980 WHO Advisory Opinion elaborates on the general legal obligations (grounded in the duty of co-operation and good faith) that are part of the relationship between an international organization and its host state. In this opinion the ICJ possibly for the first time articulated this relationship as a set of mutual obligations between legal equals. The opinion moreover enunciates the sources of international legal obligations binding upon international organizations (IOs): the treaties they conclude (uncontroversial); I customary international law; their constitutions. The Court uses the proverbial reassurance of UN member states in saying that the WHO is not a ‘super-state’. Finally, in accepting jurisdiction the Court explicitly separated the legal character of the question from the political considerations motivated by that question.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

The Rohingya Refugees in Bangladesh: Non-refoulement and Legal Obligation under National and International Law

2020 ◽  
Vol 27 (4) ◽  
pp. 855-875
Author(s):  
Kamrul Hasan Arif
Keyword(s):  
International Law ◽  
Legal Obligation ◽  
Legal Basis ◽  
Refugee Status ◽  
International Protection ◽  
Customary International Law ◽  
The Core ◽  
Legal Obligations ◽  
International Laws

Bangladesh is now the largest Rohingya refugee-hosting country in the world. 2017 saw the largest and fastest Rohingya refugee influx from Myanmar to Bangladesh. The very first influx took place in 1978 after just seven years of its independence. Despite being a non-signatory to the 1951 Refugee Status Convention, Bangladesh has an obligation to protect refugees under national and international laws. The legal basis of international protection comes from the different bodies of international law including customary international law. The basic customary international law applicable to the refugees found in the core international human rights instruments. The aims of this research are to find out the legal obligations and challenges of Bangladesh in the protection of refugees under the constitutional and statutory laws of Bangladesh. This research also aims to focus on the role of protecting refugees under different bodies of regional and international law including the principle of non-refoulement.

scholarly journals Causal Inference, International Law, And Maritime Disputes

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 389-393
Author(s):  
Benjamin J. Appel
Keyword(s):  
Causal Inference ◽  
International Law ◽  
Law Of The Sea ◽  
International Courts ◽  
Legal Scholarship ◽  
Wide Range ◽  
Maritime Disputes ◽  
Empirical Tests ◽  
The Impact ◽  
The Relationship

Sara Mitchell and Andrew Owsiak's examination of the impact of UN Convention on the Law of the Sea (UNCLOS) and Article 287 declarations on the peaceful resolution of maritime disputes significantly advances the literature on the relationship between international law/international courts and maritime issues. To their credit, the authors employ a wide range of empirical tests in the article to provide readers with confidence in the empirical results. Nonetheless, there are some important limitations in their approach. Drawing on insights from the causal inference literature, I argue that Mitchell and Owsiak's empirical analyses suffer from two biases that both (1) raise concerns about the causal relationships identified in the article, and (2) suggest some important scope conditions in its empirical findings. I investigate the biases and propose suggestions for legal scholarship to produce more credible results.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

9 The Residual Receptacle

2021 ◽  
Author(s):  
d'Aspremont Jean
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Customary International Law ◽  
Legal Obligations ◽  
The Common ◽  
General Principles Of Law ◽  
Common Understanding

This chapter explores customary international law that is constantly approached as the residual receptacle for international legal obligations that cannot be grounded in treaty law. It highlights the discursive performance that presupposes a sort of fetishization of the treaty as the first go-to source of international law as well as the idea that customary international law is second-best. It also cites the discursive performance that led some observers to claim that customary international law has become the generic category for practically all binding non-treaty standards. The chapter draws on international human rights law and international criminal law and highlights the discursive performance that is witnessed by customary international law. It formulates some observations on the consequences for general principles of law of the common understanding of customary international law as a residual receptacle for non-treaty international legal obligations.

11. Use of force

2019 ◽  
pp. 144-159
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
Responsibility To Protect ◽  
Collective Security ◽  
Armed Attack ◽  
Customary International Law ◽  
Significant Achievement ◽  
Self Defence

This chapter examines under what circumstances States may use armed force under customary international law and Arts 2(4) and 51 UN Charter. After noting that the use of armed force is generally prohibited and only limited to self-defence, and then only if the target State is under an armed attack, we show that several States have expanded the notion of armed attack. Besides self-defence, the Security Council may authorize the use of armed force through a process of collective security. Several examples of collective security are offered, as well as the ICJ’s position on what constitutes an armed attack. In recent years, the range of actors capable of undertaking an armed attack has included terrorists. Moreover, the development of the doctrine of the responsibility to protect is a significant achievement.

Comparative International Law Within, Not Against, International Law: Lessons from the International Law Commission

2015 ◽  
Vol 109 (3) ◽  
pp. 498-513 ◽  
Author(s):  
Mathias Forteau
Keyword(s):  
International Law ◽  
Comparative Method ◽  
Comparative Law ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
Degree Of Separation ◽  
The One ◽  
International Law Commission ◽  
The Relationship

Public international law and comparative law have so far been regarded as largely distinct fields, with little to no overlap between them. The degree of separation between the two disciplines is rendered in particularly stark relief by the absence in practice or scholarship of any real inquiry into the relationship between comparative law on the one hand and customary international law and general principles of international law on the other. Some eminent international lawyers go so far as to claim that it would be both unnecessary and unrealistic to have recourse to comparative law in the context of the identification of customary international law and general principles of law, pointing to the case law of the Permanent Court of International Justice and the International Court of Justice, which, according to them, “show[s] a clear disinclination towards the use of the comparative method.”

Islam and international law

2005 ◽  
Vol 87 (858) ◽  
pp. 269-283 ◽  
Author(s):  
Sheikh Wahbeh al-Zuhili
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Rules ◽  
The World ◽  
The Status ◽  
Rules And Principles ◽  
Internal Affairs ◽  
The Relationship

AbstractThis article by an Islamic scholar describes the principles governing international law and international relations from an Islamic viewpoint. After presenting the rules and principles governing international relations in the Islamic system, the author emphasizes the principles of sovereignty and non-interference in the internal affairs of other States and the aspiration of Islam to peace and harmony. He goes on to explain the relationship between Muslims and others in peacetime or in the event of war and the classical jurisprudential division of the world into the abode of Islam (dar al-islam) and that of war (dar al-harb). Lastly he outlines the restrictions imposed upon warfare by Islamic Shari'a law which have attained the status of legal rules.

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