scholarly journals Border-Crossing: Immigration Law, Racism and Justified Resistance

2021 ◽  
pp. 003232172110301
Author(s):  
Guy Aitchison
Keyword(s):  
International Law ◽  
Civil Disobedience ◽  
Prima Facie ◽  
Border Crossing ◽  
Immigration Law ◽  
Coercive Power ◽  
The Core ◽  
The Law ◽  
Prima Facie Duty ◽  
Political Character

Aside from the case of refugees under international law, are non-citizen outsiders morally justified in unlawfully entering another state? Recent answers to this question, based on a purported right of necessity or civil disobedience, exclude many cases of justified border-crossing and fail to account for its distinctive political character. I argue that in certain non-humanitarian cases, unlawful border-crossing involves the exercise of a remedial moral right to resist the illegitimate exercise of coercive power. The case accepts, for the sake of argument, two conventional assumptions among defenders of immigration restrictions: that states have a ‘right to exclude’ and that migrants have a prima facie duty to respect borders. Nonetheless, where immigration law is racist or otherwise discriminatory, it violates the egalitarian standards at the core of any authority it can plausibly claim over outsiders. In such cases, it may be resisted even where the law is facially non-discriminatory.

The Normative Force of Law

2018 ◽  
Author(s):  
Liam Murphy
Keyword(s):  
International Law ◽  
Prima Facie ◽  
Legal Rule ◽  
Moral Value ◽  
Normative Force ◽  
Moral Force ◽  
Instrumental Case ◽  
The Law ◽  
Prima Facie Duty ◽  
Institutional Order

After distinguishing some other senses of the “normativity” of law, this chapter addresses its moral force. It is argued that all deontological accounts of a prima facie duty to obey the law, other than the argument from consent, fail for being unable to show that the moral value of law as an institutional order implies a duty to obey each and every legal rule. The argument from consent fails for familiar reasons. This leaves an instrumental account of the moral force of law as the only option. The upshot is that, for individuals, the moral force of law is variable, and often weak. The case is different for state officials, as subjects of either domestic or international law. Here the instrumental case for obedience is typically strong.

Military Professionalism and Humanitarian Law

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
International Law ◽  
Humanitarian Law ◽  
New Paradigm ◽  
The Core ◽  
Humanitarian Mission ◽  
Self Defense ◽  
Professional Perspective ◽  
The Law ◽  
Preemptive Strike ◽  
Military Professionalism

This book seeks to revitalize the humanitarian mission of the international law governing armed conflict, which is being frustrated due to states’ actual practice. In order to achieve its two aims—creating an environment in which full abidance by the law becomes an attainable norm, thus facilitating the second and more important aim of reducing human suffering—it calls for the acknowledgment of realpolitik considerations that dictate states’ and militaries’ behavior. This requires recognition of the core interests of law-abiding states, fighting in their own self-defense—those that, from their militaries’ professional perspective, are essential in order to exercise their defense. Internalizing the importance of existential security interests, when drawing the contours of the law, should not automatically come at the expense of the core values of the humanitarian agenda—for example, the distinction rule. Rather, it allows more room for the humanitarian arena. The suggested tool to allow for such an improved dialogue is the standards and principles of military professionalism. Militaries function in a professional manner; they respect their respective doctrines, operational principles, fighting techniques, and values. Their performances are not random or incidental. The suggested paradigm surfaces and leverages the constraining elements hidden in military professionalism. It suggests a new paradigm in balancing the principles of military necessity and humanity, it deals with the legality of a preemptive strike and the leveraging of military strategy as a constraining tool, and it offers a normative framework for introducing deterrence within the current contours of the law.

scholarly journals The Code of Capital: How the Law Creates Wealth and Inequality – Core Themes

2021 ◽  
Vol 11 (1) ◽  
pp. 1-7
Author(s):  
Katharina Pistor
Keyword(s):  
Coercive Power ◽  
Private Law ◽  
The Core ◽  
The Law ◽  
The Right

Abstract In this brief introduction, I summarize the core themes of my book “The Code of Capital: How the Law Creates Wealth and Inequality”. Capital, I argue, is coded in law – predominantly in a handful of private law institutions. By relying on legal coding techniques, asset holders invoke the right to enforce claims against others, if necessary with the help of the state’s coercive power.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

scholarly journals What Has Become of Anns

1969 ◽  
pp. 673
Author(s):  
W. S. Schlosser
Keyword(s):  
Economic Loss ◽  
Prima Facie ◽  
London Borough ◽  
Council Decision ◽  
District Council ◽  
House Of Lords ◽  
Canadian Law ◽  
The Law ◽  
Prima Facie Duty ◽  
Public Bodies

The author examines the effects on Canadian law of a recent House of Lords decision overruling the case of Anns v. Merton London Borough. The author begins by tracing the development of the law of negligence from its beginnings in Donoghue v. Stevenson, through the Rivtow Marine decision in Canada, to the House of Lords decision in Anns, its treatment of the concept of economic loss, and the subsequent Canadian decisions in this area. The author then considers the building criticism of the Anns case and it ultimate downfall in the Murphy v. Brentwood District Council decision. The author highlights several results of this decision including: (1) the fallacy of ignoring the type of loss involved and beginning with a prima facie duty based on the mere foreseeability of damage; (2) the much higher degree of proximity required if damage is economic; and (3) the necessity of having regard to the statutory framework where the liability of public bodies is in issue. The author finally considers the Canadian jurisprudence in this area and concludes that, for the most part, the Canadian position will not be affected by the demise of Anns.

Resiling from the Anns principle: the variable nature of proximity in negligence

Legal Studies ◽  
1987 ◽  
Vol 7 (3) ◽  
pp. 319-332 ◽  
Author(s):  
Richard Kidner
Keyword(s):  
Prima Facie ◽  
Conceptual Approach ◽  
London Borough ◽  
Variable Nature ◽  
The Law ◽  
Prima Facie Duty ◽  
Different Levels

For a number of years there has been considerable criticism of both Donoghue v Stevenson and Anns v London Borough of Merton on the grounds that the prima facie duty doctrine which some believe those cases established is so wide as to be meaningless and obscures more than it reveals. This article seeks to show how the courts have come to accept this criticism and to indicate how the concept of duty should now be viewed. In particular the point is that there are now different levels of proximity required to establish a duty in different situations and that while this means that the various categories of duty must be distinguished from each other, this does not involve ossification of the law, but rather development of the law may be made easier by a pragmatic rather than a conceptual approach. The principle that 'the categories of negligence are never closed’ means both that existing duties may be refined and extended, and also that new duties may be created. How that can be done depends on our understanding of the nature of the concept of duty and how each step should be taken.

Amenities and Pitfalls of a Reputational Theory of Compliance with International Law

2007 ◽  
Vol 76 (1) ◽  
pp. 39-71 ◽  
Author(s):  
Markus Burgstaller
Keyword(s):  
International Relations ◽  
International Law ◽  
International System ◽  
Competitive Market ◽  
Coercive Power ◽  
Market Forces ◽  
The Core ◽  
Norm Compliance ◽  
Long Time ◽  
Research Agendas

AbstractSince there is no coercive power in the international system comparable to that which enforces the laws of a state, the question what motivates states to comply with international law remains among the most perplexing ones in international relations. For a long time, however, scholars have generally avoided the causal question 'why states obey international law'. Nevertheless, recent research agendas in international law and international relations have converged around the issues of norm creation and norm compliance. One influential strand of the compliance scholarship–commonly labelled reputational theory – is at the core of this article. Starting with some general characteristics of compliance with norms, mainly two contemporary theories of compliance with international law are dealt with. First, a variant of rationalist theory, Jack Goldsmith's and Eric Posner's monograph The Limits of International Law, is discussed. It shows that although these two authors seem to have some sympathy for a reputational theory of compliance with international law, they tend to stress the shortcomings of such an approach. To the contrary, Andrew Guzman's work, as exemplified in his article A Compliance-Based Theory of International Law, more readily embraces reputational concerns. It turns out that the essential thesis of a reputational theory is that reputation can alter the equilibrium: it causes future relationships to be affected by today's actions. Accounting for reputational effects, a decision to violate international law will increase today's payoff but reduce tomorrow's. International law succeeds when it alters a state's payoffs in such a way as to achieve compliance with an agreement when, in the absence of such law, states would behave differently. A reputational theory of compliance with international law is particularly well suited for areas such as international financial and economic law, i.e.for situations in which competitive market forces induce compliance with international law mainly because enforcement and monitoring are strong. Reputational incentives, like all incentives, act at the margin.

Internationalized Armed Conflicts in International Law

2018 ◽  
Author(s):  
Kubo Macak
Keyword(s):  
Cold War ◽  
International Law ◽  
Armed Conflict ◽  
Prima Facie ◽  
Armed Conflicts ◽  
Post Cold War ◽  
Internal Conflicts ◽  
Legal Questions ◽  
Legal Nature ◽  
The Law

This book examines and analyses the concept, the process, and the consequences of conflict internationalization from the perspective of international law. In a world defined by the twin forces of globalization and fragmentation, very few armed conflicts remain isolated from foreign involvement and confined to the territory of one state. Instead, many begin as internal conflicts that gradually acquire international characteristics of varying degree and nature. This holds true for nearly all major conflicts that have shaped the post-Cold War era: ex-Yugoslavia, Rwanda, Afghanistan, Iraq, Libya, Ukraine, Syria, Yemen, and so on. Accordingly, this book searches for the tipping points that convert non-international armed conflicts into international armed conflicts. On that basis, it argues for a specific conceptualization of ‘internationalized armed conflict’ in international law, understood to comprise prima facie non-international armed conflicts, whose legal nature has transformed, thus triggering the applicability of the law of international armed conflict to them. The book then puts forward a comprehensive catalogue of modalities of the process of internationalization that includes outside intervention, state dissolution, and recognition of belligerency. Turning to the consequences of internationalization, the book highlights that the intra-state origin of internationalized conflicts provides for an uneasy match with many of the precepts of the law of international armed conflict, which has historically evolved as a regulatory framework for inter-state wars. Of those, the regulation of combatancy and the law of belligerent occupation are where the principal legal questions lie and which are examined in depth in this book.

MARITIME AUTONOMOUS VEHICLES: NEW FRONTIERS IN THE LAW OF THE SEA

2020 ◽  
Vol 69 (3) ◽  
pp. 719-734
Author(s):  
Natalie Klein ◽  
Douglas Guilfoyle ◽  
Md Saiful Karim ◽  
Rob McLaughlin
Keyword(s):  
International Law ◽  
Autonomous Vehicles ◽  
Legal Issues ◽  
Law Of The Sea ◽  
The Core ◽  
Legal Questions ◽  
Ongoing Development ◽  
The Law ◽  
Legal Frameworks ◽  
Security Surveillance

AbstractThe ongoing development of diverse maritime autonomous vehicles for varied ocean activities—ranging from scientific research, security surveillance, transportation of goods, military purposes and commission of crimes—is prompting greater consideration of how existing legal frameworks accommodate these vehicles. This article brings together the core legal issues, as well as current developments in relation to commercial shipping, the law of naval warfare, and maritime security. This article captures how these issues are now being addressed and what other legal questions will likely emerge as the newest technology impacts on one of the oldest bodies of international law.

‘It was you who taught me that peaceful marches did not work’, Uncivil Disobedience and the Hong Kong Protests

2020 ◽  
Vol 21 (1) ◽  
pp. 63-97
Author(s):  
Jane Richards
Keyword(s):  
Hong Kong ◽  
Political Theory ◽  
Civil Disobedience ◽  
Prima Facie ◽  
Excessive Force ◽  
Political Equality ◽  
Systems Model ◽  
One Country Two Systems ◽  
The Law ◽  
The City

Hong Kong’s one country, two systems model denies meaningful political equality for citizens. Instead citizens have engaged government in dialogue and have been granted a foothold in politics through protest. However, this equilibrium was upset in 2019 to 2020. Protests took place that were unprecedented in their scale, duration, widespread support and participation. And yet, government refused to engage in any kind of dialogue or deliberative action. This refusal, along with the use of excessive force by police, provoked an unprecedented escalation from civil disobedience to principled uncivil disobedience. This article argues that the escalation of principled uncivil disobedience was not only justified, but satisfied a duty that citizens have to resist injustice. It relies on the legal and political theory of Candice Delmas, arguing that while citizens have a prima facie obligation to obey the law, where law or policy becomes unjust, citizens may have a duty to resist that injustice, even if it means breaking the law. To illustrate this point, one type of principled uncivil disobedience that has become prevalent – graffiti – is used as an analytical lens. Graffiti communicates protestors’ grievances and subverts authority by reclaiming the space. It is allegorical of both the movement and the city; just as the cityscape has been permanently altered by the protests, so too has Hong Kong been changed by this period of unrest.

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