To the question of the transfer of the «soft law» concept on the national legal systems level

2015 ◽  
Vol 3 (3) ◽  
pp. 112-116
Author(s):  
Александр Демин ◽  
Alyeksandr Dyemin
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Empirical Data ◽  
Turning Point ◽  
Soft Law ◽  
International Level ◽  
Legal Systems ◽  
Data Collation ◽  
Domestic Law ◽  
Law Making

Initially, the concept of «soft law», its development, the accumulation of empirical data collation and analysis were carried out as part of the science of international law. The turning point is that «soft law» issue is no more limited by international level. Of course, the «soft law» phenomenon has actually not been explored to the same extent at the level of domestic law systems, than as it has been in the international law. At the same time, it seems profitable to use the «soft law» concept in relation to those various instruments that have a domestic character, which are not formally part of the official source system of law, but which are important for law-making and law enforcement.

Framing a Convention Community

2021 ◽  
Author(s):  
Cedric Marti
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
Nation State ◽  
International Agreement ◽  
Legal Systems ◽  
Interdisciplinary Perspective ◽  
European Court ◽  
Domestic Law ◽  
Law Making

The European Convention on Human Rights (ECHR) has evolved from an international agreement into a highly integrated legal community with an ever more pervasive effect on domestic law and individuals. The supranational authority of the European Court of Human Rights bypasses the nation state in a growing number of other areas. Understanding the evolution of the ECHR and its Court may help in explaining and contextualising growing resistance against the Court, and in developing possible responses. Examining the Convention system through the prism of supranationality, Cedric Marti offers a fresh, comprehensive and interdisciplinary perspective on the expanding adjudicatory powers of the Court, including law-making. Marti addresses the growing literature of institutional studies on human rights enforcement to ascertain the particularities of the ECHR and its relationship to domestic legal systems. This study will be of great value to both scholars of international law and human rights practitioners.

Due diligence as a secondary rule of general international law

2021 ◽  
pp. 1-30
Author(s):  
Richard Mackenzie-Gray Scott
Keyword(s):  
International Law ◽  
Due Diligence ◽  
Legal Practice ◽  
Formed Part ◽  
International Law Commission ◽  
Domestic Law ◽  
Secondary Rule ◽  
Law Making ◽  
Law Commission ◽  
Do So

Abstract The conventional understanding of due diligence in international law appears to be that it is a concept that forms part of primary rules. During the preparatory stages in creating the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) focused on due diligence as though it could have formed part of secondary rules. Despite this process, no due diligence provision forms part of the ARSIWA. Yet a number of the final provisions are based on primary rules. This is because the ILC relied on the method of extrapolation in attempts to create secondary rules. Extrapolation is a method of international law-making by which the output of an analytical process is reproduced in a different form following an examination of its content that exists in other forms. In using this method, the ILC attempted to create secondary rules by extrapolating from primary rules. Yet it did not do so with respect to due diligence. However, due diligence can be formulated and applied differently by using this same method. This article analyses the steps of this process to construct a vision of where international legal practice should venture in the future. In learning from and amalgamating the dominant trends in different areas of international and domestic law, this article proposes that due diligence could exist as a secondary rule of general international law. By formulating and applying due diligence as a secondary rule, there is potential to develop the general international law applicable to determining state responsibility for the conduct of non-state actors.

The Institutionalization of a Process

2016 ◽  
Vol 13 (2) ◽  
pp. 308-340
Author(s):  
Gloria Fernández Arribas
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
International Organization ◽  
Soft Law ◽  
Decision Making Process ◽  
Main Task ◽  
Kimberley Process ◽  
Law Making

The Kimberley Process represents a new method of international cooperation between subjects of international law. It was named by its creators as a process, setting it apart from international organizations, and leading too to its consideration as informal international law-making or soft law. In this study we shall analyze the extent to which the Kimberley Process falls into these categories. Our main task, however, is to compare it to formal international organizations, with a view to establishing whether what really has been created is an institutionalization process that is like an international organization, but with a different name. To do this, we will analyze with reference to the Kimberley Process the various respective fields of international organizations, such as founding agreement, membership, structure, decision-making process and legal order.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

9. Law-Making Processes

2020 ◽  
pp. 181-203
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
International Law ◽  
International Organizations ◽  
Soft Law ◽  
The Icj ◽  
General Principles Of Law ◽  
Law Making

Custom and treaties constitute the two most important formal sources of international law, that are also envisaged in Article 38 of the ICJ Statute. In addition, Article 38 refers to general principles of law recognized in domestic systems. This chapter examines these three formal sources of international law as well as some others, in particular unilateral acts of States and binding decisions of international organizations. In addition, it discusses equity and soft law and examines some mechanisms of identification and development of international law, such as jurisprudence, doctrine, and codification.

Money laundering

2016 ◽  
Vol 19 (4) ◽  
pp. 346-375 ◽  
Author(s):  
Emmanuel Ebikake
Keyword(s):  
International Law ◽  
Money Laundering ◽  
Legal Positivism ◽  
Soft Law ◽  
Content Type ◽  
Advantages And Disadvantages ◽  
Hard Law ◽  
The Law ◽  
Law Making

Purpose The purpose of this paper is to provide an assessment of soft law as a technique for repressive and preventive anti-money laundering control (hereinafter AMLC). Design/methodology/approach This article focuses heavily on understanding the nature of international anti-money laundering (AML) law-making process. The approach towards this question is interdisciplinary and looks at the treaty and non-treaty AML obligations through a prism of two theoretical lenses (legal positivism and liberal/legal process theory) to explain the role of soft law in the area. Findings Current international effort to combat money laundering (ML) is fragmented (as evident in the enormous variety of law-making processes), despite the role of soft law. Part of the problem is the divergent nature of domestic criminal legislation, which is reflected in the choice of predicate crime and a lack of procedural rule to identify and enforce the law at the state level. To address the limit of current efforts, the paper will propose a uniform codification of AML law directed by a more representative body or commission of experts offering means of restating, clarifying and revising the law authoritatively and systematically. Research limitations/implications The research is focused mainly on the theoretical issues relating to the subject of ML and less on any empirical case study. Practical implications The paper will focus on the role of soft law as a technique for repressive and preventive AMLC. Based on current analyses of the role of soft law as an alternative to hard law or as a complement to hard law (leading to greater cooperation), it attempts to outline the possible advantages and disadvantages that soft law could have in the context of AMLC. For example, the use of soft law promotes harmonisation of international AML standards through the Financial Action Task Force, while the role of the FATF remains unclear in international law. This is important for the purpose of responsibility, as the law on state responsibility clearly states when a State is responsible, in the event of a breach, and the consequence in international law. Social implications The implication of the paper is that it contributes to the on-going debate about the increasingly role of soft law-making in international law. Originality/value The research perspective to the study of ML is theoretical and focuses on the nature of the law.

scholarly journals Correlation of International and Domestic Law: Procedural and Legal Problems

2021 ◽  
Vol 3 (3) ◽  
pp. 189-205
Author(s):  
Alexandr D. Magdenko ◽  
◽  
Alexandr Yu. Tomilov
Keyword(s):  
Public Relations ◽  
International Law ◽  
Civil Procedure ◽  
Constitutional Court ◽  
Legal Systems ◽  
Public And Private ◽  
Main Research ◽  
The Impact ◽  
The Relationship ◽  
Domestic Law

Introduction. Despite the multiplicity of works on the relationship between international and domestic law, this problem remains relevant, since due to changes in public relations, the understanding of the functioning of the rules of law changes. This concerns the problem of the influence of international law on the process of changes in civil procedure legislation. This issue also complicates the active phenomena of the globalisation of public relations, and the requirement of unification of legal relations, both in the public and private legal spheres. National communities have an interest in this. At the same time, the processes of borrowing and unification under the influence of international law in the civil procedure sphere have their own distinctive feature. They always give priority to national legal systems, which does not exclude, (due to the intensive convergence of different communities), the manifestation of elements of borrowing from the norms of international law. Theoretical BasIs. Methods. The main research methods are comparative legal and historical. The study analyses the relationship between international and national law in the framework of civil procedure relations, taking into account the effect of globalisation. Results. An analysis of the current nature of the relationship between international and domestic law allows us to conclude that the globalisation processes contribute to the convergence of these two legal systems. The modern interpretation of the Constitution in the light of the legal positions of the Constitutional Court marked a departure from the traditional Russian dualistic understanding of the problem of the relationship between international and domestic law in the direction of moderate monism. Discussion and Conclusion. The analysis of the impact of globalisation processes on the mechanism of implementation of international law in the field of civil procedure legislation is carried out. The obtained results and conclusions allow us to determine the features and nature of the current relationship between international law and national law in the framework of civil procedure relations.

scholarly journals Bioethics in the Context of Law-Making and Law Enforcement (Surrogate Motherhood)

Lex Russica ◽  
2019 ◽  
pp. 29-39 ◽  
Author(s):  
V. V. Momotov
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal Order ◽  
Complex Nature ◽  
Surrogate Motherhood ◽  
Public And Private ◽  
Legal Literature ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Law Making

The article is devoted to one of the most topical issues for the Russian legal order, namely: the regulation of surrogacy. This topic, unfortunately, is not sufficiently covered in the scientific and legal literature due to its novelty and a complex nature of bioethical problems.This article provides an overview of normative legal acts regulating surrogacy, Russian and international law enforcement practice in this area, as well as legal approaches existing in other legal orders. Particular attention is paid to the latest trends and approaches associated with the adoption of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017, “On the application of legislation by courts in cases related to the establishment of the origin of children.” At the same time, attention is paid to both public and private law aspects of the phenomenon in question. 

scholarly journals Closer to home: How national implementation affects State conduct in partnered operations

2021 ◽  
pp. 1-23
Author(s):  
Alessandro Mario Amoroso
Keyword(s):  
International Law ◽  
Case Law ◽  
The United States ◽  
Legal Framework ◽  
International Committee ◽  
International Level ◽  
The United Kingdom ◽  
National Implementation ◽  
Support Relationships ◽  
Domestic Law

Abstract Domestic law, case law and policies play a decisive yet underestimated role in ensuring that partnered operations are carried out in compliance with international law. Research on the legal framework of partnered operations has so far focused on clarifying existing and emerging obligations at the international level. Less attention has been devoted to understanding whether and how domestic legal systems integrate international law into national decision-making which governs the planning, execution and assessment of partnered operations. This article tries to fill the gap by focusing on the practice of selected States (the United States, the United Kingdom, Denmark, Germany and Italy), chosen for their recent or current involvement in partnered operations. By using the International Committee of the Red Cross's “support relationships” framework and based on a comparative analysis of practice, the study seeks to evaluate the effectiveness of national laws, case law and policies according to their ability to prevent or mitigate the risk of humanitarian consequences posed by partnered warfare.

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