scholarly journals INTERNATIONAL LEGAL ORDER: CURRENT DEVELOPMENTS OF LEGAL PHENOMENA (THEORETICAL ASPECTS)

2017 ◽  
pp. 79-87
Author(s):  
I. Zabara
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal Order ◽  
First Line ◽  
International Legal Order ◽  
Regional Order ◽  
Key Issues ◽  
National Transformation ◽  
The Relationship

The article deals with the theoretical aspects of the key issues of international legal order. The author describes the phenomenon of international legal order based on conceptual views of representatives of modern Ukrainian school of international law. The author examines and summarizes the international legal doctrinal views which define and determine the formation of modern international legal order. The author identifies several fundamental areas of international legal order. The first line shows the sectoral focus of research. The author notes that in this line of questions explored the legal basis of international legal order in certain areas of international law; conceptual aspects of formation of international legal order in a particular area of international law; the relationship between the principles of international law and the principles of international legal order; the role of international law and its subjects in the development of international law in certain areas. Within this framework have been identified and studied the principles of international legal order in the spatial (space, sea) branches of international law, and in some areas the actual activities of international law. The second trend reflects the regional focus of research of international legal order. The author notes that within the area studied questions of general principles of formation and development of regional order; especially the formation and development of some regional order; regional impact of law enforcement on the national transformation of individual states. Within this framework singled out themes, covering the European legal order, Asian international legal order, African legal order, American legal order and other types of international legal order.

International Legal Personality as a Theoretical Construct

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Order ◽  
Theoretical Construct ◽  
Legal Personality ◽  
International Legal Order ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
The Way

Chapter 2 identifies and explains the four theoretical conceptions of international legal personality, which will be tested against historical and existing norms of positive international law in Chapters 3–8. With particular focus on the role attributed to the individual as the ultimate subject of international law, the examination will concentrate on selected scholars’ conclusions on the criteria for, and the consequences of acquiring, international legal personality. Moreover, it will address the way in which proponents of the various conceptions perceive the relationship between the international legal order and national legal order(s) and the role of the concept of international legal personality in that regard. Given that a primary aim of the book is to ascertain the position of the individual as a matter of international lex lata, particular attention is given to the two main conceptions of international legal personality, which both claim to be positivist.

4. International law and municipal law

2019 ◽  
pp. 78-102
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Common Source ◽  
National Regulation ◽  
Legal Rules ◽  
International Legal Order ◽  
Municipal Law ◽  
State Relations ◽  
The Relationship

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.

Carl Schmitt’s Critique of Kant

2012 ◽  
Vol 40 (6) ◽  
pp. 688-713 ◽  
Author(s):  
Seyla Benhabib
Keyword(s):  
World War I ◽  
International Law ◽  
International Norms ◽  
Legal Order ◽  
World War ◽  
Top Down ◽  
The Earth ◽  
International Legal Order ◽  
The Relationship

Carl Schmitt’s critique of liberalism has gained increasing influence in the last few decades. This article focuses on Schmitt’s analysis of international law in The Nomos of the Earth, in order to uncover the reasons for his appeal as a critic not only of liberalism but of American hegemonic aspirations as well. Schmitt saw the international legal order that developed after World War I, and particularly the “criminalization of aggressive war,” as a smokescreen to hide U.S. aspirations to world dominance. By focusing on Schmitt’s critique of Kant’s concept of the “unjust enemy,” the article shows the limits of Schmitt’s views and concludes that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be at times, this needs to be interpreted as one of mediation and not domination.

INTERNATIONAL LAW IN THE TURKISH LEGAL ORDER: TRANSNATIONAL JUDICIAL DIALOGUE AND THE TURKISH CONSTITUTIONAL COURT

2017 ◽  
Vol 26 (1) ◽  
pp. 41-62
Author(s):  
Ikboljon Qoraboyev ◽  
Emre Turkut
Keyword(s):  
International Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Political Forces ◽  
Turkish Literature ◽  
Contemporary Writing ◽  
Domestic Power ◽  
The Relationship

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

THE THEORY AND PRACTICE OF ‘SUPRA-CONSTITUTIONAL’ LIMITS ON CONSTITUTIONAL AMENDMENTS

2013 ◽  
Vol 62 (3) ◽  
pp. 557-597 ◽  
Author(s):  
Yaniv Roznai
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Legal Order ◽  
Theory And Practice ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
National Courts ◽  
Constitutional System ◽  
The Relationship

AbstractThis article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

scholarly journals International and Supranational Law

2020 ◽  
pp. 75-96
Author(s):  
Mireille Hildebrandt
Keyword(s):  
International Law ◽  
Constitutive Relationship ◽  
The European Union ◽  
International Treaties ◽  
Legal Effect ◽  
International Legal Order ◽  
The Relationship ◽  
Special Case ◽  
International Rule

This chapter turns to international and supranational law. It focuses on international law in the context of the Council of Europe (CoE) and on supranational law in the context of the European Union (EU). The chapter first discusses the concept of jurisdiction and its formative status in national, international, and supranational law, after which it provides a more in-depth overview of international law and supranational law. This involves a discussion of the relationship between national constitutions and the binding force of international treaties, the role of consent and custom in the force of international law, and the legal effect of fundamental principles and mandatory law that no state can ignore. Next, the special case of the supranational EU jurisdiction is introduced, notably the distribution of sovereignty between the member states and the Union and the most important legislative instruments: regulations and directives. Finally, the mutually constitutive relationship between internal and external sovereignty is connected with the idea of an international rule of law that addresses states as fiduciary agents of the international legal order.

11. Normative Interactions: Implementation and Hierarchy of Norms

2020 ◽  
pp. 218-242
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Legal Rules ◽  
International Legal Order ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
National Systems ◽  
Domestic Level

This chapter deals with some fundamental realities of international law as a body of legal rules which traditionally requires implementation at domestic level through transposal. In so doing it discusses the traditional theoretical distinction between monism and dualism, as abstract approaches to the relationship between domestic and international legal order. It then tackles the issue of the effects (including direct effects) that international law may have in concrete situations within national systems, as a consequence of, or, in some instances even irrespective of, transposal through national legislation. Thirdly, the chapter discusses the ‘verticalization’ of the international legal order with the affirmation in the second half of the twentieth century of the notion of jus cogens (or peremptory norms) and the effects this has (or might have) within international law and in its relationships with municipal laws.

Francisco Suárez S.J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship

2017 ◽  
Author(s):  
Tobias Schaffner
Keyword(s):  
International Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Order ◽  
State Action ◽  
Peace And Justice ◽  
Starting Point ◽  
International Legal Order ◽  
Francisco Suarez

This chapter argues that the work of Suárez, like that of other theologians and natural lawyers, offers an insightful (albeit imperfect) articulation of the values of peace and justice which continue to underpin the international legal order. Suárez reminds us that the practical reasoning of all upright statesmen, citizens, and lawyers is guided by the idea of a peaceful and just order among states. Peace and justice are potentialities which individuals and whole nations can establish and preserve, as well as fail to establish or preserve, through their co-ordinated actions. His work remains insightful precisely because most of today’s accounts of international law neglect the role of peace and justice as a starting point of legal reasoning, a goal of state action, and even a source of international law.

The Oxford Handbook of the Sources of International Law

2018 ◽  
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
Public Authority ◽  
Legal Rules ◽  
Systematic Overview ◽  
International Legal Order ◽  
Key Issues ◽  
Different Levels

The question of the sources of international law inevitably raises some well-known scholarly controversies: where do the rules of international law come from? Through which processes are they made? How are they ascertained? Where does the international legal order begin and end? These traditional questions bear on at least two different levels of understanding. First, how are international norms validated as rules of international ‘law’, i.e. legally binding norms? This is the static question of the pedigree of international legal rules and the boundaries of the international legal order. Secondly, what are the processes through which these rules are made? This is the dynamic question of the making of these rules and of the exercise of public authority in international law. This book explores the various facets of the sources of international law. It provides a systematic overview of the key issues and debates around the sources of international law, including recent contestations thereof. It also offers an authoritative theoretical guide for anyone studying or working within but also outside international law wishing to understand one of its most fundamental questions.

The Shifting Boundaries of Legitimacy in International Law

2018 ◽  
Vol 87 (4) ◽  
pp. 436-465
Author(s):  
Alexis Galán
Keyword(s):  
International Law ◽  
Causal Link ◽  
Legal Order ◽  
Explanatory Role ◽  
Central Concern ◽  
International Legal Order ◽  
Dynamic Dimension ◽  
The Stability ◽  
Shifting Boundaries

Legitimacy has become a central concern in international law. This article analyses an important aspect of the concept, namely the often-presumed link between legitimacy and the stability of institutions and norms. The explanatory role of legitimacy hinges on the descriptive elements attributed to legitimacy because, only by fixing those elements, a causal link can be established. The article contends that due to its conceptual features legitimacy cannot be circumscribed descriptively, making the tracing of its relationship to the stability of institutions and norms in the international legal order an intractable task. The article suggests that international lawyers should embrace the open-ended nature of legitimacy and focus on its dynamic dimension: legitimation. Legitimacy is treated as a rhetorical tool whereby actors try to pursue certain courses of action. The importance of legitimacy then lies in its employment for the shaping of perceptions with regard to how institutions ought to be.

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