Opinio Juris as (the Ultimate) International Secondary Rule of Recognition: Reconciling State Consent and Public Conscience

2017 ◽  
Author(s):  
Yota Negishi
Keyword(s):  
State Consent ◽  
Secondary Rule

The Theoretical Model

2018 ◽  
Author(s):  
Michael Zürn
Keyword(s):  
Theoretical Model ◽  
Global Governance ◽  
International Institutions ◽  
Historical Institutionalism ◽  
Governance System ◽  
State Consent

The authority–legitimation link states that international institutions exercising authority need to nurture the belief in their legitimacy. The authority–legitimation link points to fundamental challenges for the global governance system: with the rise of international authorities that are, at the same time, more intrusive, state consent is undermined and societies are affected directly. Consequently, legitimation problems arise, followed by processes of delegitimation, which then trigger responses by the challenged institutions. Using concepts of historical institutionalism, it is argued in this chapter that the authority–legitimation link produces reactive sequences either via the route of societal politicization or via counter-institutionalization by states. These reactive sequences may result in either a decline or a deepening of global governance depending on the responses of authority holders.

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.

scholarly journals Give a Court an Inch and It Will Take a Yard? The Exercise of Jurisdiction over Incidental Issues

2021 ◽  
Vol 81 (1) ◽  
pp. 235-264
Author(s):  
Fabian Simon Eichberger
Keyword(s):  
Subject Matter ◽  
Dispute Settlement ◽  
Fundamental Importance ◽  
International Courts ◽  
International Court ◽  
The Subject ◽  
State Consent

This article seeks to clarify how international courts and tribunals should decide whether to exercise jurisdiction over incidental issues. It considers such issues incidental, which would fall outside the subject-matter jurisdiction of an international court or tribunal if submitted separately, but which courts rule upon to resolve disputes falling within their jurisdiction. International courts and tribunals have employed diverse approaches to decide whether to exercise jurisdiction over incidental issues. This contribution will assess their decisions to distil what criteria are best suited to ensure the effectiveness of the underlying treaty while taking into account the fundamental importance of state consent for judicial dispute settlement. It concludes that the necessity to exercise jurisdiction over the incidental issue and the nature of the issue should be the guiding criteria for international courts and tribunals, while the character of the jurisdictional basis may serve as supplementary criterion.

The Influence of Utopian Projects on the Interpretation of International Law and the Healthy Myth of Objectivity

2018 ◽  
Vol 60 (1) ◽  
pp. 515-538
Author(s):  
Severin Meier
Keyword(s):  
World War I ◽  
International Law ◽  
Legal Theory ◽  
Social Darwinism ◽  
Legal Interpretation ◽  
World War ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Critical Legal Theory ◽  
State Consent

Social Darwinism as a utopian project had a decisive influence on the interpretation of the ius ad bellum before World War I. This contribution tries, among others, to draw parallels to the way today’s utopian visions of democracy and the rule of law affect international law. Approaches to legal interpretation influenced by critical legal theory are used to explain how such extra-legal considerations can play a role in the interpretation of international legal norms. Such approaches maintain that international law cannot be objective, i.e. simultaneously based on State consent and on extra-consensual standards. The article further asks how international law should be understood if it cannot be objective. In other words, it discusses the practical consequences if international law has to rely on extra-legal considerations, such as the belief in Social Darwinism or the desire to spread democracy, in order to reach solutions to legal problems. It is argued that upholding the belief in international law’s objectivity is preferable to its alternatives.

Justifying Shared Sovereignty

2021 ◽  
pp. 15-32
Author(s):  
John D. Ciorciari
Keyword(s):  
Service Delivery ◽  
Fragile State ◽  
Host State ◽  
State Governance ◽  
State Consent ◽  
External Intervention

This chapter examines the normative debates around sovereignty sharing. It discusses the possible benefits of the practice and the numerous critiques of deep external intervention into fragile-state governance. It argues that three factors bear upon the perceived legitimacy of a sovereignty-sharing venture: host state consent, genuine humanitarian need, and strong observed or expected external performance in service delivery. It argues that to be perceived as legitimate by diverse audiences, sovereignty-sharing arrangements generally must rely heavily on performance.

Institutions, Power, and Institutional Balance

2021 ◽  
pp. 46-89
Author(s):  
Paul Craig
Keyword(s):  
Separation Of Powers ◽  
Initial Period ◽  
Lisbon Treaty ◽  
Executive Power ◽  
Constitutional Treaty ◽  
Institutional Power ◽  
Executive Authority ◽  
Single European Act ◽  
Rule Making ◽  
Secondary Rule

Institutional balance, as opposed to strict separation of powers, characterized the disposition of legislative and executive power in the EEC from the outset. The chapter is divided into four temporal periods. The initial period runs between the Rome Treaty and the Single European Act 1986 (SEA). The discussion begins with the initial disposition of institutional power in the Rome Treaty, and charts the way in which this shifted during the first thirty years. The second section covers the period between the SEA and the Nice Treaty, in which there was growing consensus in normative terms as to the appropriate disposition of primary legislative power, but continuing contestation as to power over secondary rule-making and the locus of executive authority. These tensions were readily apparent in the third period, which covers the Constitutional Treaty and the Lisbon Treaty. The fourth period runs from the advent of the Lisbon Treaty to the present. The EU has been beset by a series of crises, which had implications for the powers of the respective EU institutions and the institutional balance between them.

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