The Context of International Legal Arguments: 'Positivist' International Law Scholar August von Bulmerincq (1822 - 1890) and His Concept of Politics

2005 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
Legal Arguments

Use of Armed Force against Suspected Foreign Submarines in the Swedish Internal Waters and Territorial Sea

2018 ◽  
Vol 33 (3) ◽  
pp. 585-599
Author(s):  
Said Mahmoudi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Present Article ◽  
National Level ◽  
Use Of Force ◽  
Armed Force ◽  
National Legislation ◽  
Legal Arguments ◽  
Actual Response ◽  
Self Defence

Abstract Sweden’s territorial sea and internal waters have experienced regular intrusions by submerged foreign submarines since the early 1950s. The response of the country to such intrusions is generally well-documented and mainly public. The present article offers an overview of the development of the relevant national legislation, the actual response of the naval forces, and the legal arguments invoked at national level to justify or dismiss use of force in self-defence or under another title. The article discusses the relevance of the immunity that submarines normally enjoy under international law and Sweden’s human-rights obligations, two issues that have been at the centre of the legal discourse. Particular attention is paid to developments since 2014 when a new round of “submarine hunts” started and led to the adoption of new measures both revising the existing laws and strengthening the defence forces.

scholarly journals To exploit or not to exploit: The structure and development of arguments over the use of wetlands

2013 ◽  
pp. 1-7
Author(s):  
Tiina Korvela
Keyword(s):  
Climate Change ◽  
International Law ◽  
Common Knowledge ◽  
Critical Legal Studies ◽  
Adaptation To Climate Change ◽  
Legal Studies ◽  
Legal Regimes ◽  
History Of ◽  
Legal Arguments ◽  
Insight Into

This paper considers the discourse surrounding the exploitation of wetlands (also called marshlands, bogs, mires and peatlands) in Finland. The focus of the paper is on the development of the arguments used in the discourse – thus the paper also gives an insight into how the legal regimes concerning wetlands have developed. The arguments are analysed using the dualistic and deconstructive model developed in Critical Legal Studies by Martti Koskenniemi. The hypothesis is that, to some extent, the model developed for international law can be adapted to fit national laws, but that significant problems may still arise. Throughout the history of discourse on wetlands, legal arguments have essentially dealt with the conflict between the conservation of wetlands or their exploitation for peat, which is a source of energy. Three arguments are discussed in this paper: 1) The ‘sovereignty argument’; 2) The ‘no harm argument’; and 3) The ‘climate change argument’. The sovereignty argument has been dominant from the beginning of the industrialised production of peat, but the no harm argument has been steadily gaining weight. Interestingly, the climate change argument lacks traction in the discourse even though the importance of wetlands in adaptation to climate change is common knowledge. This paper argues that regional and national authorities use legislation and the no harm argument in innovative ways. These innovations may be useful for the aims underlying the climate change argument.

NATO's Intervention in the Federal Republic of Yugoslavia

2000 ◽  
Vol 13 (1) ◽  
pp. 193-205 ◽  
Author(s):  
Eric Suy
Keyword(s):  
Federal Republic ◽  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Armed Force ◽  
The Core ◽  
Legal Arguments ◽  
The Government ◽  
State Relations ◽  
Inter State

At the outset of the conflict over Kosovo, the use of armed force by NATO member states has been justified to force the Government of the Federal Republic of Yugoslavia to accept and sign the Rambouillet agreement. Later on, the use of force was justified in order to prevent a major humanitarian catastrophe. But examination of the relevant Security Council resolutions and of the circumstances surrounding the Rambouillet negotiations shed a totally different light on the legal arguments advanced by proponents of NATO's intervention. Modern international law on the use of force by states, as enshrined in the UN Charter, is still at the core of inter-state relations.

scholarly journals Book Review: Public International Law: An Australian Perspective

2005 ◽  
Vol 36 (2) ◽  
pp. 471
Author(s):  
Angela MacDonald
Keyword(s):  
International Law ◽  
Political Discourse ◽  
Public International Law ◽  
Contemporary World ◽  
Oxford University ◽  
Legal Arguments ◽  
Broad Interest ◽  
Oxford University Press ◽  
Geopolitical Context

This article is a book review of Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds) Public International Law: An Australian Perspective, (2 ed, Oxford University Press, Melbourne, 2005) (424 + xl pages) NZ$95. The book explains and illuminates the complexities of international law in the contemporary world from an Australian perspective. MacDonald praises the authors for acknowledging the geopolitical context in which conventions were agreed, and in which contemporary decisions are made by governments. Given the broad interest in international law and actions taken in its name, and given the misreporting and misuse of legal arguments in modern political discourse and public commentary, MacDonald recommends the book to students of all disciplines, journalists, commentators and politicians alike. 

Part 1 The Cold War Era (1945–89), 31 South African Incursions into Lesotho—1982

2018 ◽  
Author(s):  
Reinold Theresa
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Progressive Development ◽  
Self Defense ◽  
Un Security Council ◽  
Un General Assembly ◽  
Legal Arguments ◽  
The Right ◽  
The Cold War

This chapter discusses the legality of South Africa’s incursion in Lesotho in 1982. After describing the facts of the case, it presents the legal arguments of the main protagonists – South Africa and Lesotho - and canvasses the positions taken by the UN General Assembly, the UN Security Council, as well as other important diplomatic players. It then assesses the legality of the intervention and discusses its impact on the progressive development of international law. It concludes that the incursion violated Article 2(4) of the UN Charter and that, in light of the overwhelmingly negative international reaction, the raid could not trigger an expanded reading of the right to self-defense, as was claimed by South Africa.

Thoughts on Science, Technology and World Law

1992 ◽  
Vol 86 (4) ◽  
pp. 673-699 ◽  
Author(s):  
Manfred Lachs
Keyword(s):  
International Relations ◽  
International Law ◽  
Turning Point ◽  
World Order ◽  
Policy Makers ◽  
Science Technology ◽  
The World ◽  
Legal Arguments ◽  
State Of Affairs ◽  
Subordinate Role

During the last two decades, we have frequently heard about a “crisis” in the kingdom of international law. Without engaging in semantics, one can understand the word “crisis” in its normal dictionary meaning as “a turning point in the progress of anything”; more, “a state of affairs in which a decisive change for better or worse is imminent.” However, these connotations are not necessarily present in the minds of those who apply the term to international law. They intend rather to refer to the weakness to which it is condemned, to its subordinate role and fragile existence; even international lawyers may speak of its “ambiguity.” In some instances, they point to the prevalence of a sense that “resort to legal arguments by policy-makers may be detrimental to world order and thereby counterproductive for the state that uses such arguments.” Thus, a picture of gloom is painted and the world almost consigned to lawlessness in international relations.

Independence or Autonomy: The Right to Self-Determination in the Enclave of Cabinda

1970 ◽  
Vol 1 ◽  
Author(s):  
Charles Ian Denhez
Keyword(s):  
International Law ◽  
Self Determination ◽  
Independent State ◽  
Economic Changes ◽  
Foreign Companies ◽  
Full Independence ◽  
Legal Arguments ◽  
Oil Wealth ◽  
Legal Concepts ◽  
The Right

For decades, armed groups in the Angolan enclave of Cabinda have been attempting to overthrow the Angolan government and establish an independent state. However, since their military struggle has not succeeded, what, if any, basis for secession can Cabinda claim under international law? This article argues that while Cabindan nationalists can draw upon a number of effective legal arguments justifying independence, the enclave ultimately has a better claim not to full independence, but rather to autonomy within Angola. This is demonstrated by considering and refuting three major legal arguments used by proponents of Cabindan independence. After a brief review of the relevant legal concepts and Cabindan history, the first argument to be examined is that Cabinda’s distinct historical status voids Angola’s uti possidetis claim to Cabinda. Following this will be a review of the claim that political abuses and the denial to the Cabindan people of a plebiscite on independence grant Cabinda the right to ‘external’ self-determination. The final argument to be examined is that the scale of the misappropriation of Cabinda’s oil wealth by Angola and foreign companies justifies independence, given the enclave’s present lack of economic self-determination. The article ultimately concludes that although Cabinda had a stronger case for secession during the Angolan civil war, recent political and economic changes have weakened Cabinda’s claims under international law.

Arguing International Law in the South China Sea Disputes: The Haiyang Shiyou 981 and uss Lassen Incidents and the Philippines v. China Arbitration

2016 ◽  
Vol 31 (2) ◽  
pp. 205-241 ◽  
Author(s):  
Alex G. Oude Elferink
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
The Philippines ◽  
The South China Sea ◽  
The South ◽  
China Sea ◽  
Drilling Rig ◽  
Legal Arguments

This article focuses on how international law is argued by the parties to the South China Sea disputes and in what context these legal arguments are presented. To this end, the article analyses three recent issues in the South China Sea: the incident involving the Haiyang Shiyou 981 drilling rig, which operated in a maritime area in dispute between Vietnam and China; the passage of the uss Lassen in the vicinity of Subi Reef, which is occupied by China; and the arbitration between the Philippines and China under the United Nations Convention on the Law of the Sea. The article concludes that looking at what legal arguments are or are not made and in what broader context those arguments are placed can contribute to a better understanding of the role of international law in the South China Sea disputes.

‘Soft’ Coercive Diplomacy versus Informal Resistance: Attempts at Deporting ‘Illegal Vietnamese’ from Reunifying Germany, 1990-1995

2014 ◽  
Vol 9 (3) ◽  
pp. 221-252
Author(s):  
Matthias Maass
Keyword(s):  
International Law ◽  
Large Scale ◽  
German Reunification ◽  
The European Union ◽  
Economic Costs ◽  
Coercive Diplomacy ◽  
Customary International Law ◽  
Three Stages ◽  
Legal Arguments ◽  
Full Cooperation

During the period of Germany’s reunification in the early 1990s, disagreement between Germany and Vietnam over the return of Vietnamese individuals to Vietnam escalated into a diplomatic dispute that also spilled over into Vietnam’s negotiations with the European Union over a major eu–Vietnam treaty. In mid-1995, however, the German and Vietnamese governments finally agreed on a repatriation arrangement that allowed Germany to begin deporting about 40,000 Vietnamese who were living in Germany illegally. This article explores the episode in the wider context of diplomatic dispute resolution. While Germany was demanding full cooperation from Vietnam on the issue of returning Vietnamese nationals, the Vietnamese government initially resisted large-scale repatriation for economic and social reasons. Hanoi attempted to frame the discussion within bilateral negotiations, economic costs and human rights, whereas Bonn argued from the perspective of customary international law and applied increasingly coercive diplomacy. German authorities escalated the disagreement and made economic threats with the aim of changing Hanoi’s behaviour. In order to frame this approach analytically, this article uses a modified form of coercive diplomacy. The analysis proceeds in three stages: first, the article analyses the origins of the dispute, which had its roots in German reunification; second, it evaluates the legal arguments advanced by each side; and third, it investigates Germany’s ‘soft’ coercive diplomacy and Vietnam’s response. The article concludes with an evaluation of Germany’s approach, benchmarking 1995’s diplomatic outcome against results on the ground, namely the number of returnees to Vietnam.

Recogntion in International Law: Recognition of States and European Integration - Legal and Political Considerations

2016 ◽  
Vol 2 (2) ◽  
pp. 242
Author(s):  
Ermira Mehmeti
Keyword(s):  
International Law ◽  
Legal Framework ◽  
Primary Objective ◽  
International Peace ◽  
International Recognition ◽  
Peace And Security ◽  
The Status ◽  
New States ◽  
Legal Arguments ◽  
Political Act

Recognition of States in international law is a political act based on interests and assessments made by states individually. However, in granting recognition, it is the legal arguments that must prevail. The recognizing State should base its decision on a legal framework which makes the act of recognition valid and credible. At the same time, such political decision supported by legal arguments may in no way threaten international peace and security, and may not be in collision with the peremptory norms of international law. Following is a paper on recognition of States in international law as seen from the aspect of international peace and stability. The primary objective of the international community, particularly since the establishment of the United Nations Organization, has been the maintenance of peace and security in the world. Therefore, the international recognition of entities that have demonstrated wide and strong capacity to be states, and whose attitude has been to serve the greater interests of peace, security, harmony and prosperity among people, must be a principled decision, not conditioned by mere political interests. International recognition of states is a precondition for the prosperity of new states. As such, it must obtain the status of a stabilizing instrument of new entities as well. When it comes to small states, this act is even more significant, for it secures and protects them from potential threats, hence strengthening the commitment for peace and stability. In the context of European Union membership process, it must be underlined that recognition may not become an obstacle to the aspiring States, though it seems to be the case at present. Macedonia and Kosovo are case in point. Recognition must become a catalyst and incentive for a quicker, more efficient and full-fledged euro-integrating process, which is crucial for preserving long-term stability, functioning democracy and peace and understanding among people.

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