scholarly journals Keeping up Appearances: May the Law of International Responsibility be construed through the ‘Comparative Law’ Methods?

2021 ◽  
Vol 10 (1) ◽  
pp. 43-74
Author(s):  
Łukasz Augustyniak
Keyword(s):  
International Law ◽  
Common Law ◽  
Comparative Law ◽  
Customary Law ◽  
Legal Rules ◽  
Progressive Development ◽  
General Principles Of Law ◽  
International Responsibility ◽  
The Law ◽  
International Law Commission

The article analyses the possible employment of comparative law methodology for the codification, progressive development and the interpretation of the law of international responsibility. It argues that ‘comparative law’ methodology should be used during this process as it would enhance the legitimacy and understanding of the work of the International Law Commission. The use of legal English involves the reference to common law ideas whether it is consciously admitted or not by the users of legal rules drafted in that language. This concept is presented by the reference to the way the language is used in the process of creating and interpreting rules in the area of international responsibility. It also plays an important role during the construction of multicultural internationallegal concepts within that field. Last but not least, the use of ‘comparative law’ seems to be an indispensable apparatus in the codification process in the area of international responsibility consisting of general principles of law and customary law. The ‘comparative law’ methods are invaluable tools for all those who take part in creation of international responsibility rules, as well as their application and interpretation.

The Law of Treaties Beyond the Vienna Convention

2011 ◽  
Keyword(s):  
International Law ◽  
Customary Law ◽  
Actual State ◽  
Vienna Convention ◽  
Customary International Law ◽  
Progressive Development ◽  
The Law ◽  
Jus Cogens ◽  
International Law Commission ◽  
The Impact

This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

scholarly journals Comparative Law and the Ad Hoc Tribunals: The Dangers of a Narrow Inquiry†

2012 ◽  
Vol 40 (1-2) ◽  
pp. 22-38
Author(s):  
Aldo Zammit Borda
Keyword(s):  
International Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Legal Education ◽  
Comparative Law ◽  
Customary International Law ◽  
Legal Rules ◽  
Legal Traditions ◽  
Special Weight ◽  
General Principles Of Law

AbstractThis article focuses on the distinctions that the ad hoc Tribunals have drawn between the comparative law method and the review of evidence for clarifying customary international law and general principles of law. It outlines the dangers in the readiness of some international judges to accept narrow inquiries, which at best attach special weight and at worst restrict the scope of inquiry to a single, specific legal system. The readiness of some international judges to simply elevate legal rules and concepts with which they are familiar from their own legal education and practice to the level of universal truths may imply a failure to understand the other legal traditions on offer. The article concludes by showing that, unless the dangers inherent in the readiness to accept narrow inquiries are clearly emphasized, the achievement of an international criminal justice that is truly tolerant of plurality is a long way off.

scholarly journals The Dual Legality of the Rules of International Organizations

2017 ◽  
Vol 14 (1) ◽  
pp. 87-119 ◽  
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
Security Council ◽  
International Organizations ◽  
Legal System ◽  
Legal Nature ◽  
International Responsibility ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

This paper examines the legal nature of the ‘rules of international organizations’ as defined by the International Law Commission in its works on the law of treaties and on international responsibility. Part 1 introduces the debate with an example concerning the nature of un Security Council anti-terrorism resolutions. Part 2 challenges the four theories of the rules envisaged by scholarship. Part 3 is an attempt to examine the characteristics of the legal system produced by international organizations taking advantage of analytical jurisprudence, developing a theory of their legal nature defined as ‘dual legality’. Part 4 concludes by appraising the effects of the dual legality looking at the law of treaties, international responsibility and invalidity for ultra vires acts.

scholarly journals Guiding Principles on Shared Responsibility in International Law

2020 ◽  
Vol 31 (1) ◽  
pp. 15-72 ◽  
Author(s):  
André Nollkaemper ◽  
Jean d’Aspremont ◽  
Christiane Ahlborn ◽  
Berenice Boutin ◽  
Nataša Nedeski ◽  
...  
Keyword(s):  
International Law ◽  
International Organizations ◽  
Shared Responsibility ◽  
Third Party ◽  
Joint And Several Liability ◽  
Legal Questions ◽  
International Responsibility ◽  
Guiding Principles ◽  
The Law ◽  
International Law Commission

Abstract It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share responsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions of multiple attribution of conduct), the consequences of shared responsibility (notably, the possibility of joint and several liability) and the modes of implementation of shared responsibility. The Guiding Principles are of an interpretive nature. They build on the existing rules of the law of international responsibility and sometimes offer novel interpretations thereof. They also expand on those existing rules, backed by authoritative practice and scholarship, to address complex questions of shared responsibility.

Sea Boundary Delimitation Between States Before World War II

1982 ◽  
Vol 76 (3) ◽  
pp. 555-588 ◽  
Author(s):  
Sang-Myon Rhee
Keyword(s):  
World War Ii ◽  
International Law ◽  
Customary Law ◽  
World War ◽  
Progressive Development ◽  
International Law Commission ◽  
Law Commission ◽  
Comprehensive Study

Despite the increasing significance of customary law in the delimitation of sea boundaries between states, the principles that evolved during the three centuries prior to World War II have generally been ignored. Although a comprehensive study in this field is needed, the studies that exist begin either with the Truman Proclamation of 1945 or the discussions of the International Law Commission in the early 1950’s. The Commission itself declared that there was no law on the matter and attempted to legislate rules in the interest of the progressive development of international law. This hasty and ambitious attempt left a gap between the conventional law and customary law, which later resulted in many disputes.

The Use of Analogies in Drafting the Articles on the Responsibility of International Organizations An Appraisal of the ‘Copy-Paste Approach’

2012 ◽  
Vol 9 (1) ◽  
pp. 53-66 ◽  
Author(s):  
Christiane Ahlborn
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Reasoning ◽  
International Organization ◽  
Considerable Uncertainty ◽  
Legal Rules ◽  
International Responsibility ◽  
International Law Commission ◽  
Law Commission

In view of the adoption and future reception of the Articles on the Responsibility of International Organizations (ARIO) on second reading, this contribution seeks to offer some reflections on the ‘copy-paste narrative’ that has characterized the process of drafting the ARIO by the International Law Commission (ILC). On the basis of a brief introduction to the concept of analogies in international law, it is explained that the use of analogies is not to be equated with a mechanical exercise of copy-pasting legal rules; rather, it constitutes a method of legal reasoning based on a principled assessment of relevant similarities and differences. By comparing the ARIO with the ILC’s Articles on State Responsibility (ASR), it will be demonstrated that the ARIO actually do not follow the example of the ASR in many key provisions. Interestingly, much of the critique of the ARIO has been directed against these dissimilar provisions, especially when they concern the relations between an international organization and its member States. Since this critique is mainly driven by considerable uncertainty as to the determination of the responsible actor(s), it will be suggested that the ILC should have used closer analogies with the ASR in order to enhance the overall coherence of the law of international responsibility. This is because, as argued in conclusion, the corporate complexity of international organizations and States may necessitate a unified set of Articles on International Responsibility.

On the Road to Vienna

2017 ◽  
Author(s):  
Kai Bruns
Keyword(s):  
Cold War ◽  
International Law ◽  
The Road ◽  
Progressive Development ◽  
History Of ◽  
On The Road ◽  
The Cold War ◽  
International Law Commission ◽  
Law Commission

This chapter focuses on the negotiations that preceded the 1961 Vienna Conference (which led to the conclusion of the VCDR). The author challenges the view that the successful codification was an obvious step and refers in this regard to a history of intense negotiation which spanned fifteen years. With particular reference to the International Law Commission (ILC), the chapter explores the difficult task faced by ILC members to strike a balance between the codification of existing practice and progressive development of diplomatic law. It reaches the finding that the ILC negotiations were crucial for the success of the Conference, but notes also that certain States supported a less-binding form of codification. The chapter also underlines the fact that many issues that had caused friction between the Cold War parties were settled during the preparatory meetings and remained largely untouched during the 1961 negotiations.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

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