Proportionality in International Law

2010 ◽  
Vol 4 (2) ◽  
pp. 231-242 ◽  
Author(s):  
Thomas M. Franck
Keyword(s):  
International Law ◽  
Cultural History ◽  
Legal System ◽  
Case Law ◽  
Second Opinion ◽  
Remedial Action ◽  
The Core ◽  
History Of ◽  
Principle Of Proportionality ◽  
High Degree

Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters.The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments.If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle.

Independent Development of Israeli Law

1975 ◽  
Vol 10 (4) ◽  
pp. 515-568 ◽  
Author(s):  
Daniel Friedmann
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Privy Council ◽  
The Past ◽  
Foreign Law ◽  
Local Law ◽  
English Law

It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said:It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

Some Problems in the History of the Law of Nations in Asia (1963)

2017 ◽  
Author(s):  
C. H. Alexandrowicz
Keyword(s):  
International Relations ◽  
International Law ◽  
Case Law ◽  
Legal Aspects ◽  
State Sovereignty ◽  
Law Of Nations ◽  
The Family ◽  
History Of ◽  
The Subject ◽  
The Law

This chapter considers problems in the study of the history of the law of nations in Asia. It argues that international lawyers have focused their attention on the legal aspects of contemporary problems of international relations and politics, and on the operation of tribunals and quasi-tribunals and the case law they produce. Writers of present day treatises of international law devote just a few introductory pages to the history of the subject and these short chapters are often based on similar introductions in nineteenth-century treatises. The chapter discusses some of the elements of legal change in which European–Asian relations played a significant role; the gradual elimination of the natural law outlook by growing European positivism; the principle of universality of the law of nations and the principle of identity of de facto and de jure State sovereignty; and the use of capitulations to delay the ‘entry’ of Asian States into the family of nations.

State Immunity and Fundamental Human Rights

1998 ◽  
Vol 11 (1) ◽  
pp. 9-43 ◽  
Author(s):  
Magdalini Karagiannakis
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Legal Systems ◽  
State Immunity ◽  
Analytical Approaches

Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.

scholarly journals Political risk insurance in the litigation test: benchmarks and practical determinants

2019 ◽  
Vol 2 (2) ◽  
Author(s):  
Bruno Fernandes Dias
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Political Risk ◽  
Case Law ◽  
Foreign Investors ◽  
Party Autonomy ◽  
The Core ◽  
Case Selection ◽  
Risk Insurance ◽  
Scope Of Protection

Companies expand their operations abroad despite the risk of government-related losses. Mitigating that risk is at the core of Political Risk Insurance (“PRI”). This paper delves into disputes among policyholders and private, public and multilateral insurers. In this litigation test, it seeks to identify benchmarks on practical determinants. Section II looks at the main aspects of PRI within the dynamic context of its insurable risks. Section III presents the principles of the international law on foreign investment that parallel PRI in the task of mitigating political risk for foreign investors. Section IV brings methodological notes on the case selection and Section V accounts for several benchmarks derived from case law. Section VI proceeds to a conceptual inquiry of three themes that enhance PRI as a legal tool: adequate boundaries between national and international law; party autonomy to determine the scope of protection; and enforcement of subrogation rights.

scholarly journals La consolidación de una lúcida doctrina judicial sobre poligamia y pensión de viudedad: la STSJ de Andalucía de 24 de mayo de 2018 = The consolidation of a lucid case law on polygamy and pensions: the decision of the Higher Court of Andalusia of May 24, 2018

2019 ◽  
Vol 11 (1) ◽  
pp. 801
Author(s):  
Pilar Juárez Pérez
Keyword(s):  
Public Policy ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Private International Law ◽  
Polygamous Marriage ◽  
The Absolute

Resumen: Durante el año 2018 los tribunales españoles tuvieron que pronunciarse en diferentes ocasiones sobre los efectos legales que en España pueda tener el matrimonio poligámico celebrado váli­damente en el extranjero. La institución de la poligamia es progresivamente una figura cada vez menos ajena a nuestro entorno jurídico, dada la reiteración con que se plantea ante nuestros órganos jurisdiccio­nales. Esta reincidencia es en gran medida responsable del progresivo cambio de la percepción judicial española ante esta figura: del rechazo absoluto y sin matices a la admisión de ciertas consecuencias jurídicas, en aras de una interpretación tuitiva de la poligamia. Así lo evidencia la sentencia que aquí se analiza, que reconoce el derecho a la pensión de viudedad de la una ciudadana española que había con­traído matrimonio poligámico en Marruecos con un nacional de dicho país. Con esta decisión, el TSJ de Andalucía ratifica y consolida su lúcida línea interpretativa en esta materia, desde hace años partidaria de aplicar la doctrina del orden público atenuado a una institución plagada de matices, que casan mal con apreciaciones radicales y simplistas.Palabras clave: orden público internacional, pensión de viudedad, poligamia, Derecho internacio­nal privado.Abstract: During the year 2018 the Spanish courts issued various judgments on the legal effects that in Spain may have the polygamous marriage legally celebrated abroad. The polygamous marriage is less and less unknown for the Spanish legal system, because is a matter frequently submitted to our courts. The reiteration of these demands has helped to change the judicial perception of this institution: from the absolute rejection to the admission of some legal effects, because of a protective interpretation of polygamy. The decision of the Higher Court of Andalusia of Mai 24, 2018 is an illustrative example of this, by the recognition of widow’s pension to a Spanish woman who got a polygamous marriage to a Moroccan national in Morocco. This sentence confirms and consolidates the lucid case law of Anda­lusian Court, traditionally in favour of attenuated public policy for an institution with many shades, not adequate for simplistic and radical interpretations.Keywords: public policy, widow’s pension, polygamy, private international law.

English Legal System Concentrate

2020 ◽  
Author(s):  
Mark Thomas ◽  
Claire McGourlay
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Justice System ◽  
Legal System ◽  
Justice System ◽  
Case Law ◽  
Civil Justice ◽  
Essential Information ◽  
Domestic Legislation ◽  
Civil Justice System

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. English Legal Systems Concentrate starts with an introduction to the English legal system (ELS). It then looks at sources of law: domestic legislation, case law, and the effect of EU and international law. The text also examines the court structure. It then looks at personnel of the ELS. It moves on to consider the criminal justice system and the civil justice system. After that, it looks at funding access to the ELS. Finally, it looks to the future of the ELS.

Global Finance

2018 ◽  
Author(s):  
John Linarelli ◽  
Margot E Salomon ◽  
Muthucumaraswamy Sornarajah
Keyword(s):  
International Law ◽  
Sovereign Debt ◽  
International Level ◽  
Global Finance ◽  
Financial Architecture ◽  
The Core ◽  
Regulation And Supervision ◽  
History Of ◽  
International Legal System ◽  
The Right

This chapter explores how financial globalization of today fails to deliver enough of the right sort of finance necessary to promote development and productive investment in societies. The contemporary global financial architecture serves primarily to enrich affluent investors and major financial institutions while putting societies and their people at grave risk of harm, including from global financial crises. The chapter explores these issues by first examining the history of the global financial architecture from the nineteenth century to the present. It moves on to critique current institutions of law mainly on grounds of justice. The chapter addresses problems associated with the regulation and supervision of banks, at the international level a form of soft law forming the core of the global financial architecture. It also explores how the power of global finance makes real reform at either the domestic or international level very difficult. Finally, the chapter exposes injustices associated with the resolution of sovereign debt crises, with a focus on the recent crisis for Greece. It considers serious shortcomings of the international legal system in this area, including how the contract approach of international law sought to resolve the crises in a manner in which the less advantaged are made much worse off.

Carl Schmitt, Nomos of the Earth, and the Question of Historic Title in International Law

2019 ◽  
Vol 7 (2) ◽  
pp. 135-143
Author(s):  
Anthony Carty
Keyword(s):  
International Law ◽  
Case Law ◽  
The State ◽  
Carl Schmitt ◽  
The Rule Of Law ◽  
The Earth ◽  
History Of ◽  
The Law ◽  
Western Law ◽  
Raymond Aron

Abstract The Western international law of territory starts from a standpoint of the priority of the State over its population. The latter is merely an object of the ownership of the State. Title to territory rests on dominant evidence of State activity. The activity of so-called private individuals or economic activity of peoples do not count towards title to territory in the case law of international tribunals. This article contests the foundations of such a perspective. The so-called Western law of territory was devised by Western States to divide up among themselves the territory of non-Western ‘non-peoples’, culminating in the racist Island of Palmas Arbitration. Carl Schmitt provides the makings of an alternative history of the law of territory. It is, and should be, the law of the homelands of peoples, historically located on particular spaces. Peoples precede States, which are merely institutions used by Peoples to protect and administer their homelands. Whatever the difficulties of locating the homelands to which Peoples belong, escape into the so-called Western law of territory as a way to ‘Peace through the Rule of Law’ is an illusion – described contemptuously by the political theorist Raymond Aron as a Law of empty spaces. Without justice, there is no law.

Case Law in Russian Approaches to International Law

2018 ◽  
Author(s):  
Lauri Mälksoo
Keyword(s):  
International Law ◽  
Case Law ◽  
Main Method ◽  
International Courts ◽  
Russian State ◽  
State Practice ◽  
Structural Differences ◽  
History Of ◽  
History Of International Law ◽  
Distinct Approach

In her comparative study on the use of case law in international law textbooks, Anthea Roberts demonstrates a number of structural differences between textbooks in different countries. This chapter further explores the Russian situation and asks whether Roberts’s comparative findings regarding Russian international law textbooks reflect the dominant approach in Russian international law scholarship, and whether they also reflect a distinct approach in Russian state practice. It then discusses what might explain both Russian scholarly and governmental approaches and, finally, what international lawyers can learn from this practice in the context of comparative international law. Cautiousness about case law and international courts has historically been characteristic of the Russian approach to international law. The main method used in this chapter is a historical one, because only the history of international law and its ideas can teach us how concrete legal-political circumstances in a country have come into being.

THE LAW OF OCCUPATION REVISITED: THE BEGINNING OF AN OCCUPATION

2007 ◽  
Vol 10 ◽  
pp. 99-130 ◽  
Author(s):  
Marten Zwanenburg
Keyword(s):  
Case Law ◽  
Positive Element ◽  
Human Rights Law ◽  
Negative Element ◽  
The Core ◽  
Occupied Territory ◽  
Technological Developments ◽  
History Of ◽  
The Hague ◽  
The Impact

AbstractThis article discusses the criteria for establishing the beginning of an occupation. To this end, it analyzes the wording and drafting history of IHL instruments as well as international case law. It also looks at the influence of human rights law, in particular the notion of “jurisdiction” as used in the ICCPR and the ECHR, on the concept of occupation. Given that the IHL instruments on occupation were drafted some time ago, the impact of a number of technological developments in military affairs on the criteria for the beginning of occupation are discussed. The article concludes that the core of the concept of occupation consists of a negative and a positive element. The negative element is that the indigenous authorities of the occupied territory have been rendered incapable of functioning publicly. The positive element is expressed in Article 42 of the Hague Regulations as the requirement that the territory ‘is actually placed under the authority of the hostile army’.

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