scholarly journals INTERNATIONAL LAW AND REVOLUTION IN THE 21ST CENTURY

2019 ◽  
Vol 4 (2) ◽  
Author(s):  
Emmanuel Obikwu
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
Legal Order ◽  
Strict Sense ◽  
The Rule Of Law ◽  
National Courts ◽  
Relevant Today ◽  
International Legal Order ◽  
Coups D'etat

This article argues on the continued significance of Kelsen’s theory of the grundnorm and revolution in international law. It urges that revolutions and coups d’etat will continue to occur in the international legal order. That criticisms of Kelsen’s thought on this issue notwithstanding, Kelsen’s arguments on successful revolutions and the shift in the grundnorm is still as relevant today as it was when first propounded. A case of study of Nigeria is used, however this is carried out against a backdrop of developments internationally. Military take-over of governments have occurred internationally and though not adhering to the rule of law and human rights  in the strict sense, national courts and the international legal order must continue to take account of them.  Nigeria under military from 1966 to 1999 underwent several coups. Based on this developments across the globe, the received wisdom of Kelsen is aptly defended in this article through an examination of case law and jurisprudence.  

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

The Rule of Law and the Quest for Constitutional Substitutes in International Law

2014 ◽  
Vol 83 (2) ◽  
pp. 87-127 ◽  
Author(s):  
Richard Collins
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Institutions ◽  
Institutional Structure ◽  
International Affairs ◽  
The Rule Of Law ◽  
Normative Authority ◽  
International Legal Order ◽  
Sovereign Authority ◽  
Second World

The practice of modern international law seems inherently bound up with the quest for a rule of law in international affairs. This commitment to the rule of law at the international level finds expression not merely in academic literature, but has been regularly endorsed by states themselves, particularly in the context of the United Nations. Nevertheless, the pursuit of an international rule of law is an ambition which is constantly frustrated. The institutional structure of the international legal order seems incompatible with this vision, resulting in a constant sense of frustration about the apparently ‘primitive’ or otherwise constitutionally deficient institutional structure of modern international law. In fact, despite the intensification of ‘governance’ through international institutions in the years since the end of the Second World War, it seems like the proliferation and growing normative authority of international institutions more often than not gives rise to more concerns from a rule of law perspective. In this article I not only seek to understand the nature of this rule of law commitment and the reasons for this constant frustration, but in doing so I will argue that the institutional context implicit in the ideal of the rule of law is incompatible with the nature and functioning of international law. I seek to show, in fact, how the perpetual sense of frustration felt in international law’s failure to live up to this ideal stems from the fact that the rule of law is a notion which is implicitly bound up with the political context of sovereign authority within states. To attempt to impose the rule of law outside of this context will not only result in distortion and mischaracterisation, but runs the risk also of legitimising precisely the kind of arbitrary authority which is the main target of the rule of law itself.

scholarly journals 2000–2020: twenty years later, where are we in terms of the unity of international law?

2020 ◽  
Vol 9 (1) ◽  
pp. 6-23
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Legal Order ◽  
Public International Law ◽  
International Legal Order ◽  
The Hague ◽  
Peremptory Norms ◽  
International Rule

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

The Legitimacy of the Afghan Amnesty Law under International Law

2020 ◽  
Author(s):  
Catharina Hübner
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
The Rule Of Law ◽  
International Crimes ◽  
State Practice ◽  
Lasting Peace ◽  
Tough Question ◽  
Peace And Reconciliation ◽  
Academic Debate

The continuing importance of amnesties, a form of impunity, is clearly illustrated by the example of Afghanistan. In 2010, the Afghan government announced the entry into force of a blanket and unconditional Amnesty Law. The declared aim of the law was to bring peace to Afghanistan. Whether this aim can be achieved through such a broad amnesty for serious international crimes is a tough question. The first part of this book examines whether the regulations of the Afghan Amnesty Law are compatible with Afghanistan’s (prosecutorial) obligations under international law. The second part makes proposals for a comprehensive peace process in Afghanistan to pave the way for lasting peace and reconciliation, justice and respect for the rule of law. The study analyses international statutes, conventions and documents as well as selected case law, state practice, United Nations practice and the academic debate on amnesties.

scholarly journals Defining Sovereign Assets for Immunity from Execution: International Rule of Law Versus International Law - Based Rule of Law

Eudaimonia ◽  
2021 ◽  
pp. 165-179
Author(s):  
Ferdous Rahman
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Order ◽  
Sovereign Immunity ◽  
International Legal Order ◽  
Uniform Definition ◽  
Model Law ◽  
Definition Of ◽  
International Conventions ◽  
International Rule

Sovereign assets receive restrictive sovereign immunity based on their purpose and/or use for execution of States’ commercial liabilities. The forum States’ courts decide the question of immunity of these assets. Due to lack of effective international conventions, these judgements result at inconsistent outcomes. Rule of law can be applied to mitigate this inconsistency. However, the objectives of rule of law vary for the national and the international legal order. Moreover, the divergence in group-interests of States and mandate of international organizations have failed to agree on a uniform definition of international rule of law. Thereby, this paper suggests international law-based rule of law as an alternative approach. International law-based rule of law aims at achieving the same objectives as domestic legal order, but, by the tools of international laws. Finally, it proposes to develop an inter-States consensus-based model law to have uniform principles of sovereign assets’ immunity in international law.

scholarly journals К вопросу о понятии и сущности правового государства

2021 ◽  
Vol 70 (6) ◽  
pp. 64-67
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров ◽  
Р.А. Иксанов
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
General Principles Of Law ◽  
International Legal System

The article examines the issues of the formation of the rule of law, the influence of general principles of law on this process, as well as the importance of constitutionalism on the development of the concept of the rule of law. It is noted that the model of the rule of law is embedded in the construction of the international legal system. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order.

scholarly journals Особенности формирования правового государства в России

2021 ◽  
Vol 70 (6) ◽  
pp. 67-70
Author(s):  
И.И. Ларинбаева ◽  
А.Р. Насыров
Keyword(s):  
Rule Of Law ◽  
Legal Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
General Principles Of Law

The article examines certain issues of the formation of the rule of law in Russia, problematic aspects of the formation of the rule of law, as well as the significance and characteristics of the development of the rule of law. It is noted that today, there is no clear guidance for establishing general principles of law and building a legal state. The conclusion is substantiated that the essence of the rule of law is reduced to strengthening the systemic elements and the consistency of constitutional processes and international legal order

scholarly journals Order at the margins: The legal construction of interface conflicts over time

2020 ◽  
Vol 9 (2) ◽  
pp. 343-363
Author(s):  
NICO KRISCH ◽  
FRANCESCO CORRADINI ◽  
LUCY LU REIMERS
Keyword(s):  
Human Rights ◽  
Case Studies ◽  
Rule Of Law ◽  
Social Processes ◽  
Legal Order ◽  
Economic Governance ◽  
Global Order ◽  
The Rule Of Law ◽  
International Legal Order ◽  
Over Time

AbstractLegal multiplicity in the global realm, and the interface conflicts that ensue from it, are widely thought to have a destabilising effect, blocking the path towards a more integrated and perhaps constitutionalised global order. While this diagnosis may appear plausible if interface conflicts are seen as snapshots and rivalrous institutions as the main actors, it is less convincing if we regard these conflicts as part of social processes of contestation that define the relations between different norms over time. It is also less plausible if actors with other orientations – norm irritation or navigation – are taken into view. This article works towards a more encompassing account, both temporally and as regards actor orientations. It uses two case studies of conflicts at the interface between economic governance and human rights to probe the plausibility of its conjectures. Both cases appear as instances of prolonged norm contestation which, despite continued irresolution of the underlying conflicts as a matter of law, have resulted in a significant reorientation and (partial) consolidation around new interpretations. This suggests that interface conflicts, rather than destabilising the rule of law, may also open a pathway for change in the otherwise rigid structure of the international legal order

scholarly journals The Operationalisation of the Rule of Law in the EU Legal Order

2019 ◽  
Vol 2 (2) ◽  
pp. 20-36
Author(s):  
Joshua Chung
Keyword(s):  
Human Rights ◽  
European Integration ◽  
Rule Of Law ◽  
Liberal Democracy ◽  
Case Law ◽  
Central Place ◽  
Legal Order ◽  
The Rule Of Law ◽  
European Project ◽  
The Eu

  The European project was founded on the advancement of liberal democracy where the rule of law and respect for human rights have a central place. In a period of ‘instability’ in the Union where organisational changes to national judiciaries have raised fears over rule of law backsliding amongMember States threatening the functioning of the EU’s legal order, the main aim of this article is to explore the operationalisation of the rule of law as a founding value of the EU and its connection to European integration. To demonstrate that there is a developing jurisprudence in the EU legal order towards increased justiciability ofthe rule oflaw. The article in part 2 examines the proposition that the operationalisation of the rule of law and European integration is linked to a substantive rights based conception of the rule of law as a basis for the jurisprudential shift. Part 3 looks at the normative arguments for protecting the rule of law in the EU. Finally, Part 4 analyses the operationalisation of the rule of law in the jurisprudence of the CJEU, in which it is argued there is three lines of argumentation for the operationalisation of the rule of law in the case law of the CJEU.

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