Reservations to Multilateral Treaties: A Macroscopic View of State Practice

1980 ◽  
Vol 74 (2) ◽  
pp. 372-394 ◽  
Author(s):  
John King Gamble
Keyword(s):  
International Law ◽  
Legal System ◽  
Unanimity Rule ◽  
System A ◽  
State Practice ◽  
International Legal System ◽  
The Right ◽  
Multilateral Treaties

Many vexing, complicated, and important problems of international law relate in some way to reservations to multilateral treaties. No doubt, the right of states to make reservations to multilateral treaties is important to the functioning of an international legal system, a major component of which is multilateral treaties. As Edwin Hoyt pointed out two decades ago, the unanimity rule has given way to a much more flexible standard which permits reservations under many circumstances. Thus, the position adopted here is that many important questions should be asked about when and how reservations are used and what their aggregate impact has been. This approach contrasts with most others which concentrate on the legality of reservations. Reservations to multilateral treaties are a fact of life that can be evaluated and analyzed.

scholarly journals China in the Post-World War II International Legal System

2015 ◽  
Vol 01 (02) ◽  
pp. 205-222
Author(s):  
Sheng Hongsheng
Keyword(s):  
World War Ii ◽  
International Law ◽  
Legal System ◽  
World War ◽  
System A ◽  
Evolving System ◽  
International Legal Order ◽  
Rise Of China ◽  
International Legal System ◽  
The Rise Of China

Dramatic changes have taken place in the international legal system since the end of World War II, such as the expanding arenas for application of international law, the emergence of a series of new legal institutions, and the parallel extension of both rights and obligations of states. In recent years, new developments have been arising in the international legal system, manifested by three important sets of transition, that is, from a "sovereign priority" to a "human rights priority"; from "consent-orientation" to "coercion-orientation"; and from "integrity" to "fragmentation." The rise of China and the evolution of international law are closely related: while China's ascent has been achieved within the parameters of the international legal system, a more prosperous and stronger China will certainly influence the future trajectory of the evolving system. China should and can be a positive force in constructing a contemporary international legal order through promoting domestic justice and international rule of law. In this process, China needs to take a more proactive role and evolve from being a recipient to a rule-maker, in order to modify the outdated principles and rules in international law.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

Russland und das Selbstbestimmungsrecht der Völker im postsowjetischen Raum

2021 ◽  
Vol 67 (1) ◽  
pp. 8-26
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Self Determination ◽  
Legal Rhetoric ◽  
Power Politics ◽  
Regional Comparison ◽  
State Practice ◽  
Soviet Space ◽  
The Right ◽  
Fragmentation Of International Law ◽  
Post Soviet Space

As a concept of international law, the right to self-determination is widely renowned for its unclarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, i.e. to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This study situates Russia’s approach to the right to self- determination in that discourse by way of a regional comparison vis-à-vis a ‘western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the study analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation. Complemented by a review of the Russian scholarship on the topic, it is suggested that Russia’s approach to the right to self-determination may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

An International Rule of Law

2021 ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Rule Based ◽  
The Rule Of Law ◽  
Globalizing World ◽  
International Legal System ◽  
Elusive Concept ◽  
International Rule ◽  
Selection Of

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.

1. The Nature of the International Legal System

2016 ◽  
Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams
Keyword(s):  
International Law ◽  
Legal System ◽  
International Community ◽  
Legal Rules ◽  
System P ◽  
Cultural Processes ◽  
International Legal System ◽  
Political Economic

International law is a description of an entire legal system: the international legal system. It is an international legal system by which legal rules are created in order to structure and organise societies and relationships. It acknowledges the influence of political, economic, social and cultural processes upon the development of legal rules. This chapter discusses the relevance of international law; the international community and international law; theories of international law; and the practice of international law.

1. The nature of international law and the international legal system

2019 ◽  
pp. 1-15
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
Legal System ◽  
Vertical Structure ◽  
Legal Order ◽  
Sovereign Equality ◽  
System P ◽  
International Legal System ◽  
International Adjudication ◽  
Peremptory Norms ◽  
Law Making

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Also significant is the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.

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