Solidarity as a General Principle of Law in International Law

Abstract It is widely believed that international law imposes no general prohibition on instigation – no general prohibition on states inducing, inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a representative set of domestic jurisdictions for comparative analysis. Second, through a brief comparative survey, I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And, third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.

Download Full-text

Part VI Refugee Rights and Realities, Ch.51 Non-penalization and Non-Criminalization

The Oxford Handbook of International Refugee Law ◽

10.1093/law/9780198848639.003.0052 ◽

2021 ◽

Author(s):

Costello Cathryn ◽

Ioffe Yulia

Keyword(s):

Human Rights ◽

International Law ◽

General Principle ◽

International Human Rights Law ◽

Human Rights Law ◽

Irregular Migration ◽

International Human Rights ◽

Refugee Convention ◽

International Human

This chapter reviews the protections under international law which purport to secure refugees’ right to seek asylum by protecting them from penalization. Once a mere administrative matter, irregular migration and presence are now often made a crime in domestic laws, often with additional criminal offences such as for failure to cooperate in migration and asylum proceedings, or failure to have or produce identity documentation. In addition to criminalization, States also have meted out increasingly harsh treatment to those who breach their migration controls, irrespective of whether they are refugees or not. The chapter then analyses article 31 of the Refugee Convention, the provision which purports to protect refugees from penalization for ‘illegal entry and stay’. It argues that non-penalization reflects one of the objects and purposes of the Refugee Convention. The chapter also explores whether international human rights law substantively limits States’ ‘right’ to criminalize irregular entry and stay, and whether non-penalization of irregular entry or stay may be an emerging general principle of law.

Download Full-text

3 The Nature of Abuse of Rights in International Arbitration

Abuse of Rights in International Arbitration ◽

10.1093/law/9780198850380.003.0004 ◽

2020 ◽

Author(s):

El Far Ahmed

Keyword(s):

Public Policy ◽

International Law ◽

General Principle ◽

Decision Makers ◽

Compelling Evidence ◽

Legal Systems ◽

Legal Basis ◽

International Arbitration

This chapter explores the nature of abuse of rights in international arbitration. It determines the legal basis of abuse of rights, questions the transnational nature of the principle, and examines whether it comprises a principle of transnational public policy. A scrutiny of the principle’s application in international arbitration not only demonstrates the omnipresence of the principle in most legal systems as well as under international law, but provides compelling evidence that a general principle of abuse of rights has emerged in international arbitration. Moreover, a review of different legal systems testify that the principle is recognized as a general substantive and procedural principle of law. This is further confirmed by the views of renowned scholars and by the constant application of abuse of rights as a general principle of law. However, while the principle reflects fundamental interests that decision makers should uphold, its depiction as part of transnational public policy is controversial.

Download Full-text

THE ROLE OF DUE DILIGENCE IN INTERNATIONAL LAW

International and Comparative Law Quarterly ◽

10.1017/s0020589319000344 ◽

2019 ◽

Vol 68 (04) ◽

pp. 1041-1054

Author(s):

Neil McDonald

Keyword(s):

International Law ◽

General Principle ◽

Component Part ◽

Due Diligence ◽

Legal Requirement ◽

The United Kingdom ◽

Primary Rule ◽

Fact Finding ◽

Policy Guidance

AbstractThis article makes two main propositions about the role of due diligence in international law, in response to recent interest in the topic. First, a legal requirement to exercise due diligence may be a component part of a primary rule of international law, but this can only be determined by referring back to the primary rule in question (eg what degree of fact-finding does treaty provision X require a State party to that treaty to undertake, either explicitly or implicitly, to act consistently with its terms?). In other words, there is no ‘general principle of due diligence’ in international law. Second, States undertake what could be characterised as ‘due diligence’ activity (eg by introducing policy guidance for their officials), some elements of which may be a result of a legal requirement and some of which may not (eg where done solely for policy reasons). Current practice of the United Kingdom and United States is used to illustrate the point. The lack of a distinction between the ‘legal’ and ‘non-legal’ elements of conduct in a given area gives States the flexibility to act without feeling unduly constrained by international law, and at the same time actually promotes compliance with international law and may assist in its development over time. In contrast, pushing for a ‘general principle of due diligence’ in international law is unnecessary, and risks having a chilling effect on this positive legal/policy ‘due diligence’ behaviour by States.

Download Full-text

The Principle of Ambituity and the Prohibition against Excessive Collateral Damage to the Environment during Armed Conflict

Nordic Journal of International Law ◽

10.1163/15718107-08201004 ◽

2013 ◽

Vol 82 (1) ◽

pp. 53-82 ◽

Cited By ~ 2

Author(s):

Erik V. Koppe

Keyword(s):

International Law ◽

General Principle ◽

Armed Conflict ◽

Intrinsic Value ◽

Fundamental Principle ◽

Collateral Damage ◽

Legal Basis ◽

Additional Protocol ◽

Military Necessity ◽

Law Of Armed Conflict

This article aims to clarify the legal basis of the protection of the environment during armed conflict in general, and of the prohibition against excessive collateral damage to the environment in particular. It is submitted that the legal basis for the conventional and customary rules which protect the (intrinsic value of the) environment during armed conflict cannot be deduced from the four fundamental principles of the law of armed conflict: the principles of military necessity, distinction, proportionality and humanity. Rather, the specific obligations relating to environmental protection in times of armed conflict flow from the fundamental principle of ambituity. Similar to the principle of humanity, the principle of ambituity, which qualifies as a general principle of law in the sense of Article 38(1)(c) ICJ Statute, provides for an absolute limitation to the necessities of war. As such the principle of ambituity may be used to interpret existing conventional or customary rules of international law during armed conflict, to supplement, or under exceptional circumstances to modify or set aside these rules. With regard to the prohibition against excessive collateral damage to the environment during armed conflict, it is submitted that this prohibition flows from a customary rule which emerged in the 1990s, rather than from Articles 51 and 52 of Additional Protocol I, and which complements Articles 35 and 55 AP I (i.e. for States Parties to AP I). This article argues that any military action which causes collateral damage to the environment must first be assessed under this relatively new customary prohibition; and subsequently, if no breach can be established and if applicable, by reference to Articles 35(3) and 55 AP I. In order to enhance the scope of this prohibition and provide better protection for the environment against collateral damage it is suggested that further investigations should be conducted into the consequences of warfare on the environment.

Download Full-text

PRIVATE INTERNATIONAL LAW IN THE DEVELOPMENT OF INFORMATION AND COMMUNICATION TECHNOLOGIES

Actual Problems of Russian Law ◽

10.17803/1994-1471.2019.102.5.169-182 ◽

2019 ◽

pp. 169-182

Author(s):

M. V. MAZHORINA ◽

L. V. TERENTYEVA ◽

B. A. SHAKHNAZAROV

Keyword(s):

International Law ◽

Information And Communication Technologies ◽

General Principle ◽

Communication Technologies ◽

Private Law ◽

Private International Law ◽

Cross Border ◽

Sovereign Equality ◽

International Private Law ◽

Information And Communication

The process of globalization, the development of information and communication technologies, networking are changing society dramatically and, as a result, its superstructure — law. International private law, by virtue of its own subject matter and special methodology, is at the forefront of the corresponding changes. The paper examines the problems of defining the concept of territorial sovereignty in the non-territorial information space that are of serious importance in relation to private international law. Its principles are the general principle of the sovereign equality of states, acting as a general principle for private international law, and a special principle of the sovereign equality of national law of states. The problem of the realization of the territorial nature of the conflict of attachment formulas and the grounds of international jurisdiction in relation to a certain segment of the extra-territorial information space is posed. The issue of conditionality of the adaptation of the principles and methodology of legal regulation of public relations in the conditions of digital technologies by the need to understand the conditions and boundaries of the implementation of sovereignty, the jurisdiction of the state in the information and communication space is investigated. The processes comprehended within the framework of the science of international private law are to some extent relevant for other branches of law. This paper analyzes such indicators of current changes in the legal paradigm as the impact of information and telecommunication technologies on the development of private international law, the place and increasing importance of non-state regulation in the process of streamlining cross-border private law relations, and the development of non-state systems for resolving cross-border disputes. The authors touch upon the problems of the use of blockchain technologies and the protection of intellectual property in cross-border private law relations; private adhocracy rulemaking, the formation of various social phenomena in the key lex mercatoria, the influence of international commercial arbitration, online platforms on the formation of current trends in the field of resolution of crossborder disputes, etc.

Download Full-text