scholarly journals Realism in International Legislation

2012 ◽  
Vol 4 (1) ◽  
pp. 2-16
Author(s):  
Jasper Doomen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
International Level ◽  
National Legislation ◽  
Universal Principles ◽  
The Status

The status of ‘international law’ is examined critically. In the first section, the basis of (national) legislation is described. This consists of an inquiry into a credible meaning of ‘natural law’. It is focused on the question whether universal principles exist and, if so, of what kind. Section 2 deals with the issue of enforcement. National legislation invariably realizes this, but this is not obvious at the international level. Section 3 deals with human rights. It is discussed whether their presence points to the existence of ‘international law’. To this end, a possible reason for these rights to have developed is expounded.

Use of Armed Force against Suspected Foreign Submarines in the Swedish Internal Waters and Territorial Sea

2018 ◽  
Vol 33 (3) ◽  
pp. 585-599
Author(s):  
Said Mahmoudi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Present Article ◽  
National Level ◽  
Use Of Force ◽  
Armed Force ◽  
National Legislation ◽  
Legal Arguments ◽  
Actual Response ◽  
Self Defence

Abstract Sweden’s territorial sea and internal waters have experienced regular intrusions by submerged foreign submarines since the early 1950s. The response of the country to such intrusions is generally well-documented and mainly public. The present article offers an overview of the development of the relevant national legislation, the actual response of the naval forces, and the legal arguments invoked at national level to justify or dismiss use of force in self-defence or under another title. The article discusses the relevance of the immunity that submarines normally enjoy under international law and Sweden’s human-rights obligations, two issues that have been at the centre of the legal discourse. Particular attention is paid to developments since 2014 when a new round of “submarine hunts” started and led to the adoption of new measures both revising the existing laws and strengthening the defence forces.

scholarly journals Brexit and the International Law Prohibitions on the Loss of eu Citizenship

2018 ◽  
Vol 15 (2) ◽  
pp. 341-363 ◽  
Author(s):  
William Thomas Worster
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
The Status ◽  
The Law

This submission challenges the presumption that uk nationals will lose eu citizenship following Brexit. Until now, the dominant narrative has been drawn from the law on treaties or international organizations, and this article adds the human rights perspective to Brexit. Firstly, eu citizenship can be assimilated to nationality. While eu citizenship is unique, the status protected under international law is a legal bond a person has with a political entity. This protection certainly covers nationality, and this paper argues it can be understood to also protect eu citizenship. Secondly, international law prohibits arbitrary withdrawal of this legal bond with a person. The uk does not have jurisdiction over eu citizenship, so it is doubtful the uk can terminate eu citizenship unilaterally. Even if the eu were to withdraw eu citizenship on its initiative, it would still constitute retroactive law, discrimination, and infringement of sovereignty. It is also disproportionate, because the loss of eu citizenship is not necessary for Brexit. When Greenland withdrew from the eu, its residents retained eu citizenship. For these reasons, the revocation of eu citizenship would be arbitrary. A distinction must be made between the membership of a state in the eu which can be terminated, and the direct legal bond formed between a person and the Union, which is far harder to revoke. On this basis, any uk national who has acquired eu citizenship prior to Brexit, should not be divested of it following Brexit.

Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism

2011 ◽  
Vol 24 (3) ◽  
pp. 677-700 ◽  
Author(s):  
BEN SAUL
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
International Crime ◽  
Domestic Terrorism ◽  
Public Confidence ◽  
International Treaties ◽  
Transnational Terrorism ◽  
National Legislation ◽  
Judicial Decisions

AbstractIn 2011, the Appeals Chamber of the UN Special Tribunal for Lebanon purported to identify a customary international crime of transnational terrorism and applied it in interpreting domestic terrorism offences under Lebanese law. This article argues that the Tribunal's decision was incorrect because all the sources of custom relied upon by the Appeals Chamber – national legislation, judicial decisions, regional and international treaties, and UN resolutions – were misinterpreted, exaggerated, or erroneously applied. The Tribunal's laissez-faire attitude towards custom formation jeopardizes the freedom from retrospective criminal punishment, subjugating the human rights of potential defendants to the Tribunal's own moralizing conception of what the law ought to be. The decision is not good for international law or public confidence in its institutions and processes.

Intervention by Invitation

2016 ◽  
Author(s):  
Gregory H. Fox
Keyword(s):  
Human Rights ◽  
International Law ◽  
Civil Wars ◽  
Security Council ◽  
Armed Conflicts ◽  
Democratic Legitimacy ◽  
Un Security Council ◽  
The Status ◽  
The Government ◽  
Internal Armed Conflicts

This chapter examines the debate concerning a state’s intervention in internal armed conflicts based on invitation, either from the government or from a rebel group fighting against the government. It looks at the issues that arise from intervention by invitation, particularly those relating to the territorial integrity of the state, the status of the actors involved, the nature of the consent, and implications for international law in general and for politics and human rights in particular. The chapter first considers the traditional view of intervention by invitation and the recent challenges to that view. It then discusses the negative equality principle as it applies to intervention in civil wars, as well as the link between intervention by invitation and democratic legitimacy. It also analyses the position of the UN Security Council on intervention by invitation.

Claiming Rights across Borders: International Human Rights and Democratic Sovereignty

2009 ◽  
Vol 103 (4) ◽  
pp. 691-704 ◽  
Author(s):  
SEYLA BENHABIB
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights ◽  
Liberal Democracies ◽  
Political Issue ◽  
The World ◽  
The Status ◽  
Global Constitutionalism ◽  
Self Rule ◽  
Human Rights Norms

The status of international law and transnational legal agreements with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue. Although recent European discussions focus on global constitutionalism, there is increasing reticence on the part of many that prospects of a world constitution are neither desirable nor salutary. This article more closely considers criticisms of these legal transformations by distinguishing the nationalist from democratic sovereigntiste positions, and both, from diagnoses that see the universalization of human rights norms either as the Trojan horse of a global empire or as neocolonialist intentions to assert imperial control over the world. These critics ignore “the jurisgenerativity of law.” Although democratic sovereigntistes are wrong in minimizing how human rights norms improve democratic self-rule; global constitutionalists are also wrong in minimizing the extent to which cosmopolitan norms require local contextualization, interpretation, and vernacularization by self-governing peoples.

On the Evidence of U.S. Treaty Law

1972 ◽  
Vol 7 (3) ◽  
pp. 361-367
Author(s):  
Salo Engel
Keyword(s):  
International Law ◽  
National Level ◽  
General Interest ◽  
International Level ◽  
Customary International Law ◽  
Treaty Law ◽  
The Status ◽  
The Creation ◽  
International Law Commission ◽  
Law Commission

According to Article 24 of its Statute, the International Law Commission “shall consider ways and means for making the evidence of customary international law more readily available”. The existence of such law is indeed difficult to prove even at the national level; how much more so in the international sphere. This, however, should not mislead one to think that there are no problems with regard to treaty law. On the international level it may not be too difficult to determine whether a treaty exists on a particular question, but information about the exact status of the treaty (its entry into force, the parties thereto, the amendments thereof, etc.) in most cases is not easily available. Wherefore, I proposed many years ago the creation of an International Legislation Register which would contain up-to-date information at least about the status of multi-partite treaties of general interest.

scholarly journals Three Grotian Theories of Humanitarian Intervention

2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
Humanitarian Intervention ◽  
First Century ◽  
Responsibility To Protect ◽  
Self Defense ◽  
The People ◽  
Hugo Grotius ◽  
Law Of Nations

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.

scholarly journals Jusnaturalism as the foundation of the concept of international protection of human rights in H. Lauterpacht’s works

2021 ◽  
pp. 392-396
Author(s):  
O. M. Sheredʹko
Keyword(s):  
Human Rights ◽  
International Law ◽  
Natural Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Protection Of Human Rights ◽  
International Human ◽  
International Document

Prominent international law scholar H. Lauterpacht devoted most of his exploratory work to the issue of human rights in international law.This article reveals H. Lauterpacht’s views on the role of international law in the recognition and consolidation of human rights and the role of jusnaturalism as the basis of international human rights law. Analyzing the works by H. Lauterpacht, we can say that the scholar was the founder of international human rights law. Natural law and natural human rights, according to H. Lauterpacht, have been the unchanging basis of human rights of all times.The origins and periodization of jusnaturalism in the works of leading international law scholar are considered. The main statements of the representatives of the natural law concept of different times, in particular, the basic ideas in the works of Socrates, Aulis Aarnio, Francisco de Vitoria, Francisco Suarez, Alberico Gentili, Thomas Hobbes, Samuel von Pufendorf, Hugo Grotius are outlined.The views of prominent philosophers are the foundation of the concept of jusnaturalism.  Numerous supporters of the concept of natural law in different periods of history testify to its importance at every stage of human rights development.International law in this matter is a kind of second stage of recognition and protection of human rights, after recognition in the national law of states.International law is designed to consolidate the rights granted by nature to the human in the international arena.H. Lauterpacht saw the real recognition and protection of human rights by enshrining them in an international document signed by all countries of the world.The scientist proposed a draft international document on the recognition of human rights at the international level called International Bill of the Rights of Man. The provisions proposed in this document were later enshrined in international instruments such as the Universal Declaration of Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966 and the International Covenant on Civil and Political Rights of 1966.

scholarly journals Scientific interpretations of offenses of falsification of evidence at international level and in the context of international law

2021 ◽  
pp. 232-240
Author(s):  
Marian Gherman ◽  
◽  
Eugeniu Piterschi ◽  
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Comparative Law ◽  
International Level ◽  
National Legislation ◽  
Republic Of Moldova ◽  
Scientific Approach ◽  
The Republic ◽  
Additional Rule ◽  
Normative Perspective

Comparative law is an essential branch of the literature that aims to conduct a multi-faceted investigation of some types of illicit acts at the international level. The crime of falsifying evidence from the international normative perspective, offers us the opportunity to analyze, systematize and address a new typical way or an additional rule for the Criminal Law of the Republic of Moldova. Therefore, in the present scientific approach we propose as an essential desideratum, the analysis of the antisocial actions of falsification of evidence at international level for a good systematization and adjustment of the national legislation.

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