scholarly journals A Path to Transformation: Asking “The Woman Question” in International Law

2021 ◽  
pp. 429
Author(s):  
Cochav Elkayam-Levy
Keyword(s):  
International Law ◽  
Legal Reform ◽  
Woman Question ◽  
Women's Experiences ◽  
Legal Structures ◽  
Truth Claims ◽  
Feminist Methods ◽  
The Law ◽  
The Right ◽  
Feminist Work

Methods matter, and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment towards our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Methods determine the ways within those limits by which we aim to assert truth claims, determine our possibilities and conclusions, and establish the grounds for legal reform. Our chosen method defines what we consider as evidence and what we accept as proof. Yet, it cannot guarantee a particular outcome or even the right one. Rather, it provides a sense of discipline in our analysis.

Decolonization and Self-Determination

2020 ◽  
pp. 186-200
Author(s):  
Natsu Taylor Saito
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
Primary Interest ◽  
Territorial Integrity ◽  
Legal Structures ◽  
The Law ◽  
The Right ◽  
Unique Status

International law recognizes the unique status of Indigenous peoples and the right of all peoples to self-determination. However, it is also largely controlled by states whose primary interest is in maintaining their own power, wealth, and “territorial integrity.” Considering what the right to self-determination encompasses and how it differs from the law protecting “minorities” from discrimination, this chapter suggests that decolonization of settler states will not be implemented by international legal structures but must be undertaken by the peoples themselves.

The Obligation to Afford Reparation to Injured Individuals

2017 ◽  
Author(s):  
Carla Ferstman
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Rights Treaties ◽  
The Law ◽  
The Right ◽  
Right Of Access ◽  
The Relationship

This chapter considers the consequences of breaches of human rights and international humanitarian law for the responsible international organizations. It concentrates on the obligations owed to injured individuals. The obligation to make reparation arises automatically from a finding of responsibility and is an obligation of result. I analyse who has this obligation, to whom it is owed, and what it entails. I also consider the right of individuals to procedures by which they may vindicate their right to a remedy and the right of access to a court that may be implied from certain human rights treaties. In tandem, I consider the relationship between those obligations and individuals’ rights under international law. An overarching issue is how the law of responsibility intersects with the specialized regimes of human rights and international humanitarian law and particularly, their application to individuals.

A Moving Target

2018 ◽  
Author(s):  
Philippa Webb
Keyword(s):  
International Law ◽  
Moving Target ◽  
International Court Of Justice ◽  
European Court ◽  
International Court ◽  
The Law ◽  
The Right ◽  
International Law Commission ◽  
Right Of Access ◽  
National Practice

The last 50 years have seen significant changes in the law of immunity. The European Court of Human Rights (ECtHR) has, over the past 15 years in particular, played an influential role in the law applicable to this ‘moving target’. This chapter examines three approaches of the ECtHR to the identification of general international law: (i) the ECtHR looking to the International Court of Justice; (ii) the ECtHR looking to national practice; and (iii) the ECtHR looking to the work of the International Law Commission and the provisional application of treaties. Although the ECtHR strives to locate itself within general international law, it necessarily approaches the immunities of States, officials, and international organizations through the lens of Article 6 ECHR and whether the immunity in question constitutes a legitimate and proportionate restriction on the right of access to court. This has, at times, taken the Court down a different path to other judicial bodies and we can identify the emergence of a ‘European approach’ to the role of immunity in employment disputes.

The Machinery of International Law and Democratic Backsliding

2021 ◽  
pp. 136-146
Author(s):  
Tom Ginsburg
Keyword(s):  
Political Participation ◽  
International Law ◽  
Term Limits ◽  
Constitutional Court ◽  
Constitutional Amendments ◽  
The World ◽  
International Rights ◽  
Recent Developments ◽  
The Law ◽  
The Right

This chapter focuses on the abuse of international rights to political participation so as to facilitate a leader's remaining in office beyond the constitutionally mandated term. This involves not only the abuse of the interpretation of rights, but also the abuse of the doctrine of unconstitutional constitutional amendments, which has spread around the world in recent years. How does this happen and what, if anything, can international law do about it? After introducing a motivating case — the famous decision of the Colombian Constitutional Court in the second re-election decision, in which courts stood for the protection of democracy — the chapter examines recent 'bad' cases in which rights and constitutional amendments are abused to extend leaders' terms. It surveys recent developments in the law of term limits, and briefly proposes a normative interpretation of the right to political participation which ought to be consistent with the emerging doctrine. The chapter suggests that there is an emerging consensus, at least in some regions of the world, that there are limits in states' ability to modify term limits unconditionally.

Self-Defence and Israel in International Law: A Reappraisal

1976 ◽  
Vol 11 (4) ◽  
pp. 516-562 ◽  
Author(s):  
Barry Feinstein
Keyword(s):  
International Law ◽  
The State ◽  
Self Help ◽  
The Law ◽  
The Right ◽  
Self Defence

Dean Acheson frankly reconfirmed the right of self-preservation, when he asserted, “…law simply does not deal with … questions of ultimate power—power that comes close to the sources of sovereignty…. No law can destroy the state creating the law. The survival of states is not a matter of law”. It is beyond the law.Given the existence of man's elementary loyalty to autonomous states, the necessity for using force springs from the need of states to depend fundamentally on self-help in order to guarantee their survival and welfare. This search for security in a system of politics without government, forces the state to be dependent upon military self-help.

The Oxford Handbook of International Law in Armed Conflict

2014 ◽  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Transitional Justice ◽  
Armed Conflict ◽  
Forced Migration ◽  
Armed Forces ◽  
Cultural Property ◽  
Historical Background ◽  
The Law ◽  
The Right

TheHandbookconsists of 32 Chapters in seven parts. Part I provides the historical background and sets out some of the contemporary challenges. Part II considers the relevant sources of international law. Part III describes the different legal regimes: land warfare, air warfare, maritime warfare, the law of occupation, the law applicable to peace operations, and the law of neutrality. Part IV introduces key concepts in international humanitarian law: weapons and the notion of superfluous injury and unnecessary suffering, the principle of distinction, proportionality, genocide and crimes against humanity, grave breaches and war crimes, internal armed conflict. Part V looks at key rights: the right to life, the prohibition on torture, the right to fair trial, economic, social and cultural rights, the protection of the environment, the protection of cultural property, and the human rights of the members of the armed forces. Part VI covers key issues such as: the use of force, terrorism, unlawful combatants, the application of human rights in times of armed conflict, forced migration, and issues of gender. Part VII deals with accountability issues including those related to private security companies, the need to focus on armed groups, as well as questions of state responsibility brought before national courts, and finally, the book addresses issues related to transitional justice.

The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba

1959 ◽  
Vol 53 (3) ◽  
pp. 564-594 ◽  
Author(s):  
Leo Gross
Keyword(s):  
International Law ◽  
Legal Status ◽  
Law Of The Sea ◽  
Gulf Of Aqaba ◽  
General Assembly ◽  
The Law ◽  
The Right ◽  
Geneva Conference ◽  
International Law Commission ◽  
Law Commission

Since the United Nations Emergency Force moved in and occupied the heights overlooking the Straits of Tiran, the Gulf of Aqaba has been quiet. Ships, including Israel flag ships, move freely in and out. The right of passage claimed by Israel and other states was discussed in the Security Council in 1954, in the International Law Commission in 1956, in the General Assembly in 1956-57, and again at the Geneva Conference on the Law of the Sea February 24-April 27, 1958, and will be analyzed here. It should be stated at the outset that Israel's boundaries, including the strip at the northern end of the Gulf of Aqaba, are not an issue here. Nor is the Arab claim that a state of war continues to exist pertinent in determining the legal status of the Gulf and the Straits, although it obviously has some bearing on the availability to Israel of the right of “innocent” passage.

scholarly journals The best interests of the child in international law: conceptual framework

Legal Ukraine ◽  
2020 ◽  
pp. 14-23
Author(s):  
Vasyl Datsenko
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of ​​those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child «On the right of a child to receive respect for the rest of the world». Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child’s best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

scholarly journals Foundations on Silt: Jeremy Bentham, Liberalism and the Science of International Law

2021 ◽  
Author(s):  
◽  
Robert Deuchars
Keyword(s):  
International Law ◽  
Natural Law ◽  
General System ◽  
Jeremy Bentham ◽  
Binary Opposition ◽  
Moral Philosopher ◽  
Course Of Action ◽  
The Law ◽  
The Individual ◽  
The Right

<p>When the words good or bad are uttered the user generally takes their meaning derived from a system of ethics or morals. In this sense good and bad are particularist in nature and also socio-culturally specific. Let us take a simple example from Antiquity. At school in the West we learn of a figure called Alexander the Great, the Macedonian. By all accounts we are taught that he was a great, and by extension a good man. In modern day Iran Alexander of Macedonia is known as Alexander the Devil. So the question arises: was Alexander good or bad, or both? Is it possible to state unequivocally that the actions of Alexander were as a matter of fact morally good or morally bad? I think the answer to this question is fairly straightforward: it depends. Now this answer is not a simple descent into postmodern territory and moral relativism; there are genuine and empirical reasons to believe all three possibilities pertaining to the actions of Alexander. In short it is not possible to extrapolate from the particular to the general and it is not a question of semantics or even of critical hermeneutics. There is no either/or for Alexander of Macedonia. The binary opposition of good and bad cannot be applied to the particular actions of an individual and furthermore cannot be generalized as a principle, rule or otherwise. This distinction or argument between what can be deemed good and what can be deemed bad may at first sight seem irrelevant to the law but it is not. In moral philosophy natural law theory states that law is based on morality, therefore negating the possibility of a bad law. It is at this point that Jeremy Bentham comes to our attention. Bentham believed that law and morality, although connected need not necessarily be so. Under the principle of utility, which I will explore in more detail later in this essay, Bentham believed that individual intent of an action could be disassociated from the intent that ought to be in place. The principle of utility was this test. In other words when determining the right course of action and what laws should be obeyed for all circumstances and systems, the principle of utility was the foundation. And I will argue later on in this essay that although Bentham is identified as a legal positivist and a philosophical realist his negative idealism is based on an error, much in the same way that he thought he had identified the fallacy of natural law. Bentham’s foundations may not be on stilts but perhaps, more accurately, they were built on silt. Moreover Bentham’s position as a moral philosopher is rather unusual in that although he was indeed interested in the behavior of the individual he was insofar as that behavior might have some bearing on a general system of law. This essay is therefore concerned with this troubling problem. I will proceed as follows. Firstly, I will give an overview of Bentham’s criticism of natural law and of William Blackstone in particular. Secondly, I will look at Bentham’s contribution to the internationalization of the law and his use of the “principle of utility”; he coined the neologism “international” as one of many. I will then move on to see how Bentham expected to actualize his foundational principle through his efforts to persuade others of the efficacy of codifying international law as a form of ‘science’. I conclude by arguing that Bentham’s philosophical realism was, in fact a form of idealism, bordering on the religious; his ‘cosmic calculus’.</p>

scholarly journals Prosecuting Piracy at the High Seas: the Experience of Malaysia

2018 ◽  
Vol 26 (2) ◽  
pp. 307
Author(s):  
Muhammad Hameedullah Md Asri ◽  
Md Khalil Ruslan
Keyword(s):  
International Law ◽  
Geneva Convention ◽  
Legal Framework ◽  
International Treaties ◽  
Sovereign State ◽  
High Court ◽  
United Nations Convention ◽  
The Law ◽  
To Come ◽  
The Right

The development of the law on piracy under two major international treaties; the Geneva Convention, 1958 and the United Nations Convention on the Law of the Sea, 1982 has witnessed great acceptance and application of the law with many coastal states have crafted specific anti-piracy law as a manifestation of their commitments to the international treaties. However, up until today, Malaysia has yet to come out with a single and unified statute against piracy despite being a member to both treaties. The law is scattered in a different set of documents and carried out by various agencies that are responsible to each respective law. It is argued that given this is the position in Malaysia, the prosecution of piracy would be a critical problem for the law enforcement. In this paper, we address this concern by looking at both Malaysian legal framework as well as the experience of the country against international piracy, particularly the case of Bunga Laurel. The findings suggest that there are more than twenty Acts that might be used against piracy. As a sovereign state under the international law, Malaysia also has the right to resort to principles of international law for the apprehension and prosecution of high sea pirates. To this effect, the case of Bunga Laurel has really manifested the successful application of Malaysian law by the High Court of Malaya against international piracy. The paper concludes that the absence of a single anti-piracy law is not necessarily an obstacle, but instead an advantage with great choice of law available for the prosecution in this country.

Sign in / Sign up

Export Citation Format

Share Document