scholarly journals The Protection of Foreigners in International Law

2021 ◽  
Vol 2 (1) ◽  
pp. 18-24
Author(s):  
Ferry Eka Rachman
Keyword(s):  
International Law ◽  
Legal Protection ◽  
State Sovereignty ◽  
State Responsibility ◽  
Citizenship Status ◽  
Sovereign State ◽  
Legal Principles ◽  
Legal Provisions ◽  
International Court ◽  
Main Basis

This research aims to find out legal protection against foreigners and citizens who lives outside their nationality country. In discussing the issue of international legal protection against foreigners, a doctrinal approach and international court practice is used. From the opinion of international legal experts, it will be found legal principles and theories regarding the position of individuals as subjects of international law. The principles of citizenship are the main basis for the application of the principle of jurisdiction and country responsibility towards its citizens and foreigners.The results are, In principle, every country will be responsible for providing legal protection to every citizen of the country wherever he/she is and foreigners will receive legal protection, under certain limitations, both from the country where he/she is temporarily located and from the country of origin. Thus, a person's citizenship status is closely related to the protection of international law that will be given to him/her, against him/her, his/her property and family. The application of the principle of state responsibility against citizens abroad or foreigners is based more on the principle of state sovereignty. A sovereign state will apply its national laws to its citizens within its territorial boundaries. Apart from that what applies is legal provisions of other countries or provisions of international law.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Responsibility of Serbia for genocide: Application of the Convention on the prevention and punishment of the crime of genocide

Temida ◽  
2007 ◽  
Vol 10 (4) ◽  
pp. 33-42
Author(s):  
Mirjana Tejic
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Former Yugoslavia ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Reconciliation Process

On February 26th 2007, International Court of Justice claimed Serbia responsible for failing to prevent genocide and punish perpetrators underlining its' responsibility to cooperate with International Criminal Tribunal for former Yugoslavia. Although it was confirmed genocide has been committed in Srebrenica 1995, Serbia is not obliged to pay financial reparations. Judgment makes distinction between individual and three-fold state responsibility for genocide, based on Convention on the Prevention and Punishment of the Crime of Genocide and other sources of international law. There are evident disagreements among judges on jurisdiction, interpretation rules, even on meritum of the case. Many questions still remain open especially what precedent effects will have on establishment of state's dolus specialis and how it will influence the reconciliation process in the region.

5 Rules of Attribution

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
United Nations ◽  
International Law ◽  
The State ◽  
State Responsibility ◽  
Final Version ◽  
Legal Principles ◽  
Form Part ◽  
Energy Charter Treaty ◽  
International Law Commission ◽  
Law Commission

This chapter focuses on the rules of attribution. The State is not responsible for all acts and omissions of its nationals, but only for those which can be attributed to the State. It is thus necessary to establish this link between the State and the person, or persons, committing an unlawful act or omission. The legal principles used to establish this link are usually referred to as rules of attribution. The rules of attribution form part of the law of state responsibility, which, to a large part, is reflected in the work of the International Law Commission (ILC) of the United Nations. At its fifty-third session in 2001, the ILC adopted its final version of the ILC Articles on Responsibility of States for Internationally Wrongful Acts. The ILC Articles are intended to cover all aspects of state responsibility under international law. The rules of attribution are laid down in Chapter II of the ILC Articles. From an Energy Charter Treaty perspective, Articles 4—8 are the most relevant ones. The central provision with respect to attribution is Article 4, which confirms the well-established principle of international law that the State is responsible for the acts of its own organs acting in the capacity of the State.

The Existing Cause of Biafra and its Right to Self-determination

2020 ◽  
pp. 1-19
Author(s):  
Yinka Olomojobi
Keyword(s):  
International Law ◽  
Regional Differences ◽  
The State ◽  
Self Determination ◽  
State Sovereignty ◽  
The South ◽  
Sovereign State ◽  
Independent States ◽  
The Right

Abstract There has been recent agitation for self-determination in the south-east of Nigeria for the state known as Biafra (a pro-secessionist group). The principle of self-determination is a well-debated discourse since it connects with the right to secede and create a sovereign state. Like a marriage at gunpoint, a reluctant partner will always want a way out of the marriage, and will take a hike at the first opportunity. Given this political inheritance, Nigeria has fallen prey to several attempts to undermine state sovereignty originating in ethnic and regional differences. The controversy has concerned both the principle’s status in international law and its charter. This principle has played a prominent part in the emergence of former colonies as independent states. The aim of this article is to explore the ongoing agitation for a Biafran Republic and to assess whether it is in conformity with the right to self-determination.

scholarly journals AIR SOVEREIGNTY AND NO-FLY ZONES

2016 ◽  
Vol 1 (1) ◽  
pp. 99
Author(s):  
Agus Pramono
Keyword(s):  
International Law ◽  
Basic Element ◽  
State Sovereignty ◽  
Legal Regulations ◽  
Review Of Literature ◽  
Sovereign State

Sovereignty of a state in essence is an embedded, basic element of a state as a supreme power. However, the sovereignty of a state can only be applied within its own borders, where outside of its own territory the sovereignty of another country takes over. This research was carried out based on the approach of current legal regulations and review of literature. The study showed that airspace sovereignty is, in principle, embedded to a state of which ownership is exclusive in nature. No-fly zones are airspace in which a sovereign state determines to be restricted for flight traffic based on the existing international and national regulations. Keywords: State sovereignty, No-fly zone, International law

The Kosovo Advisory Opinion: Conflict Resolution and Precedent

2011 ◽  
Vol 105 (1) ◽  
pp. 50-60 ◽  
Author(s):  
Richard Falk
Keyword(s):  
International Law ◽  
General Assembly ◽  
Advisory Opinion ◽  
Political Movements ◽  
International Court Of Justice ◽  
Sovereign State ◽  
Declaration Of Independence ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

The somewhat surprising majority view in the advisory opinion of the International Court of Justice (ICJ) assessing Kosovo's declaration of independence has some bearingon prospects for an eventual end to the bitter conflict between Kosovo and Serbia. It may also have some relevance for a variety of political movements around the world whose leaders might be more inclined than previously to tempt fate by declaring their people and territory to be internationally independent of the sovereign state within which they are now geographically located. Significantly,the ICJ majority sidestepped the question put to it by the General Assembly, in a move objectionable to the four dissenting judges,recasting it in such a way as to limit its response to whether Kosovo's declaration of independence, issued on February 17,2008, was “in accordance with international law” to the rather bland assertion that the declaration did not violate international law. The Court did not say, and explicitly ruled out any interpretation suggesting, that Kosovo's declaration was acceptable under international law, although by Lotus reasoning, what a state is not expressly prohibited from doing is permitted.3 The majority also expressed its view that the declaration was not to be viewed as decidingupon Kosovo's final status in world diplomacy.

Free Movement, Sovereignty and Cosmopolitan State Responsibility

2019 ◽  
pp. 224-242
Author(s):  
Luis Cabrera
Keyword(s):  
Regional Integration ◽  
Current System ◽  
Free Movement ◽  
State Sovereignty ◽  
State Responsibility ◽  
State Control ◽  
Sovereign State ◽  
Unauthorized Immigration ◽  
System P ◽  
Free Movement Of Persons

How ‘cosmopolitan’ can a sovereign state be? That question is considered here in the context of unauthorized immigration and arguments for free movement of persons across state boundaries. Details are first presented on non-cosmopolitan attitudes commonly expressed by receiving-state leaders in response to unauthorized immigration. They focus not on equal moral standing and the cosmopolitan mandate to give fair consideration to all persons’ interests, but on the criminality of unauthorized entry, often the perceived criminality or poor character of entrants themselves, and a ‘war’ on human smugglers. A robustly cosmopolitan state, it is argued, would support much freer movement of persons. This raises a question, however: is a state which does not seek to control its borders still a cosmopolitan state? It is acknowledged, in relation to an argument from Joseph Carens, that state sovereignty might, in principle, be defined separate from state control of borders. In practice, however, free movement has been strongly associated in recent years with fairly intensive projects of regional integration. These entail significant pooling of sovereignty, creating in effect more-cosmopolitan regions, rather than more-cosmopolitan sovereign states. Overall, the analysis reinforces some significant challenges, highlighted by institutional cosmopolitans, to realizing robust cosmopolitan moral aims in a system of independent sovereign states. It also, however, highlights ways in which states can be ‘more-cosmopolitan’ in relation to migration in the current system.

Sir Hersch Lauterpacht’s Idea of State Sovereignty ‐ Is It Still Alive?

2011 ◽  
Vol 13 (1-2) ◽  
pp. 23-41
Author(s):  
Roman Kwiecień
Keyword(s):  
Cognitive Function ◽  
International Law ◽  
Legal Positivism ◽  
State Sovereignty ◽  
State Responsibility ◽  
Human Beings ◽  
Crucial Aspect ◽  
Leading Role ◽  
Bundle Of Rights ◽  
Freedom Of Action

AbstractThis article explores Lauterpacht’s understanding of state sovereignty and its importance today. To this end, it presents intellectual roots of Lauterpacht’s legal thought that is both negative inspiration of his teaching (legal positivism) and the leading role in his work of Grotian and Victorian tradition embodying ideas of natural law, liberalism and progress, supported by Kelsen’s epistemology. Lauterpacht rejects legal positivism, which underlines a freedom of action of states, and, consequently, dependence of international law on state sovereignty. What he deems as relevant is the inverse dependence ‐ sovereignty stems from international law. The idea of sovereignty performs an important cognitive function by indicating the absence of legal interdependencies between states. Sovereignty is not an absolute, rigid category, but a bundle of rights conferred on states by international law. Such a nominalist approach to sovereignty is today noteworthy all the more because it counters mythology of state and its sovereignty. Yet, the more crucial aspect of Lauterpacht’s idea of sovereignty concerns the position of individuals. His view that human beings should be treated as ultimate subjects of law and that sovereignty means not only rights but also state responsibility is today strongly supported in academia and by some political initiatives.

Lawmaking by the International Court of Justice—Factors of Success

2011 ◽  
Vol 12 (5) ◽  
pp. 1295-1316 ◽  
Author(s):  
Niels Petersen
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Evolution And Development ◽  
Legal Provisions ◽  
Court Of Justice ◽  
International Court ◽  
Domestic Setting ◽  
Legal Concepts ◽  
Norm Evolution

The process of norm evolution and development in international law has been highly debated in recent international law and international relations scholarship. However, the debate focuses primarily on states or non-state actors as the agents responsible for shaping international law. In contrast, the role of the judiciary is often neglected in the debate. It is an open secret, though, that courts are not merely Montesquieu'sbouche de la loi, impartial arbiters, who apply and interpret exogenous norms. Armin von Bogdandy and Ingo Venzke have already pointed out that decisions for concrete cases can hardly be derived from abstract legal concepts by the mere exercise of logical deduction. Instead, the application of legal provisions often involves the development of the applied norm itself. This not only applies in the domestic setting, but is also valid in the international arena. This contribution will deal specifically with lawmaking by the International Court of Justice (ICJ).

scholarly journals Application of Bosnia v Serbia to the Individualist Charge of Ineffectiveness: A Defense of State Responsibility

2017 ◽  
Vol 8 (1) ◽  
pp. 45-54
Author(s):  
Felix Lambrecht
Keyword(s):  
International Law ◽  
International System ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

This paper aims to combat the individualist challenge to the notion of state responsibility in international law. That is, this paper attempts to counter the criticism of international law that suggests responsibility for wrongful acts should be attributed to individuals rather than states. While prior scholarship has focused on the individualist's fairness complaint, this paper focuses on the charge of ineffectiveness that would remove states as the primary duty-bearers in international law. By using the International Court of Justice case of Bosnia v Serbia (2007), this paper demonstrates that there are long-term important obligations in the international system that require states to remain primary duty-bearers in international law.

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