The progressive development of the international law of transitional justice: the role of the Inter-American system

2021 ◽  
Author(s):  
Pierre-Marie Dupuy ◽  

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.


Author(s):  
Golitsyn Vladimir

This chapter focuses on the role of the International Tribunal for the Law of the Sea (ITLOS) in global ocean governance. Established under the United Nations Convention on the Law of the Sea (UNCLOS), the jurisdiction of the ITLOS comprises all disputes and all applications concerning interpretation or application of the Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. In the performance of its responsibilities, ITLOS has accumulated a body of jurisprudence which constitutes its contribution to the progressive development of international law of the sea and thus global ocean governance. The chapter discusses the most important examples of the ITLOS's contribution to the global ocean governance, such as dealing with contentious cases, requests for provisional measures, and prompt release cases as well as providing advisory opinions.


2011 ◽  
Vol 12 (5) ◽  
pp. 1005-1032 ◽  
Author(s):  
Marc Jacob

This paper deals with the role of judicial decisions in international adjudication. It is impossible to fail to notice the abundance of prior cases invoked in decisions of international tribunals and that, in order to find out what the law actually is, reference to previous cases is all but inevitable in practice. In some areas of international law, judicial or arbitral decisions have even been said to be the centre of progressive development. Nevertheless, there is an undeniable and deeply-rooted professional trepidation in many parts of the world regarding this enduring phenomenon. Even absent a fully articulated theory of adjudication or legal reasoning, the very idea of “judicial lawmaking” tends to arouse instinctive suspicion, especially when coupled with a denial of any restraining force of prior cases. Be that as it may, observations to the extent that judicial decisions are not veritable sources of international law or only binding between the parties in a particular dispute are only the beginning, and far from the end, of the present inquiry. Several interrelated and intricate questions need to be disentangled and dealt with in order to get a better grasp on what is commonly, and often rather unhelpfully, lumped together loosely under the vague label of “judicial precedent.” The paper is hence partly descriptive and partly revisionary. I do not however intend to rehash general criticisms or defences of precedent. Instead, I aim to present precedent as a general and omnipresent jurisprudential concept that enables and constrains judicial decision-making even in seemingly ordinary cases and to then showcase the specificities of one particular legal system in this respect, namely public international law. Hopefully this provides some of the methodological groundwork for other questions central to the present project, not least concerning the legitimacy of judicial lawmaking.


1972 ◽  
Vol 66 (3) ◽  
pp. 479-490 ◽  
Author(s):  
Leo Gross

The stagnation in the functioning of the International Court of Justice is only one of several indicators of the neglect by Members of the United Nations of the development and modernization of adjective law. There has been gratifying progress in the codification and progressive development of substantive law through the International Law Commission and other bodies, but substantive law without an adequate adjective law is bound to lack in effectiveness and uniform and predictable application.


2017 ◽  
Vol 6 (2) ◽  
pp. 143-175 ◽  
Author(s):  
Jeremy Julian Sarkin

This article explores how conditional amnesties can assist post-conflict societies to recover truth. It examines how such amnesties can be used optimally to achieve the best results as part of transitional justice mechanisms. Thus, a central question is to see how amnesties can be used for truth recovery purposes. For that reason, the status and role of amnesties, and whether such amnesties can be used to learn more about the past and assist in truth recovery is explored. The article explores what amnesties are, how prevalent they are and how amnesties can be used optimally to achieve the best results. An issue that is also explored is whether amnesties are needed for perpetrators to participate in transitional justice mechanisms. The argument that is made, in this regard, is that amnesty is absolutely necessary to persuade perpetrators to testify. If they do not have such legal protection, perpetrators fear the legal consequences that may result if they admit to crimes for which they have not been charged. Another question that is examined concerns whether amnesties, and specifically conditional amnesties, pass international law muster. This article therefore investigates the continual and extensive use of amnesty to determine whether a conditional amnesty violates international law. The article suggests how a conditional amnesty process could be structured and what difficulties such a process should avoid if perpetrators are to enter such a process.


Author(s):  
Pedro Keil

The creation of the International Law Commission arouses from the necessity imposed by the text of the UN Charter. According to article 13 paragraph 1 (a) of the Charter of the United Nations, the General Assembly is responsible for the promotion of the progressive development of international law and codification of such. In this regard, the Resolution 174 (II) of 21 November 1947 came with this purpose. So, the Commission’s nature is of an institutional and permanent subsidiary organ to the General Assembly of the UN, serving the purpose of perfecting the sources of law in the international ambit.


2020 ◽  
pp. 147-157
Author(s):  
Serhii Zubchenko

The relevance of the article determines by urgent problems of the global diplomatic agenda, in particular, concerning the international legal response to the Russian military aggression against Ukraine and acts of state terrorism all around the world carried out by Russia within its doctrine of hybrid war. After the end of Yugoslav wars and up until 2014, the threat of full-scale military conflict in European continent was mistakenly evaluated as low, while the other threats (in particular, associated with globalization) considered to be more dangerous. However, the permission to use armed force in Ukraine, unanimously given to V. Putin by the Federation council of Russia on March 1, 2014 and the following events in Ukrainian Crimea and Donbas regions crushed the global order established after the fall of USSR and opened a horrifying terroristic «Pandora’s box» in the very heart of Europe. As a result of the study, political and legal proposals and recommendations were determined. Considerations regarding the role of trust as a vital element of interstate relations, the lack of which provokes conflicts, leads to the encapsulation of states, making it impossible for them to achieve sustain and progressive development and to solve important common problems, are substantiated. As a conclusion in this context, the necessity to ensure strict adherence of the principles of international law as the «rules of the game» of the geopolitical club and the «red lines», violating of which activates uncontrolled global scale processes, is highlighted. It is also necessary to ensure prompt response to apparent violations of international law that threaten international peace and global security. In addition, the urgent need to preserve international sanctions against the aggressor country — Russian Federation — and entities, individuals and groups, affiliated with the Putin’s regime, is insisted.


2021 ◽  
Author(s):  
Donald K. Anton

International custom “as evidence of a general practice accepted as law”, is considered one of the two main sources of international law as it primarily derives from the conduct of sovereign States, but is also closely connected with the role of the international judge when identifying the applicable customary rule, a function it shares with the bodies in charge of its codification (and progressive development), starting with the International Law Commission. Though mainly considered to be general international law, international custom has a complex relationship with many specific fields of law and specific regions of the world. The editor provides comprehensive research published in the last seven decades, invaluable to everyone interested in the field of customary international law.


2018 ◽  
pp. 656-665
Author(s):  
Serhii Zubchenko

The article analyses the place of political and legal values (in particular, the principles of international law) in the modern system of international relations. It is stated that Russia artificially creates hotbeds of instability and terrorism around the world to put pressure on certain states. Russia’s unlawful actions have also created a notable international precedent which goes beyond regional or continental security concerns. The author defines three main points: which state became the victim of aggression, who was the aggressor and how other states acted. Some current topical problems on the global diplomatic agenda, notably, concerning the international legal response to the Russian military aggression against Ukraine and acts of state terror-ism all around the world, carried out by Russia within the framework of the hybrid war, are highlighted. Considerations regarding the importance of trust as a vital element of interstate relations, the lack of which provokes conflicts, leads to the encapsulation of states, making it impossible for them to achieve sustainable and progressive development and to solve urgent common issues, are studied. It is noted that by the fourth year of the Russian-Ukrainian War some Western diplomatic circles have started to gradually analyze the Russian question, in particular, regarding the revision of the methodology for responding to Russian actions. The author stresses out that the issue of annexation of Crimea and Russia’s armed aggression against Ukraine cannot be removed from the international agenda until the territorial integrity of Ukraine and the just punishment of the aggressor are restored. To prevent the escalation of current negative geopolitical tendencies to the level of uncontrolled, it is necessary to follow a number of fundamental points, in particular the inviolability of the principles of international law, prompt response to obvious violations of this law, the inevitability of legal liability of violators of international law. In this context, the author asserts the necessity to ensure absolute adherence to the principles of international law as “rules of the game” of the geopolitical club and “red lines”, going beyond which generates uncontrolled processes of global scale, as well as the need to maintain international sanctions against the aggressor country – the Russian Federation – and entities, individuals and groups, affiliated with the Putin regime. Keywords: Russian military aggression against Ukraine, international law, political and legal values, principles of international law, diplomacy, foreign policy, national security, geopolitics, hybrid war.


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