scholarly journals Constitutionalising the International Legal Order through Case Law? Judgment No 238/2014 from the Italian Constitutional Court

2016 ◽  
Vol 5 (1) ◽  
pp. 139-152
Author(s):  
Maria Elena Gennusa
Keyword(s):  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Legal Order

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

2013 ◽  
Vol 15 ◽  
pp. 587-617
Author(s):  
Veronika Fikfak
Keyword(s):  
European Union ◽  
Active Role ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision in Kadi and the forthcoming Kadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do in Kadi II is adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

La place de la coutume internationale en droit public français

2013 ◽  
Vol 12 (2) ◽  
pp. 267-271 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Case Law ◽  
Public Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Treaty ◽  
Public International Law ◽  
Customary International Law ◽  
The Status

Abstract Bernard Stirn’s presentation examines the status of international custom in French public law. He notes that international custom may be considered as covered by the reference in the preamble of the Constitution to the rules of public international law. He underlines the increased effects of international custom in the French domestic legal order as enshrined in the latest developments of the case-law of the Conseil d’Etat. He stresses that whilst French administrative judges may set aside a law in the event of a conflict with the provisions of an international treaty, they do not possess a similar power in the case of a conflict with a rule of customary international law. He concludes by citing cases in which the French constitutional court has made reference to international custom.

The Court of Justice of the European Union and the Armenian Legal Order

2020 ◽  
pp. 199-219
Author(s):  
Narine Ghazaryan
Keyword(s):  
European Union ◽  
National Court ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
Court Of Justice ◽  
The Republic ◽  
Partnership Agreement ◽  
The Eu

The chapter analyses the limited impact of Court of Justice of the European Union (CJEU) case law on the legal order of the Republic of Armenia. Despite Armenia’s geographic proximity to the EU, CJEU precedents feature in only two cases of the Constitutional Court of Armenia. In both cases, CJEU case law is seen merely as part of comparative international legal practice, informing the judgment of the national court, rather than affecting the ratio per se. The chapter analyses the main reasons behind the apparent lack of CJEU impact on Armenian judicial practice and the legal order more generally. These include, for example, low intensity in bilateral relations between the EU and Armenia and cognitive barriers. The chapter also addresses the main features of the Comprehensive and Enhanced Partnership Agreement and covers future possibilities for judicial interaction between the two legal orders.

scholarly journals Theoretical and Practical Aspects of the Position of Treaties Within the Legal System of Bosnia and Herzegovina / Teoretski i praktični aspekti položaja međunarodnih ugovora u pravnom sistemu Bosne i Hercegovine

2015 ◽  
Vol 5 (5) ◽  
pp. 163
Author(s):  
Душко Глодић
Keyword(s):  
Bosnia And Herzegovina ◽  
Legal System ◽  
Case Law ◽  
Central Place ◽  
Legal Order ◽  
Practical Significance ◽  
Court Case ◽  
Constitutional Court ◽  
Municipal Law ◽  
The Mind

One of the basic theoretical and practical issues of the Public International Law is the relation of international and municipal law, i.e. the issue of position and effects of international legal acts within a municipal legal order. This issue has been a subject of doctrinal considerations, ever since, and a number of different schools have emerged in that regard. Besides theoretical importance, this issue has obtained considerable practical significance. Within the question of relation of municipal and international legal orders, implementation and effects of treaties have occupied a central place. However, besides the theoretical approach to how this issues should be tackled, concrete normative solutions related to the position of international legal acts within municipal legal order, and the way that this is defined by internal legal acts, particularly national constitutions, require certain attention. The legal position of treaties can be obtained in more details, following analyses of legal practice and case law established in a country. Therefore, the aim of this paper is to examine both theoretical and practical aspects of the position of treaties within the legal system of Bosnia and Herzegovina, bearing in the mind normative approach established by the Constitution as well as the case law of the Constitutional Court of BiH. It is concluded that the Constitution of BiH adopts the monistic system, the ratified treaties can, under certain circumstances defined by the relevant legislation, be directly applicable and treaties, in accordance to the Constitutional Court case law, prevail over national legislation.

Kadi and the Role of the Court of Justice of the European Union in the International Legal Order

2013 ◽  
Vol 15 ◽  
pp. 587-617
Author(s):  
Veronika Fikfak
Keyword(s):  
European Union ◽  
Active Role ◽  
Legal Order ◽  
Constitutional Court ◽  
The European Union ◽  
National Courts ◽  
Court Of Justice ◽  
Domestic Courts ◽  
International Legal Order

AbstractThis chapter investigates the role of the Court of Justice of the European Union (CJEU) in the international legal order in light of its decision inKadiand the forthcomingKadi II. It focuses on establishing how the Court perceives its relationship with the UN Security Council and its position in the international legal order. The CJEU’s approach is analysed by identifying the characteristics of review adopted by it as a ‘constitutional court of a municipal legal order’. In this context, the chapter reveals how the CJEU’s review resembles that employed by domestic courts seeking to give force to the same or similar actions of international institutions and shows which motives may have led the CJEU to follow the practice of national courts in constructing its relationship with the international organs. This practice is contrasted with Advocate General Bot’s desire to depart from the image of an all-powerful but isolated CJEU, a court ignorant of other legal orders. Bot insists that what the CJEU ought to do inKadi IIis adopt both a more modest, deferential role in reviewing international sanctions and a rather more active role as a participant in the international legal order.

Constitutional Judicial Review and International Obligations of Criminalization

2021 ◽  
pp. 1-19
Author(s):  
Beatrice I. Bonafè
Keyword(s):  
Criminal Law ◽  
Judicial Review ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Obligations ◽  
Constitutional Constraints ◽  
Constitutional Judicial Review ◽  
Law Making

Abstract The main purpose of this article is to investigate the role that international obligations of criminalization do play and could play in the judicial review carried out by the Italian Constitutional Court. It is divided into three main parts. The Court’s case law is examined first, a general and theoretical appraisal of the Court’s approach follows, and further implications of that approach are taken into account at the end. The author maintains that the Court is quite deferential to international obligations and, despite the significant constitutional constraints surrounding criminal law-making, it seems prepared to let criminalization obligations have various legal effects in the Italian national legal order.

The Constitutional Court of The Republic of Latvia

2020 ◽  
pp. 505-564
Author(s):  
Ineta Ziemele ◽  
Alla Spale ◽  
Laila Jurcēna
Keyword(s):  
Rule Of Law ◽  
Legal Discourse ◽  
Case Law ◽  
Legal Order ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
Constitutional Review ◽  
European Model ◽  
Constitutional Justice ◽  
The Republic

This chapter examines constitutional review in Latvia. When the Latvian Constitution—the Satversme—was adopted in 1922, the European model of constitutional courts existed, but the idea of establishing a constitutional court in Latvia was not discussed. The chapter traces the development of Latvian constitutional justice following the establishment of the Satversme, before providing a brief overview of both the institution of constitutional review as well as the constitutional court in Latvia. The Latvian Constitutional Court has played an important role in developing the legal order in accordance with the principles of rule of law and democracy and in educating the society in these values. Lastly, the chapter discusses the case law of the Constitutional Court as part of a wider European legal discourse.

scholarly journals INTERNATIONAL LAW AND REVOLUTION IN THE 21ST CENTURY

2019 ◽  
Vol 4 (2) ◽  
Author(s):  
Emmanuel Obikwu
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Case Law ◽  
Legal Order ◽  
Strict Sense ◽  
The Rule Of Law ◽  
National Courts ◽  
Relevant Today ◽  
International Legal Order ◽  
Coups D'etat

This article argues on the continued significance of Kelsen’s theory of the grundnorm and revolution in international law. It urges that revolutions and coups d’etat will continue to occur in the international legal order. That criticisms of Kelsen’s thought on this issue notwithstanding, Kelsen’s arguments on successful revolutions and the shift in the grundnorm is still as relevant today as it was when first propounded. A case of study of Nigeria is used, however this is carried out against a backdrop of developments internationally. Military take-over of governments have occurred internationally and though not adhering to the rule of law and human rights  in the strict sense, national courts and the international legal order must continue to take account of them.  Nigeria under military from 1966 to 1999 underwent several coups. Based on this developments across the globe, the received wisdom of Kelsen is aptly defended in this article through an examination of case law and jurisprudence.  

The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law

1999 ◽  
Vol 48 (1) ◽  
pp. 3-19 ◽  
Author(s):  
Mariano J. Aznar-Gomez
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Case Law ◽  
Legal Order ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Public International Law ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

Following extensive debate by the great theoreticians of public international law earlier in this century,1 it might seem that the completeness of the international legal order is now a banal issue, which should be remembered only as an academic dispute.2It might have been so had the International Court of Justice not intervened, perhaps unintentionally, in its advisory opinion of 8 July 1996 concerning the Legality of the Threat or Use of Nuclear Weapons3 In her dissenting opinion, Judge Rosalyn Higgins argues that “the Court effectively pronounces a non liquet on the key issue on the grounds of uncertainty in the present state of law, and of facts”.4 In her view, the Court thus interrupted a line of case law which, in theory, had endorsed the idea of the completeness of international law and which, in practice, made it unthinkable that an international judge or arbitrator should actually pronounce a non liquet.5

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