Who Is the System? On Commitment, Biology, and Human Beings in the Politics of “Groundwork for International Law”

2014 ◽  
Vol 108 (4) ◽  
pp. 689-701 ◽  
Author(s):  
Mónica García-Salmones Rovira

Professor Anthony D’Amato’s “Groundwork for International Law” (Groundwork) is an extremely pedagogical project. Despite its apparent simplicity, each rereading reveals a new layer of complexity, reflecting the depth of his lifelong engagement in the scholarship of international law. Moreover, from a certain perspective, his reexamination of the foundations of international law expresses a radicalism that reaches beyond the analysis of legal forms to provoke reflection on the nature and purpose of the international legal system.

2016 ◽  
Vol 23 (1) ◽  
pp. 381 ◽  
Author(s):  
Jordi Jaria i Manzano ◽  
Antonio Cardesa-Salzmann ◽  
Antoni Pigrau ◽  
Susana Borràs

This paper takes ecological debt as a measure of environmental injustice, and appraises this idea as a driving force for change in the international legal system. Environmental justice is understood here as a fair distribution of charges and benefits derived from using natural resources, in order to provide minimal welfare standards to all human beings, including future generations. Ecological debt measures this injustice, as an unfair and illegitimate distribution of benefits and burdens within the social metabolism, including ecologically unequal exchange, as a disproportionate appropriation and impairment of common goods, such as the atmosphere. Structural features of the international system promote a lack of transparency, control and accountability of power, through a pro-growth and pro-freedom language. In theory, this discourse comes with the promise of compensation for ordinary people, but in fact it benefits only a few. Ecological debt, as a symptom of the pervasive injustice of the current balance of power, demands an equivalent response, unravelling and deconstructing real power behind the imagery of equally sovereign states. It claims a counterhegemonic agenda aiming at rebuilding international law from a pluralist, 'third world' or Southern perspective and improving the balance of power. Ecological debt should not only serve as a means of compensation, but as a conceptual definition of an unfair system of human relations, which needs change. It may also help to define the burdens to be assumed as costs for the change required in international relations, i.e. by promoting the constitutionalization of international law and providing appropriate protection to human beings under the paradigms of sustainability (not sustainable development) and equity.Key Words: environmental justice, ecological debt, international legal system


2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.


2021 ◽  

The “international rule of law” is an elusive concept. Under this heading, mainly two variations are being discussed: The international rule of law “proper” and an “internationalized” or even “globalized” rule of law. The first usage relates to the rule of law as applied to the international legal system, that is the application of the rule of law to those legal relations and contexts that are governed by international law. In this context, the term international rule of law is often mentioned as a catchphrase which merely embellishes a discussion of international law tout court. The international rule of law is here mainly or exclusively used as shorthand for compliance with international law, a synonym for a “rule based international order,” or a signifier for the question whether international law is “real” law. This extremely loose usage of the term testifies its normative and symbolic appeal although it does not convey any additional analytic value. The second usage of the rule of law in international contexts covers all other aspects of the rule of law in a globalizing world, notably rule of law promotion in its widest sense. The increasing interaction between national and international law and between the diverse domestic legal orders (through law diffusion and reception, often again mediated by international law) is a manifestation of the second form of the rule of law. The structure of this bibliography roughly follows this bifurcation of the Rule of Law Applied to the International Legal System and the Rule of Law in a Globalizing World. Next to these two main parts, three further, separate sections discuss questions that arise at the intersection of the two variants or are of crosscutting importance to the rule of law as a whole. This includes sections on the Rule of Law as a UN Project: A Selection of UN Documents on the Rule of Law, the Interaction between the International and Domestic Rule(s) of Law, and the (International) Rule of Law: A Tool of Hegemony?.


Author(s):  
Martin Dixon ◽  
Robert McCorquodale ◽  
Sarah Williams

International law is a description of an entire legal system: the international legal system. It is an international legal system by which legal rules are created in order to structure and organise societies and relationships. It acknowledges the influence of political, economic, social and cultural processes upon the development of legal rules. This chapter discusses the relevance of international law; the international community and international law; theories of international law; and the practice of international law.


Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Also significant is the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.


2019 ◽  
pp. 1-20
Author(s):  
Anders Henriksen

This chapter introduces the subject of public international law and provides an overview of its most important elements. It begins with a brief historical overview of international law. It then presents the international legal system consisting of different structures of legal rules and principles; discusses the basis of international legal obligation; offers a brief overview of the relationship between international law and national law; and deals with the issue of enforcement. The chapter concludes with some remarks about the alleged inadequacies of international law and the tension between notions of justice and order that is so prevalent within the international legal system.


Author(s):  
Robert McCorquodale

This chapter examines the role of the individual in the international legal system. It considers the direct rights and responsibilities of individuals under the international legal system; their capacity to bring international claims; and their ability to participate in the creation, development, and enforcement of international law. Particular examples from a wide range of areas of international law, including international human rights law, international criminal law, and international economic law, are used to illustrate the conceptual and practical participation of individuals in the international legal system. It is argued that individuals are participants in that system, and are not solely objects that are subject to States’ consent, though their degree of participation varies depending on the changing nature of the international legal system.


Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis

This chapter briefly discusses the nature of the international legal system. The premise is that the structure of the international legal system is fundamentally different from that of national legal order: contrary to the vertical structure encountered in domestic settings, in international law the structure is horizontal. States enjoy sovereign equality, while both international law-making and international adjudication are based on the consent of the States. There are various theories that have attempted to describe the nature of the international law, including naturalism, positivism, formalism, and realism. Significant is also the existence of a certain hierarchy in the international legal system, in the sense that there are some peremptory norms of international law, such as the prohibition of torture and genocide, to which there is no derogation.


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