scholarly journals Nature of Customary international law: All we need is practice

Pravni zapisi ◽  
2021 ◽  
Vol 12 (2) ◽  
pp. 550-576
Author(s):  
Miloš Hrnjaz
Keyword(s):  
International Law ◽  
The Other ◽  
Additive Theory ◽  
Customary International Law ◽  
Other Hand ◽  
Normative Practice

The main objective of this paper is to critically assess the dominant additive theory of the formation of Customary International Law by using the concept of discursive normative practice and the work of Gerald Postema. My central conclusion is that the use of this concept provides an explanation of the process of formation of Customary International Law that is superior to the additive theory which consists of two elements - practice and opinio juris. On the other hand, Postema's theory also has its own weaknesses, and this paper explores ways to improve it.

A reply

1984 ◽  
Vol 10 (2) ◽  
pp. 183-187
Author(s):  
A. V. Lowe
Keyword(s):  
International Law ◽  
Recent Article ◽  
Good Reason ◽  
The Other ◽  
General Applicability ◽  
Closed Set ◽  
Customary International Law ◽  
Other Hand ◽  
Central Argument

Hidemi Suganami's thoughtful criticisms of my recent article in the Review1 throw valuable light on some of the key elements of the argument which I tried to outline there. None the less, those criticisms do not seem to undermine my central argument, which is that there is a difference between the conception of customary international law as a set of laws which in principle bind all states and the conception of customary international law as a set of obligations which in principle bind only those states which have consented to be bound by them. By ‘law’ here, I mean a rule which purports to apply to all entities which fall within the open-ended set (i.e., ‘states’) which constitutes its sphere of application rationae personae. An ‘obligation’, on the other hand, claims no such general applicability, but—in the case of consensual obligations, with which we are here concerned—is only binding upon the closed set of states which have consented to be bound by it. There is, in my view, no good reason why the orthodox conception of customary international law as a set of laws should be preferred to the conception of customary international law as a set of obligations.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

scholarly journals Representation of an Unrecognized State under International Law – Example of the Republic of Artsakh

2020 ◽  
Vol 8 (1) ◽  
pp. 45-63
Author(s):  
Stefania Kolarz
Keyword(s):  
International Law ◽  
International Community ◽  
The Other ◽  
Legal Representative ◽  
The Core ◽  
Other Hand ◽  
The Republic

Since the late 80s, the Armenian inhabitants of Nagorno-Karabakh, a region situated within the internationally recognised borders of the Republic of Azerbaijan, have been struggling for creating their own state – the Republic of Artsakh. The fact that this self-proclaimed entity was not recognised by any of the international actors has not prevented it from constantly committing to intervene on the international plane, separately from Yerevan and Baku. For instance, it is the co-signatory of the Bishkek Protocol. On the other hand, it was refused participation in the core undertaking of the international community designed to settle the dispute – the OSCE Minsk process. The aforementioned situation raises the question as to who shall act as a legal representative of this quasi-state on the international plane? Azerbaijan, as the official centre of authority within the region, Armenia, or rather the separatist government of Nagorno-Karabakh?

scholarly journals Reviewing the National Courts in Creating Orderly International Law and Community

2017 ◽  
Vol 3 (2) ◽  
pp. 148
Author(s):  
Johanis Leatemia
Keyword(s):  
International Law ◽  
National Court ◽  
National Interest ◽  
The Other ◽  
Peaceful Coexistence ◽  
National Sovereignty ◽  
Customary International Law ◽  
National Courts ◽  
The One

Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.

International Law Obligations Arising in relation to Nationally Determined Contributions

2018 ◽  
Vol 7 (2) ◽  
pp. 251-275 ◽  
Author(s):  
Benoit Mayer
Keyword(s):  
Climate Change ◽  
International Law ◽  
Paris Agreement ◽  
The Other ◽  
Other Hand ◽  
Legal Obligations ◽  
Nationally Determined Contributions ◽  
The One

AbstractThis article analyzes the international law obligations that arise in relation to nationally determined contributions (NDCs). It argues that distinct and concurrent obligations arise from two separate sources. On the one hand, treaty obligations arise under the Paris Agreement, which imposes an obligation of conduct on parties: they must take adequate measures towards the realization of the mitigation targets contained in their NDCs. On the other hand, communications such as NDCs may constitute unilateral declarations that also create legal obligations. These unilateral declarations impose obligations of various types, which may extend beyond mitigation. For example, they may specify measures of implementation or demand the achievement of a particular result. The potential ‘double-bindingness’ of NDCs should be a central consideration in the interpretation of international law obligations regarding climate change.

Part 1 Refugees, 2 Refugees Defined and Described

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma
Keyword(s):  
International Law ◽  
International Community ◽  
The Other ◽  
Refugee Status ◽  
Other Hand ◽  
Local Protection ◽  
Ordinary Usage ◽  
The One ◽  
Prompt Response

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

14 Treaty Entry into Force, Exceptions, Modifications, and Terminations

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
Internal Pressure ◽  
International Law ◽  
The Other ◽  
Foreign Investors ◽  
Labour Unions ◽  
Pressure Groups ◽  
Civic Organizations ◽  
Other Hand ◽  
Investment Treaties

This chapter discusses the entry into force, exceptions, modifications, and terminations of investment treaties. While enunciating rules of international law governing foreign investors and investments, investment treaties at the same time incorporate various devices to regulate and limit the applicability of those rules and thereby allow contracting states to mediate tensions between demands of treaty partners and of internal pressure groups, such as labour unions, local manufacturers and merchants, and civic organizations. Such devices include treaty provisions on four matters: the entry into force of the treaty; treaty exceptions; treaty modifications; and treaty terminations. States employ the first two as part of the treaty negotiating process. On the other hand, states usually employ the latter two devices as a result of their unsatisfactory experience with a treaty that has entered into force.

The Part of International Law in the Further Limitation of Naval Armament

1926 ◽  
Vol 20 (2) ◽  
pp. 237-256
Author(s):  
Charles Cheney Hyde
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
The Other ◽  
Judicial Process ◽  
International Differences ◽  
Other Hand ◽  
Naval Fleets

Naval fleets are maintained by development and replacement because their possessors dare not fail to make provision for a maritime war in which they may be participants. No means yet devised and accepted for the amicable adjustment of international differences have removed from responsible statesmen a sense of the necessity of anticipating such a contingency. Despite increasing efforts in every quarter to cultivate wills for peace and abhorrence of armed conflict, as well as a desire to adjust grave differences by judicial process or through commissions of conciliation, war is still regarded as a contingency which must be reckoned with, and as one which is as dangerous as it is seemingly remote. In making provision as against a contingency which none would welcome or hasten, the governments of maritime states do not necessarily encourage war or indicate approval of recourse to it. A particular conference of maritime states may in fact uplift the hopes of prospective belligerents which resent and oppose agreements restricting recourse to measures and instrumentalities on which they expect to rely. On the other hand, general arrangements respecting belligerent activities may serve to lessen a zeal for war and to remove its very approach further from the horizon. Everything depends upon the ambitions of the states which consent to confer. The point to be observed is that agreements for the regulation of maritime war in so far as they purport to proscribe or check the use of particular instrumentalities or recourse to particular measures, are not to be deemed bellicose in design or effect. Such regulatory agreements are advocates of peace rather than of war. Moreover, as will be seen, they may be the means of encouraging states to reduce armaments which would otherwise be maintained.

8 Conclusion

2011 ◽  
Author(s):  
Sabahi Borzu
Keyword(s):  
International Law ◽  
Status Quo ◽  
The Other ◽  
State Responsibility ◽  
Private Law ◽  
Public International Law ◽  
Other Hand ◽  
The Status ◽  
Dual Origin

This chapter discusses ten important findings included in this book. One finding is the dual origin of the modern rules on State responsibility and reparation in both private law notions and public international law, resulting in the objective of reparation of putting the aggrieved party in the ‘hypothetical position’, that would have existed if the unlawful act had not occurred. This objective is mirrored in the modern Chorz ów Factory formula. Restitution, which seeks to re-establish the status quo ante, may need to be accompanied by additional compensation to fully reach the hypothetical position. The amount of compensation, on the other hand, based on the recent jurisprudence, may vary depending on whether the acts complained of were lawful or unlawful. Other important points arising from this study concerning the principles of reparation and compensation are also highlighted in the chapter.

The Codification of International Law

1924 ◽  
Vol 18 (2) ◽  
pp. 260-280
Author(s):  
James Brown Scott
Keyword(s):  
International Law ◽  
The Body ◽  
The Other ◽  
Strict Sense ◽  
Other Hand ◽  
Law Of Nations ◽  
The Law ◽  
Principles Of Justice ◽  
Correct Understanding

There are certain preliminary observations which should be made before we can take up the question of codifying international law or the method of codification, for without a correct understanding of certain matters, which may be considered fundamental, we may not know whether we are to deal with a system of law or a system of philosophy. As a matter of fact we are dealing with both, for law develops unconsciously or consciously in accordance with the principles of philosophy. If the law of nations is to be considered law in the strict sense of the word, we must deal with it as a system of law. If, on the other hand, it is a system of philosophy rather than of law, we must deal with it as philosophy, and the point of approach and the method of treatment will be different. But, above and beyond law, we are dealing with justice, and with those principles of justice, which, expressed in rules of law, we call the law of nations. Justice is the source; the principles of justice applicable to the conduct of nations constitute the law of nations, and the rules of law based upon these principles change with conditions, or to meet new conditions, and form the body and substance of international law at any given period.

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