The conflict between values and hegemony in the current international legal order: humanitarian intervention as an example

2008 ◽  
Vol 1 (4) ◽  
pp. 573-588
Author(s):  
Mohammad Khalil al-Mousa
Keyword(s):  
International Law ◽  
International Organizations ◽  
Humanitarian Intervention ◽  
Legal Order ◽  
The Political ◽  
Legal Basis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Legal Order

In a study which proceeds along the lines of both philosophy and international law and established precedents of various international organizations and conventions, the author deals with the thorny issue of ‘human rights intervention’ and demonstrates that what may be a simple or self-reflexive concept in the abstract is, from the standpoint of actual historical implementation, problematic and extremely political. The article deals with cases from the Congo to Kosovo and examines these in light of the UN Charter as well as the International Court of Justice in order to demonstrate asymmetry and the ambiguities and contradictions as well as the political expedience inherent in both interpretation of law and in the actual cases of ‘humanitarian intervention’. The legal basis and efficacy of unilateral ‘humanitarian intervention’ are challenged in depth.

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

Sources of International Organizations’ Law

2018 ◽  
Author(s):  
Jan Klabbers
Keyword(s):  
International Law ◽  
International Organizations ◽  
Administrative Law ◽  
Legal Obligation ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Law

This chapter reflects on the uncertainties regarding the question of why international organizations would be bound by international law. It places these uncertainties in the broader framework of a vague and ill-defined ‘turn to accountability’. As the chapter shows, international organizations are often held to account for wrongdoing without it being clear whether they have also violated an international legal obligation resting upon them. The chapter then discusses in some detail the 1980 WHO–Egypt advisory opinion of the International Court of Justice (ICJ) regarding whether the WHO could close their Alexandria office and move it to Jordan. Afterwards, the chapter reviews several recent attempts to overcome the ‘basis of obligation’ problem in the law of international organizations, such as the putative constitutionalization of international law or international organizations, the adoption of accountability models, and the emergence of Global Administrative Law.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

The International Legal Effects of Unilateral Declarations

1977 ◽  
Vol 71 (1) ◽  
pp. 1-30 ◽  
Author(s):  
Alfred P. Rubin
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
Binding Force ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
International Legal Order ◽  
The Icj ◽  
Nuclear Tests ◽  
Future Policy

The International Court of Justice is the principal judicial organ of the United Nations and its judgments are usually considered highly persuasive as to propositions of international law. Thus, when the ICJ formulates a rule of international law giving binding force to a unilateral declaration of a state’s future intentions, statesmen may be expected to refer to that formulation for guidance whenever they consider the possibility of issuing a declaration of future policy. Moreover, the ability of the ICJ to support its formulation of a rule of international law in terms of the international legal order and legal logic affects the perceptions of statesmen as to the probity of the Court, as well as the willingness of states to refer real cases to it. The Judgment of the ICJ in the Nuclear Tests cases raised both these issues in a particularly pointed way.

scholarly journals The Use of PMSCs by the United Nations in Times of Armed Conflict, Application of IHL and Responsibility Matters

2017 ◽  
Author(s):  
Javier Gamarro González
Keyword(s):  
United Nations ◽  
International Law ◽  
International Organizations ◽  
International Humanitarian Law ◽  
Peace Operations ◽  
Humanitarian Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations

The companies dealing with military and security matters are on the rise, and today they provide services to a very wide client list, which includes states and international organizations (IOs). It is well known that these companies have been deployed in a large number of armed conflicts, and indeed, some of them have become prominent in the sector not only for their military results but also for their abuses of international humanitarian law and human rights. Surprisingly, it is lesser known that the United Nations (UN) has also had recourse to private military and security companies in the context of United Nations military operations with regard to the maintenance of international peace and security.The engagement of private military security companies in UN peace operations entails multiple legal questions. This dissertation is especially intended to shed some light over the extent to which PMSCs deployment in UN peace operations is compatible with international humanitarian law and how the law of institutional responsibility deals with the violations of international humanitarian law committed by such companies when providing services to the UN. For that purpose and to that extent due recourse has been made to the most relevant international law sources on the matter, such as the Geneva Conventions, their Additional Protocols, and other relevant instruments such as the ILC Articles on State and IO responsibility, and the Montreux Document. Jus cogens and international custom, including the practice of international organizations and states, and opinion juris as ascertained by legal scholars and the International Court of Justice, play an essential role in this dissertation, since the United Nations has not become yet a party to any IHL treaty, thus employing an inductive methodology. A comparative approach was adopted in regard to the observations of the most eminent institutions and jurists, and domestic and international courts, including the International Court of Justice and the European Court of Human Rights for the purpose of ascertaining the different rules of attribution of conduct existing in international law. Besides, certain decisions of the latter Court were analysed in order to clarify by analogy whether the application of international humanitarian law and the imputation of acts can function under the same degree of control test.

Sources and the Legality and Validity of International Law

2018 ◽  
Author(s):  
Pierre d’Argent
Keyword(s):  
International Law ◽  
Legal Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Legal Identification ◽  
Domestic Law ◽  
What Matters

This chapter argues that, from the perspective of a theory about the sources of international law, what matters is not so much to determine whether international law is really law, but, rather, what makes law ‘international’. It first recalls the structural reasons inherent to international law that explain the specificity and the crucial character of the issue of sources—understood as a process of legal identification—in that legal order, as opposed to sources in domestic law. The chapter then contextualizes Article 38 of the International Court of Justice (ICJ) Statute by recalling its specific purpose; that is, determining and delimiting international legality. Finally, the chapter questions whether and to what extent a theory of sources really achieves its objective of determining what unequivocally counts as international law. The chapter thus brings to light the awkward fact that international legality is not necessarily normatively exclusive.

Institutions of International Law: How International Law Secures Orderliness in International Affairs

2019 ◽  
Vol 22 (1) ◽  
pp. 187-217
Author(s):  
Volker Roeben
Keyword(s):  
International Law ◽  
International Organizations ◽  
The European Union ◽  
International Affairs ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Rules And Principles ◽  
Normative Order ◽  
Rule Making

This article is a plea for adopting a reinvigorated, analytic perspective on contemporary international law, building on MacCormick’s powerful insights into law’s essential structure. The article proposes that international law as whole forms an institutional normative order. The idea of institutional normative order has certain conditions. These link a normative conception of international law with the means of achieving it. The article makes three arguments on these conditions. It first argues that the function of international law is to create order in the sense of orderliness for its principal users, States and international organizations. It then claims that international law establishes normative order through international rules that are binding from the viewpoint of States and international organizations. An international process of rule-making embedded in State practice turns norms into such rules. The process is being held as a bindingness-creating mechanism because it formalizes rules through recognized means and organizes collective consent to authorize them. States and international organizations then apply these rules by exercising international legal powers under a defeasible presumption of legality. Third, the article argues that this normative order becomes institutionalized. The institutions of international law are grounded in ideas about agencies, arrangements, and master-norms that integrate the mass of international rules and principles. The article exemplifies these arguments for UN-driven international law with the relating recent jurisprudence of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and Annex vii tribunals, and the Court of Justice of the European Union. The upshot of this idea of international law as institutional normative order is unity, or indeed a system. No part of international law can be seen outside of this context and hence the burden of argumentation is on those wishing to make the case for divergence.

Determination and Scope of Immunity of International Organizations

2018 ◽  
Author(s):  
Edward Chukwuemeke Okeke
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organizations ◽  
International Organization ◽  
International Court Of Justice ◽  
Legal Instrument ◽  
Court Of Justice ◽  
International Court

This chapter deals with the most contentious aspects of the immunity of international organizations: its determination and scope. It is well-settled, under international law, that international organizations require those immunities that are necessary for them to fulfill their functions, but the determination could be contentious, as was evident in the Cumaraswamy case that was decided by the International Court of Justice. The actual scope of the jurisdictional immunity of an international organization depends upon the interpretation of the applicable legal instrument. The chapter deals with the beneficiaries of the immunity of international organizations, as well as with what are the functions of international organizations, and official activities or acts of their officials. It also examines what may constitute waiver of or exception to immunity, and distinguishes them. The chapter further examines whether human rights concepts of access to court and denial of justice place any limitation on the jurisdictional immunity of international organizations. A denial of justice is inherent in a grant of immunity.

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