11. Normative Interactions: Implementation and Hierarchy of Norms

2020 ◽  
pp. 218-242
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Legal Rules ◽  
International Legal Order ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
National Systems ◽  
Domestic Level

This chapter deals with some fundamental realities of international law as a body of legal rules which traditionally requires implementation at domestic level through transposal. In so doing it discusses the traditional theoretical distinction between monism and dualism, as abstract approaches to the relationship between domestic and international legal order. It then tackles the issue of the effects (including direct effects) that international law may have in concrete situations within national systems, as a consequence of, or, in some instances even irrespective of, transposal through national legislation. Thirdly, the chapter discusses the ‘verticalization’ of the international legal order with the affirmation in the second half of the twentieth century of the notion of jus cogens (or peremptory norms) and the effects this has (or might have) within international law and in its relationships with municipal laws.

4. International law and municipal law

2019 ◽  
pp. 78-102
Author(s):  
Gleider Hernández
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
Common Source ◽  
National Regulation ◽  
Legal Rules ◽  
International Legal Order ◽  
Municipal Law ◽  
State Relations ◽  
The Relationship

This chapter assesses the relationship between international law and municipal law. Though international law deals primarily with inter-State relations, and municipal law addresses relationships between individuals or between individuals and the State, there are many overlapping issues on which both international and national regulation are necessary, such as the environment, trade, and human rights. Though the international legal order asserts its primacy over municipal legislation, it leaves to domestic constitutions the question of how international legal rules should be applied or enforced in municipal orders. Two conflicting doctrines define the relationship between international and municipal legal orders: dualism and monism. Dualism is usually understood as emphasizing the autonomy and distinct nature of municipal legal orders, in which the State is sovereign and supreme. Meanwhile, theories of monism conceive the relationship between international and municipal legal orders as more coherent and in fact unified, their validity deriving from one common source.

Jus Cogens: A Complex Case of Constitutional Reasoning in International Law

2020 ◽  
Vol 6 (3) ◽  
pp. 249-262
Author(s):  
Miodrag Jovanović
Keyword(s):  
International Law ◽  
Legal Order ◽  
Complex Case ◽  
Vienna Convention ◽  
International Governance ◽  
Teleological Argument ◽  
International Legal Order ◽  
State Actor ◽  
Jus Cogens ◽  
Peremptory Norms

Article 53 of the Vienna Convention on the Law of Treaties famously introduced a special class of international legal rules - jus cogens norms - without specifying its content. The paper proceeds by adopting the heuristic framework of constitutionalization of international law, arguing that jus cogens norms contribute to at least two constitutionalist functions - that of limiting the international governance and hierarchizing international legal order. Hence, it is possible to argue that jus cogens reasoning is a specific type of constitutional reasoning. Despite stipulated formal qualities of jus cogens norms, in trying to establish their content state actors are in the situation similar to constitutional adjudicators dealing with underdetermined legal content of a constitutional text. What directs the process of jus cogens reasoning is, thus, the particular nature of the subject-matter with which those norms deal. The last part of the paper provides the analytical reconstruction of the jus cogens constitutional reasoning, focusing on the process of ascertainment, which is to be taken by the community of states. It is argued that what ascertainment requires is, inter alia, resorting to a unique interpretative tool - reverse teleological argument - with the use of which the state actor can extract from the fundamental values of international legal order a class of peremptory norms of international law.

Part V Jus Cogens beyond the Vienna Convention, 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

2011 ◽  
Author(s):  
Zemanek Karl
Keyword(s):  
International Law ◽  
Recent Trend ◽  
Vienna Convention ◽  
Customary International Law ◽  
National Courts ◽  
International Legal Order ◽  
The Will ◽  
Ordre Public ◽  
Jus Cogens ◽  
Peremptory Norms

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

Nihil Novum Sub Sole Since the South West Africa Cases? On Ius Standi, the ICJ and Community Interests

2008 ◽  
Vol 10 (2) ◽  
pp. 171-197
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
International Law ◽  
International Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Republic Of The Congo ◽  
South West Africa ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
First Time ◽  
The Relationship

AbstractThe Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.

Carl Schmitt’s Critique of Kant

2012 ◽  
Vol 40 (6) ◽  
pp. 688-713 ◽  
Author(s):  
Seyla Benhabib
Keyword(s):  
World War I ◽  
International Law ◽  
International Norms ◽  
Legal Order ◽  
World War ◽  
Top Down ◽  
The Earth ◽  
International Legal Order ◽  
The Relationship

Carl Schmitt’s critique of liberalism has gained increasing influence in the last few decades. This article focuses on Schmitt’s analysis of international law in The Nomos of the Earth, in order to uncover the reasons for his appeal as a critic not only of liberalism but of American hegemonic aspirations as well. Schmitt saw the international legal order that developed after World War I, and particularly the “criminalization of aggressive war,” as a smokescreen to hide U.S. aspirations to world dominance. By focusing on Schmitt’s critique of Kant’s concept of the “unjust enemy,” the article shows the limits of Schmitt’s views and concludes that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be at times, this needs to be interpreted as one of mediation and not domination.

International Legal Personality as a Theoretical Construct

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Order ◽  
Theoretical Construct ◽  
Legal Personality ◽  
International Legal Order ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
The Way

Chapter 2 identifies and explains the four theoretical conceptions of international legal personality, which will be tested against historical and existing norms of positive international law in Chapters 3–8. With particular focus on the role attributed to the individual as the ultimate subject of international law, the examination will concentrate on selected scholars’ conclusions on the criteria for, and the consequences of acquiring, international legal personality. Moreover, it will address the way in which proponents of the various conceptions perceive the relationship between the international legal order and national legal order(s) and the role of the concept of international legal personality in that regard. Given that a primary aim of the book is to ascertain the position of the individual as a matter of international lex lata, particular attention is given to the two main conceptions of international legal personality, which both claim to be positivist.

scholarly journals 2000–2020: twenty years later, where are we in terms of the unity of international law?

2020 ◽  
Vol 9 (1) ◽  
pp. 6-23
Author(s):  
Pierre-Marie Dupuy
Keyword(s):  
International Relations ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Legal Order ◽  
Public International Law ◽  
International Legal Order ◽  
The Hague ◽  
Peremptory Norms ◽  
International Rule

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

Jus Cogens

2021 ◽  
Author(s):  
Shelton Dinah
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Military Officers ◽  
Teachers And Students ◽  
Jus Cogens ◽  
Peremptory Norms

The doctrine of peremptory norms (jus cogens) is a set of core obligations in international law. In this volume in the Elements of International Law series, Dinah Shelton explores its origins and history, its revival in the twentieth century, and its place in international and domestic jurisprudence. Providing a fresh, objective, and non-argumentative approach to the discipline of international law, the Elements series is an accessible go-to source for practicing international lawyers, judges and arbitrators, government and military officers, scholars, teachers, and students.

Derogation and Defeasibility in International Law

2020 ◽  
pp. 108-124
Author(s):  
Andrea Dolcetti ◽  
Giovanni Battista Ratti
Keyword(s):  
Theoretical Model ◽  
Special Reference ◽  
International Law ◽  
Vienna Convention ◽  
The Difference ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
Do So ◽  
The Way

In this chapter, we discuss the way in which implicit exceptions operate in the context of international law, with special reference to peremptory norms of general international law (i.e. jus cogens). To do so, we develop a theoretical model of exceptions based upon the notion of normative conflict. This model allows us to explain the relationship between derogation and defeasibility of peremptory norms of general international law. The chapter is organized in three parts. We begin by explaining the difference between explicit and implicit exceptions in light of the way in which different types of norms may conflict (section 1). We then consider the existence of explicit and implicit exceptions in international law vis-à-vis the existence of peremptory norms of general international law, which are by definition non-derogable (section 2). Finally, we employ our theoretical model—illustrated in section 1—to analyse Article 53 of the Vienna Convention on the Law of Treaties 1969, arguing that, in relation to jus cogens, the idea of non-derogation should be understood as referring to implicit and not explicit exceptions (section 3).

The Oxford Handbook of the Sources of International Law

2018 ◽  
Keyword(s):  
International Law ◽  
International Norms ◽  
Legal Order ◽  
Public Authority ◽  
Legal Rules ◽  
Systematic Overview ◽  
International Legal Order ◽  
Key Issues ◽  
Different Levels

The question of the sources of international law inevitably raises some well-known scholarly controversies: where do the rules of international law come from? Through which processes are they made? How are they ascertained? Where does the international legal order begin and end? These traditional questions bear on at least two different levels of understanding. First, how are international norms validated as rules of international ‘law’, i.e. legally binding norms? This is the static question of the pedigree of international legal rules and the boundaries of the international legal order. Secondly, what are the processes through which these rules are made? This is the dynamic question of the making of these rules and of the exercise of public authority in international law. This book explores the various facets of the sources of international law. It provides a systematic overview of the key issues and debates around the sources of international law, including recent contestations thereof. It also offers an authoritative theoretical guide for anyone studying or working within but also outside international law wishing to understand one of its most fundamental questions.

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