The Shifting Boundaries of Legitimacy in International Law

2018 ◽  
Vol 87 (4) ◽  
pp. 436-465
Author(s):  
Alexis Galán
Keyword(s):  
International Law ◽  
Causal Link ◽  
Legal Order ◽  
Explanatory Role ◽  
Central Concern ◽  
International Legal Order ◽  
Dynamic Dimension ◽  
The Stability ◽  
Shifting Boundaries

Legitimacy has become a central concern in international law. This article analyses an important aspect of the concept, namely the often-presumed link between legitimacy and the stability of institutions and norms. The explanatory role of legitimacy hinges on the descriptive elements attributed to legitimacy because, only by fixing those elements, a causal link can be established. The article contends that due to its conceptual features legitimacy cannot be circumscribed descriptively, making the tracing of its relationship to the stability of institutions and norms in the international legal order an intractable task. The article suggests that international lawyers should embrace the open-ended nature of legitimacy and focus on its dynamic dimension: legitimation. Legitimacy is treated as a rhetorical tool whereby actors try to pursue certain courses of action. The importance of legitimacy then lies in its employment for the shaping of perceptions with regard to how institutions ought to be.

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.

Francisco Suárez S.J. on the End of Peaceful Order among States and Systematic Doctrinal Scholarship

2017 ◽  
Author(s):  
Tobias Schaffner
Keyword(s):  
International Law ◽  
Practical Reasoning ◽  
Legal Reasoning ◽  
Legal Order ◽  
State Action ◽  
Peace And Justice ◽  
Starting Point ◽  
International Legal Order ◽  
Francisco Suarez

This chapter argues that the work of Suárez, like that of other theologians and natural lawyers, offers an insightful (albeit imperfect) articulation of the values of peace and justice which continue to underpin the international legal order. Suárez reminds us that the practical reasoning of all upright statesmen, citizens, and lawyers is guided by the idea of a peaceful and just order among states. Peace and justice are potentialities which individuals and whole nations can establish and preserve, as well as fail to establish or preserve, through their co-ordinated actions. His work remains insightful precisely because most of today’s accounts of international law neglect the role of peace and justice as a starting point of legal reasoning, a goal of state action, and even a source of international law.

scholarly journals INTERNATIONAL LEGAL ORDER: CURRENT DEVELOPMENTS OF LEGAL PHENOMENA (THEORETICAL ASPECTS)

2017 ◽  
pp. 79-87
Author(s):  
I. Zabara
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal Order ◽  
First Line ◽  
International Legal Order ◽  
Regional Order ◽  
Key Issues ◽  
National Transformation ◽  
The Relationship

The article deals with the theoretical aspects of the key issues of international legal order. The author describes the phenomenon of international legal order based on conceptual views of representatives of modern Ukrainian school of international law. The author examines and summarizes the international legal doctrinal views which define and determine the formation of modern international legal order. The author identifies several fundamental areas of international legal order. The first line shows the sectoral focus of research. The author notes that in this line of questions explored the legal basis of international legal order in certain areas of international law; conceptual aspects of formation of international legal order in a particular area of international law; the relationship between the principles of international law and the principles of international legal order; the role of international law and its subjects in the development of international law in certain areas. Within this framework have been identified and studied the principles of international legal order in the spatial (space, sea) branches of international law, and in some areas the actual activities of international law. The second trend reflects the regional focus of research of international legal order. The author notes that within the area studied questions of general principles of formation and development of regional order; especially the formation and development of some regional order; regional impact of law enforcement on the national transformation of individual states. Within this framework singled out themes, covering the European legal order, Asian international legal order, African legal order, American legal order and other types of international legal order.

Humanitarian Intervention without the Security Council: From San Francisco to Kosovo – and Beyond

2001 ◽  
Vol 70 (1-2) ◽  
pp. 121-160 ◽  
Author(s):  
Keyword(s):  
International Law ◽  
San Francisco ◽  
Security Council ◽  
Ad Hoc ◽  
Humanitarian Intervention ◽  
Legal Order ◽  
Political Consequences ◽  
International Legal Order ◽  
Suitable Framework

AbstractAgainst the background of NATO's war over Kosovo in 1999, this article deals with legal and legal-political aspects of humanitarian intervention without authorisation from the UN Security Council – an issue elucidating the foundations of international law and the role of state practice in its dynamic development. It is argued that unauthorised humanitarian intervention has no legal basis in current international law: It is incompatible with Article 2(4) of the Charter, the defence of a state of necessity is not applicable and no doctrine of unauthorised humanitarian intervention has been established under customary international law. From a legal-political perspective, the crucial question is whether to develop a doctrine of humanitarian intervention without the Security Council if necessary, or stick to the existing legal order, maintaining the Security Council as the sole authoritative organ for decision-making on humanitarian intervention, while working to make it more effective. The author favours the latter alternative. However, in the short term, an ad hoc ``emergency exit'' may be needed. The special circumstances precluding wrongfulness, such as state necessity, it is argued, are not a conceptually suitable framework for justifying humanitarian intervention. But unauthorised humanitarian intervention could be undertaken ad hoc, as a deviation from international law justified solely on moral grounds. This leaves open an option for intervention in extreme cases of human suffering, but at the same time avoids jeopardising the existing, hard-earned, international legal order and the central role of the Security Council. NATO's war over Kosovo, it is argued, was such a case of ad hoc intervention on moral grounds. The article assesses the legal-political consequences of this approach in the aftermath of NATO's bombing campaign.

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.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

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