"The New Terrain of International Law Reaction Paper "
The author in this paper is presenting the new style of international courts. The new international judicial architecture that review administrative decisions validity, asses state compliance with international law, influence international and domestic politics, serving as a regulative role of creating guidelines and setting expectations and allowing private parties to seek remedies with international legal bodies. The authors theory is that international courts alter politics through alliance with compliance constituencies.
Under Article 38 of its Statute, the International Court of Justice can apply judicial
judgments only as a ‘‘subsidiary means for the determination of rules of law’’. Nevertheless, there are many reasons to believe that international courts and tribunals do play quite an essential role in the advanced development of international law.
Whereas once international law considerably postponed to states in the legislation and enforcement of legal duties, it now defines those duties more and more, and leaves less and less room for state liberty. Regulatory dominance over individuals, a common characteristic of government, is now within the concept of international law and international courts. The outcomes are significant: the alteration of governance, the re-framing of decisions, and the reinforcement of authority. Modern-day international law is very significant from the instrumentality that existed long time ago.
The idea of compulsory jurisdiction is for international courts to be independent and regulate the state’s misconducts because a well-established state to state relation is so vital to the welfare of international security. International...
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...ance, there are no real opportunities for private actors to challenge state non-compliance in courts and tribunals such as the International Court of Justice and the World Trade Organization. While private access to international enforcement entities tends to play out a positive role to cooperation by encouraging better compliance and further expansion of law, this is not a globally available and effective alternative. Not all international treaties include private access, and where they do, private actors sometimes lack the resources necessary to utilize these mechanisms. Unless procedures are backed up with resources, private actors often have limited ability to fulfill the function reserved for them in this form of enforcement. By raising the awareness of rights, rules, and complaint mechanisms, by funding training and research, and by offering moral support.
There continues to be a growing debate to this day over the use of international law in the Supreme Court, and even though the case of Roper v. Simmons and Justice Kennedy, are nearly a decade old, they are both frequently
...es’ constitutions, the Inter-American Commission of Human Rights and the Inter-American Court of Human Rights, according to Wright, “pressed for the acceptance of its rulings in Argentine courts” (166). Not only international efforts, but also domestic efforts, to apply international jurisprudence to local courts were on the rise. For example, in 1995, CELS launched its “program for the application of international law to human right in local courts” based on the amendments to the Argentine constitution (Wright 166). Just as well, human rights lawyers pushed “courts to embrace the international principle that crimes against humanity cannot be amnestied” (Wright, 167). In sum, the International human rights lobby wanted each country to mold its human rights jurisprudence around the rulings of international human rights law, and domestic actors adopted the same goal.
According to Article 38 of the 1946 Statute of the International Court of Justice, the Court shall apply “international custom, as evidence of a general practice accepted as law” in its decisions (Kritsiotis 123). In other words, the International Court of Justice cites customs as a formal source of law. According to Roberto Unger, author of Law in a Modern Society, customary international law is best defined as “any recurring mode of interaction among individuals and groups, together with the more or less explicit acknowledgement of these groups and individuals that such patterns of interaction produce reciprocal expectations of conduct that out to be satisfied (Shaw 72-73). In other words, customary international laws are primarily concerned with how and why sates behave in a particular manner. Customs derive from the behavior of states (state practice) and the subconscious belief that a behavior is inherently legal (opinio juris). Evidence of state behavior is documented in the decisions of domestic courts, international courts, and international organizations. Unlike treaty law, customary laws are binding on all states. Additionally, if a treaty derives from a custom it is also binding on all states. Some of the international court cases that have been instrumental in the development of customary international law include the Nicaragua v. United States case, the Anglo-Norwegian Fisheries case, the Scotia case, the Asylum case, the Paquete Habana case, and the Lotus case.
Treaties are the highest source of international law besides jus cogens norms that have binding effect on the parties that ratify them.2 International human rights treaties rely on the “name and shame” mechanisms to pressure states to improve practices.3 However with “toothless” international human rights norms, moral coercion is not always effective. An empirical study conducted by Professor Oona Hathaway assessing the effect of human rights treaty ratification on human rights compliance, maintains in its findings that ratification of human rights treaties has little effect on state practices.4 States do not feel pressured to comply and change their practices, rather, signing treaties is “more likely to offset the pressure rather than augment it.”5 So, is it time to abandon human rights treaties and remit protection of human right to domestic institutions. Hathaway posits elsewhere that despite this treaties “remain an indispensable tool for the promotion of human rights.”6 Instead of getting rid of the treaty system, it is necessary to enhance the monitoring and enforcements mechanism to strengthen the human rights regime to ensure compliance.7 This article evaluates the extent to which international law serves as a useful tool for protection of human rights.
In order to do that, first, the essay will define what understand by “jurisdiction” and the elements of the extraterritorial jurisdiction. Next, it analyses some key decisions and advisory opinion from the International Court of Justice and the European regional system in order to prove that extraterritoriality jurisdiction is already applicable and therefore, if the State fails to guarantee the rights contemplated in the human rights treaties, it incurs in international responsibility. Lastly, the essay will sum up the analysis and make some final remarks.
...th 2001). Roth argues that the concept of international jurisdiction is not a new idea but was exercised by the US government in the 1970 after an aircraft hijacking. Also the war crime courts established after the end of World War II exercised international jurisdiction. In fact the Geneva Convention states that is a person regardless of their nationality should be brought before the court of any state in which that person has committed grave breaches of law and convention. Roth states that the concept of international jurisdiction is not a new one but that only in recent years have states been willing to act on universal jurisdiction and go after criminals of the international community regardless of their stating or power within the international community. Roth believes in the ability and authority of international organizations and institutions (Roth 2001).
Members of The United Nations have a duty “to maintain international peace…in conformity with the principles of justice and international law.”[1] China, a core member of the United Nations since its formation in 1945, fails to comply with international human rights’ norms set forth by The United Nations Charter. This failure is noticeably prevalent in the practices of the Chinese Legal System. Its judicial proceedings in handling peaceful, political dissenters fail to provide the minimum protection of human rights guaranteed to all through international law. By examining accounts of Tibetans detained for such peaceful protests, this paper will set out to highlight the discrepancies between Chinese enforcement of international law in theory and in practice. Before this paper goes any further, the notion of international law must be explained. Providing a better understanding of international law will make easier the task of highlighting China’s struggles with enforcing such standards.
Kuo, M.-S. "The Concept of 'Law' in Global Administrative Law: A Reply to Benedict Kingsbury." European Journal of International Law 20, no. 4 (2010) PL 997.
Globalization and the increasing role of non-state actors have shifted the position of states, the traditional “main players” in global governance. However, whether this change undermines states is debatable. In one sense, states’ roles have somewhat diminished: Non-governmental entities – namely transnational corporations (TNC), but also global non-governmental organizations (NGOs) and others – have an increasing voice in global policy debates, which may lessen states’ influence in governmental affairs. But in several other key ways, states’ retain their powerful role. For example, states remain the key negotiators and entities in major global governance entities. Additionally, states retain compulsory power over their subjects or constituents, a form of control that new players in global governments have generally not obtained.
International law is a body of legally binding rules that are suppose to govern the relations between sovereign states. (Cornell Law School) In order to be a qualified subject, a state has to be sovereign. To be considered sovereign the state needs to have territory, a population, and a government that is recognized or legitimized to most other states. In the more modern explanation of international law now can include the rights and obligation on intergovernmental international organizations and even individuals. Examples of an international organization would be Greenpeace or the United Nations and an example of an individual would be war criminals, a leader of a state that violated human rights during a time of war. When a dispute arise and cannot be solved amongst the two actors involved they can turn to the U.N. to arbitrate and to the International Court of Justice, one of many courts within the U.N. to find a resolution to their problem. The International Court of Justice’s main task is to help settle legal disputes submitted to it by states and...
Public International law International law contains of rules and principles, which preside over the relations and communication of nations with each other. International Law that is in most other countries referred to as Public International Law concerns itself only with questions of rights among more than a few nations or nations and the citizens or subjects of other nations. In dissimilarity, Private International Law deals with controversies among confidential persons, natural or juridical, arising out of situations having important association to further than one nation. In current years the line up connecting public and private international law have became more and more doubtful. Issues of private international law may also associate issues of public international law and numerous matters of private international law nave considerable meaning for the international group of people of nations. International Law consists of the basic, classic concepts of law in nationwide legal systems, status, property, responsibility, and tort. It also includes substantive law, procedure, process and remedies. International Law is rooted in receipt by the nation states, which comprise the system. Customary law and conventional law are primary sources of international law. Customary international law results when states trail convinced practices usually and time after time out of an intelligence of legal responsibility. Lately the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may obtain any appearance that the constricting parties have the same opinion upon. Agreements may be complete in admiration to any substance except for to the leve...
Von Galhn and Taulbee. 2013. Law Among Nations. An Introduction to Public International Law. Pearson Education.
About the power of the subjects of international law, it is the basic properties, the special legal ability of the subjects that inherited the rights and shoulder the obligations, legal responsibility in international legal relations. Subjects' power includes two aspects, and only when ones get all these two aspec...
The international law is the fundamental basis of sovereignty and equality of all states. It promotes peace, order, and justice to the international society. The effectiveness of the international law is also anchored to the international community whether they will follow or not. It is important that international community has rules and obligation to follow in order to prevent chaos in the society. The development of international law led to the understanding of different policies and sanctions for the states. It deals with conflict of the states to relieve destructive conflict. The international law is agreed upon by the international community but there is no enforcing body unlike in the domestic law. State has been relying to treaties and international agreements for the prevention of war.
Although, international organizations are largely influenced by the powerful states they contain and reflect those states’ interests, international organizations provide essential forums for communication, and encourage education of new international norms, which in turn, shape the interests and behaviors of states.