"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.
Drumbl, M. B. (2007). International Decisions. American Society of International Law , 101 (4), 841-848.
All the legal transformations identified in this paper, I argue, point into one direction: a less salient principle of sovereign equality and ever-increasing important transnational regimes. Today, the absolute authority of a state over its territory and population is under more limitations than it was seventy years ago.
None of the four requirements that the tribunal must meet is easily achieved, and, in some cases, success seems unlikely. Many supporters of international humanitarian law are convinced, however, that, so long as the court does no harm, it must continue to pursue its original goals. This position supports the general idea of the rule of law, without reference to the circumstances. Ordinarily, of course, justice is supposed to be above the particularities of any case. Yet the nature of the circumstances in the case of the former Yugoslavia may undermine the ICTFY's credibility and render it ineffective in obtaining justice and promoting the concept of international humanitarian law. Justice must be predicated on detachment and impartiality. But the ICTFY is essentially a first attempt at administering such justice, and the peculiarities of the test case have to be kept from contaminating the process.
... that would destabilize many reigns of the world” (Dan 2010). It is evident that “international law exists only in theory and not in practice “(John 2005, 267). This clearly proves that there is a major debate around the nature of international law as in some cases they do not abide by the rules but rather confront each case differently.
Hans-Peter Gasser, “The Changing Relationship between International Criminal Law, Human Rights Law and Humanitarian Law,” The Legal Regime of the ICC: Essays in Honour of Prof. I.P. Blishchenko (2009) pp. 1111-1117.
Through the analysis of fairness in international criminal procedure, the author gives an insightful account of the right to a fair trial and of its corollaries. This analysis is conducted looking at the law and practice of five international criminal tribunals, i.e. the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the International Criminal Court, and the Special Tribunal for Lebanon. The author describes ‘fairness’ as a general category that includes a plurality of rights for the accused, and she indicates the relevant practice of international criminal tribunals in applying these rights. The overarching argument of the book is that fairness is a necessary element of international criminal trials and a paramount goal of international criminal justice. It must be guaranteed at the highest level, and a ‘just fair enough’ (p. 125) justice is not sufficient. In this regard, two main points are considered: (i) what ‘fairness’ in international criminal justice means and what its features are; and (ii) what standards of fairness are necessary for international criminal
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).
States are left with a wide discretion, limited only by prohibitive rules and wherein no such prohibitive rules exist, States have the freedom to adopt the principles that it regards as best and most suitable. The ICJ effectively held that acts or omissions that are not prohibited under international law are
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.
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...
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.
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...
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.