Download or read book Modernizing Customary International Law written by Isabelle R. Gunning and published by . This book was released on 1991 with total page 494 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Customary International Law as U S Law written by Carlos Manuel Vazquez and published by . This book was released on 2012 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: In a recent referendum, the citizens of Oklahoma overwhelmingly approved a State constitutional amendment providing that the courts of the State "shall not consider international law or Sharia law" in rendering their decisions. The amendment's exclusion of Sharia law has garnered most of the media attention, but more consequential by far is the measure's directive to the State courts to disregard international law. Similar measures have been proposed in other States, some of them merely barring consideration of Sharia law or foreign law, but others barring consideration of international law as well. These measures are clearly unconstitutional insofar as they would prohibit the State courts from enforcing one of the two main forms of international law -- treaties -- as the U.S. Constitution by its terms requires State courts to give effect to the nation's treaties, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." But the federal Constitution does not expressly address the status of the other principal form of international law -- customary international law, or the unwritten law that governs the relations among states and "results from a general and consistent practice of states followed by them from a sense of legal obligation." These proposed State laws thus starkly raise the question whether the States may prohibit their courts from giving effect to the United States' obligations under customary international law. This article offers a critique of the intermediate positions and, in the process, explicates and defends the modern position. Critics of the modern position often describe it as the claim that customary international law has the force of federal law always and for all purposes. But this uncompromising conception of the modern position is a phantom. Adherents of the modern position have always accepted that not all of customary international law binds foreign states or the federal Executive as a matter of U.S. domestic law. The heart of the modern position is that customary international law binds State actors and thus preempts State law applicable to State officials and private parties. The basic case for the modern position relies on an inference from the constitutional structure very similar to the one advanced by Bellia and Clark: Violations of customary international law risk retaliation against the nation as a whole. Permitting States to violate it allows States to externalize the costs of such violations, thus likely producing excessive violations. Part I explicates and offers a preliminary defense of the modern position. It sets forth the affirmative case for the modern position based on constitutional structure, original intent, and pre- and post- Erie doctrine, responding to arguments put forward in the initial wave of revisionist scholarship, but deferring to part II responses to criticisms raised by scholars advancing intermediate positions. Part I shows that the basic structural case for the modern position was well understood by the Founders. Viewed in the light most favorable to the revisionist view, the evidence of original intent and the pre-Erie cases reflect two contending positions. The first is that the Constitution itself preempts State conduct that violates the state-to-state portion of the law of nations. The other is that customary international law had the status of general common law. Before Erie, the general common law was understood as different from either federal or State law, but was closer in operation to modern-day federal law than to modern-day State law. No one claimed that customary international law had a status comparable to modern-day State law. Part II examines the intermediate positions and concludes that all but that of Bellia and Clark suffer from fundamental flaws. Ramsey's concept of "nonpreemptive federal law" is another name for State law. Thus, Ramsey's approach would replicate one of the problems that most concerned the Founders--the lack of federal judicial power to prevent or remedy violations of customary international law by the States. Young's proposal to employ choice-of-law rules to determine the applicability of customary international law satisfies Erie's requirement that all law applied in this country's courts be either State or federal, but only because choice-of-law rules are themselves creatures of either State or federal law. To the extent that Young would relegate the applicability of customary international law to State choice-of-law rules, his proposal would present severe difficulties stemming from the indeterminacy and inappositeness of such rules, and, like Ramsey's approach, would reproduce the problem that most concerned the Founders. Young's approach would alleviate these problems by allowing for the use of federal choice-of-law rules in some contexts, but he emphasizes that such rules would be applicable very rarely. Aleinikoff's approach would violate the one principle that all agree Erie establishes: that the substantive law applied in the State and federal courts must be the same. The intermediate position of Bradley, Goldsmith, and Moore is problematic because it would place inapposite limits on the judiciary's ability to enforce customary international law as federal law. The intermediate approach proposed by Bellia and Clark is thoroughly convincing, but it is not really intermediate. Their structural argument for according preemptive force to some customary international law is basically the same as the strongest argument for the modem position. The flaw in their argument is that they do not take it far enough. Their structural argument actually provides substantial support for most of the modern position. Part III reconsiders the modem position in the light of the revisionists' argument that the customary international law of today differs in important respects from the state-to-state branch of the law of nations as known to the Founders and as it existed before Erie. The revisionists' concerns about the indeterminacy of customary international law and the loosening of the requirements for recognizing such law have some validity and relevance, but these concerns can be adequately addressed by restricting the range of customary norms having preemptive force to those that satisfy a heightened standard of clarity and acceptance. The revisionists' concerns about the new subjects addressed by customary international law -- in particular, the fact that such law now addresses how a nation treats its own citizens-does not warrant any additional restriction. The final part of the article addresses a seldom-analyzed aspect of the revisionist position--the claim that norms of customary international law that lack the force of preemptive federal law may be given the force of State law through incorporation by State legislatures or courts. The author argues that, for straightforward reasons, the States lack the power to make norms of customary international law applicable to foreign states or officials or federal officials. A State's incorporation of such norms against its own officials or against private parties would pose a less obvious structural problem: because customary international law evolves through the accumulation of state practice and opinio juris, State court decisions regarding the content of such law could, in combination with the acts of other States and foreign states, eventually result in the crystallization of norms of customary international law that the federal government does not support, or the erosion of norms that the federal government does support. State court decisions regarding the content of customary international law thus interfere with the federal executive branch's recognized power to speak for the United States at the international plane regarding the content of such law. This structural problem can be addressed either by denying the States the power to incorporate norms of customary international law or by recognizing the Supreme Court's jurisdiction to review decisions of the State courts regarding the content of customary international law even when such law is relevant to the case only because it has been incorporated as State law. The author concludes that the latter solution is preferable and that such review would be consistent with Article III.

Download or read book Customary International Law and Treaties written by Mark Eugen Villiger and published by Martinus Nijhoff Publishers. This book was released on 1997-10-29 with total page 374 pages. Available in PDF, EPUB and Kindle. Book excerpt: States often regard themselves bound by treaty rules which have developed under customary international law, even though many of the treaties themselves have not been ratified. The Law of the Sea Convention, for instance, has generated new customary rules which modified the 1958 Geneva Conventions. These & many other issues are dealt with clearly & systematically in this informative handbook on the relations between written & unwritten international law. The conclusions of the first edition of Customary International Law & Treaties were largely confirmed by the International Court of Justice in the Nicaragua Case. This fully revised second edition, while basing itself on the original version, brings the subject up to date.

Download or read book The Changing Nature of Customary International Law written by Noora Arajärvi and published by Routledge. This book was released on 2014-04-24 with total page 215 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book examines the evolution of customary international law (CIL) as a source of international law. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) as a key case study, the book explores the importance of CIL in the development of international criminal law and focuses on the ways in which international criminal tribunals can be said to change the ways in which CIL is formed and identified. In doing so, the book surveys the process and substance of CIL, as well as the problematic distinction between the elements of state practice and opinio juris. By applying an inclusive positivist approach, Noora Arajärvi analyses the methodologies of identification of CIL in selected cases of the ICTY, and their normative foundations. Through examination of the case-law and the reasoning of courts and tribunals, Arajärvi demonstrates to what extent the court's chosen method of identification of CIL affects the process of custom formation and the resulting system of norms in general. The book will be of great value to researchers and scholars of international law, international relations, and practitioners with interests in customary international law.

Download or read book The Persistent Objector and Customary International Law written by Charles Quince and published by . This book was released on 2010-05 with total page 142 pages. Available in PDF, EPUB and Kindle. Book excerpt: A Major Contribution to the Understanding of International Law Central to the modern legal framework are the notions of customary international law and the persistent objector doctrine. But much debate exists over these ambiguous and elusive concepts-debate that has the potential to affect everything from war-crimes trials to international commerce. Now, legal expert Charles Quince provides an enlightening, in-depth, and balanced look at the history and problems of these specific areas of international law, and suggests important solutions for minimizing misinterpretation. Topics tackled here include: - The development of customary international law, from Ancient Rome to the present day; - A clear, concise discussion of the persistent objector rule, which allows states to opt out of a particular norm; - Key court cases providing important precedent to our current understanding of custom and consent; - The debate over interpretation, including the two opposing theories by Dworkin and Rawls; - Viable implementation strategies for bridging the divide and helping minimize misinterpretation. This unique book not only concentrates on institutional developments, it also gives insights into norms and guiding principles associated with these two concepts. In essence, Quince presents the positive aspects of each competing theory and shows how they could work together as a cohesive force in the global environment, making this a must read for attorneys, jurists, government leaders and law students. Charles Quince is a librarian at the Albright Memorial Library in Scranton, Penn. He holds a bachelor's in history, juris doctor, and master's in library science. He is a member of the American Society of International Law, the Society for Historians of American Foreign Relations, and the Pennsylvania Library Association.

Download or read book Traditional and Modern Approaches to Customary International Law written by Anthea Elizabeth Roberts and published by . This book was released on 2000 with total page 49 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book The Discourse on Customary International Law written by Jean D'Aspremont and published by Oxford University Press. This book was released on 2021 with total page 193 pages. Available in PDF, EPUB and Kindle. Book excerpt: "The book guides the reader through an analysis of eight distinct performances at work in the discourse on customary international law. One of its key claims is that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, customary international law is anything but ancient, and there is hardly any doctrine of international law that contains so many of the features of modern thinking. It is also argued that, contrary to mainstream opinion, customary international law is in fact shaped by texts, and originates from a textual environment"--Page 4 de la couverture.

Download or read book Developments in Customary International Law written by Birgit Schlütter and published by BRILL. This book was released on 2010-05-17 with total page 407 pages. Available in PDF, EPUB and Kindle. Book excerpt: Customary international law is the most important source of international criminal law. Fifty years after the Nuremberg trials, many convictions imposed by the tribunals for the former Yugoslavia and Rwanda are still based on customary international law alone. The International Criminal Court, by contrast, has not yet had much opportunity to give more guidance on this matter. Hence, it is worthwhile to provide an overview of the current status of custom by analysing the ad hoc tribunal’s case law on this point. Including a comprehensive synopsis of current literature and a contrast of the ad hoc tribunal’s case law with the jurisprudence of the International Court of Justice, this book offers an inclusive insight into the source’s past and future.

Download or read book The Theory Practice and Interpretation of Customary International Law written by Panos Merkouris and published by Cambridge University Press. This book was released on 2022-05-26 with total page 647 pages. Available in PDF, EPUB and Kindle. Book excerpt: Provides an in-depth study of the theory, history, practice, and interpretation of customary international law.

Download or read book Customary International Law and Treaties written by Mark E. Villiger and published by . This book was released on 1997 with total page 346 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Customary International Law written by Brian D. Lepard and published by Cambridge University Press. This book was released on 2010-01-11 with total page 441 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book sets out to articulate a comprehensive theory of customary international law that can effectively resolve the conceptual and practical enigmas surrounding it. It takes a multidisciplinary approach and draws insights from international law, legal theory, political science, and game theory. It is anchored in a sophisticated ethical framework and explores the interrelationships between customary international law and ethics.

Download or read book Custom s Future written by Curtis A. Bradley and published by . This book was released on 2016 with total page 379 pages. Available in PDF, EPUB and Kindle. Book excerpt: Although customary international law has long been an important source of rights and obligations in international relations, there has been extensive debate in recent years about whether this body of law is equipped to address complex modern problems such as climate change, international terrorism, and global financial instability. In addition, there is growing uncertainty about how, precisely, international and domestic courts should identify rules of customary international law. Custom's Future seeks to address this uncertainty by providing a better understanding of how customary international law has developed over time, the way in which it is applied in practice, and the challenges that it faces going forward. Reflecting an interdisciplinary mix of historical, empirical, economic, philosophical, and doctrinal analysis, and containing chapters by leading international law experts, it will be of use to lawyers, judges, and researchers alike.

Download or read book Beyond National Borders written by Sigrun Skogly and published by Intersentia nv. This book was released on 2006 with total page 235 pages. Available in PDF, EPUB and Kindle. Book excerpt: Within and outside the legal and academic professions, it is now increasingly recognised that the human rights consequences of states' actions are not limited to the domestic sphere but quite often transcend national borders. This is a challenge to the human rights community, which up to the present time has focused almost exclusively on human rights violations and protections solely within a national setting. The term "extraterritorial" effect/application/obligation in international law refers to acts that are taken by one actor (state) that have some kind of effect within another country's territory, with or without this second country's implicit or explicit agreement. Extraterritoriality within international human rights law, then, concerns actions or omissions by one state that have an effect on the human rights of individuals in another state - with or without this other state's agreement. This effect may be positive or negative in that such actions or omissions by foreign states may contribute positively to the enjoyment of human rights; or alternatively, they may result in a deteriorated human rights situation, and even human rights violations. This book gives, for the first time, a comprehensive analysis of extraterritorial obligations in international human rights law by placing the discussion in a larger international law context, interpreting obligations in the various sources of international human rights law, and discussing the way in which extraterritoriality has been approached by international courts and human rights implementation bodies in the United Nations and regional systems.

Download or read book Research Handbook on the Theory and Practice of International Lawmaking written by Catherine Brölmann and published by Edward Elgar Publishing. This book was released on 2016-04-29 with total page 503 pages. Available in PDF, EPUB and Kindle. Book excerpt: The global landscape has changed profoundly over the past decades. As a result, the making of international law and the way we think about it has become more and more diversified. This Research Handbook offers a comprehensive guide to the theory and practice of international lawmaking today. It takes stock at both the conceptual and the empirical levels of the instruments, processes, and actors involved in the making of international law. The editors have taken an approach which carefully combines theory and practice in order to provide both an overview and a critical reflection of international lawmaking. Comprehensive and well-structured, the book contains essays by leading scholars on key aspects of international lawmaking and on lawmaking in the main issue areas. Attention is paid to classic processes as well as new developments and shades of normativity. This timely and authoritative Handbook will be a valuable resource for academics, students, legal practitioners, diplomats, government and international organization officials as well as civil society representatives.

Download or read book The Sources of International Law written by Hugh Thirlway and published by Oxford University Press, USA. This book was released on 2014-02 with total page 262 pages. Available in PDF, EPUB and Kindle. Book excerpt: Because of its unique nature, the sources of international law are not always easy to identify and interpret. This book provides an ideal introduction to these sources for anyone needing to better understand where international law comes from. As well as looking at treaties and custom, the book will look at more modern and controversial sources.

Download or read book British Contributions to International Law 1915 2015 Set written by Jill Barrett and published by BRILL. This book was released on 2020-12-15 with total page 3728 pages. Available in PDF, EPUB and Kindle. Book excerpt: Anthology of original documentary sources of the key British contributions to international law spanning the past 100 years.

Download or read book Reconceptualising the Rule of Law in Global Governance Resources Investment and Trade written by Photini Pazartzis and published by Bloomsbury Publishing. This book was released on 2016-06-30 with total page 700 pages. Available in PDF, EPUB and Kindle. Book excerpt: The relevance and importance of the rule of law to the international legal order cannot be doubted and was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level's solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law.