Custom in the Present International Law of the Sea
In light of these premises, the author advances a two-fold approach to international law. After listing non-State players, the author embarks on a critical reappraisal of the notion of international legal personality ILP. In his view, there is no unitary concept of ILP, as the latter can be disaggregated into a variety of different meanings with fairly different consequences on the legal plane. Moreover, ILP can be manipulated in order to favor one player at the expense of another.
From this perspective, in fact, the focal point is the verification of who has the power to attribute ILP — whatever its meaning — and there is no doubt, according to Focarelli, that such power should be traced back to the global State system. Apart from ILP, this chapter analyzes virtually all of the topics traditionally dealt with in the handbooks of international law sources, international adjudication, domestic im- plementation, enforcement , with a view to advancing four main theses. Firstly, all rules of international law are ultimately based on custom. The prominence accorded to customary international law CIL is hardly surprising, since it appears to be im- plied in the very notion of social construct.
The idea that international law should be identified having regard for the perception of its addressees as a whole, indeed, is clearly coterminous with the subjective element of CIL opinio juris sive necessi- tatis. Secondly, the sources of international law are not hierarchically organized. Thirdly, international courts are not properly meant to set- tle disputes but to specify the rules of international law in particular cases.
Tor Krever, Dispensing Global Justice, NLR 85, January–February
In spite of the others, this thesis does not logically flow from the characteri- zation of international law as a social construct, viewing it rather as the consequence of the absence of a universal authority superior to States. This allows the author to detail in greater depth his conception of global justice as the protection of the most vulnerable. The chapter is two-fold. Each value is analyzed in some detail, dwelling upon the specific rules or legal regimes stemming from it.
Here, the author draws a kaleidoscopic and perhaps somewhat puzzling overview of various areas of international law, rang- ing from the use of force to State bankruptcy, passing through international and transnational crimes, human rights, international trade, and environmental protec- tion. In this context, the law of international responsibility has been evolving to envisage greater involvement of third States in countering international wrongs collective remedies , and individual sanctions against State officials and non-State actors deemed responsible for unlawful behavior personal remedies.
After critically examining different kinds of remedies falling into both categories erga omnes obligations, humanitarian interventions, smart sanctions and crimi- nal responsibility , the author expresses his preference for international criminal justice since, all shortcomings notwithstanding, it proves able to both hit effective wrongdoers without affecting innocent people unlike collective remedies and to deliver justice in a basically impartial way unlike smart sanctions.
In the Epilogue, the author summarizes the key achievements of his thesis of international law as a social construct, pinpointing the main defects of other theo- ries of international law. Reviewing International Law as Social Construct is anything but an easy task.
The breadth of the topics dealt with and the richness of the arguments employed therein make it tremendously difficult to provide a general appraisal. We will limit ourselves, therefore, to sketching some very quick observations. If a critical remark may be ventured, it concerns the issue of sanctions. Focarelli criticizes Kelsen by underlining that sanctions are not indispensable in discerning law from other social phenomena p.
Yet, practice can be plausibly viewed as supporting very different conclusions depending on whether each relevant act is per se unlawful. Nonetheless, should we embrace such a conception? Should we embrace it only in this area of international law or as a general standard even when its outcomes are unwelcome? The question may be answered affirmatively in terms of treaty law as between the parties, but this says little as to general international law as between all states and other relevant actors.
Commentators who spend much of their time analysing the actual or allegedly missing words, if not commas, in the ARSIWA appear simply willing to show their mastery of legal speculation.
Fifth, there is a problem of terminology concerning different kinds of measures. More specifically, beyond nominalism, do they fall under the same legal regime? That certain sanctions adopted by an IO are in breach of other treaty rules that are binding on its member states is a different question: a it concerns the relationship between rules of different treaties; and b it does not affect, nor prove in itself the lawfulness of the countermeasures themselves. The same applies to sanctions adopted by the UN Security Council.
Sixth, the limits of countermeasures and the conditions relating to resort thereto under Articles ARSIWA and customary international law often remain obscure. Seventh, there is another crucial question: is existing state practice, or lack thereof, supposed to prove the lawfulness or the unlawfulness of TPCs?
On what basis should one decide what alternative is to be preferred in these circumstances? Has mere rhetoric a certain role to play here? Has Dawidowicz expanded on this basic precondition of his particular conclusions on TPCs?
Global Justice and Social Conflict: The Foundations of Liberal Order and International Law
Crime and Empire Criminal Justice in Local. Global Capitalism. Now truly global, twenty-first-century capitalism—aided by extraordinary advances in technology and communication and by unfettered global financial Global Justice and International Labour Rights. Despite the growing global consensus regarding the need to ensure minimal labour standards, such as Despite the growing global consensus regarding the need to ensure minimal labour standards, such as adequate safety and health conditions, freedom of association, and the prohibition of child labour, millions of workers across the world continue to work in horrific This book distills and articulates international law as a social construct.
It does so by It does so by analyzing its social foundations, essence, and roots in practical and socially workable as opposed to 'pure' reason.
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In addition to well-known doctrines of jurisprudence and It has been well-established that many of the injustices that people around the world experience It has been well-established that many of the injustices that people around the world experience every day, from food insecurity to unsafe labor conditions and natural disasters, are the result of wide-scale structural problems of politics and economics. These are New Press, The.
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