Effectiveness Of International Law Research Articles

International and national significance of the realization (implementation) of the norms of international law

The article deals with the most important theoretical and practical issues of the realization (implementation) of international law, examines the concepts, forms and content of the realization (implementation) of international law, finds out the reasons that affect the inefficiency of international law. It is noted that the realization (implementation) of the norms of international law includes two levels: international (collective activity of states) and national (individual activity of the state). Particular attention is paid to the importance of the implementation of the norms of international law and their primacy both over domestic law and over politics in international relations. It is mentioned that in international law the UN Charter enshrined the principle of conscientious observance of international obligations (pacta sunt servanda), which extends its effect to all norms, regardless of functions, purpose, form of expression. According to this principle, each state must fulfill in good faith its obligations arising from the generally recognized principles and norms of international law and specific international treaties. The article argues that this principle is mandatory not only in relations between states, but also extends to the sphere of national law in the context of the implementation of international law. The article emphasizes that in modern conditions the solution of global problems of peace, the stability of the international order, as well as the solution of many domestic problems in the literal sense depends on the effectiveness of international law. An opinion is expressed about the need to develop a unified science of the law of both domestic and international law. Since, just as it is correctly noted in the legal literature, the issues of the realization (implementation) of international law are shifted from the international to the national sphere, due to the fact that a significant number of international legal norms are intended for final implementation within states. Such a statement is true in relation to all branches of international law, in particular in the field of human rights and the protection of the environment. It is indicated that in order to fulfill international obligations, it is required from the state on a national level to ensure the harmonization of their laws and practices with obligations under international law.

The Effect Of International Law On The Establishment Of Public Information Disclosure Law In Indonesia

This study aims to analyze the influence of international law on the formation of public information disclosure law in Indonesia. The research method used in this research is normative juridical. Based on the results of the research, it is known that due to globalization, the freedom to obtain information is now a trend in the international world. Globalization is driving the recognition of human rights and democratization in all corners of the world. This international reality parallels the national reality. The strong determination to create a democratic country and respect for human rights which are explicitly stated in the Indonesian constitution have become an undeniable national reality. Both of these realities have the same goal of creating an information society. For Indonesia, this international reality and national reality have become the basis or reason for the birth of the information disclosure law, which is also known as the Indonesian information disclosure law policy.

The Effect Of International Law On The Establishment Of Public Information Disclosure Law In Indonesia

The Effect Of International Law On The Establishment Of Public Information Disclosure Law In Indonesia

Measuring Without a Ruler: Assessing Compliance with Calculative International Norms

AbstractMeasuring compliance with international norms is usually taken to be a relatively straightforward exercise. To determine whether a state is compliant, scholars typically measure the level of conformity between their behavior and “the letter of the law.” IR theorists often disagree over whether compliance tells us anything meaningful about the causal effects of international norms, but most believe that it can at least be measured. We argue that, for certain norms and laws, this claim is too optimistic. We draw on recent insights from moral philosophy and moral psychology to distinguish between two types of international norms: (1) proscriptive norms that govern state practices by providing fairly specific rules of appropriateness for how states or other actors are expected to behave and (2) calculative norms, which do not stipulate any particular rules of appropriateness, but rather require that states take efforts to maximize or minimize a specific value. The laws of war, for example, hold that states cannot target civilians (proscriptive), but they do allow for tactics that generate collateral damage, as long as it is minimized (calculative). Because assessments of conformity between state practices and calculative norms require evaluation of intentions—which can be difficult at best to obtain, particularly in instances where actors have incentives to mislead or dissemble—measuring compliance by assessing behavior and its consequences can be very misleading and lead to false negatives. Using US bombing policy in Vietnam as an illustrative case, we show that failing to observe the differences between norm types can lead to confusion when evaluating the effects of international law.

The procedure and limits of application of norms of international law in the territories of some EAEU member countries

Effect of international law as the law regulating relations between subjects of international law applies to the whole territory of the states that have adopted its norms. Therefore, in international law, questions regarding the conditions and procedure for the application of international law in the territory of a state, as well as issues regarding the application of international norms in cases of their conflict with national legislation, have not lost their relevance. The article analyzes the legislation of some EAEU member countries, which regulate the procedure and limits of application of norms of international law in their territories.

Of the epoch (on the amendment to article 79 of the Constitution of the Russian Federation)

The article is devoted to revealing the specifics of the implementation of such areas of constitutional law as the constitutionalization of international law and the internationalization of constitutional law by the example of additions to Article 79 of the Constitution of the Russian Federation, as well as the practices of the Italian Constitutional Court, the Federal Constitutional Court of Germany, etc. The author examined in sufficient detail the procedures for extending the effect of international law and international treaties of Russia to the national legal system, analyzed the concept of counter-limits in European and national judicial practice, presented the basic principles of interaction between European and national courts (the principle of subsidiarity, the principle of proportionality, the principle of ‘sincere cooperation’, method of ‘dialogue of judges’). There is a need for an updated understanding of the term ‘constitutional sovereignty of the state’, which is based on domestic norms on fundamental rights and norms on the foundations of the constitutional system, which presupposes the inadmissibility of any foreign or international influence that violates the requirement of priority of the norms and principles of the national Constitution in the national legal system. The article substantiates the expediency of using the doctrine of counter-limits in the Russian Federation as an instrument of constitutional self-defense, ensuring constitutional sovereignty and preserving constitutional identity.

The Effectiveness of International Law in Resolving International Armed Conflicts

The purpose of this research is to identify the role and effectiveness of international law in resolving armed conflicts between States, as well as the negative effects of the emergence of armed conflicts between States, and the role of the United Nations in resolving armed conflicts and consolidating international peace. On the descriptive and historical approaches.The research concluded that international law was aimed at regulating relations between states and reducing armed conflicts between them through texts and principles restricting the right of parties to use methods and methods of warfare. Through peacemaking, peacekeeping, and humanitarian assistance. Keywords : International Law - International Armed Conflicts - United Nations DOI : 10.7176/JLPG/91-15 Publication date: November 30 th 2019

Recognition of Customary Law and Institutions and Community Protocols of Indigenous People in Domestic ABS Legislation or Policies in Accordance with the Provisions of Nagoya Protocol

The Nagoya Protocol on Access and Benefit Sharing (ABS) provides for the rights of Indigenous people and local communities in accordance with United Nations Declaration of Rights of Indigenous People. The Parties are obliged to take legislative, administrative and technical measures to recognize, respect and support/ensure the customary laws & institutions and community protocols of Indigenous peoples and local communities (ILCs). Within the ambit of contemporary debates encompassing Indigenous peoples’ right to self-determination, this paper examines the effectiveness of international law (i.e. Nagoya Protocol) to influence existing or evolving domestic laws, policies or administrative measures of Parties on access and benefit sharing. Through opinion surveys of Indigenous organizations and national authorities of CBD’s Parties, the findings indicate that the space, recognition and respect created in existing or evolving domestic ABS measures for rights of Indigenous communities are too inadequate to effectively implement the statutory provisions related to customary laws & institutions and community protocols, as envisaged in Nagoya Protocol. As the bio-cultural rights of Indigenous people are key to conservation and sustainable use of biodiversity, the domestic ABS laws need reorientation to be sufficiently effective in translating the spirit of international ABS laws into domestic policies.

Teaching the World Court Makes a Bad Case - Revisiting the Relationship between Domestic Courts and the ICJ

Sentenza 238/2014 of the Italian Constitutional Court (ItCC) highlights the important role domestic courts play in international law. More than prior examples, it illustrates the ever more autonomous and self-confident stance of domestic courts on the international plane. But the ruling of the Italian Constitutional Court also shows that more engagement with international law does not necessarily mean that domestic courts enhance the effectiveness of international law and become ‘compliance partners’ of international courts. The Sentenza rather suggests that domestic courts in times of global governance and increased activity of international courts see their role at the intersection of legal orders also as ‘gate-keepers’, ready to cushion the domestic impact of international law if deemed necessary. The judgment of the ItCC thus offers a new opportunity to examine the multifaceted and complex role of these important actors that apply and shape international law, while always remaining bound by domestic (constitutional) law. This paper does so by exploring how domestic courts deal with rulings of the World Court. It shows that despite the fact that in numerous situations domestic courts could act as compliance partners of the ICJ, in reality more often than not, they have refused to do so and deferred in the implementation of its judgments to the political branches. Assessing this practice, the paper argues that domestic courts should take a more active stance and overcome the purely interstate view which seems at odds with present day international law. While it seems too far-reaching to expect domestic courts to follow international courts unconditionally, the paper cautions that the risk of setting dangerous precedents by openly defying international judgments is considerable. Given that there is no simple way out for domestic courts in cases of conflict between international and domestic (constitutional) law, courts should carefully balance the different interests at stake, namely the interest of an effective system of international adjudication on the one hand and the protection of fundamental domestic principles on the other hand, keeping in mind that at the end of the day a functioning international legal system will to a large extent depend on them.

Contra um Fetichismo nos Estudos Empíricos em Direito Internacional: Moldura Intencional e o Esvaziamento Significativo da Empiria

Os estudos em Direito Internacional no Brasil têm se aproximado de uma tendência neo-realista do Direito, a qual visa a usar técnicas empíricas na construção e na apresentação de seu objeto para verificar as condições materiais de criação e aplicação do Direito Internacional. Apesar da relevância dessa abordagem para aprimorar o conhecimento jurídico-científico internacional, este trabalho suscita um alerta fenomenológico de matriz husserliana. A discussão recente em torno da criação de uma Corte Constitucional Internacional (CCI) se mostra um exemplo ilustrativo. A partir de análise qualitativa documental de fontes primárias e secundárias relativas à CCI, este estudo ressalta que um mesmo material empírico pode sustentar argumentos divergentes - no caso, reforço ou mitigação da autodeterminação dos povos. Essa divergência é interpretada epistemologicamente de acordo com o pensamento fenomenológico husserliano. Percebe-se que, independentemente do material empírico coletado, as conclusões se estabelecem de acordo com o posicionamento categorial do pesquisador. Argumenta-se assim que, apesar de haver uma aderência ao significante empírico, o processo de significação pouco depende dele, o qual tem seu sentido esvaziado. Por isso, argumenta-se que a busca de explicações sobre a origem e a efetividade do Direito Internacional não se restringe a uma dimensão estritamente empírica: apesar de ser necessário incorporar e aprimorar técnicas empíricas nos estudos em Direito Internacional, os limites de aplicação e de eficácia de suas normas jurídicas também derivam de condições imateriais vinculadas às restrições significativas relativas à posição categorial daqueles que as estudam e as operacionalizam.

DA NECESSÁRIA CONSTITUCIONALIZAÇÃO DO DIREITO INTERNACIONAL – UMA PERSPECTIVA DESDE A TEORIA DE ALF ROSS

O presente trabalho analisa a evolução da filosofia do direito, especialmente no que tange à epistemologia do positivismo jurídico, visando o estudo da validade e eficácia do Direito Internacional. Partindo das teorias de Hans Kelsen, Herbert Hart, e Robert Alexy, procura-se demonstrar que é Alf Ross, um dos expoentes da denominada Escola Realista do Direito, quem elabora a teoria mais consentânea com o fenômeno jurídico decorrente das relações entre o Direito Internacional e o Direito Interno de cada Estado. Objetiva-se provar que, no atual estágio do Direito Internacional, sua validade e eficácia dependem da sua constitucionalização.

International Law in a Post-Post-Cold War World-Can It Survive?

Recent world developments pose a direct challenge to the authority and effectiveness of international law. The actions of Russia in Ukraine, and China in the South China Sea, represent a particular threat. These actions are in clear violation of international law, involving the threat or use of armed force and the seizure of territory, and Russia and China are permanent members of the UN Security Council – the body charged by the international community with maintaining international peace and security. Putting further potential strain on the international legal order is the marked shift towards nationalism in many states, most notably the United States under Donald Trump. This article argues that the international community should not accept these developments as inevitable. Support for multilateralism over isolationism and unequivocal condemnation of breaches of international law are needed now more than ever.

Constitutional Transplant in the People's Republic of China: The Influence of the Soviet Model and Challenges in the Globalization Era

In this essay, I mainly focus on the constitutional transplantation in the People’s Republic of China. Firstly, I briefly present the Chinese constitution-making process from the Qing dynasty to the Republic of China to show that both regimes had transplanted more or less liberal constitutional principles, rules and institutions into their domestic constitutional document. Then, because China and the Former Soviet Union shared the Marxism-Leninism, China’s 1954 Constitution borrowed almost all the constitutional articles to various extents from the 1936 Soviet constitutional code. Though few articles of the 1977 Soviet Constitution have been imported into China’s present 1982 Constitution, China’s Constitution is still influenced by the Soviet model of constitution in many aspects related to the political and legal reform in the post-Mao era. Globalization brings many challenges to present-day China’s Soviet featured constitutional system. With China’s accession to the WTO, a qualified judicial review mechanism is required to be established by the other Member States. However, China seems not to satisfy this obligation under the framework of the present legal system. In addition, a constitutional review mechanism is still absent in China. Besides, the modern Chinese legal system keeps silent on the domestic implementation of the UN international human rights treaties in view of the fact that Chinese international law theory was molded by Soviet’s which took highly concerned on protection of its state sovereignty. Chinese authorities, on the other hand, take a vague attitude to universal human rights standards. They sometimes prefer to observe them, while in other cases, they are not willing to follow them. Besides that, the domestic effects of international law also depend on the outcomes of the struggle and compromise between the reformist and Chinese Marxist conservative.

Forgotten and Concealed: The Emblematic Cases of the Assyrian and Romani Genocides

By exploring how the Assyrian and Romani genocides came to be forgott en in offic ial history and collective memory, this paper takes a step towards redress for years of inadvertent neglect and deliberate concealment. In addressing the roles played by scholars and nations, and the effe ct of international law and government policy, it notes the inaccessibility of evidence, combined with a narrow application of definit ions of victim groups, and a focus on writt en proof of perpetrator intent. Continuing persecution of survivors in the aft ermath of the genocides, and government actions to erase the genocides from history, are common to both cases. The d imension of a comparative analysis between two emblematic “hidden” genocides shows that there are many similarities in the process of forgett ing that occurred in their respective aft ermaths. Developing an understanding of how these genocides came to be ignored and forgott en may provide a foundation for genuine acknowledgment and redress.

Is Compliance the Name of the Effectiveness Game? Goal-Shifting and the Dynamics of Judicial Effectiveness at the WTO

AbstractIn line with current research on the effectiveness of international law and institutions, much of the literature on the effectiveness of the WTO dispute settlement system (DSS) has settled on compliance as its primary effectiveness benchmark. This article challenges this trend. It argues that common models gauging the DSS effectiveness through the narrow lens of compliance disregard many other institutional goals pursued by the system, and the conflicts latent among them. Furthermore, existing models are also static in nature—predicated on problematic assumptions regarding the constant supremacy of the DSS compliance objective—what leads them to overlook important shifts amidst the multiple and conflicting goals of the DSS that take place over time and across disputes. Building on the goal-based approach developed in the social sciences, the article introduces a multidimensional framework for analyzing the DSS effectiveness, using the multiple, conflicting and shifting goals set for the system by WTO Members as key effectiveness benchmarks. The article then turns to closely examine the novel concept of ‘goal-shifting’ – essential for effectiveness assessment – and through interview-based analysis of different categories of WTO disputes shows how the DSS goals change with time and context, as a consequence of the changing modalities in which the system operates.

The Meso Level: Means of Interaction between EU and International Law

The EU is bound by international law, in that when it adopts an act it shall observe international law ‘in its entirety, including customary international law, which is binding upon the institutions of the European union’.1 This commitment is expressed in Article 3(5) of the Treaty of European Union (TEU), which provides that ‘the EU shall uphold and promote … the strict observance and the development of international law’. Yet, despite the periodic treaty revision, EU law is still not explicit about the relationship between international law and EU law. It also omits to provide an account regarding the incorporation and effect of international law upon the EU legal order. The EU Treaties merely highlight the binding character of international treaties upon the Member States,2 and charge them (or at least the founding Member States) with the task of taking the necessary steps to eliminate any incompatibilities between international agreements signed before 1958 and the EU Treaties.3 In recent years, the CJEU has clarified the effect of international treaties upon the EU legal order and has adopted a dualist approach. While forming an integral part of EU law, international agreements are only binding on private individuals by virtue of an act of an EU institution (ie a decision or regulation formally concluding the agreement in question).4

The Meso Level: Means of Interaction between EU and International Law

This paper is not the first in addressing the relationship between international and EU law. In fact, and as also noted in the Introduction to this Special Issue, ever since Van Gend & Loos the ‘autonomy’ of the Union (by then the Community) proved to be a source of theoretical debates on the issue.1 Studies focused on the ways in which international law was received in the Union’s legal order (often applying domestic constitutional analogies involving terms such as monism and dualism), or they addressed the hierarchical position of international law among other norms (often concluding that it was placed somewhere between primary and secondary law). In other words, most studies so far have focused on the effects of international law on and in the EU and the question to what extent the EU could be said to be bound by international norms.2

The National Judge as an Ordinary Judge of International Law? Invocability of Treaty Law in National Courts

AbstractSince the Simmenthal case of the ECJ, the national judge has been coined the ‘ordinary judge of EU law’, meaning that this judge has the primary responsibility for ensuring the effectiveness of EU law through different techniques. While there has been a large amount of research on the role of domestic courts in relation to international law, the question of whether the domestic judge could also be characterized as the ‘ordinary judge of international law’ in the sense the phrase is used regarding EU law has never been raised. This article identifies the contents of the phrase in the context of EU law in order to test it against international law. It undertakes this by transposing the different types of invocability – direct effect, invocability of consistent interpretation, invocability of damages, and invocability of exclusion – which set the national judge as a primary judge of EU law, to international law before domestic judges. While the analysis relies mainly on French case law relating to international law, comparisons are drawn, where relevant, between the case law of this jurisdiction and that of other jurisdictions in order to establish a general trend. This permits the conclusion that, while the French courts remain reluctant to ensure the effectiveness of international law through the adoption of the different techniques of invocability, other domestic judges behave as ordinary judges of international law in a way that is very similar to the way the national judges treat EU law.

Judicial Abdication in Foreign Affairs and the Effectiveness of International Law

Moving from the assumption that judicial abdication in foreign affairs represents a major hurdle to domestic implementation of international law (and thus to its effectiveness), the present article investigates its legal and prudential foundations, having particular regard to the political question doctrine (or political act doctrine, in civil law parlance). A comparative analysis reveals the threefold nature of these doctrines, to the extent that they operate either as a jurisdictional limitation, or as a non-justiciability argument, or as a form of prudential self-restraint. Each of these aspects will be discussed in detail in order to demonstrate a) that all the arguments employed to justify judicial abdication are devoid of grounds or overestimated; and b) that more viable solutions are available with a view to balancing judicial control and political prerogatives in foreign affairs cases.

An Introduction: The Effectiveness of International Law

An Introduction: The Effectiveness of International Law