General Principles Of Law Research Articles

THE PROCESS OF CONSTITUTIONALIZATION OF INTERNATIONAL HUMAN RIGHTS LAW AT THE REGIONAL LEVEL: THE CHALLENGES OF THE EUROPEAN COURT AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS

This article discusses the process of constitutionalization of international law, based on an examination of the case law of the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR). Through a bibliographical review, the objectives were to present the idea of ​​constitutionalization at the international level, based on an examination of the precedents of regional protection systems; then, the aim was to analyze the consolidation of the use of the constitutional perspective by the ECHR and the IACHR in their judgments. As a hypothesis, it is believed that regional protection systems develop the constitutional approach to international law through their judgments on human rights. Filling gaps in conventional international law, resorting to custom to prove its existence and the possibility of exercising “conventionality control” in cases related to human rights violations are some of the ways in which certain situations are subject to law and its jurisdiction. As a result, it was found that the hypothesis was partially confirmed. By examining the cases, it is clear that each regional system for the protection of human rights has a specific characteristic, within which it must act for the constitutional development of international law. In this regard, it can be inferred from the examination of the cases of the ECtHR and the Inter-American Court of Human Rights that the constitutionalization of international law can be constructed from both bottom-up and top-down perspectives, using the sources of international law – customs, the case law of the regional courts themselves and the general principles of law – to fill the gaps in the international legal system.

Human Rights and Sovereign Debt Restructurings: Considerations on States’ Legal Arguments in Disputes under Public International Law

This article delves into the intersection of sovereign debt restructurings with human rights. It emphasises that, in disputes under international law, States often omit to raise arguments concerning how adverse judgments could potentially harm the economic, social, and cultural rights of their citizens. The article also draws attention to the applicable law approach of some arbitral tribunals and the behaviour of certain holdouts, explaining how they can also contribute to this ecosystem. Ultimately, it is argued that the current hard-law international architecture is neither optimal nor encouraging to robustly link sovereign debt restructurings and human rights. To this end, the article recommends that these processes be guided by certain general principles of law. These principles, considered sources of international law, should be infused with international human rights law nuances. Rather than advocating for an overhaul, suggestions are made to refine the existing international legal framework and better suit human rights in sovereign debt restructurings.

How Simple Conclusions Carry Complex Issues: Some Thoughts on the Draft Conclusions on General Principles of Law

How Simple Conclusions Carry Complex Issues: Some Thoughts on the Draft Conclusions on General Principles of Law

Beijing Workshop on ILC Draft Conclusions on General Principles of Law Adopted on First Reading: An Editorial Note

Beijing Workshop on ILC Draft Conclusions on General Principles of Law Adopted on First Reading: An Editorial Note

Ethical aspects of the right to privacy in the 21st century: European consensus in the interpretation of the European Court of Human Rights

In the present article, we aim to elucidate concepts that do not directly stem from the content of legal sciences but have a strong impact on how the authors of the act of justice assess phenomena in 21st-century society. The relevance of the theme and the arguments presented in the article largely stem from the content of the judgments of the European Court of Human Rights after 2000. We have repeatedly found that it is precisely this regional jurisdictional body’s task to conceptualize and develop general principles of law in the field of fundamental rights and freedoms. In this context, the interpretations of the Court in Strasbourg invoking ethical aspects, in our view, are particularly interesting, when cases involving allegations by the claimants regarding violations of the right to privacy come before it, under Article 8 of the Convention for the Protect

Autonomy of Generative AI Digital Platforms in Regulating Relations with Users

The impact of the phenomenon of digital platforms on public relations can be explained, inter alia, by the fact that platform operators are beginning to compete with states for the right to set rules for users, which include almost all participants in civil turnover, inventive and creative industries, consumers of content, etc. Conditional privatization of the regulatory impact on public relations, based on the example of analyzing the rules of generative artificial intelligence platforms for creating various kinds of content, urges the State to respond. With regard to the legal regulation of digital platforms, it seems possible to build such a multi-level system of regulation of public relations that can be based on both general principles of law and codified norms. The developing discussion around the concept of the digital code of the Russian Federation allows us to formulate approaches to identify those areas of relations in the digital environment that are subject to state regulation in regulatory legal acts, as well as those that can be regulated at the level of "soft law" and within the framework of contracts between platform operators and users.

A Comparative Look at the Duty to Mitigate Loss: the Consequences of the Violation of This Duty

The duty to mitigate loss is a general principle of law that serves to limit the liability of the party that has caused injury to the extent that the injured party has not demonstrated the diligence expected from the latter. However, this duty also serves the purpose of ensuring economic efficiency. While the classic understanding requires that, according to the principle of pacta sunt servanda, the interests of the injured party should be prioritized, today, the contract also refers to the cooperation between the parties. Therefore, reduction in the amount of claimable compensation should not be the sole sanction vis-à-vis the injured party that has violated the duty to mitigate loss. Otherwise, the injured party may escape the consequences of having violated the duty to mitigate loss by resorting to other optional rights. However, in order to ensure economic efficiency, in case the injured party violates the duty to mitigate loss, sanctions should also be foreseeable in terms of other optional rights. This study will evaluate the effect of the violation of the duty to mitigate loss in particular, with regards to request for specific performance and rescission of contract.

ILC Draft Conclusions on General Principles of Law Through the Lens of Air and Space Law Practices

ILC Draft Conclusions on General Principles of Law Through the Lens of Air and Space Law Practices

The Evolution of Law and the Emanation of Law: The Concept and Essence

The purpose of the paper is to analyze the evolution of law and the emanation of law, revealing their essence, based on the concept of integrative legal understanding that synthesizes ontologically homogeneous legal regulators — principles and norms of law. The study of the stated problem was carried out based on general scientific (including systemic, historical, comparative) and private law methods of scientific cognition. The legal phenomena under study are complex and multidimensional, they are revealed as processes of development of law in terms of its content and forms of external expression. The authors come to reasoned conclusions that the evolution of law consists in the development by law-making entities on the basis of general principles of law of such legal regulators that allow society to move to a qualitatively new stage of legal regulation of legal relations. In turn, the emanation of law is a transformation of forms of law, reflecting the process of understanding and external expression, first, of general principles of law as the basis universal legal relations

Comments on the Text of the Draft Conclusions on General Principles of Law Adopted by the ILC on First Reading

Comments on the Text of the Draft Conclusions on General Principles of Law Adopted by the ILC on First Reading

General Principles of Law as a Basis for Procedural Rules of International Organizations

General Principles of Law as a Basis for Procedural Rules of International Organizations

Examining the complexities of binding international law on international organisations

PurposeThis paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.Design/methodology/approachThe paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.FindingsThe authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.Research limitations/implicationsThe most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.Originality/valueThe paper fulfils an identified gap in the positioning of IOs under the international law.

Theories of Interpretation: Islamic Law v. International

Whereas Europeans exercised influence over Muslim areas in the last century, Muslim countries and its legal systems were expected to be considered and to interact with international rules. The Hague Conferences of 1896, 1902 and 1905 were established for the purposes of developing agreement on private international law. These conferences did not invite Muslim countries though these states situated outside Europe could have treaties applied on their territories when they were under the jurisdiction of European states. In the same line several conferences and arenas have called and recommended the study of the Islamic legal rules. For example, North Sea case the judge argued that the principle of ‘sovereign equality’ protected in Article 2(1) of the United Nations Charter, necessitates the court to refer not only to European legal traditions but also to Islamic legal principles when seeking for a general principle of law. This paper argues that the Islamic law has its unique methodologies of interpretations, can share common views compared to the rules of interpretations in international law, and can offer unprecedented solutions to many international disputed issues. This article questions the ways in which the international scholarship and legal community could benefit from such an ‘exquisite understudied art.’

Pamatinės teisės idėjos kaip bendrieji teisės principai ir konstituciniai principai

The article aims at the analysis of the general principles of law in the international law and the constitutional law: the general principles of law in the case law of the International Court of Justice and the jurisprudence of the Constitutional Court of the Republic of Lithuania as well as their interplay. The concept of the general principles of law as underlying ideas identifiable in each legal system, as well as their types, functions and specifics are examined. Systematic and comparative research reveals the role of the general principles of law in the international law and the constitutional law of the Republic of Lithuania demonstrating their peculiarities in the said two legal systems, including the extent of coincidence and interrelation. The article emphasizes the significance of the general principles in both legal systems, including their role in construing, creating (developing) and applying law, as well as filling in gaps, recognizes their universality and commonness of their purpose and differences stipulated by the nature of each legal system. The analysis of the case law of the International Court of Justice reflects the discussion on the identification of the general principles of law and their recognition as such in the international law as well as the Court’s creativity in applying and construing them as the general principles of law, while the jurisprudence of the Constitutional Court of the Republic of Lithuania refers to both, the general principles of law and the constitutional principles, both being interconnected – although retaining their autonomy. It is highlighted that the general principles of law, reflecting the essential ideas and fundamental values of law, retain their unique significance despite their possible overlap with or reflection in other principles or rules.

Critical remarks concerning the theory of general principles of law and its methodological implications

In the Latvian discourse of the theory of law and legal practice, there is a set of influential ideas that constitute a theory of general principles of law. This article aims to offer some critical remarks on the aforementioned theory and to explore some resulting methodological implications. In this article, two main research methods are used: the descriptive and the deductive methods. The examination of the theory resulted in the conclusion that it is self-contradictory to assert that the basic norm (a democratic state based on the Rule of Law) can determine the entire content of the legal system. Following are some methodological implications: First, instead of asserting that all legal methods are general principles of law, one should adopt a more general norm that is flexible enough and avoids contradictions between different obligations to use legal methods, i.e. the principle of reasonable application of legal norms. Second, the interpretation of written legal norms and the concretisation of unwritten ones cannot coexist if the basic norm determines the entire content of the legal system because of the postulate which asserts that writing down unwritten legal norms in a normative act does not change its unwritten nature. Keywords: general principles of law; legal method's; legal theory.

Comments on the Text of the Draft Conclusions on General Principles of Law Adopted by the ILC on First Reading

Comments on the Text of the Draft Conclusions on General Principles of Law Adopted by the ILC on First Reading

Kavâid-i Külliye of Mecelle as a Customary Law and the General Principles of Law

Osmanlı hukuku, örfî hukuk ve şer’î hukuk olarak, iki eksende gelişmiştir. Şer’î hukukun kaynağı, Kur’an, sünnet, icma ve kıyasa dayanmaktadır. Örfî hukuk ise kaynağını padişahın iradesinden almaktadır. Tarihsel süreç içerisinde, örfî hukuk alanındaki gelişmeler, şer’î hukuka aykırı olmayacak şekilde gerçekleşmiştir. Kısaca “Mecelle” olarak bilinen, “Mecelle-i Ahkâm-ı Adliye”, hukuk alanındaki modernleşme çabaları ekseninde, 1868-1876 yılları arasında, Ahmet Cevdet Paşa başkanlığındaki bir komisyon tarafından üretilmiştir. Mecelle, Osmanlı hukuku uygulamaları bağlamındaki önemli ve özel bir eser niteliğindedir. 4 Ekim 1926 tarihinde, Türk Medeni Kanunu’nun yürürlüğe girmesiyle birlikte, aynı gün Mecelle yürürlükten kaldırılmıştır. Osmanlı Devleti’nde hukuk alanında modernleşme ve zamana ayak uydurabilme amacı güdülerek ve meseleci bir sistem takip edilerek oluşturulan Mecelle’de yer alan doksan dokuz ilke, hukukun genel prensipleri çerçevesinde düşünüldüğünde, çok önemli ifadelere sahiptir. İçerdiği hususlar anlamında, bu eserin, hukuk tarihimiz anlamında bir mihenk taşı niteliğinde olduğunu söylemek mümkündür.

The general principles of law within the framework of International Criminal Judiciary

The general principles of law within the framework of International Criminal Judiciary

Investigating the targeted use of (dis)agreement in leave to appeal decisions of the HKSAR appellate courts: a corpus-assisted discourse analysis

Abstract This study explores the use of targeted (dis)agreement by judges in leave to appeal decisions of the HKSAR appellate courts. This is achieved by applying proclaim (i.e., pronounce, concur, and endorse) and disclaim (i.e., deny and counter) of Appraisal theory and a typology of discourse targets (i.e., General, Responsive, and Specific). The study identifies significant frequency differences in the use of targeted (dis)agreement between a corpus of grant and a corpus of dismissal decisions. Amongst other things, the findings show that, in grant decisions, judges used a greater amount of General proclaim (i.e., pronounce) to convey how applications satisfied the relevant legal requirements. Contrastively, in dismissal decisions, judges used a greater amount of General/Responsive proclaim (i.e., endorse and concur) to express agreement with the lower courts, case law, and general principles of law (which essentially functioned as rebuttals to the arguments submitted by applicants). General concur was also used to highlight general legal principles so as to classify current cases negatively. The present study also examines the impact of targeted (dis)agreement on outcomes (i.e., grant or dismiss). The findings demonstrate that General/Responsive proclaim and General/Responsive disclaim acted as independent predictors with either a positive or negative influence on the outcomes. The implications of these findings are discussed in the final section of the study.

The International Law Commission's Seventy-Fourth (2023) Session: General Principles of Law and Other Topics

The International Law Commission (ILC or Commission) held its seventy-fourth session at its seat in Switzerland from April 24 to June 2 and from July 3 to August 4, 2023, and met fully in person for the first time since the COVID-19 global health pandemic. The Commission, which has had a gender imbalance in its composition, was chaired for the first time by two successive female chairs: Nilüfer Oral (Türkiye) for the first half session; followed by Patrícia Galvão Teles (Portugal) for the second half session.