International Common Law Research Articles

Assembling an international social protection for the migrant: Juridical categorization in ILO migration standards, 1919–1939

This article applies a history of knowledge perspective to interwar International Labour Organization (ILO) efforts to produce generalized international instruments for governing migrant labor. The historical analysis explores what it meant in the interwar context to devise ‘an international common law of the emigrant’. It focuses particular attention on the process through which juridical techniques formalized a distinction between ‘migration for employment’ and ‘migratory movements of indigenous workers’. Foregrounding the constructed nature of these categories highlights the underlying race-based notions that informed interwar ILO standard-setting frameworks. More broadly, tracing the knowledge-making processes through which seemingly objective categorical distinctions have been constructed and reconstructed opens space for questioning and potentially rethinking the functionally differentiated normative frameworks through which global policymaking approaches human mobility today.

THE CORRELATION BETWEEN NATIONAL AND INTERNATIONAL LEGISLATION ON FREEDOM OF RELIGION: INTERACTION ISSUES

Relevance. Issues of discussion of international and national law have acquired particular relevance in the light of constitutional changes, occurred in 2020 in the Russian Federation. The primacy of national law, enshrined at the level of the Constitution of the Russian Federation, has significantly changed the interaction between the national and international legal order. At the same time, the sphere of freedom of conscience (religion) is one of the most important areas of legal regulation, which has both national and international legal aspects, which determines the relevance of the chosen research goal. The Purpose of the study is to analyze international legal and domestic regulation in the sphere of ensuring the right to freedom of conscience (religion), as well as to identify and resolve urgent problems of interaction of systemic law in the context of the right to freedom of conscience. The research objectives are: 1) determination of the place of the right to freedom of conscience (religion) in the system of international and national legal regulation, in particular, analysis of the concepts of “absolute law”, “jus cogens”, “general international law”; 2) consideration of the issue of the boundaries of freedom of religion in the understanding of the national law of the Russian Federation and international law. As a result of the accomplishment of the task, it is proposed to identify the main differences in this issue between the domestic and international legal order, as well as to put forward proposals to eliminate this discrepancy. Methodology. The key tool was the method of comparative analysis, as well as system analysis. In the course of the study, the main acts of the current legislation of the Russian Federation in the field, the most important international legal acts, the works of prominent specialists in international and constitutional rights were analyzed, a study of law enforcement acts (the practice of the courts of the Russian Federation, the European Court of Human Rights) was carried out. Conclusions. As a result, original conclusions were obtained regarding the need for the doctrinal inclusion of norms on freedom of conscience (religion) in the system of international common law. The conclusion is made about the need for a more complete consideration of the position of international judicial bodies in the legislative movement of the boundaries of the right to freedom of conscience (religion).

Działalność regulacyjna państwa a procedura wywłaszczenia

The standard of protection of foreigners operates in international common law. Under this standard, expropriating states are obliged to pay prompt, adequate and effective compensation for the expropriation of foreigners’ property. The issue of expropriation of foreigners’ property, in particular the issue of compensation for the expropriation of such property, is the subject of international tribunals’ consideration in expropriation disputes.

Comparative Analysis of Reparations for the Holocaust and for the Transatlantic Slave Trade

This article provides a legal and economic comparison of proposed reparations for the Transatlantic Slave Trade and already realized German Holocaust reparations. Neither injustice was legal at the time according to international common law. This line of legal reasoning was successfully applied at the Nuremberg trials but did not lead to Holocaust reparations. Instead, representatives of the perpetrator side reached out to representatives of the victimized side. Emory University’s Trans-Atlantic Slave Trade Database is used to determine the amounts the primarily European countries who participated in the slave trade would owe if the same per-victim reparations rate were applied, both uncompounded and compounded over time. After controlling for differences in the number of victims and the passage of time, Transatlantic Slave Trade reparations demands resemble German Holocaust reparations payments. Thus, German Holocaust reparations may serve as a blueprint for eventual Transatlantic Slave Trade reparations.

Articulations of Aboriginal Title, Indigenous Rights, and Living Customary Law in South Africa

Contemporary postcolonial scholarship often argues that common law Aboriginal title and the rights of indigenous peoples are regulated by colonial legal regimes that determine the limits of recognition and subjects indigenous peoples to oppressive forms of government. In this article, I challenge this view by focusing on the application of Aboriginal title in the South African land restitution program. I use theories of articulation and assemblage to illustrate how, in conditions of neoliberalism, Aboriginal title, indigenous rights, and living customary law are co-constituted through litigation and social activism involving both self-identified indigenous peoples and rural peoples who live by customary law. By tracking how Aboriginal title is brought into the efforts of indigenous and rural peoples to assert natural resource rights, we begin to see that this area of international common law is used much more creatively and expansively than is often acknowledged.

Against Fragmentation: International Common Law and the Development of Jus Cogens

Approaching jus cogens as a form of international common law provides a process-based backstop against fragmentation within jus cogens by reinforcing the common legal space within which courts and tribunals operate. To that end, this paper focuses on the role of international courts and tribunals in developing jus cogens as a kind of international common law. In the first section, I introduce the concept of common law and discuss its applicability to international law and jus cogens in particular. Next, I consider the practicability of this application by demonstrating capacities in which international courts and tribunals operate like common law courts vis-a-vis jus cogens. Finally, I assess the role of precedent in international law and how precedent might support a common law approach to jus cogens.

International Soft Law

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of in ternational agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range of state behavior than has been previously explained. First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a focal point is enough to generate compliance. Second, under what we term the loss avoidance theory, moving from soft law to hard law generates higher sanctions that both deter more violations and, because sanctions in the international system are negative sum, increase the net loss to the parties. States will choose soft law when the marginal costs in terms of the expected loss from violations exceed the marginal benefits in terms of deterred violations. Third, under the delegation theory, states choose soft law when they are uncertain about whether the rules they adopt today will be desirable tomorrow and when it is advantageous to allow a particular state or group of states to adjust expectations in the event of changed circumstances. Moving from hard law to soft law makes it easier for such states to renounce existing rules or interpretations of rules and drive the evolution of soft law rules in a way that may be more efficient than formal renegotiation. Fourth, we introduce the concept of international common law (ICL), which we define as a nonbinding gloss that international institutions, such as international tribunals, put on binding legal rules. The theory of ICL is based on the observation that, except occasionally with respect to the facts and parties to the dispute before it, the decisions of international tribunals are nonbinding interpretations of binding legal rules. States grant institutions the authority to make ICL as a way around the requirement that states must consent in order to be bound by legal rules. ICL affects all states subject to the underlying rule, regardless of whether

International Common Law: The Soft Law of International Tribunals

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law. Despite its inability to bind states, a tribunal can influence state behavior by implicating a state's reputation for compliance with international law, by bolstering the reciprocity underlying an agreement, or by triggering retaliation. In this sense the rulings of a tribunal influences states through the same mechanisms as does binding international law. Because tribunal rulings are soft law, however, they avoid the need for unanimity among states, thereby making it easier for the legal system (including the non-binding aspects of that system) to adapt to changing circumstances and conditions. By establishing a tribunal to interpret legal obligations in a way that gives rise to a soft law jurisprudence, therefore, states are able to expand the tribunal's influence beyond those states that submit to the tribunal's jurisdiction. In effect, all states subject to the underlying legal obligation come to be subject to the soft law impact of the tribunal, regardless of whether they have formally submitted to the tribunal's jurisdiction. In this way tribunals create what can be called an international common law able to evolve without formal agreement from states.

Beyond Bolam: Responding to the Patient

The Australian High Court's rejection in Rogers v Whitaker of the doctor-oriented standard of information to patients in negligence cases (the Bolam approach) is consistent with certain British dicta and international common law authority, and may persuade British courts to move beyond the Bolam approach and develop a patient-oriented standard of disclosure.

Dynamics of the Common Law

This is a revised version of a paper presented on 17 April 1990 by Sir Robin at the 9th Annual Commonwealth Law Conference in Auckland. The first part of this paper discusses the judicial climate in 1990. Sir Robin begins by listing examples in which common law achievements are overstated, discussing the common law of contracts, the neighbourhood principle, and damages in defamation. He then refers to the development of “common laws” of individual jurisdictions and the possibility of an international common law. He refers favourably to the Supreme Court of Canada’s dynamic approach to the common law, and discusses individual examples of the same approach by New Zealand courts in the late 1980s. The second part of his paper focusses on race relation cases, referring to litigation arising out of the Springbok tours and the Government’s asset sales programme. He concludes by highlighting the particular problem posed by racial questions for the common law. — Abstract by Tim Cochrane