Traditional Sources Of International Law Research Articles

How are the Paris Principles on NHRIs Interpreted? Towards a Clear, Transparent, and Consistent Interpretative Framework

ABSTRACT Although they fall outside of the traditional sources of international law, the Principles relating to the Status of National Institutions (Paris Principles) have enjoyed an authoritative value in international human rights law. International human rights bodies have increasingly permitted Paris Principles-compliant national human rights institutions (NHRIs) to participate in their activities not as part of the state but in the institutions’ own capacity, and have required states to establish NHRIs or strengthen existing NHRIs in accordance with the Paris Principles. How, then, are the Paris Principles interpreted? This study critically analyses the three principles governing the interpretation of the Paris Principles – the dynamic interpretation principle, the normative gradation principle, and the overall evaluation principle – through a comprehensive examination of the practice of the Global Alliance of National Human Rights Institutions (GANHRI), and makes recommendations for their improvement and consolidation.

The Admissibility of Unlawfully Obtained Evidence before International Courts and Tribunals

Abstract 70 years ago, the International Court of Justice decided its first and potentially most important case involving unlawfully obtained evidence. Despite clearly rejecting ‘discovery by intervention’, the judgment left many guessing as to the consequences for evidence obtained through such violations. As parties to international disputes have certainly not become less inclined to obtain evidence by unlawful means, the question arises: Was this old confusion ever unraveled? This article discusses whether today, there are international rules or principles governing the admissibility of unlawfully acquired evidence and applies a two-fold approach. First, it examines traditional sources of international law, including international jurisprudence, and second, it scrutinizes the frequently drawn analogy to national jurisdictions by surveying their treatment of illegally obtained evidence. Although a generally binding “inadmissibility rule” does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.

General Theory of International Law as Published in 25-year History of the Korea International Law Review

The Korea International Law Review(KILR) has been published since 1993. The time span of 25 years seems to be long enough to examine what has happened so far. This paper examines the academic papers, published in the last 25 years, which deal especially with the sources of, and the subjects of, international law. Researches on the traditional sources of international law, such as treaties and customary international law, are published. Also published are those on the newly emerging issue, such as soft law. Conflict of norms in international law also is carefully studied. Researches on the subjects of international law encompass States and non-State actors, such as inter-governmental organizations, NGOs and individuals. These academic papers show the developing interest of researchers in the current issues of international law and never fall behind the international academic trends. Nevertheless, developing and evolving academic concern to what is happening in the international community should be maintained lest that community be mere rhetoric.

The Legitimacy of IO Rule-Making

The rules international organizations (IOs) make deviate considerably from the traditional sources of international law in Article 38 of the International Court of Justice's (ICJ) Statute and the ways those are understood: as generated, enforced, and interpreted by states based on their consent. As this panel demonstrates, IO “rules” take various forms—e.g., guidelines, recommendations, and standards—and are promulgated by not only traditional interstate organizations but public/private hybrids, transnational networks involving agencies inside states, private associations of industry or other experts, or subsidiary committees of the parties (COPs) or meetings of the parties (MOPs). These rules enjoy varying degrees of authoritativeness, often purport to have some impact on state and non-state actors, and depart, sometimes quite openly, from reliance on state consent. And even when IOs turn to the traditional sources—treaties, custom, general principles—these take untraditional forms that blur distinctions between binding and non-binding law. Whether these governance efforts are described as systems of “global administrative law,” “global constitutionalism,” or “transnational legal orders” or as new forms of “international public law,” they are certainly different from your grandmother's public international law. Like “soft” law before it, these governance efforts have drawn the ire of legal positivists who ask, with some justice, what is meant by “law” if everyone (public, private, and in-between) is a potential “lawmaker” and no one can be certain about whether their efforts entail legal responsibility and, if so, for whom.

Procedural Normative System of the International Court of Justice

AbstractOn the basis of a thorough empirical analysis, the article comes to a number of theoretical conclusions which have never previously been discussed in the literature. In particular, it demonstrates that the Court's procedure is governed not only by ‘procedural law’ but also by norms which are non-legal. Moreover, it clearly circumscribes which norms in the documents relating to the functioning of the Court are procedural and which lack this character. In their entirety, provisions governing the Court's procedure form a ‘normative system’, with the law being only one of its elements. The Court's procedural norms originate both from the traditional sources of international law as well as from sources which, according to the usual classification, do not necessarily belong to that category. The procedural norms that are derived from all of these sources, while not tending towards uniformity in terms of their characteristics and effect, nevertheless form a system which operates as a whole. The procedure of the International Court of Justice does not fit neatly within the general scheme of ‘legal versus non-legal norms’; neither can one readily apply the theory of traditional sources of international law to a procedural system which brings together heterogeneous elements and must therefore be explained keeping in mind its own logic and nature.

Reclaiming International Law from Extraterritoriality

A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.

Searching for Coherence in Trade and Investment Arbitration: Domestic Policies Under Siege

In this paper, I highlight that international investment law, as a subsystem, should evolve to accept rules from other subsystems of law, e.g., human rights, trade (WTO law and RTA law), and environmental. This proposed evolution would need to include the acceptance of new tools that would help to expand the traditional sources of international law when dealing with fragmentation problems. Those tools would be used as connecting rules (Drive-Chains) among the fragmented subsystems when reviewing justifications not provided in investment treaties, giving coherence, predictability and legitimacy to the investment subsystem with others subsystems of law.