Universality Of International Law Research Articles

The rise of China and the strategy of universality of international law

The rise of China and the strategy of universality of international law

The International Court of Justice and the Court of Justice of the European Union: Between Fragmentation and Universality of International Law

This chapter discusses how the Court of Justice of the European Union (CJEU) has used judgments of the International Court of Justice (ICJ) in its legal reasoning. The CJEU uses ICJ jurisprudence in three main ways: when discussing customary international law, when applying the law of treaties, and when using international law to interpret and develop principles of EU law. The chapter reviews the cases in which the CJEU and the Advocates General have discussed ICJ cases, including areas of international humanitarian law, diplomatic and consular law, nationality and citizenship, the law of the sea, and the international law of treaties. On the one hand, the CJEU’s use of ICJ case law may show its commitment to the universality and coherence of international law. However, the CJEU also has a strong commitment to the coherence and unity of EU law, and has emphasised the autonomy of the EU legal order. The chapter shows that, upon closer inspection, the CJEU interprets and applies ICJ jurisprudence through an EU law prism. It also shows that, over time, principles of international law are transformed into principles of EU law. In these instances, the CJEU no longer refers to ICJ/PCIJ jurisprudence, but as autonomous EU law principles. ICJ jurisprudence is used to fill gaps, or to support certain legal arguments, but it is not followed as if it were a hierarchically superior court.

PAHAM KEDAULATAN NEGARA DITINJAU DARI SIFAT UNIVERSILATAS HUKUM INTERNASIONAL

The power of theories regarding the principle of sovereignty and equality of the state began to diminish. Every independent country is a sovereign country. they are free to make policies to regulate the economic, political, legal and other systems within their country, however, today's development experiences a shift in meaning, what was previously the authority or full sovereign action of a country has diminished its understanding when the interests of other countries are disrupted or international needs require state sovereignty to be subject to universal rules and highest norms (erga omnes). In this study using a normative juridical approach and descriptive analytical research specifications. The data used in this study are secondary data consisting of primary, secondary and tertiary legal materials. Data obtained through library studies in the form of legislation, books, journals, and authoritative electronic media. The results of this study are 2 (two) explanations, namely First. that state sovereignty does not conflict with the international legal system, that state sovereignty can be used in the framework of forming an international legal system. Secondly, the universality of international law provides restrictions on the sovereignty of the state to be applied properly and the principle of respecting universal values ​​in order to maintain human dignity and their life.

The ‘Disappearing Island State’ Phenomenon. A Challenge to the Universality of the International Law of the Sea

This paper deals with the possible disappearance of some island States as a result of one of the negative effects of climate change, i.e., the sea level rise. In this sense, this phenomenon of ‘disappearing island States’ implies serious legal challenges to the Law of the Sea, the International Law and their alleged universality. Among others, the impact of the sea level rise on the maritime boundaries of the disappearing island States in addition to the feasibility of the proposed options to physically preserve the territory of the disappearing States are considered. From a Public International Law perspective, concerns as the possible disappearance of the constitutive statehood prerequisites (mainly, population and territory, which would progressively become uninhabitable), the need to avoid the statelessness of the disappearing island States’ nationals, or the hypothetical relocation of those ‘climate change refugees’ are analysed, too. Moreover, this contribution addresses the different strategies proposed in order to preserve the international legal personality of those States, namely: the acquisition of territory from other State, the federation with other States, the creation of governments in exile or the self-governing alternatives. In this sense, the studied alternatives seem unlikely to keep recognized over long time. Finally, consideration is given to the influence of this phenomenon in the universality of International Law, taking into account the principles and aims included in the Law of the Sea Convention (and its Preamble). The challenge of this phenomenon to the universality of International Law is based on the tough paradox according to which the smallest contributors to climate change (Small Island States) will be the most affected by climate change - even disappearing - and meanwhile their losses could eventually benefit some of the biggest contributors to climate change.

Civilizational Diversity as Challenge to the (False) Universality of International Law

Civilizational Diversity as Challenge to the (False) Universality of International Law

Remarks by Jacques deLisle

Does a more powerful and assertive China threaten the universality of international law? Maybe, but not yet clearly so. The answer depends on China's still-emerging positions, on whether a universal system will accommodate China's preferences, and on one's net assessment of China's complex and ambiguous behavior. Any Chinese challenge to universality is national, not regional. There is no coherent Asian international law, and China is not leading its emergence.

The Universality of International Law, its Humanist Outlook, and the Mission of the Hague Academy of International Law

The Universality of International Law, its Humanist Outlook, and the Mission of the Hague Academy of International Law

Conflict of Values in International Law: Universality of International Law in a Globalizing World

Conflict of Values in International Law: Universality of International Law in a Globalizing World

History of the Historiography of Spanish Textbooks and Treatises on International Law of the 19th Century

The bibliography of Spanish international law textbooks is a good indicator of the evolution of the historiography of international law. Spanish historiography, with its own special features, was a recipient of the great debates concerning naturalism v. positivism and universalism v. particularism that flourished in European and American historiography in the nineteenth century. This study is articulated on four principal axes. The first states how the writings of the philosophes continued to dominate the way in which the subject was conceived in mid-nineteenth century Spain. Secondly, it explores the popularization and democratization of international law through the work of Concepcion Arenal and the heterodox thought of Rafael Maria de Labra. Thirdly, it examines the first textbooks of international law with their distinct natural law bias, but imbued with certain positivist elements. These textbooks trawled sixteenth century Spanish history, searching for the origins of international law and thus demonstrating the historical civilizing role of Spain, particularly in America. Fourthly, it considers the vision of institutionist, heterodox reformers and bourgeois liberals who proclaimed the universality of international law, not without some degree of ambivalence, and their defence of Spain as the object of civilization and also a civilizing subject. In conclusion, the article argues that the late development of textbooks was a consequence of the late institutionalization of the study of international law during the last decade of the nineteenth century. Nevertheless, the legacy of the nineteenth century survives in the most progressive of contemporary polemics for a new international law.

Responsibility to Protect (R2P) in Libya: Ghosts of the Past Haunting the Future

In revisiting a selection of the literature about this topic, this article briefly considers the historical development of the Responsibility to Protect (R2P) and the gap between legality and legitimacy it is designed to bridge. It goes on to critically reflect upon its application in Libya, arguing that R2P is posed as a simple solution to a complex problem. It considers how this intervention represents the culmination of a legal trajectory that finds it origins in colonialism. While it remains a rhetorically compelling legal doctrine, it falls apart in practice. Such an outcome behoves international legal thinkers to reflect upon the normative value of the doctrine and critically consider humanitarian objectives when they are used to justify war. At present, failure to do so is gravely undermining the legitimacy and universality of international law. If international legal thinkers are genuinely committed to upholding universal human rights principles, an alternative must be to create consistency in how crimes against humanity are defined and acted upon. The example of Libya raises fundamental questions as to the capacity of international law to create pathways to peace and justice.

Universality of International Law from the Perspective of a Practitioner

The ESIL Conference at which this article was originally presented as the Keynote Speech was devoted to the topic of “International Law in a Heterogeneous World”. The article attempts to demonstrate that heterogeneity does not exclude the universality of international law, as long as the law retains – and further develops – its capacity to accommodate an ever larger measure of such heterogeneity. After developing three different conceptions, or levels, of what the term ‘universality’ of international law is intended to capture, the article focuses on international rules, (particularly judicial) mechanisms, and international institutions which serve the purpose of reconciling heterogeneous values and expectations by means of international law. The article links a critical evaluation of these ways and means with the different notions of universality by inquiring how they cope with the principal challenges faced by these notions. In so doing, it engages a number of topics which have become immensely popular in contemporary international legal writing, here conceived as challenges to universality: the so-called ‘fragmentation’ of international law; in close connection with this first buzzword the challenges posed by what is called the ‘proliferation’ of international courts and tribunals; and, finally, certain recent problems faced by individuals who find themselves at the fault lines of emerging multi-level international governance. The article concludes that these challenges have not prevented international law from forming a (by and large coherent) legal system. Most concerns about the dangers of fragmentation appear overstated. As for the ‘proliferation’ of international judicial institutions, the debate on fragmentation has made international judges even more aware of the responsibility they bear for a coherent construction of international law. They have managed to develop a set of tools for coping with the undesirable results of both phenomena. Despite some evidence of competition among international courts for ‘institutional hegemony’, such competition has hitherto been marked by a sense of responsibility on the part of all concerned. Thus, from the viewpoint of a practitioner, the universality of international law is alive and well; there is no need to force the law into the Procrustean bed of ‘constitutionalization’.

Peking's Attitudes Toward International Law

Serious debates on the universality of international law emerged in Communist China after 1957. These centered on a few interrelated questions: Is traditional international law bourgeois in origin and character? Is there a separate socialist international law? Is there one international law equally applicable to states of different ideologies? If so, what is it? The resurgence of Soviet interest after the 20th Party Congress, a landmark in the development of Soviet theory of international law, may have provoked the debates in mainland China. On the other hand, during the late 1950s mainland China manifested a belated interest in law as a whole, including international law, which somehow continued at least until the outbreak of the Cultural Revolution in 1966.

International Law and Global Ideological Conflict: Reflections on the Universality of International Law

If, after the nineteenth century, there remained any question concerning the universality of international law, or of its fundamental rules, it appeared to be largely one of legal history. But as the world of the twentieth century has come to be divided by political ideologies, their legal ramifications have given the question new actuality as one of basic legal theory. That the Family of Nations, or the subjects of international law, embraced virtually all states of the world seemed no longer open to serious doubt when non-Christian states wholly outside Europe took part in the Hague Peace Conferences of 1899 and 1907 and when participation by such states was continued and further extended in the Paris Peace Conference of 1919 and in the League of Nations. Yet the same period that saw the unquestioned global expansion of international law has had to face new challenges to its unity as a single, universally valid legal system. They were raised chiefly by German Nazis and Soviet Communists, or in turn against them by their respective critics and opponents. Confronted with these challenges, the universal validity of international law appears no longer as an existingphenomenon that may be traced back to its origins and on to its eventual completion, but as a debatable assumption that stands to be justified or rejected in the light of fresh examination.