Alexander Orakhelashvili
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199546114
- eISBN:
- 9780191712203
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546114.003.0002
- Subject:
- Law, Public International Law
This chapter focuses on the origins of the notion of jus cogens (public order/public policy) and examines its fundamental characteristics by reference to different national legal systems. It then ...
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This chapter focuses on the origins of the notion of jus cogens (public order/public policy) and examines its fundamental characteristics by reference to different national legal systems. It then examines the necessity of jus cogens in international law and some doctrinal objections to it.Less
This chapter focuses on the origins of the notion of jus cogens (public order/public policy) and examines its fundamental characteristics by reference to different national legal systems. It then examines the necessity of jus cogens in international law and some doctrinal objections to it.
James Crawford
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199270583
- eISBN:
- 9780191710230
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199270583.003.0021
- Subject:
- Law, Legal History
Lassa Oppenheim, Hersch Laurerpacht, and Georg Schwarzenberger played a significant role in their time in teaching and writing about general public international law in the United Kingdom. Oppenheim, ...
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Lassa Oppenheim, Hersch Laurerpacht, and Georg Schwarzenberger played a significant role in their time in teaching and writing about general public international law in the United Kingdom. Oppenheim, Laurerpacht, and Schwarzenberger — who held university chairs in international law in England and whose primary vocation was as teachers and writers — had little in common other than their German-speaking and Jewish background, and their subsequent British naturalisation. This chapter looks at the state of public international law in 20th century England, the English tradition of international law, and the influence of the émigré legal scholars on international law scholarship. As far as international law is concerned, three international developments of the half-century were: the move to international organisations in the political and other spheres; the development of permanent international courts and of a recognisable international judicial technique for dispute resolution; and the attempt to control the use of force as an instrument of policy in international relations.Less
Lassa Oppenheim, Hersch Laurerpacht, and Georg Schwarzenberger played a significant role in their time in teaching and writing about general public international law in the United Kingdom. Oppenheim, Laurerpacht, and Schwarzenberger — who held university chairs in international law in England and whose primary vocation was as teachers and writers — had little in common other than their German-speaking and Jewish background, and their subsequent British naturalisation. This chapter looks at the state of public international law in 20th century England, the English tradition of international law, and the influence of the émigré legal scholars on international law scholarship. As far as international law is concerned, three international developments of the half-century were: the move to international organisations in the political and other spheres; the development of permanent international courts and of a recognisable international judicial technique for dispute resolution; and the attempt to control the use of force as an instrument of policy in international relations.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.001.0001
- Subject:
- Law, Public International Law, EU Law
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The ...
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This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines. Less
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines.
Herwig C.H. Hofmann, Gerard C. Rowe, and Alexander H. TÜrk
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199286485
- eISBN:
- 9780191730894
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199286485.003.0005
- Subject:
- Law, EU Law, Constitutional and Administrative Law
This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative ...
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This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative action and the procedures, prerequisites, and processes of supervision which apply to them. Such sources arise from European Treaty provisions, and legislative, delegated, and implementing measures. To a certain, albeit limited, degree they may also arise from customary public international law or international agreements. Further, in certain contexts, they may arise from national law. The chapter presents such sources with special emphasis on their connection with administrative action in the EU.Less
This chapter focuses on the sources of European administrative law. It addresses the sources of administrative law more from the perspective of setting the framework for such forms of administrative action and the procedures, prerequisites, and processes of supervision which apply to them. Such sources arise from European Treaty provisions, and legislative, delegated, and implementing measures. To a certain, albeit limited, degree they may also arise from customary public international law or international agreements. Further, in certain contexts, they may arise from national law. The chapter presents such sources with special emphasis on their connection with administrative action in the EU.
Dino Kritsiotis and A. W. B. Simpson
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199568666
- eISBN:
- 9780191721595
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199568666.003.0005
- Subject:
- Law, Public International Law
This chapter begins with an assessment of the basis or bases for the assertion of jurisdiction by the United Kingdom over Pitcairn Island as understood in public international law. It does so by a ...
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This chapter begins with an assessment of the basis or bases for the assertion of jurisdiction by the United Kingdom over Pitcairn Island as understood in public international law. It does so by a brief analysis of the concept of jurisdiction and how public international law constructs the idea of the assertion of jurisdiction by States. It reflects on the jurisdictional position of the United Kingdom in respect of Pitcairn Island from a historical as well as modern perspective, though this discussion all the while assumes that the United Kingdom does indeed have sovereign title over the territory (or territories) at issue. The chapter then addresses the question of territorial acquisition — of how public international law has provided over time for modes of acquisition of sovereign title, and through what process or processes title in respect of Pitcairn Island might have come to reside in ultimo in the United Kingdom. It is shown that sovereign title itself opens up the vexed matter of the legal obligations of States in respect of their territories and, the nature and extent of human rights obligations of States under public international law are considered. These themes are developed in the penultimate section of the chapter to contemplate how this experience might inform or shape notions of the concept of law itself, and what it tells us in general terms about the application of the law in anomalous or unusual spaces.Less
This chapter begins with an assessment of the basis or bases for the assertion of jurisdiction by the United Kingdom over Pitcairn Island as understood in public international law. It does so by a brief analysis of the concept of jurisdiction and how public international law constructs the idea of the assertion of jurisdiction by States. It reflects on the jurisdictional position of the United Kingdom in respect of Pitcairn Island from a historical as well as modern perspective, though this discussion all the while assumes that the United Kingdom does indeed have sovereign title over the territory (or territories) at issue. The chapter then addresses the question of territorial acquisition — of how public international law has provided over time for modes of acquisition of sovereign title, and through what process or processes title in respect of Pitcairn Island might have come to reside in ultimo in the United Kingdom. It is shown that sovereign title itself opens up the vexed matter of the legal obligations of States in respect of their territories and, the nature and extent of human rights obligations of States under public international law are considered. These themes are developed in the penultimate section of the chapter to contemplate how this experience might inform or shape notions of the concept of law itself, and what it tells us in general terms about the application of the law in anomalous or unusual spaces.
Jane McAdam
- Published in print:
- 2011
- Published Online:
- January 2011
- ISBN:
- 9780199600458
- eISBN:
- 9780191723544
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600458.003.0007
- Subject:
- Political Science, Political Theory, International Relations and Politics
Environmental migration is not a new phenomenon. Natural and human-induced environmental disasters have displaced people in the past and continue to do so. Nevertheless, the environmental events and ...
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Environmental migration is not a new phenomenon. Natural and human-induced environmental disasters have displaced people in the past and continue to do so. Nevertheless, the environmental events and processes accompanying global climate change threaten to dramatically increase human movement both within and across State borders. Estimates suggest that between 200 and 250 million people will be displaced by environmental causes before 2050. The environmental impacts of climate change have been signalled as the key driver of this anticipated surge in migration.Evidently, migration on this unprecedented scale demands a multilateral institutional response. Yet, environmental migration governance represents a significant challenge, not least because the content and parameters of the concept continue to be debated. There is at present no internationally agreed definition of what it means to be an environmental ‘migrant’, ‘refugee’, or ‘displaced person’, and, consequently, no agreed label for those affected. Questions of definition have clear governance implications, informing the appropriate location of environmental migration both procedurally—as an international, regional, or local, developed and/or developing country concern/responsibility—and thematically—for example, within the existing refugee protection framework or under the UN Framework Convention on Climate Change. The viability and value of institutionalizing international cooperation and collaboration on international migration matters generally, and environmental migration particularly, depends upon how that phenomenon can and should be formulated as a discrete concept in law and policy. Taking a legal perspective, this chapter grounds its normative analysis in a thorough examination and assessment of the existing institutions and political processes that impact upon environmental migration and States' responses to them.Less
Environmental migration is not a new phenomenon. Natural and human-induced environmental disasters have displaced people in the past and continue to do so. Nevertheless, the environmental events and processes accompanying global climate change threaten to dramatically increase human movement both within and across State borders. Estimates suggest that between 200 and 250 million people will be displaced by environmental causes before 2050. The environmental impacts of climate change have been signalled as the key driver of this anticipated surge in migration.Evidently, migration on this unprecedented scale demands a multilateral institutional response. Yet, environmental migration governance represents a significant challenge, not least because the content and parameters of the concept continue to be debated. There is at present no internationally agreed definition of what it means to be an environmental ‘migrant’, ‘refugee’, or ‘displaced person’, and, consequently, no agreed label for those affected. Questions of definition have clear governance implications, informing the appropriate location of environmental migration both procedurally—as an international, regional, or local, developed and/or developing country concern/responsibility—and thematically—for example, within the existing refugee protection framework or under the UN Framework Convention on Climate Change. The viability and value of institutionalizing international cooperation and collaboration on international migration matters generally, and environmental migration particularly, depends upon how that phenomenon can and should be formulated as a discrete concept in law and policy. Taking a legal perspective, this chapter grounds its normative analysis in a thorough examination and assessment of the existing institutions and political processes that impact upon environmental migration and States' responses to them.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.001.0001
- Subject:
- Law, Public International Law
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ...
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Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.Less
Writing in the immediate aftermath of the Second World War, the political theorist Hannah Arendt argued that the plight of stateless people in the inter-war period pointed to the existence of a ‘right to have rights’. This right to have rights was the right to citizenship—to membership of a political community. Since then, and especially in recent years, theorists have continued to grapple with the meaning of the right to have rights. In the context of enduring statelessness, mass migration, people flows, and the contested nature of democratic politics, the question of the right to have rights remains of pressing concern for writers and advocates across the disciplines. This book provides the first in-depth examination of the right to have rights in the context of the international protection of human rights. It explores two overarching questions. First, how do different and competing conceptions of the right to have rights shed light on right-bearing in the contemporary context, and in particular on concepts and relationships central to the protection of human rights in public international law? Secondly, given these competing conceptions, how is the right to have rights to be understood in the context of public international law? In the course of the analysis, the author examines the significance and limits of citizenship, nationality, humanity, and politics for right-bearing, and argues that their complex interrelation points to how the right to have rights might be rearticulated for the purposes of international legal thought and practice.
Vaughan Lowe
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0029
- Subject:
- Law, Legal History
This chapter examines the question of the proper relationship between Public International Law and the English courts. It considers the standing and the role of international law in English courts, ...
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This chapter examines the question of the proper relationship between Public International Law and the English courts. It considers the standing and the role of international law in English courts, and the distinction between the question of standing and the question of role.Less
This chapter examines the question of the proper relationship between Public International Law and the English courts. It considers the standing and the role of international law in English courts, and the distinction between the question of standing and the question of role.
Anthony Carty
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9780748622559
- eISBN:
- 9780748652525
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748622559.003.0001
- Subject:
- Philosophy, Political Philosophy
This chapter begins with a discussion of a definition of doctrine and its present problematic in public international law. It refers to two recent French works, the Dictionnaire encyclopédique de ...
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This chapter begins with a discussion of a definition of doctrine and its present problematic in public international law. It refers to two recent French works, the Dictionnaire encyclopédique de théorie et de sociologie du droit and a colloquium organised by the legal history department of the University of Picardie (Amiens), La Doctrine juridique. The first provides an authoritative and vital distinction between legal doctrine and legal dogmatics, while the second explains the problematic of keeping the former alive. The chapter then presents an introduction of the figure of Paulus Vladimiri to illustrate how, during the classical medieval period, the distinction between doctrine and dogmatics was clearly understood precisely in the sense outlined in the Dictionnaire. It is only with the coming of the modern period that the former comes to be swallowed up by the latter. The discussion then turns to the role for doctrine in the classical theory of sovereignty and the foundations for a new role for doctrine.Less
This chapter begins with a discussion of a definition of doctrine and its present problematic in public international law. It refers to two recent French works, the Dictionnaire encyclopédique de théorie et de sociologie du droit and a colloquium organised by the legal history department of the University of Picardie (Amiens), La Doctrine juridique. The first provides an authoritative and vital distinction between legal doctrine and legal dogmatics, while the second explains the problematic of keeping the former alive. The chapter then presents an introduction of the figure of Paulus Vladimiri to illustrate how, during the classical medieval period, the distinction between doctrine and dogmatics was clearly understood precisely in the sense outlined in the Dictionnaire. It is only with the coming of the modern period that the former comes to be swallowed up by the latter. The discussion then turns to the role for doctrine in the classical theory of sovereignty and the foundations for a new role for doctrine.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.003.0003
- Subject:
- Law, Public International Law
Chapter 2 examines the emancipatory potential and limits of the right to have rights conceived in terms of the right to a nationality. Four different conceptions of the right are examined and ...
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Chapter 2 examines the emancipatory potential and limits of the right to have rights conceived in terms of the right to a nationality. Four different conceptions of the right are examined and critiqued—the formal, human rights, democratic governance, and substantive belonging approaches, with the author favouring the latter. Whichever conception is adopted, however, it is argued that nationality risks usurping humanity such that the subject of rights becomes the national alone.Less
Chapter 2 examines the emancipatory potential and limits of the right to have rights conceived in terms of the right to a nationality. Four different conceptions of the right are examined and critiqued—the formal, human rights, democratic governance, and substantive belonging approaches, with the author favouring the latter. Whichever conception is adopted, however, it is argued that nationality risks usurping humanity such that the subject of rights becomes the national alone.
Horst G Krenzler and Oliver Landwehr
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199588817
- eISBN:
- 9780191725272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588817.003.0063
- Subject:
- Law, Public International Law
This chapter seeks to clarify the relationship between international law and the EU legal order — a question that is often reduced to whether World Trade Organization law has or should have direct ...
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This chapter seeks to clarify the relationship between international law and the EU legal order — a question that is often reduced to whether World Trade Organization law has or should have direct effect within the EU legal order. Accordingly, there is a wealth of academic literature on that topic which often, however, neglects to put the question into the wider context of how general international law interacts with EU law. This question was brought to the forefront again in the so-called ‘terrorist cases’. There, the relationship between United Nations (UN) law and EU law was examined in great detail since it was the pivotal point of the judgments. It is argued Kadi does not represent the ultimate step by which EU law emancipates itself from public international law (PIL) in order to become a fully self-contained regime. Kadi is not völkerrechtsunfreundlich. In that respect, it is worth bearing in mind that, unlike the US Supreme Court in Medellin, the ECJ has not denied the conferral of rights granted by PIL but remedied the latter's deficiencies. Therefore, in the long run, the Court's judgment in Kadi might even strengthen international law in the way the Solange I judgment of the German Constitutional Court led to the evolution of human rights law in the ECJ's own jurisprudence.Less
This chapter seeks to clarify the relationship between international law and the EU legal order — a question that is often reduced to whether World Trade Organization law has or should have direct effect within the EU legal order. Accordingly, there is a wealth of academic literature on that topic which often, however, neglects to put the question into the wider context of how general international law interacts with EU law. This question was brought to the forefront again in the so-called ‘terrorist cases’. There, the relationship between United Nations (UN) law and EU law was examined in great detail since it was the pivotal point of the judgments. It is argued Kadi does not represent the ultimate step by which EU law emancipates itself from public international law (PIL) in order to become a fully self-contained regime. Kadi is not völkerrechtsunfreundlich. In that respect, it is worth bearing in mind that, unlike the US Supreme Court in Medellin, the ECJ has not denied the conferral of rights granted by PIL but remedied the latter's deficiencies. Therefore, in the long run, the Court's judgment in Kadi might even strengthen international law in the way the Solange I judgment of the German Constitutional Court led to the evolution of human rights law in the ECJ's own jurisprudence.
Vaughan Lowe
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199244027
- eISBN:
- 9780191713224
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199244027.003.0011
- Subject:
- Law, Public International Law
This chapter is concerned with the sources of public international law and the methods of law creation. It refers to both under the rubric of ‘sources doctrine’. It considers what changes might be ...
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This chapter is concerned with the sources of public international law and the methods of law creation. It refers to both under the rubric of ‘sources doctrine’. It considers what changes might be expected in the method and character of norm creation in international law. It briefly suggests a model of the development of normative systems that sheds some light on the ways in which these changes occur.Less
This chapter is concerned with the sources of public international law and the methods of law creation. It refers to both under the rubric of ‘sources doctrine’. It considers what changes might be expected in the method and character of norm creation in international law. It briefly suggests a model of the development of normative systems that sheds some light on the ways in which these changes occur.
Alison Kesby
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199600823
- eISBN:
- 9780191738272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199600823.003.0002
- Subject:
- Law, Public International Law
Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in ...
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Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in the world’, a place of lawful residence, and is not constantly shunted between states. The author examines how international law constructs the need for a ‘place in the world’ and the legal statuses by which individuals are emplaced (or misplaced) within it, namely the international legal status of nationality and, exceptionally, the humanity of international human rights law as inflected in rights such as the right to respect for family and private life.Less
Chapter 1 examines the right to have rights in the context of the movement of people across borders. In the present international system of states, it is imperative that each person has a ‘place in the world’, a place of lawful residence, and is not constantly shunted between states. The author examines how international law constructs the need for a ‘place in the world’ and the legal statuses by which individuals are emplaced (or misplaced) within it, namely the international legal status of nationality and, exceptionally, the humanity of international human rights law as inflected in rights such as the right to respect for family and private life.
Uwe Kischel
- Published in print:
- 2019
- Published Online:
- April 2019
- ISBN:
- 9780198791355
- eISBN:
- 9780191833830
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198791355.003.0011
- Subject:
- Law, Comparative Law, Constitutional and Administrative Law
This concluding chapter addresses transnational law. Public international law and European Union law are by no means the only transnational legal orders. There are also smaller transnational systems ...
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This concluding chapter addresses transnational law. Public international law and European Union law are by no means the only transnational legal orders. There are also smaller transnational systems in South America or Africa which are modeled on European Union law, but which lag far behind in terms of importance and level of sophistication. The context of public international law is marked by a number of features which distinguish it from the various contexts of national law. At a very general level, public international law is characterized by a stronger interweaving of fact and law; heightened importance of politics; and a less technical approach to norms, their text, and their meaning than lawyers may be accustomed to. Meanwhile, European Union law is an independent legal system which, at least in its present, highly-developed form, has much more in common with national legal systems than with public international law.Less
This concluding chapter addresses transnational law. Public international law and European Union law are by no means the only transnational legal orders. There are also smaller transnational systems in South America or Africa which are modeled on European Union law, but which lag far behind in terms of importance and level of sophistication. The context of public international law is marked by a number of features which distinguish it from the various contexts of national law. At a very general level, public international law is characterized by a stronger interweaving of fact and law; heightened importance of politics; and a less technical approach to norms, their text, and their meaning than lawyers may be accustomed to. Meanwhile, European Union law is an independent legal system which, at least in its present, highly-developed form, has much more in common with national legal systems than with public international law.
Lan Cao
- Published in print:
- 2016
- Published Online:
- June 2016
- ISBN:
- 9780199915231
- eISBN:
- 9780199362936
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199915231.003.0003
- Subject:
- Law, Public International Law, Human Rights and Immigration
The purpose of this chapter is to demonstrate why and how international law as a discipline has been neglectful of culture. The acultural tradition of international law is deeply embedded in the ...
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The purpose of this chapter is to demonstrate why and how international law as a discipline has been neglectful of culture. The acultural tradition of international law is deeply embedded in the discipline itself, and this acultural tradition has also been passed down to law and development. This is because law and development as a discipline is closely related to, if not an intellectual child of, international law. To understand the exclusion of culture from law and development, one needs to understand the exclusion of culture from international law. This chapter sets forth the nationalist and internationalist positions with respect to the state and the market, using polarities between nationalism and internationalism. It focuses on how international law, public and private, has coalesced around different animating principles and in the process ignored culture.Less
The purpose of this chapter is to demonstrate why and how international law as a discipline has been neglectful of culture. The acultural tradition of international law is deeply embedded in the discipline itself, and this acultural tradition has also been passed down to law and development. This is because law and development as a discipline is closely related to, if not an intellectual child of, international law. To understand the exclusion of culture from law and development, one needs to understand the exclusion of culture from international law. This chapter sets forth the nationalist and internationalist positions with respect to the state and the market, using polarities between nationalism and internationalism. It focuses on how international law, public and private, has coalesced around different animating principles and in the process ignored culture.
F. A. R. Bennion
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199564101
- eISBN:
- 9780191705465
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564101.003.0011
- Subject:
- Law, Constitutional and Administrative Law
A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal ...
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A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal policy consists of principles the judges consider the law must uphold, such as: that law should serve the public interest, that it should be fair and just, etc. Different elements of legal policy, for example the safeguarding of personal liberty and the need for state security, may conflict. On some aspects legal policy may change drastically over a period. The court ought not to enunciate a new head of policy where Parliament has demonstrated its willingness to intervene. It is a principle of legal policy that domestic law should conform to public international law. This has been given statutory effect in relation to the European Convention on Human Rights by the Human Rights Act 1998 s 3(1).Less
A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal policy consists of principles the judges consider the law must uphold, such as: that law should serve the public interest, that it should be fair and just, etc. Different elements of legal policy, for example the safeguarding of personal liberty and the need for state security, may conflict. On some aspects legal policy may change drastically over a period. The court ought not to enunciate a new head of policy where Parliament has demonstrated its willingness to intervene. It is a principle of legal policy that domestic law should conform to public international law. This has been given statutory effect in relation to the European Convention on Human Rights by the Human Rights Act 1998 s 3(1).
Eileen Denza
- Published in print:
- 2002
- Published Online:
- March 2012
- ISBN:
- 9780198299356
- eISBN:
- 9780191685682
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198299356.003.0002
- Subject:
- Law, EU Law
This chapter examines the distinguishing legal features of the intergovernmental pillars of the European Union (EU). It explains that the pillars are ...
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This chapter examines the distinguishing legal features of the intergovernmental pillars of the European Union (EU). It explains that the pillars are not a legal innovation and they were established because of the recognition of the majority of Member States that European Community law is not appropriate for the areas where they wish to work together. It discusses the similarities and differences between public international law and European Community law.Less
This chapter examines the distinguishing legal features of the intergovernmental pillars of the European Union (EU). It explains that the pillars are not a legal innovation and they were established because of the recognition of the majority of Member States that European Community law is not appropriate for the areas where they wish to work together. It discusses the similarities and differences between public international law and European Community law.
Burkhard Hess
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199588817
- eISBN:
- 9780191725272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588817.003.0059
- Subject:
- Law, Public International Law
This chapter focuses not only on European civil procedural law, but it also explores its relations with public international law. This explains rests on the following observations. On the one hand, ...
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This chapter focuses not only on European civil procedural law, but it also explores its relations with public international law. This explains rests on the following observations. On the one hand, European procedural law has largely shifted away from the traditional concepts of international law relating to cross-border litigation (especially in the field of judicial assistance). However, there are still some areas in civil litigation where the traditional concepts of public international law are fully applied. On the other hand, European civil procedural law attracts ‘political litigation’ which was traditionally barred by concepts like State and diplomatic immunity, public policy, and the political question doctrine. As these concepts have been — at least partly — modified in the European Judicial Area, litigants are engaging in ‘borderline cases’ seeking redress in situations traditionally precluded by public international law. Against this background, the chapter explores whether European procedural law offers new prospects for the private enforcement of human rights.Less
This chapter focuses not only on European civil procedural law, but it also explores its relations with public international law. This explains rests on the following observations. On the one hand, European procedural law has largely shifted away from the traditional concepts of international law relating to cross-border litigation (especially in the field of judicial assistance). However, there are still some areas in civil litigation where the traditional concepts of public international law are fully applied. On the other hand, European civil procedural law attracts ‘political litigation’ which was traditionally barred by concepts like State and diplomatic immunity, public policy, and the political question doctrine. As these concepts have been — at least partly — modified in the European Judicial Area, litigants are engaging in ‘borderline cases’ seeking redress in situations traditionally precluded by public international law. Against this background, the chapter explores whether European procedural law offers new prospects for the private enforcement of human rights.
Roxana Banu
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819844
- eISBN:
- 9780191860102
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819844.003.0002
- Subject:
- Law, Private International Law
This chapter discusses two different intellectual motivations in nineteenth-century PrIL, namely the attempt to align PrIL with PublIL and with private law respectively. The chapter shows that ...
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This chapter discusses two different intellectual motivations in nineteenth-century PrIL, namely the attempt to align PrIL with PublIL and with private law respectively. The chapter shows that scholars like Antoine Pillet and Ernst Zitelmann, who attempted to align private with public international law, injected a formalistic and neutral notion of state sovereignty into PrIL. It further argues that various scholars focusing on private law and on the rights and expectations of individuals, rather than states, portrayed a relational, socially constituted image of the transnational agent, rather than the atomistic image generally associated with nineteenth-century private law theories. Lastly, this chapter describes the scholarship of Pasquale Mancini as a particular kind of humanistic perspective, which, in contrast to the relational internationalist perspective, both narrowed and enlarged individual liberty in the transnational realm.Less
This chapter discusses two different intellectual motivations in nineteenth-century PrIL, namely the attempt to align PrIL with PublIL and with private law respectively. The chapter shows that scholars like Antoine Pillet and Ernst Zitelmann, who attempted to align private with public international law, injected a formalistic and neutral notion of state sovereignty into PrIL. It further argues that various scholars focusing on private law and on the rights and expectations of individuals, rather than states, portrayed a relational, socially constituted image of the transnational agent, rather than the atomistic image generally associated with nineteenth-century private law theories. Lastly, this chapter describes the scholarship of Pasquale Mancini as a particular kind of humanistic perspective, which, in contrast to the relational internationalist perspective, both narrowed and enlarged individual liberty in the transnational realm.
Horatia Muir Watt
- Published in print:
- 2014
- Published Online:
- March 2015
- ISBN:
- 9780198727620
- eISBN:
- 9780191793684
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198727620.003.0001
- Subject:
- Law, Private International Law, Constitutional and Administrative Law
While ongoing debates reveal emerging responses to distributional issues beyond the Western welfare state, and new conceptions of private transnational authority, it seems that PIL stands aloof, ...
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While ongoing debates reveal emerging responses to distributional issues beyond the Western welfare state, and new conceptions of private transnational authority, it seems that PIL stands aloof, claiming process-based neutrality or the apolitical nature of private law technique. As a result, its tools and methods are paradoxically unequipped to deal with the most significant cross-border legal difficulties which might have been expected to fall within its remit. This is particularly true in respect of the governance of transnational non-state power. At the same time, the new thinking from other fields which seeks to fill the void tends in many instances to reinvent the wheel, ignoring the fact that legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision have long been part of the daily fare of PIL. The crucial issue now is whether PIL can, or indeed should, survive as a discipline.Less
While ongoing debates reveal emerging responses to distributional issues beyond the Western welfare state, and new conceptions of private transnational authority, it seems that PIL stands aloof, claiming process-based neutrality or the apolitical nature of private law technique. As a result, its tools and methods are paradoxically unequipped to deal with the most significant cross-border legal difficulties which might have been expected to fall within its remit. This is particularly true in respect of the governance of transnational non-state power. At the same time, the new thinking from other fields which seeks to fill the void tends in many instances to reinvent the wheel, ignoring the fact that legal pluralism, peer networks, transnational substantive rules, privatized dispute resolution, and regime collision have long been part of the daily fare of PIL. The crucial issue now is whether PIL can, or indeed should, survive as a discipline.
