Acta Sunt Servanda? A regime for unilateral acts of states at international law (original) (raw)
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Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work
Review of Economics and Political Science
Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.
It is assumed that unless treaties have fulfilled the procedural requirements that need to be considered while it is made it will not have a binding legal effect up on parties to that specific treaties. However Starting from the period when The permanent court of international justice (PCIJ) use Unperfected treaties as a source adjudication of cases, especially from the time when International court of Justice (ICJ) decided cases based on Unperfected Treaties and Other Unperfected Acts the trend that exist in the international law changes: in this paper attempt will be made to examine the conditions that needs to be considered while international courts adjudicate cases based on the unperfected treaties and the counter argument forwarded with regard to adjudication of cases based on unperfected treaties.
Unrecognised States: The Necessary Affirmation of the Event of International Law
Law and Critique , 2021
Fitzpatrick's writing on international law did not constitute the main focus of his oeuvre. However, the determinate-responsive nature of law that characterised so much of his work did extend to an analysis of the generative force of international law. This article picks up on commentary from Modernism and the Grounds of Law (2001) and 'Latin Roots' (2010), among other contributions, to test this generative force of international law, which Fitzpatrick identifies as a necessary affirmation of the movement between the 'determinate but not ultimately determinate' sovereignty of a singular nation state and the 'illimitably responsive but not ultimately responsive' force of the community (Fitzpatrick 2010, p. 46). We test Fitzpatrick's view of international law through two examples of un-recognised states and the mechanism of non/recognition utilised by the international legal community to determine what constitutes a singular nation-state for participation in the community of international law. Our two case studies, North Cyprus and Crimea, illuminate the continuing relevance of Fitzpatrick's schema. Through non/recognition, 'states' that are includedas-excluded participate in the ongoing affirmation of an international legal 'community', a community that continues to be constituted through the affirmation of imperial power.
International Law and State Behaviour
With international law having less torque than state laws, the question of what motivates states to comply with international rules remains a conundrum. In very recent times Russia's involvement in Crimea along with the treatment of alleged terrorists in Guantanamo Bay highlights that the involvement of the international community in respect of international law alters the behaviour of member states by employing the obligations set out in these rules. This raises the question as to why sovereign states make commitments; what motivates them and what are the effects of international law on their behaviour when some of these rules are not binding. Central to these questions are a myriad of issues such as legal tradition, reputational theory, economic forces and various state interests which underpin the raison d'être as to why states behave the way they do. This article highlights the behaviour of states towards the obligations of international law and how international law may play a role in shaping their behaviour.
Establishing the legal nature of unilateral acts of states
2018
Тезис о том, что намерение государства принять юридические обязательства является основным критерием для установления правового характера одностороннего акта, можно считать устоявшимся. Однако он не решает проблемы толкования намерения государства быть юридически связанным и определения применимости режима односторонних актов государств к конкретному акту. В статье проанализированы ряд заявлений и деклараций, сформулированных в одностороннем порядке, с целью выявить различные аспекты процесса определения правовой природы акта государства. По результатам рассмотрения негативных гарантий безопасности, нотификаций о принятии законодательных актов, обещаний предоставления безвизового режима, заверений в поддержке приобретения статуса в международной организации сформулированы предложения, касающиеся оценки отдельных односторонних заявлений для квалификации их в качестве правовых актов.
Between Power and Principle: An Integrated Theory of International Law
University of Chicago Law Review, 2005
Over 50,000 international treaties are in force today, covering nearly every aspect of international affairs and nearly every facet of state authority. And yet many observers continue to argue that international law-with its general absence of central enforcement and its typically voluntary character-is ineffective. This Article assesses and responds to this challenge. Building upon insights from both political science and legal scholarship, it offers a theory of state decisions regarding treaty law that accounts for the key ways in which such law shapes state behavior. This integrated theory of international law seeks to explain why countries would commit to treaties that potentially constrain their behavior and how treaties, once accepted, influence or fail to influence state behavior I argue that commitment and compliance are reciprocal influences on each other. If compliance is very costly or carries few benefits, for instance, countries will be unlikely to join a treaty in the first place. As a result, states behave in ways that standard theories miss-failing to join treaties for example, with which they could easily comply, or joining treaties that they have little inclination to obey. The theory emphasizes two central means by which treaties shape what countries do. The first is the enforcement of international treaties by transnational actors and by rule of law institutions within nations that join the treaty. In particular, domestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties-and because they are, they are also a key influence upon countries' willingness to join such treaties in the first place. The second is the collateral consequences of treaty membership -that is, the anticipated consequences for, among other things; foreign aid and investment, trade, and domestic political support. Collateral consequences arise when domestic and transnational actors premise their actions toward a state on the state's decision to accept or reject international legal rule& As I demonstrate using both new empirical evidence and reanalysis of earlier studies, the relationship between treaties and state behavior hinges significantly on these two factors. The Article thus offers a vision of the potential and the limits of international law that integrates and moves beyond existing accounts
A Post-Formation Right of Withdrawal from Customary International Law?: Some Cautionary Notes
2010
Withdrawing from International Custom, 120 YALE L. J. 202 (2010) [hereinafter B&G]. 2. I call this a "subsequent-objector right or privilege" because, while post-formation objection by states occurs under current law-indeed, it is a principal means of changing customary law-such objections, in the conventional account, are normatively disfavored and treated as "violations," even if they are sometimes necessary to legal change. B&G's innovation is to embrace the normative acceptability of such objections.