The Status of Armed Forces in Public International Law: Jurisdiction and Immunity

2015 ◽  
Author(s):  
Aurel Sari
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Public International Law ◽  
The Status

scholarly journals Recognition in international law: The case of Kosovo and Metohija

2015 ◽  
pp. 289-306
Author(s):  
Tijana Surlan
Keyword(s):  
International Law ◽  
Constitutive Theory ◽  
Sovereign State ◽  
Public International Law ◽  
The Public ◽  
The North ◽  
Official Position ◽  
The Status ◽  
North Part ◽  
The Eu

Recognition is an instrument of the public international law founded in the classical international law. Still, it preserves its main characteristics formed in the period when states dominated as the only legal persons in international community. Nevertheless, the instrument of recognition is today as vibrant as ever. As long as it does not have a uniform legal definition and means of application, it leaves room to be applied to very specific cases. In this paper, the instrument of recognition is elaborated from two aspects - theoretical and practical. First (theoretical) part of the paper presents main characteristics of the notion of recognition, as presented in main international law theories - declaratory and constitutive theory. Other part of the paper is focused on the recognition in the case of Kosovo. Within this part, main constitutive elements of state are elaborated, with special attention to Kosovo as self-proclaimed state. Conclusion is that Kosovo does not fulfill main constitutive elements of state. It is not an independent and sovereign state. It is in the status of internationalized entity, with four international missions on the field with competencies in the major fields of state authority - police, judiciary system, prosecution system, army, human rights, etc. Main normative framework for the status of Kosovo is still the UN Resolution 1244. It is also the legal ground for international missions, confirming non-independent status of Kosovo. States that recognized Kosovo despite this deficiency promote the constitutive theory of recognition, while states not recognizing Kosovo promote declaratory theory. Brussels Agreement, signed by representatives of Serbia and Kosovo under the auspices of the EU, has also been elaborated through the notion of recognition - (1) whether it represents recognition; (2) from the perspective of consequences it provokes in relations between Belgrade and Pristina. Official position of Serbian Government is clear - Serbia does not recognize Kosovo as an independent and sovereign state. On the other hand, subject matter of Brussels Agreement creates new means of improvement for Kosovo authorities in the north part of Kosovo. Thus, Serbian position regarding the recognition is twofold - it does not recognize Kosovo in foro externo, and it completes its competences in foro domestico. What has been underlined through the paper and confirmed in the conclusion is that there is not a recognition which has the power to create a state and there is not a non-recognition which has the power to annul a state.

8 Conclusion

2011 ◽  
Author(s):  
Sabahi Borzu
Keyword(s):  
International Law ◽  
Status Quo ◽  
The Other ◽  
State Responsibility ◽  
Private Law ◽  
Public International Law ◽  
Other Hand ◽  
The Status ◽  
Dual Origin

This chapter discusses ten important findings included in this book. One finding is the dual origin of the modern rules on State responsibility and reparation in both private law notions and public international law, resulting in the objective of reparation of putting the aggrieved party in the ‘hypothetical position’, that would have existed if the unlawful act had not occurred. This objective is mirrored in the modern Chorz ów Factory formula. Restitution, which seeks to re-establish the status quo ante, may need to be accompanied by additional compensation to fully reach the hypothetical position. The amount of compensation, on the other hand, based on the recent jurisprudence, may vary depending on whether the acts complained of were lawful or unlawful. Other important points arising from this study concerning the principles of reparation and compensation are also highlighted in the chapter.

Globalization-Driven Innovation: The Investor as a Partial Subject in Public International Law

2014 ◽  
pp. 73-116 ◽  
Author(s):  
Tillmann Rudolf Braun
Keyword(s):  
International Law ◽  
International Investment ◽  
Public International Law ◽  
Intrinsic Nature ◽  
International Investment Law ◽  
Actual Nature ◽  
Corn Products ◽  
The Status ◽  
Investment Law ◽  
Investment Treaties

Given the current state of development of international investment law, it is surprising that, to date, neither the actual nature of the investor’s rights resulting from investment treaties, nor the possible consequences which arise for the investor, the states and international law, have been sufficiently defined. This is all the more astounding as the intrinsic nature and the possible limits of the investor’s rights are not only of theoretical interest, they are also decisive for the resolution of many substantial practical problems as well as for the positioning of international investment law within public international law. Furthermore, recent arbitration rulings concerning the fundamental question of whether the investor’s rights are of a direct, a derivative or a contingent nature, Archer Daniels (2007), Corn Products (2008) and Cargill (2009), demonstrate diametrically differing approaches. In this article, the author shows that neither the procedural nor material rights of the investor are simply derived from the home state but are – in clear contrast to the model of diplomatic protection – in fact to be understood as individual direct rights. The investor is elevated to the status of a (partial) subject in international law. Of course, the states are, and remain, the ‘masters of the treaties’ and can correct or even revoke them at any time with prospective effect. However, as long as investment treaties confer distinct rights on the investor, arbitral tribunals and states have to recognize these direct rights and the states must also accept that they can also be applied against them. The direct rights paradigm has varied and remarkable consequences for the investor, the states and modern public international law.

Part 1 The Cold War Era (1945–89), 14 The USS Pueblo Incident—1968

2018 ◽  
Author(s):  
von Heinegg Wolff Heintschel
Keyword(s):  
Cold War ◽  
International Law ◽  
Democratic Republic ◽  
Armed Forces ◽  
Law Of The Sea ◽  
Legal Analysis ◽  
Armed Attack ◽  
Customary International Law ◽  
The Status ◽  
The Cold War

This contribution discusses the 1968 USS Pueblo Incident by assessing the factual background on the basis of available documents and by providing a legal analysis on the basis of the then applicable international law. In view of the contentious issue of the USS Pueblo’s location at the time of the attack and her seizure by the armed forces of the People’s Democratic Republic of Korea, the discussion of the legal issues at stake is not limited to the ius ad bellum but must be extended to the law of the sea, in particular the breadth of the territorial sea according to customary international law recognized in 1968 and the status of foreign warships. As regards the ius ad bellum, the unjustified use of force against a sovereign immune warship is considered an armed attack triggering the flag state’s right of self-defence.

Grotius's Mare Liberum in the Political Practice of Early-Modern Europe

Grotiana ◽  
2009 ◽  
Vol 30 (1) ◽  
pp. 131-151 ◽  
Author(s):  
Andrea Weindl
Keyword(s):  
Eighteenth Century ◽  
Early Modern ◽  
International Law ◽  
Dutch Republic ◽  
Early Modern Europe ◽  
Public International Law ◽  
Political Actors ◽  
Law Of Nations ◽  
Self Interest ◽  
The Status

AbstractIn this article Mare liberum is placed within the context of seventeenth-century European politics. It focuses on the development of conventional relations between European States regarding their interests outside of Europe and their importance concerning the status of Asian and African 'actors'. It turns out that in spite of Mare liberum's high-sounding proclamation of equality of non-European sovereigns with European States, Grotius's position as well as Dutch policy was inspired by self-interest and was essentially opportunistic. The Dutch Republic – as well as other European States – used the 'liberal' principles of Freedom of trade and the Universality of the Law of Nations to attack the Portuguese/Spanish claims of monopoly. However, as the Dutch Republic, Great Britain and France developed their own 'Spheres of Interest' in Asia, Africa and the Americas, they effectively excluded would-be competitors. Indeed, in the eighteenth century the 'pacte colonial' constituted a distinctive characteristic of the conventional and customary 'European Law of Nations'. As non-European political actors in the eighteenth century relatively lost military and political power, the European States finally relegated them to an inferior position, beyond the charmed circle of full 'subjects of Public International Law'. The article also is a contribution to the ongoing discussion about the relation between European imperialism and the development of the doctrine of European International Law.

La place de la coutume internationale en droit public français

2013 ◽  
Vol 12 (2) ◽  
pp. 267-271 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Case Law ◽  
Public Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Treaty ◽  
Public International Law ◽  
Customary International Law ◽  
The Status

Abstract Bernard Stirn’s presentation examines the status of international custom in French public law. He notes that international custom may be considered as covered by the reference in the preamble of the Constitution to the rules of public international law. He underlines the increased effects of international custom in the French domestic legal order as enshrined in the latest developments of the case-law of the Conseil d’Etat. He stresses that whilst French administrative judges may set aside a law in the event of a conflict with the provisions of an international treaty, they do not possess a similar power in the case of a conflict with a rule of customary international law. He concludes by citing cases in which the French constitutional court has made reference to international custom.

scholarly journals Recognition of the Rights of the Victims of Climate Change under Public International Law: A Study

2013 ◽  
Vol 2 (2) ◽  
pp. 41-58
Author(s):  
Piyali Sengupta
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
International Law ◽  
Environmental Disaster ◽  
Complex Issue ◽  
Public International Law ◽  
Environmental Refugees ◽  
The Status ◽  
The Impact ◽  
Climate Refugees

In recent years, climate change is emerging as a major environmental disaster. The impact of such disasters has been the rise in global temperature and flooding of coastal zone communities, frequent droughts and disruptions in rainfall pattern. This has resulted in the increase in the number of environmental refugees. Climate change disasters constitute a major reason for displacement of population than war and persecution. Climate induced migration is a highly complex issue. The status of climate refugees is not recognized in the international framework. The non recognition of these victims in international and national legislations has not only deprived them of their basic human rights but has also raised crucial questions relating to their existence and identity. This paper tries to bring out the lacunae in the present policy and legal framework relating to environmental refugees with reference to the non-refoulement principle. Further, the paper emphasizes on the need to include climate refugees under the term „refugee‟ as laid down in the United Nations Convention relating to the Status of Refugees, 1951and provides suggestions for improving the condition and protection of this hitherto neglected population.

The Status of Croatia under International Law

1941 ◽  
Vol 35 (6) ◽  
pp. 1144-1151 ◽  
Author(s):  
Angelo Piero Sereni
Keyword(s):  
International Law ◽  
Armed Forces ◽  
Vice President ◽  
Foreign Affairs ◽  
National Committee ◽  
The Status ◽  
The Government ◽  
Council Of Ministers ◽  
Supreme Commander

On April 7, 1941, while the Axis Powers were invading Yugoslavia, Ante Pavelik, the well-known Croat terrorist, broadcast from Italy an appeal to the Croats to secede from the Serbs and to support Germany and Italy. Three days later, when the German troops entered Zagreb, Sladko Kvaternik, another Croat leader, proclaimed there an independent Croat state, and on April 12, a national committee declared Pavelik, who was still abroad, head of the new state. The following day he entered Zagreb, and two days afterwards he took effective power, receiving the title of Poglavnik, the Croat equivalent of Führer or Duce. Immediately upon his telegraphic request of April 15, Germany and Italy granted recognition of Croatia, subject to their joint determination of the new state boundaries. Pavelik at once dissolved the old political parties and on April 17 formed the first Croat government, in which he became president of the council of ministers and minister of foreign affairs; Kvaternik, his substitute and supreme commander of the armed forces; and a Dr. Kulenovich, vice-president of the council. An upper council of the Croat state was designated to function with the government.

scholarly journals Environmental Law and Public International Law

2019 ◽  
pp. 1159-1184
Author(s):  
Leslie-Anne Duvic-Paoli
Keyword(s):  
International Law ◽  
Legal System ◽  
Environmental Governance ◽  
Environmental Law ◽  
Legal Systems ◽  
Theoretical Frameworks ◽  
Unit Of Analysis ◽  
Public International Law ◽  
The Status ◽  
Domestic Law

This chapter examines how—and the extent to which—public international law influences domestic environmental law. It first considers the assumption that the domestic–international divide is relevant to understanding current legal processes in the field of environmental governance before exploring the status of international law within domestic systems. In particular, it discusses the theoretical frameworks used to explain how domestic legal systems relate to public international law, including the dualism versus monism dichotomy, and the main transposition techniques used to integrate international law into domestic legal systems. The chapter also describes the effects of international law within domestic law in terms of unit of analysis, types of incidence, and the beneficiaries of these effects. Finally, it looks at factors that influence a state’s approach to the interactions between its legal system relative to environmental protection and public international law.

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