Private Pecuniary Claims Arising Out of War

1915 ◽  
Vol 9 (1) ◽  
pp. 113-146
Author(s):  
Edwin M. Borchard
Keyword(s):  
International Law ◽  
Private Property ◽  
The State ◽  
Detailed Review ◽  
The Subject ◽  
International Responsibility

Any attempt to discuss the international responsibility of the State for injuries sustained by private individuals in time of war immediately encounters the difficulty of establishing any definite rules in the practice of awarding indemnities or compensation for private losses arising out of war. Nevertheless, an examination of the subject in the light of precedent and principle may not be without some useful results.In a general way, this responsibility of the State may be measured by the State’s obligation as a belligerent or a neutral to observe the rules of international law and of war. As it is obviously, however, beyond present possibilities to undertake a detailed review of these rules—which indeed have been ably treated in numerous works on the subject—the discussion here will be confined to the more important classes of cases in which pecuniary claims have been or are likely to be brought for injuries sustained by individuals or private property in time of war.

Basic Elements of Diplomatic Protection of Citizens Abroad

1913 ◽  
Vol 7 (3) ◽  
pp. 497-520 ◽  
Author(s):  
Edwin M. Borchard
Keyword(s):  
International Law ◽  
Public Law ◽  
The State ◽  
Diplomatic Protection ◽  
Legal Position ◽  
The Subject ◽  
Preliminary Study ◽  
International Responsibility

The diplomatic protection of citizens abroad is a comparatively modern phenomenon in the evolution of the state, in constitutional and in international law. Not until the legal position of the state toward individuals, both its own citizens and aliens, and of states between themselves, had become clearly denned in modern public law, did diplomatic protection become a factor in international intercourse. A discussion of the subject therefore involves a preliminary study of three distinct legal relations, first, between the state and its own citizen; secondly, between the state and aliens resident within it; and, lastly, the relations of states among themselves with respect to their rights over and their international responsibility for delinquencies toward aliens.

Part IV Access to Protection and International Responsibility-Sharing, Ch.29 Smuggling of Migrants and Refugees

2021 ◽  
Author(s):  
Schloenhardt Andreas
Keyword(s):  
Criminal Justice ◽  
Law Enforcement ◽  
United Nations ◽  
International Law ◽  
Asylum Seekers ◽  
Refugee Law ◽  
The Subject ◽  
International Responsibility ◽  
The United Nations ◽  
International Refugee Law

This chapter focuses on the smuggling of migrants in the context of refugee movements, and examines the scope and application of international law pertaining to these phenomena. The principal binding global instrument on this topic is the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air which, on the surface, coexists alongside international refugee law in situations where smuggled migrants are seeking asylum. Although the Smuggling of Migrants Protocol expressly recognizes the protection afforded to refugees under international law, its interpretation, operation, and implementation often run into conflict with the Refugee Convention. All too frequently, measures to prevent and combat the smuggling of migrants focus exclusively on law enforcement, criminal justice, and restrictive border measures without recognizing the rights of refugees, asylum seekers, and smuggled migrants, which are the subject of this chapter.

“A Trespass against the Whole Species”: Universal Crime and Sovereign Founding in John Locke’s Second Treatise of Government

2018 ◽  
Vol 46 (4) ◽  
pp. 560-585
Author(s):  
Sinja Graf
Keyword(s):  
Natural Law ◽  
Private Property ◽  
Normative Theory ◽  
The State ◽  
The Self ◽  
The Political ◽  
State Of Nature ◽  
The Subject ◽  
The Creation

This essay theorizes how the enforcement of universal norms contributes to the solidification of sovereign rule. It does so by analyzing John Locke’s argument for the founding of the commonwealth as it emerges from his notion of universal crime in the Second Treatise of Government. Previous studies of punishment in the state of nature have not accounted for Locke’s notion of universal crime which pivots on the role of mankind as the subject of natural law. I argue that the dilemmas specific to enforcing the natural law against “trespasses against the whole species” drive the founding of sovereign government. Reconstructing Locke’s argument on private property in light of universal criminality, the essay shows how the introduction of money in the state of nature destabilizes the normative relationship between the self and humanity. Accordingly, the failures of enforcing the natural law require the partitioning of mankind into separate peoples under distinct sovereign governments. This analysis theorizes the creation of sovereign rule as part of the political productivity of Locke’s notion of universal crime and reflects on an explicitly political, rather than normative, theory of “humanity.”

Draft Convention on the International Responsibility of States for Injuries to Aliens

1961 ◽  
Vol 55 (3) ◽  
pp. 548-584 ◽  
Author(s):  
Louis B. Sohn ◽  
B. B. Baxter
Keyword(s):  
International Law ◽  
The State ◽  
Draft Convention ◽  
International Responsibility ◽  
The Individual

1.A State is internationally responsible for an act or omission which, under international law, is wrongful, is attributable to that State, and causes an injury to an alien. A State which is responsible for such an act or omission has a duty to make reparation therefor to the injured alien or an alien claiming through him, or to the State entitled to present a claim on behalf of the individual claimant.2. (a)An alien is entitled to present an international claim under this Convention only after he has exhausted the local remedies provided by the State against which the claim is made.(b) A State is entitled to present a claim under this Convention only on behalf of a person who is its national, and only if the local remedies and any special international remedies provided by the State against which the claim is made have been exhausted.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals PROPOSALS REGARDING A WEAPON REVIEW PROCESS IN SOUTH AFRICA (PART 1)

Obiter ◽  
2021 ◽  
Vol 31 (1) ◽  
Author(s):  
Ashley Charles Moorhouse ◽  
David Abrahams
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Subject Matter ◽  
Review Process ◽  
The State ◽  
The South ◽  
Customary International Law ◽  
National Implementation ◽  
The Subject

The purpose of this article is to put forward submissions regarding the implementation of a weapons review process in compliance of South Africa’s obligations under Additional Protocol I (hereinafter “API”) Article 36. Article 36 requires each state party to determine whether the employment of any new weapon, means or method of warfare that it studies, develops, acquires or adopts would, insome or all circumstances, be prohibited by international law. Article 36 does not specify how such a legal review should be implemented or conducted. Thus this article puts forward proposals regarding both the substantive and procedural aspectsof a review of the legality of weapons, means and methods of warfare that the authors submit best befits the South African context.A background regarding the legal limitations placed upon the use of certain weapons, means and methods of warfare and an explanation of South Africa’s obligations regarding national implementation of a weapons review process, is given in paragraph 1 so as to create an understanding as to why it is necessary for the Republic of South Africa to implement a process to review the legality of weapons, means and methods of warfare. Before the implementation of a weapons review process can be discussed, the subject matter of such a review must first be ascertained. Thus paragraph 2 contains a discussion regarding the definition of the term “weapons, means and methods of warfare” and a determination of which weapons shall form the subject matter of legal reviews. No specific manner of implementation is contained within API and thus it is at the discretion of the state in question, in this case South Africa, to adopt the necessary measures to implement this obligation. In this regard, paragraph 3 contains submissions regarding the status of the review body within the state hierarchy and its method of establishment. This paragraph also contains an explanation of the process by which South Africa acquires its weapons. The legal scope of the review process is dealt with in paragraph 4. Within thisparagraph, the place of both treaty-based law and customary international law (“CIL”) in the South African legal system is discussed. Furthermore, the treaty-law and customary international law rules binding upon South Africa regarding limitations of specific weapons and general weapons limitations are enumerated and the paragraph ends with a discussion of the Martens Clause. 

People v. Palmer: Amnesia and Competency to Proceed Revisited

2003 ◽  
Vol 31 (2) ◽  
pp. 165-185
Author(s):  
Robert D. Miller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Competency To Stand Trial ◽  
The State ◽  
Detailed Review ◽  
Court Of Appeals ◽  
First Impression ◽  
The Subject

Claims of amnesia are quite common in defendants charged with serious crimes, and courts have rarely dealt adequately with the problem. The Colorado Court of Appeals and the Colorado Supreme Court recently did attempt to deal with the substantive issues in a case of first impression in the state. This article discusses those decisions in the context of a detailed review of the case law, clinical, and legal articles on the subject and concludes that, at least in the case of temporary amnesia, courts should defer final determinations of competency to stand trial until adequate efforts to evaluate and treat amnestic defendants have been made.

Part III The Current International Law of State Immunity, 10 The Definition of the Foreign State

2015 ◽  
Author(s):  
Fox Hazel ◽  
Webb Philippa
Keyword(s):  
International Law ◽  
Internal Structure ◽  
The State ◽  
Legal Person ◽  
State Immunity ◽  
General Law ◽  
Foreign State ◽  
The Subject ◽  
Definition Of ◽  
Domestic Law

This chapter sets out definition of the State to which the rule of immunity applies, which is an important element in the operation of the rules and UNCSI's treatment of this subject. In conjunction with this, the chapter discusses two (of three) aspects of the State within the context of State immunity: the external attributes of the State as a legal person by reference to international law; and the internal attributes of the State, as determined by its constitutional and domestic law, which make up its internal structure comprising its organs, departments, agencies, and representatives. Both the external and internal attributes of statehood are also the subject of the general law relating to the State as a subject of international law.

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