scholarly journals Le juge interne canadien et le droit international

2005 ◽  
Vol 21 (2) ◽  
pp. 293-329 ◽  
Author(s):  
Francis Rigaldies ◽  
José Woehrling
Keyword(s):  
Great Britain ◽  
International Law ◽  
Theoretical Framework ◽  
Customary Law ◽  
Basic Principles ◽  
Legal Literature ◽  
Total Lack ◽  
The Will ◽  
Droit International ◽  
The Way

Given the almost total lack of constitutional or statutory provisions for the formulation and application of international law, Canadian courts have been invested with the basic responsibility for devising solutions to the problems that have arisen in this field. This paper examines how successful the courts have been as well as the way in which legal literature has reacted to their performance. It is the view of the authors that in dealing with international customary law, Canadian courts have applied solutions adapted from the law of Great Britain in a purely empirical way. While the absence of any theoretical framework has not been a crucial impediment until now, it is difficult to see how future problems can be resolved without any reference to basic principles. With respect to the interpretation and application of treaties, the transposition of principles derived from British practice to a federal context has been the source of notorious constitutional difficulties. Generally speaking, because of the traditional reverence accorded to the will of Parliamant, Canadian courts have been reluctant to recognize any measure of supremacy to international law.

BOOK REVIEWSBOOK REVIEWSHeinzeEricDr26Faculty of Laws, Queen Mary and Westfield College, University of London26The author wishes to thank Peter Fitzpatrick and Istvan Pogany for their valuable comments.081999462269276Schulte-TenckhoffI., La question des peuples autochtones, Bruylant, Brussels 1997, x + 235 pp., BFr. 540/FF 90.Copyright © T.M.C. Asser Press 19991999T.M.C. Asser PresspdfS0165070X00002461a.pdfdispartBook Reviews1.For a classic statement, see ‘Reparations for Injuries Suffered in the Service of the United Nations’, ICJ Rep. (1949) p. 174 (11 April). See also, e.g., HailbronnerK., ‘Der Staat und der Einzelne als Völkerrechtssubjekte’, in VitzthumW. Graf, ed., Völkerrecht (Berlin, De Gruyter 1997) pp. 181, 188–204; JenningsR. and WattsA., Oppenheim's International Law, Vol. 1, 9th edn. (London, Longmann 1992).2.See, e.g., Hailbronner, op. cit. n. 1, p. 196; Jennings and Watts, op. cit. n. 1, pp. 162–162; Nguyen Quoc Dinh, et al., Droit international public, 5th edn. (Paris, Librairie Générale de Droit et de Jurisprudence 1994) pp. 166–167,497–499.3.In addition to the work reviewed here, see, e.g., AnayaJ., Indigenous Peoples in International Law (New York, Oxford University Press 1996); TenantC., ‘Indigenous Peoples, International Institutions and the International Legal Literature from 1945 to 1993

1999 ◽  
Vol 46 (02) ◽  
pp. 269
Author(s):  
Eric Heinze
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Indigenous Peoples ◽  
International Institutions ◽  
Oxford University ◽  
Legal Literature ◽  
The United Nations ◽  
Droit International ◽  
Peuples Autochtones

Violations of Maritime Law by the Allied Powers During the World War

1931 ◽  
Vol 25 (1) ◽  
pp. 26-49 ◽  
Author(s):  
James Wilford Garner
Keyword(s):  
Great Britain ◽  
International Law ◽  
Customary Law ◽  
World War ◽  
Maritime Law ◽  
Naval Warfare ◽  
Law Of Nations ◽  
The World

The above is the title of an article by. Mr. E. G. Trimble in the January (1930) issue of this Journal, which contains a rather severe indictment of the Allied Powers, and particularly of Great Britain, for having violated during the World War various well-settled rules of international law regarding the conduct of maritime warfare. I do not deny at all that there were violations of certain rules and practices which had come to be generally, if not universally, recognized as a part of the customary law of nations—violations not only by the Allied Powers, but on an even larger scale by their opponents, which latter, however, the author passes over in silence. But, in my opinion, his charges in some cases are not well founded either upon principles of international law, reason or the logic of the actual conditions under which the rules had to be applied. In presenting here a different view of the case, my object is not so much to defend the Allied Powers against the charges contained in Mr. Trimble's indictment as to reaffirm and maintain views which I expressed during the war regarding certain rights of belligerents in naval warfare, especially under the peculiar conditions which prevailed during that war—rights the exercise of which I believe was justified in principle by those conditions, whatever may have been the opinion of statesmen and prize judges a century ago, and which would have been claimed and exercised by Germany had the geographical situation as between her and Great Britain been reversed.

scholarly journals CUSTOMARY LAW IN INVESTMENT REGULATION

2014 ◽  
Vol 23 (1) ◽  
pp. 23-48 ◽  
Author(s):  
Jorge E. Viñuales
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Case Law ◽  
Customary Law ◽  
State Sovereignty ◽  
Police Powers ◽  
Investment Treaties ◽  
Droit International ◽  
Legal Grounds

This article explores the expression of State sovereignty through customary norms in a regulatory space dominated by investment treaties. It argues that, because most of the actionable concepts expressing sovereignty in international law are general (not specific to a “branch”) andcustomary, misunderstanding the role of customary law in investment regulation amounts to confining sovereignty to a few narrow carve-outs and exceptions in investment treaties. However, customary concepts operate autonomously and in parallel to treaties, unless specifically excluded by the latter. The lex specialis principle does not necessarily command the exclusion in toto of relevant customary rules. The article discusses the work of the Institut de Droit International in this regard and then analyses the investment case law relating to the application of the police powers doctrine, necessity, countermeasures and transnational public policy. It shows that failure to address specifically the articulation of treaty and customary norms even in the event the former apply as lex specialis is subtly eroding, without clear legal grounds,the customary expression of sovereignty in foreign investment disputes.

Does International Law matter?

2015 ◽  
Vol 1 (1) ◽  
pp. 7-31 ◽  
Author(s):  
Philippe Rygiel
Keyword(s):  
Civil Rights ◽  
International Law ◽  
First World War ◽  
World War ◽  
Legal Norms ◽  
The First World War ◽  
The Will ◽  
Droit International ◽  
Short Time ◽  
First World

We look here at the work and action pertaining to the regulation of migrations of international lawyers belonging to the Institut de Droit International (IDI) during the four decades before the First World War. We show that interest for the rights of foreigners in western states and the circulation of people derived both from the liberal agenda these lawyers shared and the will to regulate the interactions between states that could produce conflict. The idi devised during that period a coherent set of rules and recommendations insisting on a minimal protection of refugees, and the necessity of granting foreigners and nationals equal civil rights. The position of power the members of this liberal network shared enabled them shortly before the First World War to ensure that some of these provisions became shared legal norms, even if for a short time and only for some European states.

scholarly journals Double standards: The west and Russia

2016 ◽  
pp. 277-285
Author(s):  
Dejan Mirovic
Keyword(s):  
International Law ◽  
Customary Law ◽  
The West ◽  
Basic Principles ◽  
Double Standards ◽  
Post Cold War ◽  
Legal Rules ◽  
Legal Case ◽  
The Russian Empire ◽  
Diplomatic Immunity

In relation towards Russia, there is a tacit consent of the West not to apply basic principles of modern international law. Such rule is not applied in one state only or in some short post-Cold war period? Unique rules have been applied in that case for almost 300 years, since the creation of the Russian Empire. Breaking the rule of diplomatic immunity in case of a Russian diplomat in 1708 in London and his arrest are an incident that could be compared to taking of hostages in the US embassy in Teheran. Also, breaking the Convention on Malta from 1798 by Great Britain shows that even the most basic principles of international contract law, pacta sunt servanda are not respected when it comes to Russia. Judgment in case ?Wimbledon? in front of SSMP shows that sometimes it is legal even to start a violent war against Russia. Double standards are applied by the West when it comes to recognizing the independence of Kosovo, 2008 and Crimea, 2014 and breaking the contract signed with the ex Ukrainian president Janukovic in 2014. Different standards when it comes to aggression of Saudi Arabia on Yemen and sanctions towards Russia because of the Ukraine in 2015, show that its custom legal case or one sided legal rule that the West applies towards Russia. Sometimes, as with the diplomatic boycott of 9 May celebration in Moscow, the EU does not even ask for unanimous approval of such custom legal rules. That is why it could be concluded that customary laws are not based on the idea of justice and respect for international law and not even on state reason (raison d? ?tat). This has arisen directly from the theory of customary law that does not recognize the mutuality of application of rules between civilized and barbaric countries. That is why such behaviour towards Russia can be defined as regional customary law that is applied unilaterally by the groups of states.

Arnold Duncan McNair

1965 ◽  
Vol 23 (1) ◽  
pp. 1-2
Author(s):  
R. Y. Jennings
Keyword(s):  
International Law ◽  
Gold Medal ◽  
Honorary Member ◽  
Legal Literature ◽  
European Court ◽  
Vice Chancellor ◽  
International Court ◽  
Honorary Doctor ◽  
Droit International ◽  
American Society

It is a happy conjunction that makes it possible for this Journal to celebrate in successive numbers the eightieth birthdays of Harry Hollond and Arnold McNair.Arnold Duncan McNair, c.b.e., q.c., f.b.a., ll.d., first Baron McNair of Gleniffer, was born on March 4, 1885. It is given to very few to attain to such high distinction in so many different spheres. As an academic, a jurist de grande classe, the author of many works in the first rank of legal literature, the occupant at one time of the Whewell chair in international law and later of the chair of comparative law, an honorary doctor of seven universities, an honorary member of the Institut de Droit International, his special place amongst international lawyers was marked in 1959 when he was presented with the Manley Hudson Gold Medal by the American Society of International Law; as an administrator, he was, during the difficult period of the war and its aftermath, the Vice-Chancellor of one of the great civic universities; as a member of the legal profession, he is a former Judge and President of the International Court of Justice at The Hague, President of the European Court of Human Rights, Member of the Permanent Court of Arbitration, and a Bencher of his Inn and sometime its Treasurer; as a man of affairs, he has served on numerous government inquiries and commissions, and is now regularly employing in the House of Lords those talents as a speaker that were already in evidence when he became President of the Cambridge Union in 1909.

scholarly journals Police response to domestic violence: Theoretical framework and foreign experiences

Temida ◽  
2005 ◽  
Vol 8 (1) ◽  
pp. 3-10 ◽  
Author(s):  
Slobodanka Konstantinovic-Vilic ◽  
Nevena Petrusic
Keyword(s):  
Domestic Violence ◽  
Great Britain ◽  
Theoretical Framework ◽  
Police Work ◽  
State Agency ◽  
Police Intervention ◽  
Police Response ◽  
Family Privacy ◽  
The Relationship ◽  
The Way

This paper is dedicated to recognizing police work and intervention in the cases of domestic violence. Keeping in mind the relationship between the offender and the victim in the cases of domestic violence, seriousness of the consequences, as well as the fact that, during the intervention, police is the first state agency which ?disturbs? the sphere of family privacy, it is very important to study the way police is reacting, establish the degree of its efficiency and explore the factors that determine the efficiency of police intervention. The paper points out the policy of police response to domestic violence in some foreign systems (Great Britain, USA, Australia). Particular attention is paid to consideration of activities police is dealing with while collecting the data on the violence, victim and the offender, the way police is reacting in order to prevent new violence, as well as the responsibility and aims police has during the intervention.

Comparative Views on the Right to Vote in International Law

2018 ◽  
Author(s):  
Shai Dothan
Keyword(s):  
Human Rights ◽  
International Law ◽  
National Courts ◽  
European Court ◽  
Right To Vote ◽  
The Right ◽  
Democratic Elections ◽  
The Way

There is a consensus about the existence of an international right to vote in democratic elections. Yet states disagree about the limits of this right when it comes to the case of prisoners’ disenfranchisement. Some states allow all prisoners to vote, some disenfranchise all prisoners, and others allow only some prisoners to vote. This chapter argues that national courts view the international right to vote in three fundamentally different ways: some view it as an inalienable right that cannot be taken away, some view it merely as a privilege that doesn’t belong to the citizens, and others view it as a revocable right that can be taken away under certain conditions. The differences in the way states conceive the right to vote imply that attempts by the European Court of Human Rights to follow the policies of the majority of European states by using the Emerging Consensus doctrine are problematic.

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