Books: 'Between positive law and customary law'

1

Randa, Hezron. Problems of interaction between English imposed system of law and Luo customary law in Kenya. [Lund, Sweden]: Royal University of Lund, Sweden, Dept. of Law, 1987.

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2

Okereafoezeke, Nonso. Law and justice in post-British Nigeria: Conflicts and interactions between native and foreign systems of social control in Igbo. Westport, Conn: Greenwood Press, 2002.

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3

Chenaux-Repond, Maia. Report on workshop: Contradictions between "customary law" and women's equality : women, what do you want? Harare]: Rudécon Zimbabwe, 1999.

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4

Karsten, Peter. Between law and custom: "high" and "low" legal cultures in the lands of the British diaspora : the United States, Canada, Australia, and New Zealand, 1600-1990. Cambridge: Cambridge University Press, 2001.

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5

Karsten, Peter. Between law and custom: "high" and "low" legal cultures in the lands of the British diaspora : the United States, Canada, Australia, and New Zealand, 1600-1990. Cambridge, UK: Cambridge University Press, 2002.

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6

Inc Checchi and Company Consulting. USAID Afghanistan rule of law project: Field study of informal and customary justice in Afghanistan and recommendations on improving access to justice and relations between formal courts and informal bodies. Kabul: Checchi and Company Consulting, Afghanistan rule of law project, 2005.

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7

Joffe, Lisa Fishbayn, and Sylvia Neil. Gender, religion, and family law: Theorizing conflicts between women's rights and cultural traditions. Waltham, Mass: Brandeis University Press, 2012.

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8

Scott, Craig. Cross-cultural conflicts: An anthology exploring the relationships between cultural difference, legal pluralism, and the conflict of laws. [Toronto]: Faculty of Law, University of Toronto, 1996.

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9

Scott, Craig. Cross-cultural conflicts: An anthology exploring the relationships between cultural difference, legal pluralism, and the conflict of laws. [Toronto]: Faculty of Law, University of Toronto, 1996.

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10

Forsyth, Miranda. Report on Vanuatu Judiciary Conference 2006: The relationship between the Kastom and state justice systems : conference held at USP, Emalus Campus Port Vila, 28-29 August 2006. Port Vila, Vanuatu: Vanuatu Judiciary Law Conference, 2006.

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11

Forsyth, Miranda. Report on Vanuatu Judiciary Conference 2006: The relationship between the Kastom and state justice systems : conference held at USP, Emalus Campus Port Vila, 28-29 August 2006. Port Vila, Vanuatu: Vanuatu Judiciary Law Conference, 2006.

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12

Forteau, Mathias. Comparative International Law Within, Not Against, International Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190697570.003.0008.

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The work of the ILC constitutes an interesting illustration of a positive interplay between international law and different domestic approaches to international law. Section I of this chapter identifies the institutional ingredients that are required in order for comparative international law to obtain a sufficiently representative conception of international law. Section II explores the main tools used by the ILC on the substantive plane to draft common rules on the basis of existing and possibly divergent state practice or opinio juris. Focus is placed on customary international law insofar as general principles of international law have never been considered by the ILC as a field to be explored on its own—presumably because both codification and progressive development of international law require the Commission to base its proposal at least on some emerging state practice.

13

Roderick, Munday. 8 Legal Relations Between Principal and Agent: Duties the Agent Owes to his Principal. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198784685.003.0008.

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This chapter describes the duties the agent owes to his principal, which fall into two broad categories. On the one hand, because the majority of agencies will arise out of a contract between principal and agent, the latter will owe well recognized duties at common law—most notably, a duty to perform the mandate with reasonable skill and care. On the other hand, however, equity also wields strong influence over the development of agents’ duties. Therefore, agents have often to be considered both as contracting parties, under customary contractual duties to their principals, and also as fiduciaries, owing strict equitable obligations to their principals arising out of the special position of trust in which the law of agency places them. These two species of obligation are considered separately in this chapter.

14

Guha, Abhijit. An Ethnographer’s Journey through Land Grab for Capitalists by the Left Front Government in West Bengal. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198792444.003.0013.

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Chakraborty and Ray discuss the ‘land question’ by critically examining the appropriation of community land and subsequent dispossession of the tribes embedded in the social economy of the hills of Northeast India. They state that the historico-epistemological hiatus between the customary law abiding tribes vis-à-vis the positive law imposing state appears to be fundamental in understanding the difference between the two contrasting interpretations of property rights enacted in the highlands of the region. The trivialization of community land and dispossession of the tribal masses in Manipur, Meghalaya, and Tripura suggests that constitutional protections have fallen short in protecting the community resources of the tribes. The hydropower projects in Arunachal Pradesh and the threats of dispossession of the communities under the hegemony of state-business collusion represent the continuing process of appropriation of the community resources in the hill areas.

15

Charles, Proctor. Part F Cross-Border Issues, 44 Freezing Injunctions and International Banks. Oxford University Press, 2015. http://dx.doi.org/10.1093/law/9780199685585.003.0044.

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This chapter examines the position of a bank which is notified of the existence of a freezing injunction; it considers at the scope of its responsibilities and liabilities. The discussions cover the nature and effect of a freezing injunction; the action to be taken by a bank on receipt of notice of a freezing injunction; the impact of the injunction on the relationship between the bank and its customer; the relationship between the bank and the applicant for the injunction; the relationship between the bank and certain third parties; and the territorial issues raised by orders of this kind.

16

Karsten, Peter. Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British Diaspora - The United States, Canada, Australia, and New Zealand, 1600-1900. Cambridge University Press, 2008.

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17

Ferrari, Guiseppe Franco. Two Centuries Norwegian Constitution: Between Tradition and Innovation. Eleven International Publishing, 2015.

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18

Karsten, Peter. Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British Diaspora - The United States, Canada, Australia, and New Zealand, 16001900. Cambridge University Press, 2002.

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19

Okereafoezeke, Nonso. Law and Justice in Post-British Nigeria: Conflicts and Interactions Between Native and Foreign Systems of Social Control in Igbo (Contributions in Comparative Colonial Studies). Greenwood Press, 2001.

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20

Shu, XU, WU Yingying, and JIA Henry Hailong. Investment law’s Roots in Customary International law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law-iic/9780198809722.016.0006.

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The existing regimes of international investment law and trade law both face a prominent issue, namely, the balance between investment protection/trade liberalization on the one hand and the right of host states/importing countries to regulate for non-economic purposes on the other hand. However, investment law has taken an approach that is different from that of trade law in dealing with the issue. In addressing the balancing issue, this chapter finds investment law has deep roots in customary international law and argues that the roots of investment law in customary international law can partially explain why investment law is kept apart from trade law in this context.

21

Buga, Irina. Subsequent Customary Law as a Means of Treaty Modification. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198787822.003.0004.

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The chapter focuses on the treaty modifying potential of subsequent customary law, which, though distinct from that of subsequent practice, reveals a significant conceptual and practical overlap between the two modifying processes, and adds an additional dimension to the discussion on subsequent practice. After a look into the drafting history of the ultimately deleted ILC provision on modification by customary law, the chapter turns to the complex process of formation and identification of customary law and its parallels to the emergence of subsequent practice. The chapter then examines the interplay between customary law and treaties as a basis for identifying the former’s treaty modifying potential, and sets out crucial distinctions and requirements. Finally, the chapter examines the extent to which treaty modification by subsequent customary law and subsequent practice can be distinguished, especially as the latter may itself lead to the emergence of customary rules.

22

Merkouris, Panos, Jörg Kammerhofer, and Noora Arajärvi, eds. The Theory, Practice, and Interpretation of Customary International Law. Cambridge University Press, 2022. http://dx.doi.org/10.1017/9781009025416.

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Although customary international law (CIL) has been central to international law from its inception, it is often misunderstood. This edited volume remedies that problem by tracing the history of CIL and provides an in-depth study of its theory, practice, and interpretation. Its chapters tackle the big questions which surround this source of international law such as: what are the rules that regulate the functioning of CIL as a source of international law? Can CIL be interpreted? Where do lines between identification, interpretation, application, and modification of a rule of CIL lie? Using recent developments, this volume revisits old debates and resolves them by proffering new and innovative solutions. With detailed examples from international and national courts, it places CIL in a range of settings to explain, explore and reflect upon this developing and highly significant field. This title is also available as Open Access on Cambridge Core.

23

Kjeldgaard-Pedersen, Astrid. The Personality of Individuals in Positive International Law—General Issues. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198820376.003.0003.

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Chapter 3 examines a number of issues of general relevance to public international law. It first inquires why the overall issue of the applicability of international law to individuals was not long ago resolved once and for all. Focusing on treaty law, Section 3.1 analyses the work of the ILC pertaining to the application of treaties to individuals, and studies the few, controversial, rulings by the PCIJ and ICJ on this issue. With the example of the 1920 debate on the proposal for a High Court of International Justice, Section 3.2 studies individual obligations under customary international law. Section 3.3 considers the doctrine of diplomatic protection and its correlation to the notion of direct individual rights under international law. Finally, as an introduction to Chapters 4–8, Section 3.4 sketches out the considerations that are particularly relevant for the determination of treaty provisions as direct rights and obligations of individuals.

24

Wilmot, Karen. Positive Birth in a Modern World: Finding the Balance Between the Law of Nature and Technology. Independently Published, 2019.

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25

Uphold, Constance Rae. CONTACT, SOCIALLY SUPPORTIVE BEHAVIORS, AND POSITIVE AFFECT BETWEEN ADULT, WORKING WOMEN AND THEIR MOTHERS AND MOTHERS-IN-LAW. 1988.

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26

Ryngaert, Cedric. Sources of International Law in Domestic Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0053.

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This chapter maintains that as both municipal and international law use legal norms to regulate social relationships, a space for inter-systemic interaction between both legal spheres emerges. Municipal legal practice can have an ‘upstream’ impact on the formation of the content of the sources of international law, where these require proof of State practice and/or opinio juris for valid norms to be generated. Particularly, domestic court decisions can have a jurisgenerative effect on customary international law, where they become part of a transnational dialogue between domestic and international courts on questions of international law determination. Admittedly, this dialogical process is hamstrung by the particularities of domestic law and the hard-to-eradicate selection bias of international law-appliers. However, a more objective comparative international law process can be grounded, geared to effective problem-solving guided by the persuasiveness and quality of reasoning of municipal court decisions relevant to international law.

27

Ainsworth, Rhys, and Sharon P. Hickey. Constitutions, Customary and Religious Law, and Gender Equality: Reconciling Rights in Constitutional Design Negotiations. International Institute for Democracy and Electoral Assistance (International IDEA), 2022. http://dx.doi.org/10.31752/idea.2022.48.

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The participants of the third annual Women Constitution-Makers’ Dialogue explored comparative constitutional design approaches to legal pluralism and reconciling tensions between customary/religious systems and guarantees of gender equality and non-discrimination. In addition to technical issues, the discussion also addressed successes and challenges associated with implementation of constitutional guarantees of gender equality and explored innovative approaches to harmonization, transformation and empowerment.

28

Oudshoornn, Jacobine G. The Relationship between Roman and Local Law in the Babatha and Salome Komaise Archives (Studies on the Texts of the Desert of Judah). BRILL, 2007.

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29

Cederlöf, Gunnel. Landscapes and the Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780199499748.001.0001.

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Landscapes and the Law is situated at the crossroads of environmental, colonial, and legal history. It examines the role of law in consolidating early colonial rule from the perspective of people’s access to nature in forests and hill tracts. This major interdisciplinary study is thus concerned with the social history of legal processes and the making of law, being as relevant today as it was when first published a decade ago. The book is focused equally on the multitude of colliding claims for access to land and resources, and the complex ways in which customary rights are redefined and codified for the purpose of securing and legitimizing colonial sovereign rule. Basing her archival and field work on the Nilgiri Hills in South India, Gunnel Cederlöf explores conflicting perceptions of nature and political visions that are projected onto landscapes and people. She traces debates on property and land rights, and how the empirical sciences merge with the legal claims justifying land acquisition. Popular resistance strategies to such exploitation are analysed, and a cross-cultural comparison made between early legal processes and social history in India, New Zealand, and North America.

30

Okeke, Edward Chukwuemeke. Sources of the Law of Immunity of International Organizations. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190611231.003.0008.

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Because international law is central to the determination of the jurisdictional immunity of international organizations, this chapter examines the sources of the immunity of international organizations, which is mainly treaty law. The basic text or constituent instrument by which member States establish international organizations usually provides for the organizations’ privileges and immunities. Provisions on privileges and immunities are also found in national legislation, and bilateral agreements, such as headquarters agreements or establishment agreements. The chapter also examines whether the immunity of international organizations is governed by customary international law in addition to treaty law. It further examines the interrelationship between treaty and customary international law, and the relationship between international law and national law with respect to jurisdictional immunity.

31

Enzo, Cannizzaro, ed. The Law of Treaties Beyond the Vienna Convention. Oxford University Press, 2011. http://dx.doi.org/10.1093/acprof:oso/9780199588916.001.0001.

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This book offers an analysis of the law of treaties as it emerges from the interplay between the 1969 Vienna Convention on the Law of Treaties and customary international law. It revisits the basic concepts underlying the provisions of the Vienna Convention, so as to determine the actual state of the law and its foreseeable development. In doing so, it examines some of the most controversial aspects of the law of treaties. The book first explores the influence exerted by the Vienna Convention on pre-existing customary law. Certain rules of the Convention which, at the time of its adoption, appeared to fall within the realm of progressive development, can now be regarded as customary international rules. Conversely, a number of provisions of the Convention, in particular those which have been the subject of subsequent codification work by the International Law Commission, have become obsolete. It then examines the impact exerted by the Vienna Convention on the development of other fields of international law, such as the law of international responsibility and the law of international organizations. The last section of the book is devoted to cross-cutting issues, with particular reference to the notion of jus cogens — a concept first used in the Vienna Convention in connection with the problem of the validity of treaties and which, afterwards, has acquired a legal significance going well beyond the Convention.

32

Verdier, Pierre-Hugues, and Mila Versteeg. International Law in National Legal Systems. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190697570.003.0010.

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International legal scholars have long recognized the importance of the relationship between international law and domestic legal systems. This chapter draws upon a new data set, which covers 101 countries for the period 1815–2013 and records specific features of national approaches to international law, including treaty-making procedures, the status of treaties in domestic law, and the reception of customary international law. The chapter finds that national legal systems have become more likely to give treaties direct effect and hierarchical superiority over domestic law, but at the same time have steadily expanded the categories of treaties whose ratification requires prior legislative approval. With respect to CIL, the chapter finds that the vast majority of national legal systems now recognize custom as directly applicable, at least in principle, but generally consider it to be hierarchically inferior to domestic law. The chapter discusses the implications of these findings for comparative international law.

33

Miceli, Thomas J. Economic Models of Law. Edited by Francesco Parisi. Oxford University Press, 2017. http://dx.doi.org/10.1093/oxfordhb/9780199684267.013.003.

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This article discusses the use of economic models for understanding law. It begins by describing the nature of economic models in general, and then turns to the specific application of economic models to law. It distinguishes between ‘economic analysis of law’, which concerns the use of economic theory for describing the incentive effects of legal rules (positive analysis) and for prescribing better rules (normative analysis); and ‘law and economics’, which concerns the relationship between law and markets as alternative institutions for organizing economic activity. The article concludes with some comments on the actual process of building economic models of law.

34

Ziemele, Ineta. European Consensus and International Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198830009.003.0002.

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The concept of ‘European consensus’ is the creation of the European Court of Human Rights. Early on, the Court determined that the European Convention on Human Rights is a living instrument and that, in interpreting the Convention over time, the Court has to take the changing attitudes in societies into consideration. The European consensus is an element within the so-called evolutive interpretation of the Convention. Nevertheless, the details as to its origin and scope remain controversial and give rise, from time to time, to a criticism of the Court as to its use of the concept of European consensus in the case at hand. This chapter focuses on any possible analogy that the concept of European consensus may have to the sources of international law and its possible relationship with the general rule of interpretation of a treaty. This is done with the aim of providing the elements of reflection within the debate which claim that the Court, in interpreting the Convention, overshadows State consent on the scope and content of the Convention. The chapter concludes that, upon a closer look, the Court has resorted to European consensus largely within the confines of the general rule of interpretation of a treaty. The notion has denoted both subsequent State practice as well as new regional customary law. Clearer differentiation between these types of situation would help the Court avoid the criticism of too much evolutive interpretation.

35

Robert, McLaughlin. Recognition of Belligerency and the Law of Armed Conflict. Oxford University Press, 2020. http://dx.doi.org/10.1093/law/9780197507056.001.0001.

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Prior to the progressive development of the law of armed conflict (LOAC) heralded by the 1949 Geneva conventions—most particularly in relation to the concepts of international and non-international armed conflict—the customary doctrine on recognition of belligerency functioned for almost 200 years as the definitive legal scheme for differentiating internal conflict from ‘civil wars’ in which the law of war as applicable between states applied de jure. Employing a legal historical approach, this book describes the thematic and schematic fundamentals of the doctrine, and analyses some of the more significant challenges to its application. In doing so, the book assesses whether, how, and why the doctrine on recognition of belligerency was considered ‘fit for purpose’, and seeks to inform debate as to its continuity and utility within the modern scheme of LOAC.

36

Kovács, Péter, and Tamás Vince Ádány. The Non-Customary Practice of Diplomatic Asylum. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198795940.003.0012.

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This chapter focuses on the grant of diplomatic asylum. It provides an overview of the development of this legal institution in Latin American law and its consideration in the Haya de la Torre case, but it also reflects on incidents from the rich history of diplomatic asylum, reaching from the case of Cardinal Mindszenty to Julian Assange. The authors analyse legal arguments which were advanced on the various controversies surrounding diplomatic asylum, including the possible distinction between asylum on the one hand and shelter or refuge on the other, but also the impact of potential ‘extraordinary’ circumstances on the legality of asylum. This chapter also offers conclusions on the question whether the grant of asylum is to be considered an abuse of immunities or embraced by diplomatic tasks, and whether there are possible grounds precluding responsibility, if it were found to be the breach of an international obligation.

37

Fraenkel, Ernst. National-Socialism and Communal Natural Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198716204.003.0007.

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This chapter describes in detail how the National-Socialist rejection of rational Natural Law aroused all social groups for whom rational Natural Law was a positive influence. The problem, however, for those social groups was that the conception of Natural Law had thus far lacked precision as far as the term “law” was concerned. The chapter questions the difference between societal and communal Natural Law, which has been suggested since as early as the 17th century. The chapter presents a number of features of the ideal types of the two man forms of Natural Law. Discussing the concrete subtleties of Natural Law are beyond the scope of this chapter; however, the aim is to create a formulation of ideal types rather than simply describe them.

38

Henry G, Burnett, and Bret Louis-Alexis. Part IV Law and Applicable Principles, 20 Towards a Lex Mineralia. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198757641.003.0020.

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This brief chapter discusses the emergence of a set of substantive transnational principles governing international mining disputes. Over the past two decades, an increasing number of arbitral awards relating to international mining disputes have been published. This is particularly so in the context of disputes between States entities and international mining companies. As was the case earlier with the petroleum industry, these public awards provide the source material from which customary law may be drawn. This has not yet created a mature set of principles and regulations, but it has developed the beginning of a lex mineralia that guides the international mining industry. As an increasing number of arbitral awards are rendered and become public, owing to a growing push for increased transparency in international arbitration, this lex mineralia may well mature and develop into a recognized subset of international law.

39

McCubbins, Mathew D., and Daniel B. Rodriguez. The Judiciary and the Role of Law. Edited by Donald A. Wittman and Barry R. Weingast. Oxford University Press, 2009. http://dx.doi.org/10.1093/oxfordhb/9780199548477.003.0015.

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This article discusses the judiciary and the role of law. It talks about the implications of the approach for issues in statutory interpretation, and then examines the relationship between the legal and political controls of bureaucracy. The last section in the article focuses on the implications for judicial independence within the larger separation-of-powers system. The emerging literature on Positive Political Theory (PPT) further stresses the political nature of legal decision-making and the dynamic relationship among the legislative, judicial, and executive branches.

40

Langille, Brian, ed. The Capability Approach to Labour Law. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198836087.001.0001.

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In this volume, leading scholars of both labour law and the Capability Approach (CA) explore the possible connections between their disciplines. Accounts of the CA—particularly those of Martha C. Nussbaum and Amartya Sen—do not specifically address labour law, but the CA is attractive to labour lawyers and scholars examining the foundations of their discipline. The questions being asked are whether the CA has anything to offer labour law, and if it does, what forms might this offering take? And, conversely, what light labour law might shine on the CA? In addressing these questions, the chapters in Part I inquire into the nature of the relationship between the CA and labour law—whether it is positive or negative and whether the CA can provide a normative basis for, or an understanding of, labour law. The chapters in Part II explore the CA/labour law debate through different and well-known perspectives on labour law, including economics, history, critical theory, restorative justice, and human rights. The final set of chapters examine the possible relevance of the CA to a range of specific labour law issues, such as freedom of association, age discrimination in the workplace, trade, employment policy, and sweatshop goods. As with this set of specific issues, the book as a whole is not meant to be an exhaustive account of the CA/labour law connection. Rather, it is offered as a first focused effort to open up the discussion and to stimulate further inquiry in this interdisciplinary enterprise.

41

Wenzelburger, Georg. The Partisan Politics of Law and Order. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780190920487.001.0001.

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The comparative study of law and order policies has mostly overlooked partisan politics as a possible explanation of differences between Western nations. Filling this gap in the literature, this book argues theoretically and substantiates empirically that law and order policies are heavily affected by partisan politics. By means of a large-N analysis of spending data and a new dataset on law and order legislation as well as four in-depth case studies, the empirical evidence shows that party competition and the party ideology of governments do affect policies—depending on the institutional context of a political system. Moreover, path dependencies tend to freeze these effects over a certain period of time creating positive feedback dynamics.

42

Verhagen, Hendrik L. E. Security and Credit in Roman Law. Oxford University PressOxford, 2022. http://dx.doi.org/10.1093/oso/9780199695836.001.0001.

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Abstract This book outlines the legal history of pignus and hypotheca in terms of an iterative relationship between transactional lawyers drafting legal transactions and jurists deploying their analytical skills in order to accommodate new transactional practices into the Roman legal system. It reconstructs the evolution of the Roman law of real security, well known through the legal sources (Justinian’s Digest and Code), while matching it with actual banking practices, in particular the secured lending transactions documented in the archive of the Sulpicii. In the late classical period the imperial chancery increasingly interfered with the law of real security in order to provide a considerable degree of protection to debtors. This aspect of legal evolution will not be ignored in this book. The largely but not completely spontaneous evolution of Roman law produced a law of secured transactions that was highly sophisticated and versatile, allowing non-possessory security, multiple charges, pledges of receivables, antichretic pledges, and even floating charges over a dynamic fund of assets. The complexity of the Roman law of real security indicates that pignus and fiducia did play a significant role in the Roman economy. It will be shown that this role was generally a positive one. Its main weaknesses were lack of publicity and the presence of fiscal charges but even these weaknesses did not undermine the effectiveness of secured transactions.

43

Javier, El-Hage. How May Tribunals Apply the Customary Necessity Rule to the Argentine Cases? An Analysis of ICSID Decisions with Respect to the Interaction between Article XI of the U.S.-Argentina BIT and the Customary Rule of Necessity. Oxford University Press, 2013. http://dx.doi.org/10.1093/law-iic/9780199983025.016.0011.

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This chapter addresses the question of why the nine decisions from the International Centre for Settlement of Investment Disputes (ICSID) arising under the treaty between the United States of America and the Argentine Republic concerning the reciprocal encouragement and protection of investment have been so inconsistent in the face of largely undisputed facts and identical legal norms. It first sets forth, in abstract, a set of interpretive parameters and corresponding legal rationales that may be followed by tribunals when dealing with situations in which treaty and customary international law rules interact. It then analyzes each of the Argentine decisions according to the interaction rationales chosen by tribunals and committees, with a specific focus on the consistency of their own arguments for the application of the rule of necessity of customary international law.

44

Yamagishi, Toshio. Individualism-Collectivism, the Rule of Law, and General Trust. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780190630782.003.0011.

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In the absence of legal protection, people establish collectivist social orders by forming strong ties with closely related individuals. When legal institutions which safeguard people’s rights outside closed relationships do not function, the need for mutual protection within a network of strong ties increases. Individualistic pursuits of opportunities outside the security of closed relationships requires universalistic legal protection. The rule of law thus promotes individualistic social orders that free people from dependence on such networks of strong ties to survive. This chapter proposes that in societies where the rule of law is deeply established, general trust encourages opportunity-seeking activities mediated by weak ties. Macro-level data show a positive correlation between general trust and the national mean individualism score. Furthermore, the degree of a nation’s political stability is positively linked to general trust in countries with a firm rule of law, but not in countries with a weak one.

45

Kjeldgaard-Pedersen, Astrid. The Legal Personality of Individuals in International Economic Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198820376.003.0008.

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Under the umbrella of international economic law, Chapter 8 begins in Section 8.1 by examining the relationship between the concept of international legal personality and positive international norms pertaining to ‘State contracts’. Section 8.2 then studies the field of international investment law, which (unlike, for instance, international trade law) is characterized by a considerable degree of involvement of the individual investor. Section 8.3 goes on to discuss some pertinent aspects of EU law in relation to the international legal personality of individuals. EU law is not commonly regarded as a part of international (economic) law, but rather as ‘a new legal order’ of its own. EU law is nevertheless included here as the point is to challenge the popular conception of EU law as separate from the international legal system, and to illustrate that this notion rests, at least in part, on the orthodox ‘States-only’ conception of international legal personality.

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Fausto, Pocar. Part III Observance and Application of Treaties, 17 Some Remarks on the Continuity of Human Rights and International Humanitarian Law Treaties. Oxford University Press, 2011. http://dx.doi.org/10.1093/acprof:oso/9780199588916.003.0017.

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This chapter explores how the proliferation of newly independent states and state dissolution has resulted in greater complexity on the issue of state succession of treaty obligations. In particular, between the theories of tabula rasa succession and automatic state succession. The Human Rights Committee, the Convention on Succession of States in respect of Treaties, and the development of customary international law all bolster the imposition of automatic state succession with respect to international human rights and humanitarian law treaties. Automatic state succession is required by the special nature of human rights and humanitarian law. Thus, once a population is granted the protection of such rights, these rights devolve with the territory and a state cannot deny them. Furthermore, other international institutions have enforced these obligations resulting in the continuity of international human rights and humanitarian law treaties.

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Joshua, Castellino, and Doyle Cathal. Part I The UNDRIP’s Relationship to Existing International Law, Ch.1 Who Are ‘Indigenous Peoples’?: An Examination of Concepts Concerning Group Membership in the UNDRIP. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780199673223.003.0002.

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This chapter assesses the question of the people and peoples to whom the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) applies, tracking the concepts of person, persons, groups, people, and peoples in international law, and the UNDRIP's contribution to these concepts. The opening section of the chapter illustrates that the status of indigenous peoples in customary international law stands closer to peoples in the continuum between minorities and peoples. Minorities, while gaining the right to protection and promotion of their group identity, do not automatically gain the right to self-determination. Indigenous peoples ought to, but their rights towards this are constrained by state interests.

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Paul, Buckle. III Trust Arbitration as a Matter of National Law, 12 Trust Arbitration in Guernsey. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198759829.003.0012.

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In 2008, Guernsey adopted the Trusts (Guernsey) Law 2007, which provides in section 63(1) for a binding alternative dispute resolution (ADR) process for claims ‘founded on breach of trust’. Whilst this legislation is in many ways positive, it has been rarely if ever used. The reason seems to be that the legislation is still not regarded as a workable way of achieving finality due to perceived difficulties in securing proper representation of minor and unborn beneficiaries and achieving a binding resolution of trust disputes. Indeed, there appears to be a fundamental incompatibility between trusts and commercial arbitration that has not yet been overcome. This chapter considers why and what more might be done to improve on what is still surely a very promising legislative start.

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William A, Schabas. Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.28 Responsibility of commanders and other superiors/Responsabilité des chefs militaires et autres supérieurs hiérarchiques. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198739777.003.0033.

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This chapter comments on Article 28 of the Rome Statute of the International Criminal Court. Article 28 consists of two paragraphs; the first addressing superior responsibility in a military context, the second dealing with the issue with respect to civilians. Unlike the superior responsibility liability that attaches to military commanders, which was well accepted, application of the concept to civilians proved to be very controversial. Some Trial Chambers at the ad hoc tribunals have referred to article 28 as a basis for the view that the ‘distinction between military commanders and other superiors embodied in the Rome Statute is an instructive one’, although this is a rather isolated opinion. Nevertheless, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has acknowledged that whether the liability of civilian superiors ‘contains identical elements to that of military commanders is not clear in customary law’.

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St John, Taylor. Why is Exit So Hard? Positive Feedback and Institutional Persistence. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198789918.003.0009.

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Chapter eight analyzes why institutions persist, even when they generate unintended consequences for the states that created them. The chapter sets out a typology of possible actions that governments can take to exit from investor–state arbitration. To date, governments have engaged in remarkably little exit. The second section explores how positive feedback has created a new constituency of law firms and investors with an interest in arbitration and therefore has led to a new politics of ISDS. The third section discusses other types of feedback that have stabilized and developed a dense web of commitments enshrining investor–state arbitration. The fourth section observes that over time, competitive dynamics emerged and define investor–state arbitration today: competition between law firms, arbitration organizations, and even jurisdictions hoping to host arbitrations makes exit and reform more difficult. The barriers to exit may be highest for capacity-constrained states.

Books on the topic 'Between positive law and customary law'

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