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Relations between societal values and legal doctrine are inevitably
complex given the time lag between law and social reality, and the
sociological space between legal communities involved in the
development and application of the law and non-legal communities
affected by it. It falls on open-ended concepts, such as
proportionality, human rights, dignity, freedom, and truth, and on
legal frameworks for balancing competing rights and interests, such
as self-defense, command or corporate responsibility, and
restrictions on freedom of expression, to negotiate chronic
tensions between law and society and to bridge existing gaps. The
present volume contains chapters by leading experts - former judges
on constitutional courts and international courts, and some of the
world's leading criminal law, public law, and international law
scholars - offering their points of view and professional analysis
of legal notions and doctrines that serve as hubs for the
interpretation, application, and contestation of core values, which
in turn constitute building blocks of the rule of law. The shared
perspective on the interplay between values and legal rules in
public law, criminal law, and international law is likely to render
the publication a valuable resource for both theoreticians and
practitioners, law students, and seasoned legal experts working in
diverse legal fields.
Relations between societal values and legal doctrine are inevitably
complex given the time lag between law and social reality, and the
sociological space between legal communities involved in the
development and application of the law and non-legal communities
affected by it. It falls on open-ended concepts, such as
proportionality, human rights, dignity, freedom, and truth, and on
legal frameworks for balancing competing rights and interests, such
as self-defense, command or corporate responsibility, and
restrictions on freedom of expression, to negotiate chronic
tensions between law and society and to bridge existing gaps. The
present volume contains chapters by leading experts - former judges
on constitutional courts and international courts, and some of the
world's leading criminal law, public law, and international law
scholars - offering their points of view and professional analysis
of legal notions and doctrines that serve as hubs for the
interpretation, application, and contestation of core values, which
in turn constitute building blocks of the rule of law. The shared
perspective on the interplay between values and legal rules in
public law, criminal law, and international law is likely to render
the publication a valuable resource for both theoreticians and
practitioners, law students, and seasoned legal experts working in
diverse legal fields.
Recent decades have witnessed an impressive process of normative
development in international law. Numerous new treaties have been
concluded, at global and regional levels, establishing far-reaching
international legal and regulatory regimes in important areas such
as human rights, international trade, environmental protection,
criminal law, intellectual property, and more. New political and
judicial institutions have been established to develop, apply and
adjudicate these rules. This trend has been accompanied by the
growing consolidation of treaty norms into international custom,
and increased references to international law in domestic settings.
As a result of these developments, international relations have now
reached an unprecedented level of normative density and intensity,
but they have also given rise to the phenomenon of 'fragmentation'.
The debate over the fragmentation of international law has largely
focused on conflicts: conflicts of norms and conflicts of
authority. However, the same developments that have given rise to
greater conflict and contradiction in international law, have also
produced a growing amount of normative equivalence between rules in
different fields of international law. New treaty rules often echo
existing international customary norms. Regional arrangements
reinforce undertakings that already exist at the global level; and
common concerns and solutions appear in many international legal
fields. This book focuses on such instances of normative
parallelism, developing the concept of 'multisourced equivalent
norms' in international law, with contributions by leading
international law experts exploring the legal and political
implications of the concept in a variety of contexts that span the
full spectrum of international legal norms and institutions. By
concentrating on situations governed by a multitude of similar
norms, the book emphasizes the importance of legal contexts and
institutional settings to international law-interpretation and
application.
International law is fragmented and complex, and at the same time
increasingly capable of shaping reality in areas as diverse as
human rights, trade and investment, and environmental law. The
increased influences of international law and its growing
institutionalization and judicialization invites reconsideration of
the question how should the authority to make and interpret
international law be allocated among states, international
organizations and tribunals, or in other words, "who should decide
what" in a system that formally lacks a central authority? This is
not only a juridical question, but one that lies at the very heart
of the political legitimacy of international law as a system of
governance, defining the relationship between those who create the
law and those who are governed by it in a globalizing world. In
this book, leading international legal scholars address a broad
range of theoretical and practical aspects of the question of
allocation of authority in international law and debate the
feasibility of three alternative paradigms for international
organization: Sovereignty, Supremacy and Subsidiarity. The various
contributions transcend technical solutions to what is in essence a
problem of international constitutional dimensions. They deal,
inter alia, with the structure of the international legal system
and the tenacity of sovereignty as one of its foundations, assess
the role of supremacy in inter-judicial relations, and draw lessons
from the experience of the European Union in applying the principle
of subsidiarity. This volume will be of great interest to scholars
and practitioners of international law alike.
This collection of essays is written by some of the world's leading
experts in international human rights law, and corresponds to the
main junctures in the professional life of Professor David
Kretzmer, a leading human right academic and practitioner. The
different essays focus on contemporary human rights protection
challenges. They address conceptual problems such as differences
between limits and restrictions, and application of human rights
standards to businesses and international organisations; legal
doctrinal responses to changing realities in the field of
surveillance and identity politics; the weakness of monitoring
institutions engaged in standard setting; and the practical
difficulties in applying international human rights law to the
Israeli-Palestinian conflict in a manner sensitive to gender
dimensions and the particular political dynamics of the situation.
Collectively, the essays offer a rich picture of the current
potential shortcomings of international human rights law in
addressing complex problems of law, politics and ethics.
This examination of the jurisdiction of international courts and
the admissibility of cases before them analyses jurisdictional and
admissibility rules in light of the roles assumed by international
courts in international life and in light of the roles that
jurisdictional and admissibility rules play in promoting the
effectiveness and legitimacy of international courts. The theory
pursued views jurisdiction as a form of delegation of power (the
power to exercise judicial power and decide the law) and regards
admissibility as a framework for deciding upon the propriety of
exercising such power. On the basis of this theoretical framework,
the author critically evaluates the exercise of judicial discretion
in the existing case law of a variety of international courts,
distinguishing between the category-based case selection implicit
in jurisdictional rules and the case-by-case analysis and selection
implicit in rules on admissibility.
Are international courts effective tools for international
governance? Do they fulfill the expectations that led to their
creation and empowerment? Why do some courts appear to be more
effective than others, and do so such appearances reflect reality?
Could their results have been produced by other mechanisms? This
book evaluates the effectiveness of international courts and
tribunals by comparing their stated goals to the actual outcomes
they achieve. Using a theoretical model borrowed from social
science, the book assesses their effectiveness by analysing key
empirical data. Its first part is dedicated to theory and
methodology, laying out the effectiveness model, explaining its
different components, its promise and limits, and discussing the
measurement challenges it faces. The second part analyses the role
that indicators such as jurisdiction, judicial independence,
legitimacy, and compliance play in achieving effectiveness. Part
three applies the effectiveness model to the International Court of
Justice, the WTO dispute settlement mechanisms (panels and
Appellate Body), the International Criminal Tribunals for Rwanda
and Yugoslavia, the European Court of Human Rights, and the
European Court of Justice, reflecting the diversity of the field of
international adjudication. Given the recent proliferation of
international courts and tribunals, this book makes an important
contribution towards understanding and measuring the value that
these institutions provide.
This book seeks to investigate the growing jurisdictional
interaction between national and international courts ie: their
parallel involvement in the same or related disputes in the light
of competing theoretical, ideological and methodological discourses
on the nature of the relationship and the means to regulate it. In
particular, it aims to explore what, if any, rules of international
law could, or perhaps should govern such interactions, and regulate
forum selection or multiple proceedings involving national and
international courts. In addition, the book explores the standards
of review employed by international courts vis-a-vis the decisions
of their domestic counterparts and vice versa. It posits that the
regulation of such interactions ultimately depends on the selection
of the overarching paradigm that governs the relations between
national and international courts (hierarchical as opposed to
non-hierarchical and disintegrative or integrative conceptual
frameworks). Following academic discussion of the problems and
solutions pertaining to the interaction between national and
international courts, the book considers the potential
applicability of several jurisdiction-regulating measures to
jurisdictional interactions between national and international
courts. These include rules on forum selection and rules designed
to regulate multiple proceedings (e.g. lis alibi pendens and res
judicata), utilization of comity- based measures and doctrines,
such as discretionary stay or dismissal of proceedings and margin
of appreciation judicial review, and examination of the prohibition
against abuse of rights. This segment of the book strives to
provide lawyers and academics with a 'tool kit' of measures which
could be employed in cases involving jurisdictional interactions
between national and international courts.
Recent years have witnessed a sharp increase in the number of
international courts and tribunals (WTO, NAFTA, ITLOS, ICC, etc.)
and greater willingness on the part of states and other
international actors to subject themselves to the compulsory
jurisdiction of international adjudicative mechanisms. However,
because of the uncoordinated nature of these developments, overlaps
between the jurisdictional ambits of the different judicial bodies
might occur, i.e., the same dispute could fall under the
jurisdiction of more than one forum. This raises both theoretical
and practical issues of coordination between the various
jurisdictions. The purpose of this book is to explore the
implications of jurisdictional competition and to identify
standards that may alleviate problems associated with the
phenomenon, which arguably threatens the unity of international
law. The first part of the book examines the jurisdictional ambits
of the principal international courts and tribunals and delineates
areas of overlap between their respective jurisdictions. There
follows a discussion of some of the potential systematic and
practical problems that arise out of jurisdictional competition
(such as forum shopping and multiple proceedings) and a
consideration of the expediency of mitigating them. The book
concludes by identifying existing rules of international law, which
govern inter-jurisdictional competition, and by considering the
desirability of introducing additional norms and arrangements.
The proliferation of new international courts and tribunals in recent years has given rise to concerns of jurisdictional overlaps between the new and existing judicial bodies. The book examines what would happen when the same dispute falls under the jurisdiction of more than one forum. This raises both theoretical and practical issues of coordinating between the various jurisdictions and identifies rules of law which ought to apply in such circumstances.
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