Journal Article•
A Contextualized Account of General Principles of International Law
TL;DR: Newman and Biddulph as discussed by the authors examined general principles of international law through the innovative means of comparing their use in four different, novel areas of International Law (International Environmental Law, international investment law, international criminal law, and international indigenous rights) and argued that international environmental law has tended to use a hybrid approach, whereas international in±Portions of this paper have been presented at the Cambridge Conference on Interpretation in International Law at the Lauterpacht Centre / Cambridge Faculty of Law in August 2013 and at the Canadian Council of International law (CCIL) Annual
Abstract: This Article examines general principles of international law through the innovative means of comparing their use in four different, novel areas of international law—international environmental law, international investment law, international criminal law, and international indigenous rights. By doing so, the Article is able to make the distinct claim that there is no one, single methodology for analysis of general principles of international law. Rather, each area of international law tends to use a methodology suited to its policy objectives and overall characteristics as a specific area of law. The Article characterizes two predominant academic approaches to general principles: a purely “domestic approach” and a “hybrid approach”. The Article argues that international environmental law has tended to use a hybrid approach, whereas international in±Portions of this paper have been presented at the Cambridge Conference on Interpretation in International Law at the Lauterpacht Centre / Cambridge Faculty of Law in August 2013 and at the Canadian Council of International Law (CCIL) Annual Meeting in November 2013. We are grateful for comments on those occasions from individuals who included Natasha Affolder, Phillip Allott, John Martin-Gillroy, Joanna Harrington, Gleider Hernandez, Gary Luton, John Morss, Daniel Peat, Sara Seck, John Tasioulas, and Rumiana Yatova. We are also especially grateful to Ibironke OdumosuAyanu for her thorough read of and commentary on the draft Article. * Michelle Biddulph, research assistant to Professor Newman, holds a B.A. (Saskatchewan) and will complete her J.D. (Saskatchewan) in 2014. She has also studied at the Hague Academy of International Law. She will be clerking at the Saskatchewan Court of Appeal in 2014-15. ** Dwight Newman, B.A. (Regina), J.D. (Saskatchewan), B.C.L., M.Phil., D.Phil. (Oxford) is Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan. He has previously taught during shorter terms at McGill University and Oxford University and has been an academic visitor at the University of the Witwatersrand. He is a member of the Ontario and Saskatchewan bars.
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24 Oct 2019
TL;DR: In this paper, Abate identifies the common vulnerabilities of the voiceless in the Anthropocene era and demonstrates how the law, by incorporating principles of sustainable development, can evolve to protect their interests more effectively.
Abstract: Future generations, wildlife, and natural resources - collectively referred to as 'the voiceless' in this work - are the most vulnerable and least equipped populations to protect themselves from the impacts of global climate change. While domestic and international law protections are beginning to recognize rights and responsibilities that apply to the voiceless community, these legal developments have yet to be pursued in a collective manner and have not been considered together in the context of climate change and climate justice. In Climate Change and the Voiceless, Randall S. Abate identifies the common vulnerabilities of the voiceless in the Anthropocene era and demonstrates how the law, by incorporating principles of sustainable development, can evolve to protect their interests more effectively. This work should be read by anyone interested in how the law can be employed to mitigate the effects of climate change on those who stand to lose the most.
15 citations
TL;DR: In this article, the authors argue that principles and general principles of law, two frequently overlooked categories of norms, are particularly useful tools for the enhancement of these constitutional processes, and that the legal framework for the judicial settlement of international disputes can be rendered more robust through the use of principles.
Abstract: The fundamental elements of the international legal system remain subject to debate. Constitutionalism is merely the latest instalment of this continuing conversation on the very nature of international law. In this context certain foundational aspects may be labelled as the system’s ‘constitutional processes’. The primary argument presented in this article is that principles and ‘general principles of law’, two frequently overlooked categories of norms, are particularly useful tools for the enhancement of these constitutional processes. While often conflated, principles and general principles are distinct, performing different roles in the architecture of the international legal system. Renewed attention and debate on the norms beyond treaties and custom is critical for the enhancement of international law’s systemic features. Two broad examples are given in support of this claim. First, general principles of law have the potential to add substance to the notion of an international community and the role of this community in the creation of international norms. Second, the legal framework for the judicial settlement of international disputes can be rendered more robust through the use of principles and general principles of law. While attempting to redesign or reconceptualise the system, constitutionalists have failed to actually engage with the system. Yet, the popularity of the constitutionalism debate presents an opportunity to re-examine the system’s constituent norms and consider their potential to strengthen international law’s constitutional processes.
9 citations
01 Jan 2018
TL;DR: In this paper, the authors analyze the issue of general principles of international law as a distinct concept from that of generalized principles of law recognized in foro domestico and argue that any discussion on the nature and the functions of these principles in contemporary international law must consider the framework of general theories of law and, on the other, the role that general principles play in a structurally changed legal system which is becoming increasingly based upon the recognition of common values.
Abstract: The paper analyzes the issue of general principles of international law as a distinct concept from that of general principles of law recognized in foro domestico. The authors maintain that any discussion on the nature and the functions of these principles in contemporary international law must consider, on the one hand, the framework of general theories of law and, on the other, the role that general principles of international law play in a structurally changed legal system, which is becoming increasingly based upon the recognition of common values. The paper is structured in five sections, with Sect. 1 being the introduction and Sect. 2 dealing with the theme of principles in the general theory of law. Then the doctrinal positions on the general principles of international law are examined (Sect. 3); and the authors’ theory on these principles is presented (Sect. 4). The conclusions drawn (Sect. 5) confirm that general principles of international law derive both from abstraction/induction from existing customary norms and from the general recognition by the international community, broadly understood. In the authors’ view, the second category of principles is more relevant and prevailing in the most recent international practice. Such a category confirms that recently a process of widening the foundations of general international law has occurred, with reference to certain shared and fundamental values emerging from the consensus of the international community. Most of these values tend towards goals of global justice.
4 citations
30 Nov 2019
1 citations
01 Apr 2021