Pub Date : 2020-02-21DOI: 10.1163/9789004425217_002
A. Trindade
{"title":"Introduction: Preliminary Considerations","authors":"A. Trindade","doi":"10.1163/9789004425217_002","DOIUrl":"https://doi.org/10.1163/9789004425217_002","url":null,"abstract":"","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124069433","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_008
A. Augusto, Cançado Trindade
Human conscience, - more precisely the universal juridical conscience, - appears as the ultimate material source of International Law, providing the intrinsic foundation of jus gentium, in pursuit of the realization of justice. The Martens clause sustains the continued applicability of the principles of International Law, the principles of humanity and the dictates of public conscience, independently of the emergence of new situations and of the development of technology. The universal juridical conscience, unlike the voluntarist conception, has consistently given expression to the fundamental principles of International Law. Such principles came to illuminate the formation and evolution of the international legal order, given the flagrant incapacity of legal positivism to explain the formation of customary norms, of visualizing Law as a means for the realization of justice, and of recognizing that the ultimate foundation of Law is necessarily found outside the positive legal order.Keywords:humanity; international law; international legal order; legal positivism; Martens Clause; material source; universal juridical conscience
{"title":"The Material Source of International Law: Manifestations of the Universal Juridical Conscience","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_008","DOIUrl":"https://doi.org/10.1163/9789004255074_008","url":null,"abstract":"Human conscience, - more precisely the universal juridical conscience, - appears as the ultimate material source of International Law, providing the intrinsic foundation of jus gentium, in pursuit of the realization of justice. The Martens clause sustains the continued applicability of the principles of International Law, the principles of humanity and the dictates of public conscience, independently of the emergence of new situations and of the development of technology. The universal juridical conscience, unlike the voluntarist conception, has consistently given expression to the fundamental principles of International Law. Such principles came to illuminate the formation and evolution of the international legal order, given the flagrant incapacity of legal positivism to explain the formation of customary norms, of visualizing Law as a means for the realization of justice, and of recognizing that the ultimate foundation of Law is necessarily found outside the positive legal order.Keywords:humanity; international law; international legal order; legal positivism; Martens Clause; material source; universal juridical conscience","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115972306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_020
A. Augusto, Cançado Trindade
It is hardly surprising that basic considerations of humanity surround lately- emerged domains of International Law, such as, e.g., those of human rights protection and of environmental protection. The interpretation and application of human rights treaties have been guided by considerations of a superior general interest or ordre public which transcend the individual interests of Contracting Parties. The present system of reservations, reminiscent of the old Pan-American practice, rescued by the ICJ21 and the two Vienna Conventions on the Law of Treaties, for having crystallized itself in the relations between States, not surprisingly appears entirely inadequate to the treaties whose ultimate beneficiaires are the human beings and not the Contracting Parties themselves. In fact, basic considerations of humanity have permeated also the clauses of denunciation of certain treaties. Last but not least, attention should also be drawn to the interaction of human rights treaties in the process of interpretation.Keywords: human rights; International Law; Law of Treaties
{"title":"Basic Considerations of Humanity in Relation to the Law of Treaties","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_020","DOIUrl":"https://doi.org/10.1163/9789004255074_020","url":null,"abstract":"It is hardly surprising that basic considerations of humanity surround lately- emerged domains of International Law, such as, e.g., those of human rights protection and of environmental protection. The interpretation and application of human rights treaties have been guided by considerations of a superior general interest or ordre public which transcend the individual interests of Contracting Parties. The present system of reservations, reminiscent of the old Pan-American practice, rescued by the ICJ21 and the two Vienna Conventions on the Law of Treaties, for having crystallized itself in the relations between States, not surprisingly appears entirely inadequate to the treaties whose ultimate beneficiaires are the human beings and not the Contracting Parties themselves. In fact, basic considerations of humanity have permeated also the clauses of denunciation of certain treaties. Last but not least, attention should also be drawn to the interaction of human rights treaties in the process of interpretation.Keywords: human rights; International Law; Law of Treaties","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117067729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_027
A. Augusto, Cançado Trindade
Most of the classic works on international adjudication date from a time when one counted only on, besides the Permanent Court of Arbitration and international arbitral tribunals, the Hague Court the Permanent Court of International Justice [PCIJ] followed by the International Court of Justice [ICJ]. The system of the 1982 U.N. Convention on the Law of the Sea allows States Parties to the Convention the option between the International Tribunal for the Law of the Sea, or the ICJ, or else arbitration. This is symptomatic of the way contemporary International Law has evolved, and of an increasing recourse to international adjudication. One can detect the current process of humanization of International Law, disclosing a new outlook of the relations between public power and human being. In operating, and constructing the converging case-law, the European and the Inter-American Courts, have contributed to enrich and humanize contemporary Public International Law.Keywords: American; European; Hague Court; International Court of Justice [ICJ]; International Law; Jurisdiction; Law of the Sea; Permanent Court of International Justice [PCIJ]
{"title":"International Rule of Law: The Need and Quest for International Compulsory Jurisdiction","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_027","DOIUrl":"https://doi.org/10.1163/9789004255074_027","url":null,"abstract":"Most of the classic works on international adjudication date from a time when one counted only on, besides the Permanent Court of Arbitration and international arbitral tribunals, the Hague Court the Permanent Court of International Justice [PCIJ] followed by the International Court of Justice [ICJ]. The system of the 1982 U.N. Convention on the Law of the Sea allows States Parties to the Convention the option between the International Tribunal for the Law of the Sea, or the ICJ, or else arbitration. This is symptomatic of the way contemporary International Law has evolved, and of an increasing recourse to international adjudication. One can detect the current process of humanization of International Law, disclosing a new outlook of the relations between public power and human being. In operating, and constructing the converging case-law, the European and the Inter-American Courts, have contributed to enrich and humanize contemporary Public International Law.Keywords: American; European; Hague Court; International Court of Justice [ICJ]; International Law; Jurisdiction; Law of the Sea; Permanent Court of International Justice [PCIJ]","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127716192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_023
A. Augusto, Cançado Trindade
Traditional International Law devoted much attention to the concept of territory, to which it ascribed a central and key position among the prerequisites of statehood. The crystallized right to self-determination of peoples is inherent to populations living in non-self-governing territories or in other circumstances, finding solid support in contemporary international law. The Antarctica Treaty has been significantly instrumental in securing the non-militarization and non-nuclearization of the area. Basic considerations of humanity have come to permeate the chapter of International Law concerning territory in distinct ways. A recent development in the domain of territory in International Law pertains to the transitional administration of territorial units by the United Nations, on behalf of the international community. In our days, other precedents, which took place subsequently, in the United Nations era are given the growing attention currently turned, in particular, to the cases of direct territorial administration of Kosovoand of East Timor.Keywords:Antarctica Treaty; humanity; international community; non-militarization; non-self-governing territories; territory; transitional administration
{"title":"Basic Considerations of Humanity in Relation to Territory","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_023","DOIUrl":"https://doi.org/10.1163/9789004255074_023","url":null,"abstract":"Traditional International Law devoted much attention to the concept of territory, to which it ascribed a central and key position among the prerequisites of statehood. The crystallized right to self-determination of peoples is inherent to populations living in non-self-governing territories or in other circumstances, finding solid support in contemporary international law. The Antarctica Treaty has been significantly instrumental in securing the non-militarization and non-nuclearization of the area. Basic considerations of humanity have come to permeate the chapter of International Law concerning territory in distinct ways. A recent development in the domain of territory in International Law pertains to the transitional administration of territorial units by the United Nations, on behalf of the international community. In our days, other precedents, which took place subsequently, in the United Nations era are given the growing attention currently turned, in particular, to the cases of direct territorial administration of Kosovoand of East Timor.Keywords:Antarctica Treaty; humanity; international community; non-militarization; non-self-governing territories; territory; transitional administration","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"9 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120990655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_003
A. Augusto, Cançado Trindade
Jus gentium (of Roman law) had its origins in private law, having subsequently entered also the realm of the conceptual universe of the law of nations. As jus gentium transcended its original private law sense, and began - in the late Middle-Ages - to be associated with the emerging law of nations, it came to be conceived as the law common to all peoples and human beings, and fostered the belief in the existence of a set of "common notions"; it became related to humankind (itself), pledged to secure its unity and the fulfilment of its needs. The jus communicationis of Vitoria was conceived as a law for all human beings. In the conception of one of the founding fathers of International Law, Francisco de Vitoria, jus gentium pertained to the law of nations and peoples organized in political communities, as well as to a universal law for humankind.Keywords:Francisco de Vitoria; humankind; international law; Jus Gentium
{"title":"The Evolution towards a New Jus Gentium: The International Law for Humankind","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_003","DOIUrl":"https://doi.org/10.1163/9789004255074_003","url":null,"abstract":"Jus gentium (of Roman law) had its origins in private law, having subsequently entered also the realm of the conceptual universe of the law of nations. As jus gentium transcended its original private law sense, and began - in the late Middle-Ages - to be associated with the emerging law of nations, it came to be conceived as the law common to all peoples and human beings, and fostered the belief in the existence of a set of \"common notions\"; it became related to humankind (itself), pledged to secure its unity and the fulfilment of its needs. The jus communicationis of Vitoria was conceived as a law for all human beings. In the conception of one of the founding fathers of International Law, Francisco de Vitoria, jus gentium pertained to the law of nations and peoples organized in political communities, as well as to a universal law for humankind.Keywords:Francisco de Vitoria; humankind; international law; Jus Gentium","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126265555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004425217_033
António C Trindade
{"title":"Table of Cases","authors":"António C Trindade","doi":"10.1163/9789004425217_033","DOIUrl":"https://doi.org/10.1163/9789004425217_033","url":null,"abstract":"","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128187376","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_009
A. Augusto, Cançado Trindade
This chapter focuses on the expansion of international legal personality, rather than to review classic doctrine on the matter. This means to review new developments on the matter, with the advent of international organizations and of the human person, individually or in groups, and of humankind as a whole, also as subjects of the law of nations. It means to concentrate attention, as from the personality of States, on the expansion of international legal personality in the current process of humanization of International Law. The preconditions for statehood in International Law are those of an objective International Law, irrespective of the "will" of individual States. States began to address new domains of human activity, and new concepts emerged in the expanded regulation by International Law of such domains. International Law as purely inter-State has led to abuse of power by those who held it.Keywords:domestic jurisdiction; international law; international legal personality; statehood
{"title":"States as Subjects of International Law and the Expansion of International Legal Personality","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_009","DOIUrl":"https://doi.org/10.1163/9789004255074_009","url":null,"abstract":"This chapter focuses on the expansion of international legal personality, rather than to review classic doctrine on the matter. This means to review new developments on the matter, with the advent of international organizations and of the human person, individually or in groups, and of humankind as a whole, also as subjects of the law of nations. It means to concentrate attention, as from the personality of States, on the expansion of international legal personality in the current process of humanization of International Law. The preconditions for statehood in International Law are those of an objective International Law, irrespective of the \"will\" of individual States. States began to address new domains of human activity, and new concepts emerged in the expanded regulation by International Law of such domains. International Law as purely inter-State has led to abuse of power by those who held it.Keywords:domestic jurisdiction; international law; international legal personality; statehood","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124556097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_015
A. Augusto, Cançado Trindade
The concepts of common heritage and of common concern of mankind disclose a spatial and temporal dimensions, and call for special attention and world-wide cooperation, with the corresponding rights and duties pertaining to present and future generations, bearing in mind the needs and aspirations of humankind. The construction of the concept of common heritage of mankind in distinct domains of Public International Law emerged from the acknowledgement of common interests. The concept of common heritage of mankind has likewise found expression in the evolving International Law of Bioethics. The concept of "common concern of mankind" has deliberately avoided proprietary connotations, and has proved particularly suitable to address global environmental issues. The conceptions of common heritage and of common concern of mankind embody universal solidarity and social responsibility, emanate from human conscience, reflect basic values of the international community as a whole, and strengthen the notion of an international ordre public.Keywords:bioethics; common concern; common heritage; humankind; international law; mankind
{"title":"Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_015","DOIUrl":"https://doi.org/10.1163/9789004255074_015","url":null,"abstract":"The concepts of common heritage and of common concern of mankind disclose a spatial and temporal dimensions, and call for special attention and world-wide cooperation, with the corresponding rights and duties pertaining to present and future generations, bearing in mind the needs and aspirations of humankind. The construction of the concept of common heritage of mankind in distinct domains of Public International Law emerged from the acknowledgement of common interests. The concept of common heritage of mankind has likewise found expression in the evolving International Law of Bioethics. The concept of \"common concern of mankind\" has deliberately avoided proprietary connotations, and has proved particularly suitable to address global environmental issues. The conceptions of common heritage and of common concern of mankind embody universal solidarity and social responsibility, emanate from human conscience, reflect basic values of the international community as a whole, and strengthen the notion of an international ordre public.Keywords:bioethics; common concern; common heritage; humankind; international law; mankind","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131377355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-21DOI: 10.1163/9789004255074_030
A. Augusto, Cançado Trindade
In the course of the last century International Law has undergone an extraordinary development, which gradually took the shape of an historical process of its humanization. Beginning of the XXIst century, we effectively have the privilege to witness the process of humanization of International Law, which comes to occupy itself directly with the realization of common superior goals. The recognition of the centrality of human rights corresponds to new ethos of our times. Such process of humanization manifests itself, in author view, as he have been sustaining for years, in all domains of the discipline: the foundations of International Law, its subjects, its new conceptual constructions, the basic considerations of humanity permeating all its chapters, and the quest for the international rule of law for the realization of justice and maintenance of peace. Such process, in turn, discloses the new jus gentiumof our times, the International Law for humankind.Keywords:humanization; humankind; International Law; Jus Gentium
{"title":"Conclusions: International Law for Humankind – Towards a New Jus Gentium","authors":"A. Augusto, Cançado Trindade","doi":"10.1163/9789004255074_030","DOIUrl":"https://doi.org/10.1163/9789004255074_030","url":null,"abstract":"In the course of the last century International Law has undergone an extraordinary development, which gradually took the shape of an historical process of its humanization. Beginning of the XXIst century, we effectively have the privilege to witness the process of humanization of International Law, which comes to occupy itself directly with the realization of common superior goals. The recognition of the centrality of human rights corresponds to new ethos of our times. Such process of humanization manifests itself, in author view, as he have been sustaining for years, in all domains of the discipline: the foundations of International Law, its subjects, its new conceptual constructions, the basic considerations of humanity permeating all its chapters, and the quest for the international rule of law for the realization of justice and maintenance of peace. Such process, in turn, discloses the new jus gentiumof our times, the International Law for humankind.Keywords:humanization; humankind; International Law; Jus Gentium","PeriodicalId":347946,"journal":{"name":"International Law for Humankind","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123629918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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