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Begin New Search Topic International Law Political Geography Asia Content Type Journal Article Publication Year within 3 Years

1. The Emotional Backdrop of Legal Discourses in South China Sea Disputes

Author:
Eric Pomes and Jean-Marc Coicaud
Publication Date:
01-2021
Content Type:
Journal Article
Journal:
Polish Political Science Yearbook
Institution:
Polish Political Science Association (PPSA)
Abstract:
The China Sea connects as many coastal states as it divides due to the economic and strategic challenges it represents. It also embodies an area of confrontations between the Great American and Chinese strategies. Identifying with precision the differences that arise requires an interest in the symbolic dimensions that surround them. This angle of analysis provides an opportunity to observe the functioning of international law and inevitably leads to a discussion of the emerging international order. The literature on the situation in the China Sea abounds. The paper’s singularity is to approach it under the prism of international law as revealing the psychology of an actor. To carry out this research, the authors use a pragmatic and critical approach to international law. The thesis defended shows that, contrary to a positivist and judicial approach to international law, elements exogenous to the law, the history, and the psychology of an actor, influence the interpretation of existing norms.
Topic:
International Law, Territorial Disputes, Maritime, and Conflict
Political Geography:
Asia and South China Sea

2. Refouling Rohingyas: The Supreme Court of India's Uneasy Engagement with International Law

Author:
Malcolm Katrak and Shardool Kulkarni
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.
Topic:
Human Rights, International Law, Law, Minorities, Constitution, and Discrimination
Political Geography:
India and Asia

3. The Role of the Judiciary in Recognizing and Implementing International Law: A Comparative Analysis with Special Reference to Sri Lanka

Author:
K.A.A.N. Thilakarathna
Publication Date:
06-2021
Content Type:
Journal Article
Journal:
Journal of Liberty and International Affairs
Institution:
Institute for Research and European Studies (IRES)
Abstract:
International law had had a profound impact and influence on the domestic legal system in the contemporary world. However, the status of international law within the domestic legal system is not properly defined in many of the jurisdictions including Sri Lanka. In the absence of such a constitutional provision, the judiciary as the last bastion of hope has a responsibility of interpreting domestic law in light of the international standards that have been agreed upon by the country through ratification of international treaties and those principles of customary international law that has become binding on the country. However, too much judicial activism could jeopardize the constitutional fundamentals of separation of powers and the rule of law. Therefore, this study argues that the best way to resolve this issue is by providing a constitutional provision for the role of the judiciary in the recognition and implementation of international law in a domestic context. Using a qualitative methodology with a comparative analysis of the constitutional provisions of the selected jurisdictions of India and South Africa a proposal is made for a constitutional provision for the judicial role in the recognition and implementation of international law in Sri Lanka. The results have revealed that a constitutional provision would help to advance the separation of powers and the rule of law and to well define the role of the judiciary in absorbing international treaty law to the domestic sphere, making the law more certain and predictable and upholding the rights and duties of individuals in a domestic context while fulfilling international obligations of a country under the domestic legal system.
Topic:
International Law, Rule of Law, Judiciary, and Jurisdiction
Political Geography:
Asia and Sri Lanka