This chapter and the next examine
various modes of international law- making to investigate the interests
and perspectives they support. Here, we describe the law with respect to
customary international law, general principles of law and subsidiary
sources of law. Chapter 4 looks more
specifically at the law of treaties. We deal with the traditional
The case of the management of the dead related to COVID-19
This article studies one of the humanitarian challenges caused by the COVID-19
crisis: the dignified handling of the mortal remains of individuals that have
died from COVID-19 in Muslim contexts. It illustrates the discussion with
examples from Sunni Muslim-majority states when relevant, such as Egypt, the
Kingdom of Saudi Arabia, Jordan, Morocco and Pakistan, and examples from
English-speaking non-Muslim majority states such as the United Kingdom, the
United States of America, Canada and Australia as well as Sri Lanka. The article
finds that the case of the management of dead bodies of people who have died
from COVID-19 has shown that the creativity and flexibility enshrined in the
Islamic law-making logic and methodology, on the one hand, and the cooperation
between Muslim jurists and specialised medical and forensic experts, on the
other, have contributed to saving people’s lives and mitigating the
effects of the COVID-19 pandemic in Muslim contexts.
This collection of chapters provides the most comprehensive study of the theory and practice on the contribution of international organisations and non-State actors to the formation of customary international law. It offers new practical and theoretical perspectives on one of the most complex questions about the making of international law, namely the possibility that actors other than states contribute to the making of customary international law. Notwithstanding the completion by the International Law Commission of its work on the identification of customary international law, the making of customary international law remains riddled with acute practical and theoretical controversies which have been left unresolved and which continue to be intensively debated in both practice and scholarship. Making extensively reference to the case-law of international law courts and tribunals as well as the practice of treaty-monitoring bodies while also engaging with the most recent scholarly work on customary international law, this new volume provides innovative tools and guidance to legal scholars, researchers in law, law students, lecturers in law, practitioners, legal advisers, judges, arbitrators, and counsels as well as tools to address contemporary questions of international law-making.
An overview of the role of the Oireachtas in European Union affairs
Where we stand now: an overview
of the role of the Oireachtas in
European Union affairs
This chapter describes the role of the Oireachtas in European affairs in the 30th Dáil
(2007–11) and 31st Dáil (2011–16), the two most recently completed legislative
periods.1 There are three main aspects to parliament’s relationship with Government.
First, parliament has a role in forming and dismissing governments. Secondly, parliament has a role in policy-making and law-making. Thirdly, parliament has a role in
rendering the Government accountable.2
of law-making itself, myths are created and retained.
Ronnie Lippens has carved an international reputation through his use
of both philosophical and artistic insights into the criminological canon.
In his chapter, ‘Forward! Coding, decoding and recoding order in public
art for urban regeneration’, he explores how public artworks are themselves part of a system of coding and recoding that informs both our ethics
and our aesthetics. His contribution explores the coded dimension of large
public artworks (sculptures or installations in particular). Public space is
permissible means of reaction – issues explored further in Chapter 4 . 65 Treaties are typically discussed by scholars
in terms of whether they are ‘contract treaties’ or
‘law-making treaties’. 66 Treaties that are contracts create
obligations on the parties that agree to enter into them. 67 In the period 700 to
1200, some of the obligations and duties created were very general. The
best examples of this are often alliances or
the United Nations Human Rights Treaty Bodies ( ILA 2004 ).
8 International Law Commission, ‘First report on formation and evidence of customary international law’, UN Doc A/CN.4/663 (17 May 2013) (First report on customary international law) paras 24–27. See also A Bianchi , ‘ Human Rights and the Magic of Jus Cogens ’ ( 2008 ) 19 EJIL 491 .
9 McCall-Smith (n 7); K McCall-Smith , ‘ Reservations and the Determinative Function of Human Rights Treaty Bodies ’ ( 2012 ) 54 German YbIL 521 . See , generally, G Ulfstein , ‘ Law-Making by
This chapter argues that international organisations can be conducive to the emergence or consolidation of the customary status of those primary rules of international law which their sanctions are meant to vindicate. It shows that the contribution of sanctions to the formation of custom varies significantly depending on the concrete situation. In cases where international organisations react to breaches of obligations that already have an erga omnes status and their standing to adopt sanctions is uncontested under the law of countermeasures, international organisations contribute to consolidation and clarification of custom. Ironically, however, the potential for customary law-making is greater when the erga omnes status of an obligation towards which an international organisation is reacting to is not yet confirmed. The illegality or legal uncertainty shrouding such sanctions under the law of responsibility does not preclude their potential in customary law-making – in fact, it may maximise their contribution. In discussing these situations, the present chapter makes an important distinction between the act of sanction and the act of protest. This makes it possible to argue that it is protests accompanying the act of sanction that have a role to play in custom-making, rather than the act of sanction itself.
The International Law Commission held that that the conduct of non-State actors ‘is not practice that contributes to the formation, or expression, of rules of customary international law’ for the sake of the identification of customary international law. However, the present chapter argues that the activities of de facto regimes can be considered as properly speaking ‘practice’ that contributes to the formation, or expression, of rules of customary international law under two scenarios. Firstly, the custom-creating or custom-strengthening conduct of the de facto regimes might be attributed to a State, usually to an occupying power or a State supporting in various means the entity by exercising effective control or at least decisive influence over it. Secondly, de lege ferenda, even without attribution, the conduct of de facto regimes should be taken into account as strengthening the practice forming customary international law at least in subject matters governing the rights and obligations of the de facto regimes itself. This chapter argues that in both scenarios the de facto regimes’ law-making capacity and conduct should be taken into account either as relevant sources for identifying the ‘practice’ of States or the conduct of international organisations, or as relevant ‘practice’ as such.