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By Jan Anne Vos

This booklet addresses basic facets of the concept that of public foreign legislation in either conception and perform. The argument constructed by way of the writer is that, underlying the normal, horizontal, constitution of public foreign legislation, a vertical constitution of the concept that of legislations can be discerned. This vertical constitution is noticeable unfolding into , at the same time specific, frameworks: a framework of legal responsibility, accounting for tasks, and a framework of authorization, accounting for rights. the matter then bobbing up is thought of public overseas legislation which purely admits both rights or responsibilities can't be considered as coherent. the writer, notwithstanding, takes and substantiates the placement that coherence may be accomplished through suppressing the mutual exclusivity of either frameworks. This circulate paves the best way to formulating the functionality of public foreign legislation when it comes to the constituting of overseas society. considering the fact that in public overseas legislation the theoretical elements profoundly impact perform, this publication isn't just of curiosity to lecturers, but additionally for practitioners, corresponding to officers of overseas places of work and foreign institutions.

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A. 1007/978-90-6704-861-3_3, Ó J. A. Vos, The Netherlands 2013 27 28 3 The Framework of Obligation and the Framework of Authorization This chapter returns to the moments when the PCIJ and the ICJ were confronted with the question of whether the concept of public international law conforms to the framework of obligation or the framework of authorization. S. ‘‘Lotus’’, the PCIJ addressed this question of principle raised by the positions adopted by France and Turkey and opted for the framework of obligation.

The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. 4 Thereby, the PCIJ adhered to the framework of obligation. Accordingly, the Court considered that the function of rules of public international law is to restrict the freedom of States to act and that in the absence of rules of public international law States have a freedom to act.

S. ‘‘Lotus’’, Judgment No. —No. 10, 67: ‘When Article 15 speaks of ‘the principles of international law’, it means the principles of international law as they exist between independent and sovereign States. It evidently was intended to recognize the right of Turkey to exercise her judicial jurisdiction as an independent and sovereign State, except so far as the exercise of national jurisdiction is limited by the mutual obligations of States under the Law of Nations. S. ‘‘Lotus’’, Judgment No. —No.

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