The Paradox Of Consensualism In International Law

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The Paradox of Consensualism in International Law

C.L. Lim,O.A. Elias
The Paradox of Consensualism in International Law Book PDF

Author : C.L. Lim,O.A. Elias
Publisher : BRILL
Page : 344 pages
File Size : 44,9 Mb
Release : 2024-01-15
Category : Law
ISBN : 9789004635234

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The Paradox of Consensualism in International Law by C.L. Lim,O.A. Elias Pdf

If international law is derived from the consent of States, who should be in a better position to say what has been consented to than the disputing States themselves? It seems that if the doctrine of consent is taken seriously, there would be no room for an 'objective' legal answer to the question `What is law?'. Furthermore, States do not necessarily employ the same criteria for determining the applicable law when engaged in dispute. And the doctrine of sovereignty is of very limited utility, since not all of substantive international law can be explained in terms of the atomic concept of sovereignty. This leaves consent as the mediating concept between the substantive doctrine of international law on the one hand and the actual practice of States (and others whose practice and participation in the global legal order help shape the body of international laws) on the other. Nevertheless, this is not to say that there is nothing `higher' than the actual legal claims forwarded by international actors. International law is no mere superstition, since none argue that there is no (one) legal solution. In that sense, the unity of the international legal order is preserved. The problem is that the solutions actually forwarded in dispute are too numerous and international law too abstract to serve as arbiters between the competing claims. Thus, at the level of substantive doctrine there is a fragmentation of that earlier-mentioned picture of unity. But even here, only consent can mediate between unity and fragmentation, stability and change, order and justice, legislation and revolution. The strength of international law lies in its adaptability to political, strategic and diplomatic necessities. To suggest otherwise is to depart from a picture of international law that presumes the empirical verifiability of international laws. This book has as its principal concern certain orthodoxies of `source thinking' in international law, and is aimed at working out the implications of these. It aims to show how certain theoretical conceptions have shaped the law in action, for good or ill. It will appeal to political theorists, diplomats, global decision-makers, and international lawyers who are interested in the question `What can we do with the international law that we have?', as distinct from the question `What should we do with international law?'.

The Paradox of Consensualism in International Law

O. A. Elias,Chin L. Lim
The Paradox of Consensualism in International Law Book PDF

Author : O. A. Elias,Chin L. Lim
Publisher : Martinus Nijhoff Publishers
Page : 322 pages
File Size : 43,5 Mb
Release : 1998-01-01
Category : Law
ISBN : 9789041105165

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The Paradox of Consensualism in International Law by O. A. Elias,Chin L. Lim Pdf

If international law is derived from the consent of States, who should be in a better position to say what has been consented to than the disputing States themselves? It seems that if the doctrine of consent is taken seriously, there would be no room for an 'objective' legal answer to the question 'What is law?'. Furthermore, States do not necessarily employ the same criteria for determining the applicable law when engaged in dispute. And the doctrine of sovereignty is of very limited utility, since not all of substantive international law can be explained in terms of the atomic concept of sovereignty. This leaves consent as the mediating concept between the substantive doctrine of international law on the one hand and the actual practice of States (and others whose practice and participation in the global legal order help shape the body of international laws) on the other. Nevertheless, this is not to say that there is nothing 'higher' than the actual legal claims forwarded by international actors. International law is no mere superstition, since none argue that there is no (one) legal solution. In that sense, the unity of the international legal order is preserved. The problem is that the solutions actually forwarded in dispute are too numerous and international law too abstract to serve as arbiters between the competing claims. Thus, at the level of substantive doctrine there is a fragmentation of that earlier-mentioned picture of unity. But even here, only consent can mediate between unity and fragmentation, stability and change, order and justice, legislation and revolution. The strength of international law lies in its adaptability to political, strategic and diplomatic necessities. To suggest otherwise is to depart from a picture of international law that presumes the empirical verifiability of international laws. This book has as its principal concern certain orthodoxies of 'source thinking' in international law, and is aimed at working out the implications of these. It aims to show how certain theoretical conceptions have shaped the law in action, for good or ill. It will appeal to political theorists, diplomats, global decision-makers, and international lawyers who are interested in the question 'What can we do with the international law that we have?', as distinct from the question 'What should we do with international law?'.

Netherlands Yearbook of International Law 1997

T. M. C. Asser Instituut
Netherlands Yearbook of International Law 1997 Book PDF

Author : T. M. C. Asser Instituut
Publisher : Kluwer Law International B.V.
Page : 478 pages
File Size : 52,7 Mb
Release : 1998-07-15
Category : Law
ISBN : 9789041110282

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Netherlands Yearbook of International Law 1997 by T. M. C. Asser Instituut Pdf

Contains an extensive review of Dutch state practice from the parliamentary year,1998-1999.

International Law-making

Rain Liivoja,Jarna Petman
International Law making Book PDF

Author : Rain Liivoja,Jarna Petman
Publisher : Routledge
Page : 411 pages
File Size : 50,5 Mb
Release : 2014-01-10
Category : Law
ISBN : 9781135116057

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International Law-making by Rain Liivoja,Jarna Petman Pdf

This book explores law-making in international affairs and is compiled to celebrate the 50th birthday of Professor Jan Klabbers, a leading international law and international relations scholar who has made significant contributions to the understanding of the sources of international legal obligations and the idea of constitutionalism in international law. Inspired by Professor Klabbers’ wide-ranging interests in international law and his interdisciplinary approach, the book examines law-making through a variety of perspectives and seeks to breaks new ground in exploring what it means to think and write about law and its creation. While examining the substance of international law, these contributors raise more general concerns, such as the relationship between law-making and the application of law, the role and conflict between various institutions, and the characteristics of the formal sources of international law. The book will be of great interest to students and academics of legal theory, international relations, and international law.

The Persistent Objector Rule in International Law

James A. Green
The Persistent Objector Rule in International Law Book PDF

Author : James A. Green
Publisher : Oxford University Press
Page : 270 pages
File Size : 50,7 Mb
Release : 2016-03-03
Category : Law
ISBN : 9780191009563

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The Persistent Objector Rule in International Law by James A. Green Pdf

The persistent objector rule is said to provide states with an 'escape hatch' from the otherwise universal binding force of customary international law. It provides that if a state persistently objects to a newly emerging norm of customary international law during the formation of that norm, then the objecting state is exempt from the norm once it crystallises into law. The conceptual role of the rule may be interpreted as straightforward: to preserve the fundamentalist positivist notion that any norm of international law can only bind a state that has consented to be bound by it. In reality, however, numerous unanswered questions exist about the way that it works in practice. Through focused analysis of state practice, this monograph provides a detailed understanding of how the rule emerged and operates, how it should be conceptualised, and what its implications are for the binding nature of customary international law. It argues that the persistent objector rule ultimately has an important role to play in the mixture of consent and consensus that underpins international law.

International Legal Theory

Jeffrey L. Dunoff,Mark A. Pollack
International Legal Theory Book PDF

Author : Jeffrey L. Dunoff,Mark A. Pollack
Publisher : Cambridge University Press
Page : 449 pages
File Size : 47,9 Mb
Release : 2022-08-04
Category : Law
ISBN : 9781108427715

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International Legal Theory by Jeffrey L. Dunoff,Mark A. Pollack Pdf

A reader-friendly overview of leading theoretical approaches to international law for students, scholars, and practitioners.

Beyond Consent

Relja Radović
Beyond Consent Book PDF

Author : Relja Radović
Publisher : BRILL
Page : 290 pages
File Size : 40,7 Mb
Release : 2021-06-29
Category : Business & Economics
ISBN : 9789004453692

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Beyond Consent by Relja Radović Pdf

In Beyond Consent: Revisiting Jurisdiction in Investment Treaty Arbitration, Relja Radović investigates the development of jurisdictional rules by arbitral tribunals, against the conventional wisdom that the jurisdiction of arbitral tribunals is governed by party consent.

Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege

Thomas Rauter
Judicial Practice Customary International Criminal Law and Nullum Crimen Sine Lege Book PDF

Author : Thomas Rauter
Publisher : Springer
Page : 261 pages
File Size : 44,8 Mb
Release : 2017-09-05
Category : Law
ISBN : 9783319644776

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Judicial Practice, Customary International Criminal Law and Nullum Crimen Sine Lege by Thomas Rauter Pdf

This study analyzes the methods used by international criminal tribunals when determining customary international criminal law and to consider the compatibility of these approaches with the nullum crimen sine lege principle. In this context, the following research questions are of particular importance: Is there one approach common to all international criminal tribunals, or can different approaches be detected in their jurisprudence when determining customary international law? Do international criminal tribunals regard both traditional elements of customary international law – State practice and opinio iuris – as necessary elements for the establishment of customary international law? Do international criminal tribunals argue along the lines of the International Court of Justice (ICJ), requiring a high frequency and consistency of State practice that is both “extensive and virtually uniform”?In addition, the book analyzes the evidence used by international criminal tribunals in order to establish the constituent elements of customary international. It then poses the question: Do international criminal tribunals distinguish, as defined by Schwarzenberger, between the “law-creating processes” of public international law on the one hand, and the “law-determining agencies” as a subsidiary means of determining rule of law on the other?Assuming that they exist, how can different methodological approaches to determine customary international law be assessed in light of the nullum crimen sine lege principle? Does the principle require judges to apply the traditional method to establish customary international law as being based on extensive, uniform and enduring State practice accompanied by opinio iuris? Can the principle balance the desire for justice and the specificities of law creation of the international legal order with fairness for the accused? How can the law be accessible and criminal punishment foreseeable, when the underlying legal basis for criminal convictions, namely customary international criminal law, is unwritten in nature?

International Law

Jan Wouters,Cedric Ryngaert,Tom Ruys,Geert De Baere
International Law Book PDF

Author : Jan Wouters,Cedric Ryngaert,Tom Ruys,Geert De Baere
Publisher : Bloomsbury Publishing
Page : 560 pages
File Size : 46,7 Mb
Release : 2018-12-13
Category : Law
ISBN : 9781509909049

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International Law by Jan Wouters,Cedric Ryngaert,Tom Ruys,Geert De Baere Pdf

This textbook offers for the first time a comprehensive analysis of the classic doctrines and main areas of international law from a European perspective, meeting the needs of the many European law schools teaching public international law in English. Special attention is devoted to the practice of the European Union, the Council of Europe and European States – both civil law and common law countries – with regard to international law. In particular the book analyses the interplay between international law, EU law and national law in the case law of the Court of Justice of the EU, the European Court of Human Rights and national jurisdictions in Europe. It provides the reader with insights into how the international legal practice of the EU and its Member States impacts the development of international law, both in terms of doctrines such as treaty-making and customary law, the exercise of (extraterritorial) jurisdiction, state responsibility and the settlement of disputes, as well as particular sub-fields of international law, such as human rights law and international economic law. In addition the book covers other important areas such as the use of force and collective security, the law of armed conflict, and global and regional international organisations. It provides European perspectives on all these issues and will be of great value to students, scholars and practitioners.

The Interpretation of International Law by Domestic Courts

Helmut Philipp Aust,Georg Nolte
The Interpretation of International Law by Domestic Courts Book PDF

Author : Helmut Philipp Aust,Georg Nolte
Publisher : Oxford University Press
Page : 384 pages
File Size : 42,9 Mb
Release : 2016-01-21
Category : Law
ISBN : 9780191059421

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The Interpretation of International Law by Domestic Courts by Helmut Philipp Aust,Georg Nolte Pdf

The Interpretation of International Law by Domestic Courts assesses the growing role of domestic courts in the interpretation of international law. It asks whether and if so to what extent domestic courts make use of the international rules of interpretation set forth in the Vienna Convention on the Law of Treaties. Given the expectation that rules of international law are to have a uniform interpretation and application throughout the world, the practice of domestic courts is considerably more diverse. The contributions to this book analyse three key questions: first, whether international law requires a coherent interpretive approach by domestic courts. Second, whether a common or convergent methodological outlook can be found in domestic court practice. Third, whether a common interpretive approach is desirable from a normative perspective. The book identfies a considerable tension between international law's ambition for universal and uniform application and a plurality of different approaches. This tension between unity and diversity is analysed by a group of leading international lawyers from a wide range of geographical, disciplinary and methodological approaches. Drawing on domestic practice of number of jurisdictions including, among others, Colombia, France, Japan, India, Israel, Mexico, South Africa, the United Kingdom and the United States, the book puts the interpretative practice of domestic courts in a wider context. Its chapters offer doctrinal, practical as well as theoretical perspectives on a central question for international law.

The Institutional Problem in Modern International Law

Richard Collins
The Institutional Problem in Modern International Law Book PDF

Author : Richard Collins
Publisher : Bloomsbury Publishing
Page : 304 pages
File Size : 42,5 Mb
Release : 2016-11-03
Category : Law
ISBN : 9781509900435

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The Institutional Problem in Modern International Law by Richard Collins Pdf

Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focussed on international law's peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this 'institutional problem' has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believes that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law's decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory, than in practice.

Legal Authority Beyond the State

Patrick Capps,Henrik Palmer Olsen
Legal Authority Beyond the State Book PDF

Author : Patrick Capps,Henrik Palmer Olsen
Publisher : Cambridge University Press
Page : 305 pages
File Size : 47,6 Mb
Release : 2018-03
Category : Law
ISBN : 9781107190269

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Legal Authority Beyond the State by Patrick Capps,Henrik Palmer Olsen Pdf

These specially commissioned essays by prominent lawyers and philosophers analyse a range of approaches to legal authority beyond the state.

The Function of Public International Law

Jan Anne Vos
The Function of Public International Law Book PDF

Author : Jan Anne Vos
Publisher : Springer Science & Business Media
Page : 300 pages
File Size : 54,6 Mb
Release : 2013-02-26
Category : Law
ISBN : 9789067048613

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The Function of Public International Law by Jan Anne Vos Pdf

This book addresses fundamental aspects of the concept of public international law in both theory and practice. The argument developed by the author is that, underlying the traditional, horizontal, structure of public international law, a vertical structure of the concept of law may be discerned. This vertical structure is seen unfolding into two, mutually exclusive, frameworks: a framework of obligation, accounting for obligations, and a framework of authorization, accounting for rights. The problem then arising is that a concept of public international law which only admits either rights or obligations cannot be regarded as coherent. The author, however, takes and substantiates the position that coherence can be achieved by suppressing the mutual exclusivity of both frameworks. This move paves the way to formulating the function of public international law in terms of the constituting of international society. Since in public international law the theoretical aspects profoundly affect practice, this book is not only of interest to academics, but also for practitioners, such as officials of foreign offices and international institutions.

Consenting to International Law

Samantha Besson
Consenting to International Law Book PDF

Author : Samantha Besson
Publisher : Cambridge University Press
Page : 393 pages
File Size : 51,8 Mb
Release : 2023-12-07
Category : Law
ISBN : 9781009406451

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Consenting to International Law by Samantha Besson Pdf

Revisits an ancient puzzle in international legal theory, providing contemporary and interdisciplinary perspectives.

Renegotiating Westphalia

Christopher Harding,C. Chin L. Lim
Renegotiating Westphalia Book PDF

Author : Christopher Harding,C. Chin L. Lim
Publisher : Martinus Nijhoff Publishers
Page : 410 pages
File Size : 42,9 Mb
Release : 1999-07-21
Category : Law
ISBN : 9041112502

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Renegotiating Westphalia by Christopher Harding,C. Chin L. Lim Pdf

This collection of papers addresses two main themes: firstly, whether there is a distinctively European contribution to or even leadership in the contemporary formation and evolution of international law; secondly, the extent to which non-governmental actors (e.g. NGOs, international organizations, companies, individuals) contribute decisively to the formation of international law at the present time. These issues are explored within a number of different contexts of contemporary significance, in particular: the protection of human and minority rights; protection of the environment; control of transnational organized crime; prosecution of war crimes and crimes against humanity; the definition of statehood and the right to self-determination; transnational commercial and economic activity. The discussion is firmly located within the theory of international law and relations and also the continuum of international history. Comparisons are drawn with both global and other regional developments to test the hypothesis of a 'European international law'. The work will be of interest to teachers, students and practitioners (legal and otherwise) in the field of international law and relations.