scholarly journals State Consent in International Law – An Obstacle to Effective International Problem-Solving?

2021 ◽  
Author(s):  
Lea Ina Schneider
Keyword(s):  
Problem Solving ◽  
International Law ◽  
State Consent

The Influence of Utopian Projects on the Interpretation of International Law and the Healthy Myth of Objectivity

2018 ◽  
Vol 60 (1) ◽  
pp. 515-538
Author(s):  
Severin Meier
Keyword(s):  
World War I ◽  
International Law ◽  
Legal Theory ◽  
Social Darwinism ◽  
Legal Interpretation ◽  
World War ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Critical Legal Theory ◽  
State Consent

Social Darwinism as a utopian project had a decisive influence on the interpretation of the ius ad bellum before World War I. This contribution tries, among others, to draw parallels to the way today’s utopian visions of democracy and the rule of law affect international law. Approaches to legal interpretation influenced by critical legal theory are used to explain how such extra-legal considerations can play a role in the interpretation of international legal norms. Such approaches maintain that international law cannot be objective, i.e. simultaneously based on State consent and on extra-consensual standards. The article further asks how international law should be understood if it cannot be objective. In other words, it discusses the practical consequences if international law has to rely on extra-legal considerations, such as the belief in Social Darwinism or the desire to spread democracy, in order to reach solutions to legal problems. It is argued that upholding the belief in international law’s objectivity is preferable to its alternatives.

scholarly journals The New Legal Realist Approach to International Law

2015 ◽  
Vol 28 (2) ◽  
pp. 189-210 ◽  
Author(s):  
GREGORY SHAFFER
Keyword(s):  
Problem Solving ◽  
Empirical Study ◽  
International Law ◽  
Legal Realism ◽  
Realist Approach ◽  
Potential Risks ◽  
Changes Over Time ◽  
Legal Normativity ◽  
Over Time

AbstractThe New Legal Realist approach to international law builds from a jurisprudential tradition that asks how actors use and apply law in order to understand how law obtains meaning, is practised, and changes over time. The article addresses the jurisprudential roots of the New Legal Realism, its core attributes, and six important components in the current transnational context. In the pragmatist tradition, the New Legal Realism is both empirical and problem-centred, attending to both context and legal normativity. What is new is the rise of transnational activity that gives rise to an enlarged scope of transnational problem-solving through international law in radically new ways across areas of law, and the growth of empirical study of these phenomena. The article concludes by addressing the potential risks of the New Legal Realist approach in terms of scientism and relativism, and it responds to them.

The principle of subsidiarity as a constitutional principle in international law

2013 ◽  
Vol 2 (1) ◽  
pp. 37-62 ◽  
Author(s):  
ANDREAS FOLLESDAL
Keyword(s):  
International Law ◽  
The State ◽  
Legal Order ◽  
State Sovereignty ◽  
Public International Law ◽  
Constitutional Principle ◽  
The Us ◽  
State Compliance ◽  
State Consent

AbstractThis paper explores subsidiarity as a constitutional principle in international law. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

scholarly journals State Consent and Disagreement in International Law-Making. Dissolving the Paradox

2016 ◽  
Vol 29 (2) ◽  
pp. 289-316 ◽  
Author(s):  
SAMANTHA BESSON
Keyword(s):  
International Law ◽  
Legal Positivism ◽  
Legitimate Authority ◽  
Political Equality ◽  
Reasonable Disagreement ◽  
Democratic State ◽  
Sovereign Equality ◽  
State Consent ◽  
Law Making

AbstractThis article starts with a paradox: international law-making is ridden with reasonable disagreement and yet no state can be bound by international law without its consent and hence without agreement. Breaking away from the pragmatic resignation that prevails among international law scholars on this question, the article proposes an interpretation of the role of state consent that both fits and justifies its central role in the practice of international law-making and, hopefully, strengthens the latter's legitimacy in the future. Its proposed justification actually lies in the circumstances of reasonable disagreement among democratic states and this proposal dissolves the paradox. The article argues that, in international law as it is the case domestically, consent is neither a criterion of validity of law nor a ground for its legitimate authority. It also dispels two myths about state consent: its necessary relationship to legal positivism and state sovereignty. Instead, the article argues, the role of democratic state consent is that of an exception to the legitimate authority of international law and hence to its bindingness in a concrete case. While the legitimacy of international law is not democratic, the democratic nature of states and their democratic accountability to their people matter. This is especially the case in circumstances of widespread and persistent reasonable disagreement as they prevail among democratic states in international law-making. In these circumstances, respecting the sovereign equality of democratic states by requiring their consent is the way to grant an equal voice to their people. Of course, there are limits to the democratic state exception that are inherent to both its democratic dimension (it requires respecting basic political equality) and its consensual dimension (it requires that consent is expressed in a free, fair and informed fashion). The article concludes by showing how the proposed disagreement-attuned account of democratic state consent explains various characteristics of the main international law-making processes, i.e., treaties and custom.

Kosovo to Kadi: Legality and Legitimacy in the Contemporary International Order

2014 ◽  
Vol 28 (1) ◽  
pp. 105-113 ◽  
Author(s):  
Ruti Teitel
Keyword(s):  
International Law ◽  
National Level ◽  
International Norms ◽  
Customary International Law ◽  
Legal Norms ◽  
Normative Force ◽  
Positive Law ◽  
State Consent ◽  
United Nations Charter ◽  
Domestic Law

Whence does international law derive its normative force as law in a world that remains, in many respects, one where legitimate politics is practiced primarily at the national level? As with domestically focused legal theories, one standard answer is positivistic: the law's authority is based on its origin in agreed procedures of consent. This is certainly plausible with respect to treaty obligations and commitments that derive from the United Nations Charter, but it leaves customary international law vulnerable to legitimacy critiques—of which there is no shortage among international law skeptics. Even with respect to conventional international norms, such as treaty provisions, there is often a sense that such consent is democratically thinner than the public consent to domestic law, particularly fundamental domestic law, constitutional norms, and derivative principles of legitimate governance. State consent in international law, in this view, is often a very imperfect proxy for democratic consent to international legal norms. While it is obvious to international lawyers why (as a matter of positive law doctrine) state consent should make international norms prevail over domestic norms to which there is arguably deeper democratic consent, persistent critics of international law have questioned whether this should be so as a matter of legitimacy.

International Criminal Jurisdiction

2019 ◽  
pp. 503-528
Author(s):  
Kirsten Schmalenbach
Keyword(s):  
International Law ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
International Courts ◽  
Criminal Jurisdiction ◽  
National Jurisdiction ◽  
State Consent ◽  
Theoretical Foundations

This chapter examines the theoretical foundations and the genealogy of international criminal jurisdiction in international law. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. The chapter also explores judicial perspectives on the jurisdiction of international courts and tribunals. It argues that, where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international community. In the case of the International Criminal Court (ICC), however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community.

The Law on Belligerency and Insurgency, and International Legal Personality

2017 ◽  
Author(s):  
Katharine Fortin
Keyword(s):  
International Law ◽  
Legal Framework ◽  
Armed Groups ◽  
Historical Account ◽  
Detailed Review ◽  
Legal Personality ◽  
Geneva Conventions ◽  
State Consent ◽  
The Law ◽  
International Legal Personality

This chapter provides a historical account of the manner in which the legal personality of armed groups was conceived and treated prior to the drafting of the 1949 Geneva Conventions. Conducting a detailed review of the law of belligerency and the legal framework of insurgency, the chapter demonstrates the different ways in which armed groups could acquire obligations under international law under these frameworks. During the course of this examination, the chapter pays particular attention to the relevance of territory, special agreements, State consent, and the armed group’s functionality. It concludes by analysing its findings against the evaluative framework set out in Chapter 3.

scholarly journals The Legitimacy of IO Rule-Making

2018 ◽  
Vol 112 ◽  
pp. 275-278
Author(s):  
José E. Alvarez
Keyword(s):  
International Law ◽  
International Organizations ◽  
Public Law ◽  
Legal Responsibility ◽  
Public International Law ◽  
International Court ◽  
Global Constitutionalism ◽  
State Consent ◽  
Private Associations ◽  
Rule Making

The rules international organizations (IOs) make deviate considerably from the traditional sources of international law in Article 38 of the International Court of Justice's (ICJ) Statute and the ways those are understood: as generated, enforced, and interpreted by states based on their consent. As this panel demonstrates, IO “rules” take various forms—e.g., guidelines, recommendations, and standards—and are promulgated by not only traditional interstate organizations but public/private hybrids, transnational networks involving agencies inside states, private associations of industry or other experts, or subsidiary committees of the parties (COPs) or meetings of the parties (MOPs). These rules enjoy varying degrees of authoritativeness, often purport to have some impact on state and non-state actors, and depart, sometimes quite openly, from reliance on state consent. And even when IOs turn to the traditional sources—treaties, custom, general principles—these take untraditional forms that blur distinctions between binding and non-binding law. Whether these governance efforts are described as systems of “global administrative law,” “global constitutionalism,” or “transnational legal orders” or as new forms of “international public law,” they are certainly different from your grandmother's public international law. Like “soft” law before it, these governance efforts have drawn the ire of legal positivists who ask, with some justice, what is meant by “law” if everyone (public, private, and in-between) is a potential “lawmaker” and no one can be certain about whether their efforts entail legal responsibility and, if so, for whom.

La représentation du droit dans la communauté des diplomates européens des « Trente Heureuses » (1713–1740)

2013 ◽  
Vol 81 (3-4) ◽  
pp. 595-620
Author(s):  
Frederik Dhondt
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal History ◽  
18Th Century ◽  
Legal Reasoning ◽  
Public International Law ◽  
Archival Material ◽  
Treaty Interpretation ◽  
State Consent ◽  
European Diplomacy

Diplomatic representation in the community of the European diplomacy of the ‘Trente heureuses’ (1713–1740). – The study of Ancien Régime public international law compels researchers to broaden the traditional scope of legal history (treaties and doctrine). A broader understanding of normativity in international relations, inspired by sociology, cultural or international relations history leads to an analysis of diplomatic behaviour. Practice is of paramount importance to grasp the working of implicit principles, expressed in correspondence and legal memoranda. The three decades following the Peace of Utrecht (1713) illustrate how state consent-based international organisation operated in the 18th century, separate from doctrinal concepts. French and British archival material and existing prosopographic literature sketch a map of the European arena. Treaty interpretation and legal reasoning were the backbone of international relations. Consequently, jurists were more than apologists, and fulfilled an indispensable role in an interactional system.

scholarly journals "The Legal Basis for the Exercise of Jurisdiction by the International Criminal Court and the Preparatory Work of the Rome Statute (IV)," Journal of International Relations and Comparative Culture, Vol. 18, No. 1 (September 2019), pp. 59-64.

2019 ◽  
Author(s):  
Yoshiaki Kitano
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Current Status ◽  
Legal Basis ◽  
State Consent ◽  
The Creation ◽  
Preparatory Work

This paper aims to discuss the legal basis for the exercise of jurisdiction by the International Criminal Court while viewing the topic as one of the issues demonstrating the current status of general international law concerning the creation of obligations for non-party states. The table of contents included in this part 4 is as follows: Chapter 3 Examination of the Preparatory Work of the Statute (Section 1 Outline of the Preparatory Work of the Statute (1. Work prior to the Rome Conference / 2. Work at the Rome Conference, in particular on the State-Consent Requirements for the Proposed ICC’s Exercise of Jurisdiction) / Section 2 Analysis of the Relevant Discussions Conducted in the Preparatory Work of the Statute (1. Discussions over the Rules of the Law of Treaties on the Creation of Obligations for Non-Party States)).

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