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The Interrelationship of the Sources of Public International Law / Historical Perspectives on article 38 PCIJ Statute
The Interrelationship of the Sources of Public International Law / Historical Perspectives on article 38 PCIJ Statute
Contents
Chapter
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1–18
Titelei/Inhaltsverzeichnis
1–18
Details
19–22
List of Abbreviations
19–22
Details
25–94
A Introduction
25–94
Chapter 1: Setting the Scene
Details
A The conceptual framework
I The plurality of sources and the architecture of public international law
1 The General Law of Treaties
a Different codification approaches
b The rules of treaty interpretation and their relationship with customary international law
2 The law of international responsibility
II Traditional approaches to the relationship of sources
1 The relationship between sources
2 The relationship between the norms of different sources
3 The relationship between formal sources and material sources
III The Politics as to the sources: Source preferences in the international community
1 Source preferences and the spirit of the time
2 Source preferences and the changed composition of the legal community
3 Source preferences and the substantive expansion and diversification of international law
IV The Concept of interrelationship of sources and the scope of this study
1 The interrelationship of sources
2 Benefits of a focus on the interrelationship of sources in international practice
3 Contribution of an analysis of the interrelationship of sources to the doctrine relating to each source
a Customary international law
b General principles of law
c Treaties
V Situating the present study
1 The work of the ILC
2 Sociological perspectives: the proliferation of norms and socializing states
B Structure of this study
I Comparative-historical perspectives
II Institutional perspectives
III Perspectives on different normative contexts
IV Doctrinal perspectives: revisiting the doctrine of sources
97–218
B Comparative and historical perspectives
97–218
97–156
Chapter 2: Comparative Perspectives
97–156
Details
A Introduction: The interrelationship of sources in comparative legal thought
B Example: The common law and the interrelationship of unwritten and written law
I The Historic discourse of the relationship between the common law and the written law in the United Kingdom
1 Different law preferences: William Blackstone and Jeremy Bentham
2 John Austin and the will of the sovereign as source of all law
3 Subsequent perspectives in UK legal theory: Thomas Holland, H.L.A. Hart and Brian Simpson
II The historic discussion of the relationship between unwritten law and the written law in the United States of America
1 Roscoe Pound
2 Benjamin Cardozo
3 Lon Fuller
III A new interest in the interplay between common law and statutory law in the recent UK jurisprudence
1 Common law as human rights law
2 Common law in light of human rights
3 Concluding Observations
C Example: German law and the interrelationship of sources
I The historical school
1 Friedrich Carl von Savigny
2 Georg Friedrich Puchta
II The declining relevance of custom
1 Rudolf von Jhering's critique and the codification of civil law
2 Approaches prior to the Basic Law
3 Approaches under the Basic law
D Characteristics of general principles of law from a comparative historical perspective
I General principles in legal theory: an overview
II Conceptualizations of legal validity and different degrees of normativity of general principles
1 Reflections on the scholarship of Josef Esser and Hans Kelsen's response
2 Conceptualizations of legal validity and different degrees of normativity of general principles
III Assessment: recognizing the multifaceted character of general principles
E Concluding Observations
157–214
Chapter 3: Historical Perspectives on article 38 PCIJ Statute
157–214
Details
A Introduction
B The positivist climate: the doctrinal interest in treaties and general conceptions of law
C Institutional Background: The Hague Conferences of 1899 and 1907
I The background of the conferences
II The provisions on applicable law and the recognition of three sources
D The drafting of article 38
I Triad of sources in the preparatory work
II The discussion in the Advisory Committee of Jurists
1 General principles of law
2 The discussion of the interrelationship of sources
E Constructing the Interrelationship in the interwar period
I The PCIJ
II The 1930 Codification Conference and the discussion of the sources
III The inter-war scholarship on the interrelationship of sources
1 Overview
2 Dionisio Anzilotti
3 Georges Scelle
4 Hans Kelsen
a Legal-theoretical overview
b The interrelationship of sources within the Stufenbau
aa Customary international law
bb Treaties as a product of the international community
cc General principles of law
5 Alfred Verdross
6 Hersch Lauterpacht
F Concluding Observations
215–218
Chapter 4: Concluding observations on the comparative and historical perspectives
215–218
Details
221–400
C Institutional Perspectives
221–400
221–316
Chapter 5: The International Court of Justice
221–316
Details
A Introduction
B Third-party intervention and the interrelationship of sources
I The general regime: Articles 59, 62, 63 and 66 ICJ Statute
II The Court's practice to interventions under article 62 ICJ Statute: from a restrictive to a more inclusive approach?
1 The development of the restrictive approach
2 Tendencies of a more inclusive approach
3 A paradigm shift? Interventions in matters of customary international law - The Jurisdictional Immunities case
III Evaluation
C Jurisdiction and the interrelationship of sources
I Jurisdiction clauses and their impact on the interrelationship of sources
II The application of general international law as general part in relation to a specific rule
1 The uncontroversial cases: validity, interpretation, responsibility
2 A controversial case? Succession to responsibility
III The relationship between jurisdictional clauses and "substantive" law
1 The relationship between applicable law and interpretation
a The Oil Platforms case
b The Pulp Mills case and the environmental impact assessment under general international law
2 From deconventionalization to reconventionalization? The prohibition of genocide and the distinctiveness of sources for the purposes of jurisdiction
IV Recent Confirmations and Concluding Observations: distinctiveness for jurisdictional purposes
D The normative environment in the jurisprudence of the ICJ
I Varying degrees of generality of customary international law
II Interpretative Decisions
1 Default positions, starting points and the normative context
a The Asylum case
b The Nottebohm case and the genuine link requirement
c The significance of the normative context
2 "Scoping" and tailoring of the legal analysis
3 Shaping the rule by acknowledging an exception
III The relationship between customary international law and treaty law
1 The Morocco case
2 The North Sea Continental Shelf judgment
3 Convergence between the Charter and customary international law into common principles
a Self-determination
b The prohibition of the use of force
4 Convergence of functionally equivalent rules in the law of the sea
a From a focus on the distinctiveness to a convergence of functionally equivalent rules
b Reasons for convergence: the vagueness of rules and judicial pragmatism informed by the normative environment
c UNCLOS and its impact on customary international law
d Concluding observations
IV General Principles and the normative environment
1 The rare recourse to municipal law analogies
2 General principles and the international legal order
E Concluding observations
317–398
Chapter 6: The International Law Commission
317–398
Details
A Introduction
I Codification and the interrelationship of sources
II The institutionalization of codification and the difficult distinction between progressive development and codification
III The significance of the normative environment
1 The "blending of customary international law with the new order established by the United Nations"
2 The early consideration of principles expressed in treaties
3 Reconciling the normative environment and state practice: The recent controversy over immunity of State officials from foreign criminal jurisdiction
B The form of codification and progressive development and its implications
I The form of the ILC product
1 The form and the risk of "decodification"
2 The question of form and the respective spirit of the time
3 Codification light as joint enterprise of several actors
II The substantive form: the codification choice between openness and closedness
III Concluding Observations on Form and Substance
C The interrelationship of sources in selected projects
I The law of treaties
1 The scope of the topic
2 The interrelationship within the law of treaties
a From intertemporality to a means of interpretation
b Codification policies on the relationship with other principles and rules of international law
II Responsibility of States for Internationally Wrongful Acts
1 The work of García-Amador
2 The focus on the rules of responsibility as secondary rules
III Fragmentation of international law: difficulties arising from the diversification and expansion of international law
IV The identification of customary international law
1 The role of normative considerations in the identification of customary international law
a The scoping of the topic by the Special Rapporteur
b The adopted draft conclusions
aa The recognition of normative considerations
bb The relationship between customary international law and treaties
2 Concluding observations: normative considerations addressed with caution
V Peremptory norms of general international law (Jus cogens)
VI General Principles of Law
1 General Principles of Law in the progressive development and codification
2 The new topic of General Principles of Law
a Overview of the draft conclusions
b Comments and reflections on the draft conclusions
D Concluding Observations
399–400
Chapter 7: Concluding observations on the institutional perspectives
399–400
Details
403–632
D Perspectives in different fields of international law
403–632
403–462
Chapter 8: The European Convention on Human Rights
403–462
Details
A Introduction
B The interpretation of the ECHR
I The European Court's approach to interpretation
II Relating the European Court's practice to the general rules of interpretation
III Recourse to other rules and principles of international law for content-determination
C Interpretative decisions in establishing the interrelationship
I The construction of establishing a relation between the European Convention and other principles and rules of international law
1 Incorporation by proportionality analysis
2 Proportionality analysis and customary international law
a Two different constructions
b The operation of proportionality analysis
aa The Al-Adsani judgment
bb The Jones judgment
c Repercussion of the construction: the focus on the individual case
d Evaluation
3 Proportionality analysis and treaty law
4 Reconciliation on the basis of general principles
a The prohibition of arbitrariness and international humanitarian law
b Security Council Resolutions
II Concluding observations
D The relationship between the ECHR and the law of international responsibility
I "Jurisdiction" and the relationship between article 1 ECHR and general international law
II The role of attribution in relation to the ECHR
III Two notions of "control" in relation to jurisdiction and to attribution
IV A treaty-based functional equivalent to attribution under general international law?
V Attribution in the context of international organizations
1 The development of normative criteria for the delimitation of responsibilities
2 The United Nations as a special case
E Concluding Observations
463–556
Chapter 9: International Criminal Law
463–556
Details
A Introduction
B The recognition of individual's responsibility for violations of international law
I From the interwar period to the Military Tribunals in Nuremberg and Tokyo
II The reception in the UNGA and treatymaking practice of states
III The road towards an international criminal court
C The interrelationship of sources and the International Criminal Tribunals
I The preference for customary international law
1 Customary international law and individual responsibility for war crimes in non-international armed conflicts
2 Source preferences: customary international law and alternative avenues
II Interpretative decisions and normative considerations in the identification of customary international law and general principles of law
1 The problem of appreciating practice in armed conflicts
2 General principles as a bridge between customary international law and the normative environment
a Recognizing the interrelationship and distinctiveness of sources: normative inspirations and functional specificities
b The risk to disregard the functional specificities
c The role of domestic Law
3 The significance of the legal craft
a Default positions
b The determination of the scope of the rule
aa An absolute prohibition of civilian reprisals?
bb The conceptual alternative to an absolute prohibition: regulation by stringent criteria
III Preliminary evaluation: the stabilizing effect of normative considerations and their limits
D The Interrelationship of Sources and the Rome Statute
I The legal regime
II The interrelationship between the general rules of interpretation and the Rome Statute
1 Article 21 Rome Statute and the general rules of interpretation
2 The crimes of the Rome Statute and customary international law
3 Further development of treaty-based approaches or alignment with customary international law?
III A conflict of sources? Between JCE, control theory and indirect perpetratorship
1 The construction of JCE and its three distinct categories
a Indirect perpetratorship as conceptual alternative
b Attempts of reconciliation
2 Rome and the move towards a new paradigm
3 Evaluation: institutional and conceptual competition instead of conflict of sources
IV (No) Immunities under customary international law
1 The legal regime
2 The Al-Bashir case
3 The decision of the ICC Appeals Chamber
E Concluding Observations
557–628
Chapter 10: International Investment Law
557–628
Details
A Introduction
B From the interwar period to the modern investment regime
I The historical connection between responsibility and the protection of aliens
II The importance of unwritten law
1 The minimum standard and its contestation
2 The internationalization of contracts by general principles of law
a The emergence of this doctrine in the interwar period
b The continuation of this doctrine after the second world war
III The development of the modern investment regime after WW II
1 Failed multilateral attempts
2 Ongoing contestation in the General Assembly
3 Preference for BITs
C The interrelationship of sources in a bilateralist structure and the quest for general law
I The relationship between treaty obligations and customary international law
1 The relationship between functionally equivalent rules
a The jurisprudence of investment tribunals
b The treatymaking practice of states
2 Reasons for the preference for convergence
II The interrelationship of sources in the scholarly debate
1 Customary International Law
2 Jurisprudence Constante
3 Multilateralization qua interpretation and the rise of general principles
4 Examples of tribunals' recourses to principles
III Evaluation
1 General principles and the development of the law
2 The promotion of paradigms by recourse to principles
3 A remaining role for customary international law as community mindset?
D The significance of constructions
I Competing constructions
1 Alignment between the BIT and necessity under customary international law
2 Differences between the BIT and necessity under customary international law
II Revisiting the distinction between primary and secondary rules
1 The distinction in the law of state responsibility
2 The distinction in the case-law of the ICJ
3 The distinction and the relationship between the general law of treaties and the law of state responsibility
III Concluding remarks as to the distinction between primary rules and secondary rules
E Concluding Observations
629–632
Chapter 11: Concluding observations on the perspectives
629–632
Details
635–706
E Doctrinal Perspectives and Conclusions
635–706
635–678
Chapter 12: Doctrinal perspectives on and discussions of the interrelationship of sources
635–678
Details
A Introduction
B Shifting research interests in specific sources
I The early interest in general principles of law prior to the rise of codification conventions
II Different approaches to new norms
1 Roberto Ago's spontaneous law
2 Bin Cheng and Karl Zemanek
III Codification studies: the interrelationship between treaties and custom
1 Richard Baxter's paradox
2 Anthony d'Amato and the formation of custom by treaties
3 Hugh Thirlway
C The interrelationship in a value-laden legal order
I The continuing interest in customary international law in light of the Nicaragua judgments and skepticism
II The interrelationship of sources in the international community
D Recent legal positivist perspectives
I Jörg Kammerhofer
II Jean d'Aspremont
E Concluding Observations
679–706
Chapter 13: Concluding observations
679–706
Details
A Reflections on the interrelationship of sources
I The interrelationship of sources as a focus of research
II Forms of interplay and convergences
III The institutionalization and the interrelationship
IV Customary international law
V Treaties
VI General principles
VII The distinctiveness of sources and their interrelations
VIII The politics in relation to the interrelationship of sources
IX The interrelationship of sources and general international law
B Conclusions
707–840
Bibliography
707–840
Details
Index
Details
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The Interrelationship of the Sources of Public International Law , page 157 - 214
Historical Perspectives on article 38 PCIJ Statute
Autoren
Matthias Lippold
DOI
doi.org/10.5771/9783748937579-157
ISBN print: 978-3-7560-0234-4
ISBN online: 978-3-7489-3757-9
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