Unity and pluralism in public international law / Oriol Casanovas.

Format:

Book

Author/Creator:

Casanovas y La Rosa, Oriol, author.

Series:

Developments in International Law ; 39.

Developments in International Law ; 39

Language:

English

Spanish

Subjects (All):

International law--Methodology.

International law.

International law--Social aspects.

Customary law, International.

Physical Description:

1 online resource.

Place of Publication:

The Hague, The Netherlands ; New York ; London : Nijhoff Publishers, [2001]

Summary:

The proliferation of international courts and the extension of international regulation to new areas have been considered to be threatening for the unity of Public International Law as a legal system. These developments are the consequence of the increasing formation of legal subsystems (material international regimes) which continue to grow in complexity. How these trends affect the unity of the international legal system requires theoretical scrutiny of its fundamental bases. This work considers that the unity of the international legal system depends upon its normative structure, and on the social medium in which it is applied: the evolving international community. A unified international legal system has as its ultimate goal the protection of human dignity through the international regulation of human rights. The question of the unifying stability of the international legal system and the development of legal subsystems within it encourages a review of the major issues of current Public International Law, considering the evolution from traditional doctrines to recent approaches. This review is done from an analytical frame that provides a deeper understanding of the current situation of Public International Law as a legal system.

Contents:

Intro

Title Page

Copyright Page

TABLE OF CONTENTS

ABBREVIATIONS

INTRODUCTORY NOTE

PART 1 THE LEGAL STRUCTURE OF PUBLIC INTERNATIONAL LAW

I PUBLIC INTERNATIONAL LAW AS A LEGAL SYSTEM

1 Introduction: the origins of Public International Law

2 The debate concerning the legal character of Public International Law

a) The doctrine of normativism

b) The sociological approach

c) Other positions

3 Law as a complex system of rules

a) The regulation of conflicts of interests

b) "Primary" and "secondary" rules

c) Legal rules, rules of morality, social usages and rules of games

4 Theoretical approaches and paradigms

a) Voluntarism

b) Objectivism

c) The critical approach

II UNIVERSALITY AND PARTICULARISM IN INTERNATIONAL CUSTOM

1 The significance of international custom

2 Doctrinal conceptions

a) Voluntarist perspective

b) Normativist approach

3 The material element: universality and generality of practice

a) Regional custom and bilateral or local custom

b) The perspective of opposability

c) The problem of the persistent objector

4 The unity of the system and the surmounting of pluralism

5 Multilateral conventions and resolutions of intergovernmental organisations: the codification of international custom

6 Social change and legal change

7 The spriritual element

a) Difficulty of proof

b) The paradox of the initial act

c) The need of proof of the opinio iuris

8 Other approaches relating to international custom

a) The nature of the rule relative to custom as a rule of recognition

b) The Critical Legal Studies' perspective of international custom

III INTERNATIONAL TREATIES AND MATERIAL INTERNATIONAL REGIMES

1 International treaties as a "source": annalytical approaches

2 The notion of the international treaty.

3 Particular International Law and "material international regimes

4 Typology proposal of material international regimes

5 The unity of the international legal system and rule subsystems

6 Conflicts between treaties

7 International treaties and ius cogens rules

IV THE OPEN STRUCTURE OF PuBLIC INTERNATIONAL LAW

1 Characteristics of international obligations

a) Non requirement

b) Behavioural obligations and obligations of outcome

c) "Soft Law" and non-legal obligations

d) Rules and standards

2 The interpretation of international rules

a) Interpretation moments and interpretation patterns

b) Interpretation and judicial decisions

3 Lacunae in Public International Law

a) Types of Lacunae

b) Ways to prevent lacunae

c) Lacunae and judicial decision

4 The general principles of Law

a) The nature of the rule relative to the general principles of Law

b) Principles of Law and legal principles

c) General principles of Law and a new Law of Peoples

PART 2 THE EVOLVING INTERNATIONAL COMMUNITY

V STATES AND INTERNATIONAL ORGANIZATIONS

1 International personality: approaches

2 States as subjects of Public International Law

3 State sovereignty and International Law

4 The international community

a) The "realist" denial of the international community

b) The significance of the international community

5 International organizations as subjects of International Law

6 Other subjects of International Law

VI SELF-DETERMINATION OF PEOPLES AND SOCIAL PLURALISM

1 The meaning of the right to self-determination of peoples

2 The evolution of the principle in the United Nations

a) Political principle

b) The colonial peoples right

c) Human right

d) Self-determination and secession

3 Current problems

a) Rights of minorities

b) Rights of indigenous peoples.

c) The rights of groups

4 Self-determination, social and political pluralism

VII THE HUMAN PERSON IN INTERNATIONAL LAW

1 The human person, international personality and the question of the unity of International Law

2 International treaties for the protection of human rights and the objective character of their obligations

3 The question of the universality of human rights

4 The fundamental rules of humanitarian International Law

5 The legal dimension of human rights as an international concern

6 The international rules of protection of human rights and their legal nature

a) Customary obligations

b) "Authorised" interpretation of the Charter

c) Basis as general principles of Law

7 International community and Humanity

PART 3 THE FUNCTIONS OF PUBLIC INTERNATIONAL LAW

VIII STATE LEGAL POWERS AND COMMON INTERESTS

1 Functions of Public International Law: co-existence and cooperation

2 The doctrine of compétences in legal theory and in Public International Law

3 Territorial power: title and effectivity

4 Maritime frontiers, powers and interests of States

5 Common areas and resources

6 Common Heritage of Mankind and Globalization

IX INTERNATIONAL RESPONSABILITY: PLURALITY OF INTERNATIONAL RÉGIMES

1 International responsability: doctrinal perspectives

2 Codification of the Law of international responsability

3 Origin of responsability

a) Unlawfulness and wrongfulness

b) Internationally wrongful acts: the question of damage

c) International crimes or serious breaches of obligations to the international community?

4 The notion of injured State

5 The consequences of an internationally wrongful act

6 Self-contained regimes of responsibility

7 The question of international responsibility for ultra-hazardous activities or absolute responsability.

8 Crimes against the peace and security of Mankind

X THE PACIFIC SETTLEMENT OF DISPUTES AND THE MULTIPLICITY OF INTERNATIONAL COURTS

1 The principle of pacific settlement of disputes and international adjudication

2 The International Court of Justice as a judicial organ with voluntary jurisdiction

3 Evolution of the activity of the International Court of Justice

4 The distinction between political and legal disputes revisited

5 The International Court of Justice and the Security Council resolutions

6 The multiplicity of international judicial organs and the question of the unity of the international legal order

a) The International Center for the Settlement of Investment Disputes (ICSID)

b) The International Tribunal for the Law of the Sea

c) The WTO Dispute Settlement Body

d) The international criminal tribunals

7 Other international tribunals in the regional sphere

a) The European Court of Human Rights

b) The Court of Justice of the European Communities

9 Multiplicity of judicial organs, legal pluralism and the unity of Public International Law

CONCLUSION

SELECTED BIBLIOGRAPHY

TABLE OF CASES

AUTHOR INDEX

SUBJECT INDEX.

Notes:

Includes bibliographical references (pages [251]-255) and indexes.

Description based on print version record.

ISBN:

90-04-48078-1

OCLC:

1281984585

Publisher Number:

10.1163/9789004480780 DOI