<<The>> interrelationship of the sources of public International law Matthias Lippold

Format:

Book

Author/Creator:

Lippold, Matthias, Author.

Series:

Beiträge Zum Ausländischen öffentlichen Recht und Völkerrecht Series

Beiträge zum Ausländischen öffentlichen Recht und Völkerrecht volume 323

Language:

English

Physical Description:

1 online resource (843 pages)

Edition:

1st edition

Place of Publication:

Baden-Baden Nomos 2024

Contents:

Cover

List of Abbreviations

A Introduction

Chapter 1: Setting the Scene

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

B Comparative and historical perspectives

Chapter 2: Comparative Perspectives.

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

Chapter 3: Historical Perspectives on article 38 PCIJ Statute

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

Chapter 4: Concluding observations on the comparative and historical perspectives

C Institutional Perspectives

Chapter 5: The International Court of Justice

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

Chapter 6: The International Law Commission

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.

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ISBN:

9783748937579

OCLC:

1435754684