The Interrelationship of the Sources of Public International Law

AkadR a.Z. Dr. Matthias Lippold LL.M. (NYU)

doi:10.5771/9783748937579

Summary

The book focuses on the interrelationship of the sources of international law. It considers comparative-legal historical insights, it examines the role of institutions such as the International Court of Justice and the International Law Commission, and it explores and analyzes developments in specific fields, namely human rights law in the context of the European Convention on Human Rights, international criminal law and international investment law as well as scholarly perspectives. The examination will demonstrate that different forms of interplay and variations in the sources’ relative significance can be observed and how a focus on the interrelationship can contribute to the understanding and evaluation of the sources today.

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Bibliographic data

Copyright year: 2024
ISBN-Print: 978-3-7560-0234-4
ISBN-Online: 978-3-7489-3757-9
Publisher: Nomos, Baden-Baden
Series: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht
Volume: 323
Language: English
Pages: 0
Product type: Book Titles

Titelei/InhaltsverzeichnisPages 1 - 18 Download chapter (PDF)
List of AbbreviationsPages 19 - 22 Download chapter (PDF)
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  1. 1. 1. a Different codification approaches
        b The rules of treaty interpretation and their relationship with customary international law
      2. The law of international responsibility
    2. 1. The relationship between sources
      2. The relationship between the norms of different sources
      3. The relationship between formal sources and material sources
    3. 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
    4. 1. The interrelationship of sources
      2. Benefits of a focus on the interrelationship of sources in international practice
      3. a Customary international law
        b General principles of law
        c Treaties
    5. 1. The work of the ILC
      2. Sociological perspectives: the proliferation of norms and socializing states
  2. 1. Comparative-historical perspectives
    2. Institutional perspectives
    3. Perspectives on different normative contexts
    4. Doctrinal perspectives: revisiting the doctrine of sources
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  1. Introduction: The interrelationship of sources in comparative legal thought
  2. 1. 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
    2. 1. Roscoe Pound
      2. Benjamin Cardozo
      3. Lon Fuller
    3. 1. Common law as human rights law
      2. Common law in light of human rights
      3. Concluding Observations
  3. 1. 1. Friedrich Carl von Savigny
      2. Georg Friedrich Puchta
    2. 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
  4. 1. General principles in legal theory: an overview
    2. 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
    3. Assessment: recognizing the multifaceted character of general principles
  5. Concluding Observations
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  1. Introduction
  2. The positivist climate: the doctrinal interest in treaties and general conceptions of law
  3. 1. The background of the conferences
    2. The provisions on applicable law and the recognition of three sources
  4. 1. Triad of sources in the preparatory work
    2. 1. General principles of law
      2. The discussion of the interrelationship of sources
  5. 1. The PCIJ
    2. The 1930 Codification Conference and the discussion of the sources
    3. 1. Overview
      2. Dionisio Anzilotti
      3. Georges Scelle
      4. a Legal-theoretical overview
        Customary international law
        Treaties as a product of the international community
        General principles of law
      5. Alfred Verdross
      6. Hersch Lauterpacht
  6. Concluding Observations
3. Concluding observations on the comparative and historical perspectivesPages 215 - 218 Download chapter (PDF)
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  1. Introduction
  2. 1. The general regime: Articles 59, 62, 63 and 66 ICJ Statute
    2. 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
    3. Evaluation
  3. 1. Jurisdiction clauses and their impact on the interrelationship of sources
    2. 1. The uncontroversial cases: validity, interpretation, responsibility
      2. A controversial case? Succession to responsibility
    3. 1. 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
    4. Recent Confirmations and Concluding Observations: distinctiveness for jurisdictional purposes
  4. 1. Varying degrees of generality of customary international law
    2. 1. 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
    3. 1. The Morocco case
      2. The North Sea Continental Shelf judgment
      3. a Self-determination
        b The prohibition of the use of force
      4. 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
    4. 1. The rare recourse to municipal law analogies
      2. General principles and the international legal order
  5. Concluding observations
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  1. 1. Codification and the interrelationship of sources
    2. The institutionalization of codification and the difficult distinction between progressive development and codification
    3. 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
  2. 1. 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
    2. The substantive form: the codification choice between openness and closedness
    3. Concluding Observations on Form and Substance
  3. 1. 1. The scope of the topic
      2. a From intertemporality to a means of interpretation
        b Codification policies on the relationship with other principles and rules of international law
    2. 1. The work of García-Amador
      2. The focus on the rules of responsibility as secondary rules
    3. Fragmentation of international law: difficulties arising from the diversification and expansion of international law
    4. 1. a The scoping of the topic by the Special Rapporteur
        The recognition of normative considerations
        The relationship between customary international law and treaties
      2. Concluding observations: normative considerations addressed with caution
    5. Peremptory norms of general international law (Jus cogens)
    6. 1. General Principles of Law in the progressive development and codification
      2. a Overview of the draft conclusions
        b Comments and reflections on the draft conclusions
        Concluding Observations
3. Concluding observations on the institutional perspectivesPages 399 - 400 Download chapter (PDF)
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  1. Introduction
  2. 1. The European Court's approach to interpretation
    2. Relating the European Court's practice to the general rules of interpretation
    3. Recourse to other rules and principles of international law for content-determination
  3. 1. 1. Incorporation by proportionality analysis
      2. a Two different constructions
        The Al-Adsani judgment
        The Jones judgment
        c Repercussion of the construction: the focus on the individual case
        d Evaluation
      3. Proportionality analysis and treaty law
      4. a The prohibition of arbitrariness and international humanitarian law
        b Security Council Resolutions
    2. Concluding observations
  4. 1. "Jurisdiction" and the relationship between article 1 ECHR and general international law
    2. The role of attribution in relation to the ECHR
    3. Two notions of "control" in relation to jurisdiction and to attribution
    4. A treaty-based functional equivalent to attribution under general international law?
    5. 1. The development of normative criteria for the delimitation of responsibilities
      2. The United Nations as a special case
  5. Concluding Observations
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  1. Introduction
  2. 1. From the interwar period to the Military Tribunals in Nuremberg and Tokyo
    2. The reception in the UNGA and treatymaking practice of states
    3. The road towards an international criminal court
  3. 1. 1. Customary international law and individual responsibility for war crimes in non-international armed conflicts
      2. Source preferences: customary international law and alternative avenues
    2. 1. The problem of appreciating practice in armed conflicts
      2. 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. a Default positions
        An absolute prohibition of civilian reprisals?
        The conceptual alternative to an absolute prohibition: regulation by stringent criteria
    3. Preliminary evaluation: the stabilizing effect of normative considerations and their limits
  4. 1. The legal regime
    2. 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?
    3. 1. 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
    4. 1. The legal regime
      2. The Al-Bashir case
      3. The decision of the ICC Appeals Chamber
  5. Concluding Observations
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  1. Introduction
  2. 1. The historical connection between responsibility and the protection of aliens
    2. 1. The minimum standard and its contestation
      2. a The emergence of this doctrine in the interwar period
        b The continuation of this doctrine after the second world war
    3. 1. Failed multilateral attempts
      2. Ongoing contestation in the General Assembly
      3. Preference for BITs
  3. 1. 1. a The jurisprudence of investment tribunals
        b The treatymaking practice of states
      2. Reasons for the preference for convergence
    2. 1. Customary International Law
      2. Jurisprudence Constante
      3. Multilateralization qua interpretation and the rise of general principles
      4. Examples of tribunals' recourses to principles
    3. 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?
  4. 1. 1. Alignment between the BIT and necessity under customary international law
      2. Differences between the BIT and necessity under customary international law
    2. 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
    3. Concluding remarks as to the distinction between primary rules and secondary rules
  5. Concluding Observations
4. Concluding observations on the perspectivesPages 629 - 632 Download chapter (PDF)
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  1. Introduction
  2. 1. The early interest in general principles of law prior to the rise of codification conventions
    2. 1. Roberto Ago's spontaneous law
      2. Bin Cheng and Karl Zemanek
    3. 1. Richard Baxter's paradox
      2. Anthony d'Amato and the formation of custom by treaties
      3. Hugh Thirlway
  3. 1. The continuing interest in customary international law in light of the Nicaragua judgments and skepticism
    2. The interrelationship of sources in the international community
  4. 1. Jörg Kammerhofer
    2. Jean d'Aspremont
  5. Concluding Observations
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  1. 1. The interrelationship of sources as a focus of research
    2. Forms of interplay and convergences
    3. The institutionalization and the interrelationship
    4. Customary international law
    5. Treaties
    6. General principles
    7. The distinctiveness of sources and their interrelations
    8. The politics in relation to the interrelationship of sources
    9. The interrelationship of sources and general international law
  2. Conclusions
BibliographyPages 707 - 840 Download chapter (PDF)
IndexPages 841 - Download chapter (PDF)