The Paradox of Consensualism in International Law /
Lim, C.L.,
The Paradox of Consensualism in International Law / C.L. Lim and O.A. Elias. - 1 online resource (344 pages) : illustrations. - Developments in International Law ; 31 International Law - Book Archive pre-2000 . - Developments in International Law ; 31. International Law - Book Archive pre-2000. .
Includes bibliographical references and index.
Preliminary Material / O.A. Elias and C.L. Lim -- Preface / O.A. Elias and C.L. Lim -- Foreword / Martti Koskenniemi -- Chapter I The Subjective Element in Customary International Law / O.A. Elias and C.L. Lim -- Chapter II The Role of Individual Consent: The Different Theories / O.A. Elias and C.L. Lim -- Chapter III The Role of Individual Consent in the World Court / O.A. Elias and C.L. Lim -- Chapter IV The Role of Individual Consent in Other Tribunals / O.A. Elias and C.L. Lim -- Chapter V The Role of Individual Consent in the Practice of States / O.A. Elias and C.L. Lim -- Chapter VI The Scope of Customary International Law / O.A. Elias and C.L. Lim -- Chapter VII New States and Pre-Existing Customary International Law / O.A. Elias and C.L. Lim -- Chapter VIII Juristic Opinion on the Role of Consent / O.A. Elias and C.L. Lim -- Chapter IX The International Lex Scripta: A More Attractive Option? / O.A. Elias and C.L. Lim -- Chapter X The Paradox of Consensualism in International Law / O.A. Elias and C.L. Lim -- Chapter XI The Non-Consensual Sources of International Law / O.A. Elias and C.L. Lim -- Chapter XII The Expanding International Legal Order / O.A. Elias and C.L. Lim -- Chapter XIII The Basis of Obligation in International Law / O.A. Elias and C.L. Lim -- Chapter XIV Values, Positive Law and World Order / O.A. Elias and C.L. Lim -- Bibliography / O.A. Elias and C.L. Lim -- Index / O.A. Elias and C.L. Lim.
If international law is derived from the consent of States, who should be in a better position to say what has been consented to than the disputing States themselves? It seems that if the doctrine of consent is taken seriously, there would be no room for an 'objective' legal answer to the question `What is law?'. Furthermore, States do not necessarily employ the same criteria for determining the applicable law when engaged in dispute. And the doctrine of sovereignty is of very limited utility, since not all of substantive international law can be explained in terms of the atomic concept of sovereignty. This leaves consent as the mediating concept between the substantive doctrine of international law on the one hand and the actual practice of States (and others whose practice and participation in the global legal order help shape the body of international laws) on the other. Nevertheless, this is not to say that there is nothing `higher' than the actual legal claims forwarded by international actors. International law is no mere superstition, since none argue that there is no (one) legal solution. In that sense, the unity of the international legal order is preserved. The problem is that the solutions actually forwarded in dispute are too numerous and international law too abstract to serve as arbiters between the competing claims. Thus, at the level of substantive doctrine there is a fragmentation of that earlier-mentioned picture of unity. But even here, only consent can mediate between unity and fragmentation, stability and change, order and justice, legislation and revolution. The strength of international law lies in its adaptability to political, strategic and diplomatic necessities. To suggest otherwise is to depart from a picture of international law that presumes the empirical verifiability of international laws. This book has as its principal concern certain orthodoxies of `source thinking' in international law, and is aimed at working out the implications of these. It aims to show how certain theoretical conceptions have shaped the law in action, for good or ill. It will appeal to political theorists, diplomats, global decision-makers, and international lawyers who are interested in the question `What can we do with the international law that we have?', as distinct from the question `What should we do with international law?'.
English
9789004635234
10.1163/9789004635234 DOI
Consent (Law)
International law.
KZ1262.C65
341
The Paradox of Consensualism in International Law / C.L. Lim and O.A. Elias. - 1 online resource (344 pages) : illustrations. - Developments in International Law ; 31 International Law - Book Archive pre-2000 . - Developments in International Law ; 31. International Law - Book Archive pre-2000. .
Includes bibliographical references and index.
Preliminary Material / O.A. Elias and C.L. Lim -- Preface / O.A. Elias and C.L. Lim -- Foreword / Martti Koskenniemi -- Chapter I The Subjective Element in Customary International Law / O.A. Elias and C.L. Lim -- Chapter II The Role of Individual Consent: The Different Theories / O.A. Elias and C.L. Lim -- Chapter III The Role of Individual Consent in the World Court / O.A. Elias and C.L. Lim -- Chapter IV The Role of Individual Consent in Other Tribunals / O.A. Elias and C.L. Lim -- Chapter V The Role of Individual Consent in the Practice of States / O.A. Elias and C.L. Lim -- Chapter VI The Scope of Customary International Law / O.A. Elias and C.L. Lim -- Chapter VII New States and Pre-Existing Customary International Law / O.A. Elias and C.L. Lim -- Chapter VIII Juristic Opinion on the Role of Consent / O.A. Elias and C.L. Lim -- Chapter IX The International Lex Scripta: A More Attractive Option? / O.A. Elias and C.L. Lim -- Chapter X The Paradox of Consensualism in International Law / O.A. Elias and C.L. Lim -- Chapter XI The Non-Consensual Sources of International Law / O.A. Elias and C.L. Lim -- Chapter XII The Expanding International Legal Order / O.A. Elias and C.L. Lim -- Chapter XIII The Basis of Obligation in International Law / O.A. Elias and C.L. Lim -- Chapter XIV Values, Positive Law and World Order / O.A. Elias and C.L. Lim -- Bibliography / O.A. Elias and C.L. Lim -- Index / O.A. Elias and C.L. Lim.
If international law is derived from the consent of States, who should be in a better position to say what has been consented to than the disputing States themselves? It seems that if the doctrine of consent is taken seriously, there would be no room for an 'objective' legal answer to the question `What is law?'. Furthermore, States do not necessarily employ the same criteria for determining the applicable law when engaged in dispute. And the doctrine of sovereignty is of very limited utility, since not all of substantive international law can be explained in terms of the atomic concept of sovereignty. This leaves consent as the mediating concept between the substantive doctrine of international law on the one hand and the actual practice of States (and others whose practice and participation in the global legal order help shape the body of international laws) on the other. Nevertheless, this is not to say that there is nothing `higher' than the actual legal claims forwarded by international actors. International law is no mere superstition, since none argue that there is no (one) legal solution. In that sense, the unity of the international legal order is preserved. The problem is that the solutions actually forwarded in dispute are too numerous and international law too abstract to serve as arbiters between the competing claims. Thus, at the level of substantive doctrine there is a fragmentation of that earlier-mentioned picture of unity. But even here, only consent can mediate between unity and fragmentation, stability and change, order and justice, legislation and revolution. The strength of international law lies in its adaptability to political, strategic and diplomatic necessities. To suggest otherwise is to depart from a picture of international law that presumes the empirical verifiability of international laws. This book has as its principal concern certain orthodoxies of `source thinking' in international law, and is aimed at working out the implications of these. It aims to show how certain theoretical conceptions have shaped the law in action, for good or ill. It will appeal to political theorists, diplomats, global decision-makers, and international lawyers who are interested in the question `What can we do with the international law that we have?', as distinct from the question `What should we do with international law?'.
English
9789004635234
10.1163/9789004635234 DOI
Consent (Law)
International law.
KZ1262.C65
341