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The Advancement of International Law


ISBN13: 9781841132785
Published: October 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00



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Any talk of the advancement of international law presupposes that two objections are met. The first is the 'realist' objection which, observing the state of international relations today, claims that when it comes down to the important things in international life-war and peace, and more generally power politics among states-no real advancement has been made: international society remains a society of sovereign states deciding matters with regard solely to their own best interests and with international law all too often being no more than a thin cloak cast over the precept that 'might is right'.

Against this excessive scepticism stands excessive optimism: international law is supposedly making giant strides forward thanks especially to the tremendous mass of soft law generated by international organisations over the past sixty years and more. By incautiously mixing all manner of customs, treaties, resolutions and recommendations, a picture of international law is painted that has little to do with the 'real world'.

The essays collected in this book are arranged into three sections. The first purports to show from the specific example of international investment law that the past half-century has seen the invention of two genuinely new techniques in positive law: state contracts and transnational arbitration without privity. This is 'advancement' in international law not because the techniques are 'good' in themselves (one may well think them 'bad') but because they have introduced legal possibilities into international law that did not exist heretofore.

The second section examines the theoretical consequences of those new legal techniques and especially the way they affect the theory of the state. The third widens the field of view and asks whether European law has surpassed international law in a move towards federalism or whether it represents a step forward for international law.

These reflections make for a clearer theoretical understanding of what constitutes true advancement in international law. Such an understanding should give pause both to those who argue that hardly any progress has been made, and to those who are overly fanciful about progress.

Subjects:
Public International Law
Contents:
PART 1—ADVANCES IN THE TECHNIQUES OF INTERNATIONAL LAW
Chapter 1—State Contracts and their Governing Law: A Reappraisal
State Contracts as New International Legal Acts
State Contracts as Contracts entered into by States as Subjects of Public International Law
State Contracts as Contracts governed by the International Legal Order
Responses to some Objections
On it being Impossible for Contracts between States and Individuals to come within the International
Legal Order
On the Preference Given to Public International Law Rather than Transnational Law for Governing State
Contracts
Chapter 2—The International Responsibility of States based on Investment Promotion and Protection Treaties
State Responsibility in the International Legal Order
Characteristics of States' International Responsibility on the Basis of Protection Treaties
Justification of Resource to International Law
State Responsibility on the Basis of Protection Treaties and State Responsibility in Municipal Law
In the Absence of any Contractual Connection between Investor and State
In the Presence of a Contractual Connection between State and Investor and with a Separate Dispute Settlement Clause from that Provided by the Protection Treaty
Chapter 3—The State's Normative Freedom and the Question of Indirect Expropriation
Indirect Expropriation in International Law
In International Law in General
In International Investment Law
Maintaining the State's Normative Freedom
Results of Case Law
The Prudence of Arbitrators

PART 2 ADVANCES IN THE THEORETICAL ANALYSIS FO INTERNATIONAL LAW
Chapter 4—Some Theoretical Reflections on State Contracts
The Concept of State in State Contracts
The Double Personality of the State in Anzilotti
Kelsen's Dismissal of the Double Personality of the State Presented by Anzillotti
The Double Theory of the State in Kelsen
Individuals as Subjects of Public International Law
Definition of the Subject of International Law
Subjects of International Law and 'Legal Communities' of International Law
Objections Raised by the Dualist Doctrine
Relations between Private Persons and their Home State from the Standpoint of International Law
On the Inequality between States and Private Persons
Private Persons bringing Proceedings before International Courts
Dismissal of the Petitio Principii that Individuals can never Bring Proceedings before International Courts
Can Mixed 'Tribunals' be considered International Courts? The Case of ICSID Tribunals
Can 'Mixed' Courts be considered International Courts? The Case of Ad Hoc Tribunals
On the Incapacity of General Principles of Law to Internationalise State Contracts
Lankarani El-Zein's Argument
Dismissal of this Argument
On Stabilisations Clauses in State Contracts
Stabilisation Clauses are Purportedly not Characteristic of a New Category of Contracts
Stabilisation Clauses Purportedly do not Imply the Internationalisation of State Contracts
On the Validity and Efficacy of Stabilisation Clauses
Chapter 5—Hans Kelsen and the Advancement of International Law
The Nature of International Law
Law in its Own Right
Reprisals and War: Sanctions of Decentralised International Law
Centralisation of International Law: Collective Security and Compulsory Jurisdiction
Changes in International Law: Towards what sort of Civitas Maxima?
Centralisation /Decentralisation of Legal Orders
The International Organisation as a Comparatively Centralised Legal Order and its Relations with the State
The European Union as a Possible Horizon of International Law
Changes in International Law: Internationalised State Contracts and the Status of Private Persons in the
International Legal Order
The Notion of a State Contract
The Possibility of Individuals to be Limited Subjects of International Law
Chapter 6—The Notion of Civitas Maxima in Kelsen's Work
Civitas Maxima and the Primacy of International Law
Civitas Maxima and Kelsen's Conception of Legal Orders
The World State: Cognitive Postulate or State Stricto Sensu?
Conclusion
Chapter 7—International Courts in an Interstate Society
The Decisive Criterion for the Existence of an International Legal Order
Law as a System of Justiciable Rules
International Law as a System of Minimally Justiciable Rules
Optional Courts and Mandatory Courts
Mandatory Judgement and Operative Judgement
Judicial Third Party and Political Third Party
International Courts and the Advancement of the International Legal Order
Primacy of the Rules of Law and State Sovereignty
Judicial Interpretation and Self-Interpretation of International Law
Legal Disputes and Political Disputes
The Development of International Law
The End of Anarchy
Chapter 8—The State within the Meaning of International Law and the State within the Meaning of Municipal Law (On the Theory of the Dual Personality of the State)
The Two Sides or Double Personality of the State
The Two Sides of the State in Classical French and German Doctrines
The Double Personality of the State in Italian Internationalist Doctrine
The Double Personality of the State: Kelsen's Analysis
Ambiguities in Kelsen
The Double Personality of the State in a Normative Conception of Legal Orders: A Proposal

PART 3—EUROPEAN UNION LAW: INTERNATIONAL LAW SURPASSED OR INTERNATIONAL LAW ADVANCING?
Chapter 9—On the Legal Nature of the European Communities
Centralisation/Decentralisation of a Legal Order
The Kelsenian Interpretation of Federalism
The European Community: A Relatively Centralised International Legal Order
The Importance of Central Norms
The Existence of a Court to Rule on the Apportionment of Jurisdiction between the Central Order and the
Local Orders
The Direct Applicability of Community Law
The Primacy of Community Law
The International Legal Order/The State Legal Order
Of the Birth of the State
Of the Legal Nature of the Community and its Future Development
Chapter 10—A Federation of National States or Federal State?
The Reasons for Community Europe's Dysfunctions
Federation and the Constitutional Theory of the State
Confederation of States and Federal State
The Federation (J Fischer) or Federation of Nation State ( J Delors)
Sovereignty and Nation States
Sovereignty
Nation States
The European Federation: Squaring the Circle
Chapter 11—Is there a European Approach to Human Rights?
Introduction
The West and the Rest: Europe and the Question of the Universality of Human Rights
The European Model of Human Rights: A Concrete Universal
It is Possible to Conceive of the Universal and Human Rights Starting from Other Traditions
The Universal and the Particular in Human Rights
The European Universal and its Relations with other Civilisations
The Universal and the Eternal: The Birth of Universal Human Rights in and through History
Europe and the West: The European (Properly Speaking) Dimension of Human Rights
Birth, Disappearance and Rebirth of Human Rights in Europe
The Enforced Hibernation of the Philosophy of Human Rights in Europe
Barbarity in Europe and the Renewal of the Philosophy and Positive Law of Human Rights
Certain Features of the European Concept of Human Rights
Conclusion"

Series: French Studies in International Law

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