Beyond Confrontation: International Law for the Post-Cold War Era

By Lori Fisler Damrosch; Gennady M. Danilenko et al. | Go to book overview

In sum, traditional doctrine maintains that a state must accept or consent to a norm before being bound. However, the numerous legal and practical limitations and exceptions lend support to the view that the international community can develop solutions to grave universal problems which will lead to compliance by all states. Whether this compulsion is based upon law or pragmatism remains unsettled.


Notes
1
Statute of the International Courts of Justice, art. 38(b), 59 U.S. Stat. 1055.
2
North Sea Continental Shelf ( F.R.G. v. Den); ( F.R.G. v. Neth.), 1969 I.C.J. 29.
3
S.S. Lotus ( Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10, at 18.
4
Military and Paramilitary Activities in and Against Nicaragua (Merits) ( Nicar. v. U.S.), 1986 I.C.J. 135.
5
It is important to note that both the USSR and the U.S. adhered to the consensualist view of the formation of international law. The USSR expressed this approach on many occasions, in particular during the Vienna Conference on the Law of Treaties, where the Soviet representative stated, among other things, that in the view of the Soviet Union norms of customary international law could "not become binding on a State which did not recognize those norms as having become binding on it." ( U.N. Conference on the Law of Treaties, Official Records, First Session at 201.) The U.S. stated during the Third U.N. Conference on the Law of the Sea that "the United States could not accept the suggestion that, without its consent, other States would be able, by resolutions or statements, to deny or alter its rights under international law." 9 UNCLOS III, Official Records at 104.
6
TUNKIN, TEORIYA MEZHDUNARODNOGO PRAVA (Theory of International Law) ( 1970); Tunkin, Co-Existence and International Law, 95 RECUEIL DES COURS DE L'ACADEMIE DE DROIT INTERNATIONAL [R.C.A.D.I.] 1, 19 ( 1958).
7
See Tunkin, Remarks on the Juridical Nature of Customary Norms of International Law, 49 CAL. L. REV. 419, 422, 423, 429 ( 1961); Tunkin, Co-Existence and International Law, supra note 6, at 12-14; LUKIN, ISTOCHNIKI MEZHDUNARODNOGO PRAVA (Sources of International Law) 58 ( 1960). See generally LUKASHUK, MEKHANISM MEZHDUNARODNO-PRAVOVOGO REGULIROVANIYA (The Mechanism of International Legal Regulation) ( 1980).
8
See Lukashuk, Customary Norms in Contemporary International Law, 1978 SOVIET Y.B. INT'L L. 86-100; DANILENKO, OBYCHAY V SOVREMENNOM MEZHDUNARODNOM PRAVE (Custom in Modern International Law) ( 1988). See also Danilenko, The Theory of Custom in International Law, 30 GERMAN Y.B. INT'L L. 9 ( 1989) [hereinafter Theory of Custom].
9
Alexidze, Legal Nature of Jus Cogens in Contemporary International Law, 172 R.C. A.D.I. 21 9-70 ( 1981) [hereinafter Legal Nature].
10
Perhaps the strongest contemporary United States writer supporting the consent requirement is Louis Henkin, who bases his views on the interests of state autonomy. Louis Henkin, International Law: Politics, Values and Functions, 216 R.C. A.D. I. 1 ( 1989).

-53-

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Beyond Confrontation: International Law for the Post-Cold War Era
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Notes xx
  • Acknowledgments xxiii
  • About the Editors and Contributors xxv
  • 1 - The Role of International Law In the Contemporary World 1
  • Notes 19
  • 2 - Consent and the Creation Of International Law 23
  • Notes 53
  • 3 - Participants in International Legal Relations 61
  • Notes 82
  • 4 - Legal Regulation of the Use of Force 93
  • Notes 134
  • 5 - International Cooperation Against Terrorism 141
  • Notes 158
  • 6 - Stability in the Law of the Sea 165
  • Notes 183
  • 7 - Enviornmental Law 193
  • Notes 217
  • 8 - Tensions in the Development Of the Law of Outer Space 225
  • Notes 257
  • 9 - International Human Rights 275
  • Notes 299
  • 10 - Peaceful Settlement of Disputes Through the Rule of Law 309
  • Notes 332
  • About the Book 335
  • Index 337
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