The Rule of Unwritten International Law

Customary Law, General Principles, and World Order

Peter G. Staubach

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815382911
• eBook ISBN: 9781351207294
• Topic: Law
• Subtopic: International Law
• Index: Law

This book seeks to re-appreciate the concept of customary international law as a form of spontaneous societal self-organisation, and to develop the methodological consequences that ensue from this conception for the practice of its application. In pursuing this aim, the author draws from three different strands of scholarship that have not yet been considered in connection with one another: First, general jurisprudential theories of customary law; second, theories of customary international law, especially as they relate to international relations scholarship; and third, methodological approaches to the interpretation of international law. This expansive, philosophical layout of the book enables the author to put the conceptual enigmas of customary international law into a broader perspective.

Among the issues discussed in the book are the dichotomy of its traditional and modern forms and the respective benefits and disadvantages of inductive and deductive approaches to its ascertainment. In the course of this analysis, the author draws insights from Friedrich August Hayek's theory of law as a 'spontaneous order', an information-processing device which enables the participants of a legal system to make use of decentralised knowledge. The book argues that the major advantage of custom as a source of international law lies in the fact that it is the result of a gradual process of trial and error, rather than the product of deliberate planning. This makes it a particularly apposite source of law in a time of seismic shifts in the distribution of power within a vastly diverse community of States, when a new global order is expected to emerge, the contours of which are not yet clearly discernible.

This book applies general concepts of legal philosophy to explain the continuing relevance of custom as a source of international law while at the same time inferring from this theoretical framework concrete practical and methodological consequences, the most important of which is the special role that purposive interpretation plays with respect to rules of international custom. Given this broad approach, the book will be of interest to several groups of potential readers including academics interested in the philosophy of customary law in general, academic international lawyers and legal practitioners, especially judges, scholars of international relations and all those interested in how the international community of States organises itself.

Index

a fortiori 168–169

a maiore ad minus 168, 169

accountability 103

activism or self‐restraint, judicial 100–107

adhocracy 68, 69

Aguas del Tunari v Bolivia 119

air and space law 171–172

Alchourrón, C 156

Allen, CK 24

Allott, P 9, 136

Alston, P 135

amici curiae 103#

analogical reasoning 110, 158, 178; distinction between interpretation and norm‐creation 163; ICJ 84–85, 87–88, 154, 161, 169–170; and its critics 158–165; lacunae 57, 110, 158, 160–161; new fields of law 171–172; ubiquity in international law 165–172; virtues of 172–176

Anglo‐Norwegian Fisheries 85–86

Antiphon 13

Anzilotti, D 92, 109, 133, 162, 168–169

Aquinas 20–22; and common‐law tradition 22–28

arbitral tribunals 53, 69, 118, 119, 182; attorney–client privilege 185; Trail Smelter 176

argumentum e contrario 168, 169

Aristotelianism, medieval receptions of 20–28

Aristotle 33, 173n99, 176n111, 194; concept of practice 12–20

Arrow, K 30, 172

Asian Values 182

attorneys 26, 71–72; attorney–client privilege 184–185, 190

audiatur et altera pars 183–184

Austin, J 20

Austria 93, 95, 96; free law movement in Germany and 41–43, 44, 45

aut dedere aut judicare 120

authoritarianism 5

autopoietic system 60

Bacqué, JA 47

balance of power, international 66

Ban Ki‐moon 4

Barak, A 125–128, 136–137, 140

Beitz, C 31

Belgium 96

biases, cultural 90

bilateral investment treaties (BITs) 118–119

Blackstone, W 79

Bleckmann, A 168

Bodansky, D 7

boundary delimitation 27–28, 70, 139–142

Bradley, CA 134

Brierly, JL 159

Buchanan, J 31

Bull, H 25

Bul...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• I. Introduction
• II. Unwritten Law as Self-Organisation: A Historical Perspective
• III. Theoretical Problems and Methodological Approaches
• IV. The Quest for Objectivity
• V. The Riddle of Purposive Interpretation
• VI. Analogical Reasoning and the Recognition of General Principles of Law
• VII. Conclusion: The Dialectics of World Public Order
• Bibliography
• Index