Theory of International Law

by Robert Kolb

Overview

This book seeks to analyse various aspects of international law, the link being how they structure and marshal the different forces in the international legal order. It takes the following approaches to the matter. First, an attempt is made to determine the fundamental characteristics of international law, the forces that delineate and permeate its applications. Secondly, the multiple relations between law and policy are analysed. Politics are a highly relevant factor in the implementation of every legal order (and also a threat to it); this is all the more true in international law, where the two forces, law and politics, have significant links. Thirdly, the discussion focuses on a series of fundamental socio-legal notions: the common good, justice, legal security, reciprocity (plus equality and proportionality), liberty, ethics and social morality, and reason.

Product Details

ISBN-13:	9781509927500
Publisher:	Bloomsbury Academic
Publication date:	02/21/2019
Edition description:	Reprint
Pages:	512
Product dimensions:	6.14(w) x 9.21(h) x 1.02(d)

About the Author

Robert Kolb is Professor of Public International Law at the University of Geneva.

Table of Contents

Acknowledgements v

List of Abbreviations xiii

Table of Cases and Practice xv

Table of Legislation xxv

Table of International Instruments xxvii

Introduction 1

Part 1 The Main Pillars of the Legal System

1 History and Characteristics of International Law 5

I Historical and Conceptual Aspects 8

A The 'Two Histories' of Public International Law 8

II The Substantive Subject Matter of Public International Law 43

A Introductory Remarks 43

B The Impossibility of Defining International Law Through its Subject Matter: Kelsen 44

C 'Necessary' and 'Contingent' Subject Matters of Public International Law 45

D Branches that were Part of International Law and Have Ceased to be Part of It 53

III Types of International Law 57

A Universalism, Supranationalism and Internationalism 57

B Law of Subordination and Law of Coordination 62

C Inter-State Law and Transnational Law 68

IV Phases of Development of International Law 71

A Classical and Modern International Law 71

B First Phase of Development of Modern International Law: The 'Juridisation' of International Society 74

C Second Phase of Development of Modern International Law: The 'Constitutionalisation' of International Society 82

D Third Phase of Development of Modern International Law: The 'Community Orientation' 89

2 Foundation, Sources and Structural Principles of International Law 99

I General Aspects 99

II The Relationship Between the Foundation and the Sources of International Law 100

III The Basis of Obligation in International Law 103

A General Aspects 103

B Legal Positivism 105

C Sociological Doctrines 110

D Natural Law Doctrines 112

E Conclusion 121

IV The Sources of International Law 123

A General Aspects 123

B Customary International Law 127

C General Principles of Law 134

D Treaties 145

E Soft Law 152

F Final Considerations 155

V The Structural Principles of International Law 157

A International Law as Horizontal 'Coordinative Law' 157

B International Law as 'Primitive' Law? 162

C International Law as Individualised Law 168

D International Law and Fragmentary, Empirical and Uncertain Normativity 170

E International Law as Permeable and Non-Formalistic 174

F International Law Between Coexistence and Cooperation 177

G International Law as Non-self-sufficient Law 179

3 The Subjects of International Law 183

I General Aspects 183

II The Question of Circularity Between the Sources and the Subject 185

III The Quantity or Quality of the Subjective Legal Positions 187

4 Questions of Method and the Structure of Rules in International Law 193

I Method in International Law 193

II Conceptual and Terminological Problems 196

A Conceptual Confusions 196

B Systematic Confusions 200

C Terminological Confusions 201

D Conclusion 203

III What Place can be Made for Method in International Law? 203

IV The Individualisation of International Law Rules and its Consequences 206

A Generalising and Individualising Perspectives 206

B The Individualising Perspective in International Law 209

5 The 'Lotus Rule' on Residual State Freedom 217

I General Aspects 217

II Origin of the Residual Rule 221

III Relativity of the Residual Rule 222

IV Objections Against the Residual Rule 224

A Objections Under the General Theory of Law 224

B Objections Under International Law 228

C Objections to the Authorisation Theory 232

D Scope of the Residual Freedom Rule in International Law 232

6 The Effectiveness of International Law 237

I General Aspects 237

II Elements Pushing States towards Compliance 241

III The Comparison of Municipal Law with International Law 244

IV In Search of an Inventory 246

V The Public Perception of International Law 253

7 International Society or International Community? 259

I General Aspects 259

II Short Historical Aspects in the Western World 261

A Primitive Societies 262

B The Development of a 'Common Humanity' 262

C The Christian Republic in the Middle Ages 264

D From the Spanish Scholastics to the Nineteenth Century 264

E The Concert of Europe in the Nineteenth Century 265

F The Twentieth Century and the Return of a Global International Community 266

III Conceptions of the International Community 267

A Necessary International Community 267

B Specific International Community 268

C Institutional International Community 270

IV Society or Community? 270

Part 2 International Law and Politics

8 The Relationship Between International Law and Politics 279

I The Influences of Politics and Power on International Law 279

A General Aspects 279

B International Power and International Law 282

C Theories on the Relations of Power and Law in International Society 285

D Inroads of Politics into the Law: Political Tensions 291

II Centrifugal and Centripetal Political Factors 296

A Centrifugal Political Factors: Power at the Service of the State 296

B Centripetal Political Factors: Power at the Service of the International Community 325

C Mutual Influences Between Law and Politics 336

III Conclusion 360

Part 3 International Law and Certain Fundamental Legal-Political Notions

9 The Relationship of International Law with Certain Cardinal Legal Notions 365

I The Common Good 365

A General Legal Experience 365

B The Common Good in International Society 370

II Justice 373

A General Legal Experience 373

B Justice in International Law 382

C Conclusion 391

III Legal Certainty 392

A General Legal Experience 392

B Legal Certainty in International Law 397

IV Reciprocity and Proportionality 401

A General Legal Experience 401

B Reciprocity in International Law 406

V Liberty 413

A General Legal Experience 413

B Liberty of States in International Law 417

VI Morals and Social Morals 420

A General Legal Experience 420

B International Morals 426

VII Will and Reason 434

A General Legal Experience 434

B Reason and Will in International Law 440

VIII Sanctions 444

A General Legal Experience 444

B The Sanction in International Law 449

General Conclusion 455

Selected Reading 457

Index 467

Editorial Reviews

"Theory of International Law is an important contribution to the theoretical analysis of public international law ... recommended for academics and professionals ... they will find important reflections to analyse and (re)value the importance of law for society and the international community. (Translated from the original Spanish)" --Anuario Mexicano de Derecho Internacional

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