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The Advancement of International Law: French Studies in International Law

Autor Charles Leben
en Limba Engleză Hardback – 14 oct 2010
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'.This book is 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.
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Specificații

ISBN-13: 9781841132785
ISBN-10: 1841132780
Pagini: 339
Dimensiuni: 156 x 234 x 26 mm
Greutate: 0.57 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Seria French Studies in International Law

Locul publicării:London, United Kingdom

Notă biografică

Charles Leben is Professor of Public International Law at the University of Paris (Panthéon-Assas) and Director of the Institute of Advanced International Studies (Paris).

Cuprins

PART 1-ADVANCES IN THE TECHNIQUES OF INTERNATIONAL LAWChapter 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 InternationalLegal Order On the Preference Given to Public International Law Rather than Transnational Law for Governing StateContracts 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 LAWChapter 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 theInternational 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 theLocal 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

Recenzii

Leben provides thought provoking twists to the classic debates present in international law.
International lawyers are familiar with the argument - dating back to Austin, but still quite common today - that there is no international law, but, to say it in a nutshell, international powers only. Prof. Charles Leben's book...is a rich, stimulating, and up-to-date rebuttal to such an assertion....a fascinating overview of Prof Leben's work and knowledge. It offers stimulating and challenging thoughts on a rich variety of topics, even for the reader who is not familiar with some of them...
The three books under review offer excellent examples of legal positivism at its best and provide windows into the French ways of thinking about matters that are central to international law. They are all well worth reading to understand what the modern positivist method is, to evaluate its usefulness to the international lawyer, and to gain a better understanding of French perspectives on international law.(Review of 3 titles in the French Studies in International Law Series: International Law, Power, Security and Justice by Serge Sur, The Advancement of International Law by Charles Leben, The Law Against War by Olivier Corten).
Charles Leben's book is ... very wamrly recommended to all international legal scholars with a theoretical bent and to those who would like to gain access, with respect to the issues discussed in the book, to some of the principal debates and arguments in the French academic literature.

Descriere

The reflections in this book make for a clearer theoretical understanding of what constitutes true advancement in international law.