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James Crawford in his Hague general course on public international law discussed the problem of making international law by treaties under the Baxter paradox—“the more agreement, the less law”. Crawford concluded that the Baxter paradox is not so much an insoluble paradox as a valid reflection on the distinct attributes of treaties and custom—something to be embraced and not avoided. The essay seeks to readdress the relationship between treaties and custom taking into account the Baxter paradox and its critical examination by Crawford. It is also discussed in light of the complex problem of exploitation of outer space natural resources.
The author supports the idea of formal sources as the most workable method of analyzing rules and principles of international law in practice. The primary aim of the article is to consider whether treaties can be seen, as most scholars claim, the formal source of international law. The author argues that they are not of that nature, since they are not the self-sufficient source of general international law. The author is inspired by Gerald Fitzmaurice’s views of the 1950s denying treaties the status of formal sources of international law, instead seeing them merely as sources of international legal obligations. According to the author, these views, although controversial and even outmoded under the contemporary opinions on the sources of international law, still deserve attention and careful consideration. Treaties can promote legal certainty with regard to legal obligations within the international community. Yet, as the author claims, in a decentralized legal order such as international law, it is not treaties but custom that still remains its primary formal source.
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This article explores Lauterpacht’s understanding of state sovereignty and its importance today. To this end, it presents intellectual roots of Lauterpacht’s legal thought that is both negative inspiration of his teaching (legal positivism) and the leading role in his work of Grotian and Victorian tradition embodying ideas of natural law, liberalism and progress, supported by Kelsen’s epistemology. Lauterpacht rejects legal positivism, which underlines a freedom of action of states, and, consequently, dependence of international law on state sovereignty. What he deems as relevant is the inverse dependence ‐ sovereignty stems from international law. The idea of sovereignty performs an important cognitive function by indicating the absence of legal interdependencies between states. Sovereignty is not an absolute, rigid category, but a bundle of rights conferred on states by international law. Such a nominalist approach to sovereignty is today noteworthy all the more because it counters mythology of state and its sovereignty. Yet, the more crucial aspect of Lauterpacht’s idea of sovereignty concerns the position of individuals. His view that human beings should be treated as ultimate subjects of law and that sovereignty means not only rights but also state responsibility is today strongly supported in academia and by some political initiatives.
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This article explores the relationship between the coherence of the League of Nations’ (ln) actions and universality, conceived both as an ideal of ‘universalism’ and universal membership. Universality in international institutional law essentially means the principle of open and comprehensive membership of international organizations. As popularly known, the ln failed to secure comprehensive membership. Such membership is thought to be a condition sine qua non of coherent and effective actions of organizations. This article takes a different stance, arguing that it was not lack of such membership that was responsible for the constitutional crisis within the ln and the incoherence of its actions. Rather, the ln suffered from a constitutional crisis almost from the very beginning, preventing it from gaining universal membership. It was the fragile awareness of the common aims and values embodied in the ln that affected the ln’s membership and the universality and coherence of its mission.
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The paper discusses the relationship between the sources of international law and fairness. The author addresses this issue within the framework the following main question: what is the role of fairness for the formal sources of international law? By analysing the relationship between fairness and the formal sources of international law, the author also responds to two other, substantively relevant, questions: is the typology of these sources listed in Article 38 of the Statute of the ICJ fair?; is soft law a means to fairness in the sources? The author claims that fairness is neither a material nor formal source of international law but it is a procedural value which supports the legitimacy of the making of international law. Thus, it is relevant to the formal, not material, sources of international law. The term ‘formal sources’ is used in the paper in the twofold meaning. First, as instrumentum or ‘containers’ for rules and principles (where the law can be found), and, second, as processes and forms by which rules and principles are made. The author’s proposition is that fairness is primary relevant to the latter meaning. When the international law-making processes are fair, then their results, i.e., the formal sources conceived as instrumentum or ‘containers’ are also fair, and the law may be known. Rules and principles of international law are fair when they satisfy the requirements of a fair international law-making process, in particular, certainty, transparency and authoritativeness/representativeness. That is why, fairness may be seen as a crucial criterion of the legitimacy of international law-making processes. There are close relationships between fairness, law-making, legal certainty, effectiveness of rules and principles and the rule of law. These relationships mark the place of fairness in the sources of international law. The author seeks to point out that fairness as a product of the constantly changing social and political environment, does not occur in its pure form in practice. As such, fairness is a ‘matter of degree’ in the international law-making. That is why, a realistic goal of the international legal order is neutralization of unfairness as much as possible.
Centenary of the First Judgment of the Permanent Court of International Justice
The book addresses the impact of the first judgment of the 'World Court' on the development of international law and its continuing relevance. The contributions to this book discuss the legal issues decided by the PCIJ in the Wimbledon case. In the Wimbledon judgment, the Court referred to the problems that are still important both for procedural and substantive international law, and which attract the attention of states, courts and the academia today. These include: state sovereignty, sources of international law, interpretation of legal rights and obligations following from treaties and custom, ‘objective regimes’, ‘self-contained regimes’, neutrality in armed conflicts, the status of international waterways, as well as the issues of jurisdiction such as third-party participation in international adjudication, or locus standi for the protection of community interests.
Centenary of the First Judgment of the Permanent Court of International Justice
The book addresses the impact of the first judgment of the 'World Court' on the development of international law and its continuing relevance. The contributions to this book discuss the legal issues decided by the PCIJ in the Wimbledon case. In the Wimbledon judgment, the Court referred to the problems that are still important both for procedural and substantive international law, and which attract the attention of states, courts and the academia today. These include: state sovereignty, sources of international law, interpretation of legal rights and obligations following from treaties and custom, ‘objective regimes’, ‘self-contained regimes’, neutrality in armed conflicts, the status of international waterways, as well as the issues of jurisdiction such as third-party participation in international adjudication, or locus standi for the protection of community interests.