LSN: International Customary Law (Topic)最新文献

{"title":"Noncompliance as Lawmaking","authors":"Timothy Meyer","doi":"10.2139/ssrn.3062612","DOIUrl":"https://doi.org/10.2139/ssrn.3062612","url":null,"abstract":"Michael Reisman once wrote that “international lawyers frequently respond to the appearance of a discrepancy between existing and emerging legal arrangements by heatedly rejecting the new with a fury of virtuous unanimity against the evil whose name is Change.” This quote is never more true than when international lawyers consider the role of lawbreaking in lawmaking. While civil disobedience has a safe — and in some countries revered — legacy as a means of prodding governments to make laws more consonant with modern notions of justice, commenters are not similarly sanguine in discussing noncompliance as a lawmaking device in international law. Lawbreaking is often viewed as antithetical to the values underlying the law of nations and a challenge to the enterprise of international law. Yet, as this Chapter explains, in certain circumstances it makes perfect sense to talk about noncompliance as lawmaking. Indeed, far from representing a challenge to international law, recognizing the juris-generative role of noncompliance reveals that some violations demonstrate a state’s commitment to international law’s collective endeavor. States sometimes violate the law in order to improve it, just as those who engage in civil disobedience do so in order to change it for the better. Descriptively, I argue that for noncompliance to be an effective lawmaking technique, it must 1) be public; 2) carry with it a credible threat to continue the violation indefinitely; 3) the normative content of the violation must be acceptable to other states as an alternative rule; and 4) the violator’s relative costs of lawmaking through noncompliance are less than they would be through conventional multilateral lawmaking channels. Normatively, allowing noncompliance to play a lawmaking role may be essential to the long-term viability of the international legal enterprise. While states cannot really exit their relationships with each other, international law lacks the constraints of the domestic system that prevent states from effectively exiting their legal obligations by persistently violating the law. Given this limitation, turning some violations into constructive acts of lawmaking may enhance the viability of the international legal system, rather than undermine it.","PeriodicalId":165992,"journal":{"name":"LSN: International Customary Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122627124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unravelling Cooperation: The Role and Limits of Cooperation in the Governance of International Watercourses in Customary International Law","authors":"Jack Taylor","doi":"10.2139/ssrn.2579451","DOIUrl":"https://doi.org/10.2139/ssrn.2579451","url":null,"abstract":"Fresh water is one of the most fundamental natural resources on the planet for human beings as well as ecosystems more generally. This thesis explores ongoing efforts in international law to govern international watercourse systems more effectively. These efforts have been given recent impetus by the long-awaited entry into force in August 2014 of the first global, comprehensive treaty governing international watercourses – the 1997 United Nations Watercourses Convention (UNWC). The UNWC largely reflects customary international law and given that the UNWC still only has thirty-five State parties, custom continues to play an important role in the governance of many major international watercourses.This thesis focuses on the central notion of cooperation in the field of customary international watercourses law. It first highlights the prominence of the vague, multi-layered and contested concept of cooperation and attempts to unpack it. In doing so, it identifies four distinct manifestations of cooperation and reveals the special emphasis the literature has placed on the fourth manifestation: specific procedural obligations of cooperation.This thesis ultimately applies the assertions made in the literature about the binding and effective nature of customary rules of cooperation to a current case study: a dispute between Ethiopia and Egypt over the construction of the Grand Ethiopian Renaissance Dam on the Nile River. Through this case study, this thesis posits that the specific obligations of cooperation identified (notably notification and consultation) sit uneasily in customary international law. Lingering uncertainty about the content of such obligations, in both the literature and by relevant States themselves, highlights the importance of codifying and institutionalising rules of cooperation, so crucial to watercourse management, in order to improve their overall effectiveness.","PeriodicalId":165992,"journal":{"name":"LSN: International Customary Law (Topic)","volume":"76 3-4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114034574","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}