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  • DROUBI Sufyan (2)
  • KÖPPEN Alicia (1)
  • CARDENAS Fabian (1)
  • SINGH Sahib (1)
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  • Part or chapter of a book (15)
  • Book (11)
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Along with treaties, custom is one of the sources of international law. It is known to consist of two elements: state practice and opinio juris. While many studies have looked at traditional questions of how to identify customary law, this book takes a new and original approach. It looks instead at the structure of thought that lies beneath the arguments about customary international law. By examining these structures, the book uncovers surprising conclusions, and demonstrates what the author describes as the 'discursive splendour' of customary international law. The book guides the reader through an analysis of eight distinct performances at work in the discourse on customary international law. One of its key claims is that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, customary international law is anything but ancient, and there is hardly any doctrine of international law that contains so many of the features of modern thinking. It is also argued that, contrary to mainstream opinion, customary international law is in fact shaped by texts, and originates from a textual environment. This book provides an engaging account of customary international law, whilst challenging readers to rethink their understanding of this fundamental part of the discipline.

in International organisations, non-State actors, and the formation of customary international law Edited by DROUBI Sufyan, D'ASPREMONT Jean Publication date 2020-12
DROUBI Sufyan
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Edited by DROUBI Sufyan Publication date 2020-12 Collection Melland Schill Perspectives on International Law
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This volume offers new practical and theoretical perspectives on one of the most complex questions regarding the formation of international law, namely that actors other than states contribute to the making of customary international law. Notwithstanding the International Law Commission's valuable contribution, the making of customary international law remains riddled with acute practical and theoretical controversies that continue to be intensively debated. Making extensive reference to the case-law of international law courts and tribunals, as well as the most recent scholarly work on customary international law, this volume provides a comprehensive study of the contribution of international organisations and non-state actors to the formation of customary international law. With innovative tools and guidance for law students, legal scholars, and researchers in law, as well as legal practitioners, advisers, judges, arbitrators, and counsels, this collection is essential reading for those wishing to understand and address contemporary questions of international law-making.

in International organisations, non-State actors, and the formation of customary international law Edited by DROUBI Sufyan, D'ASPREMONT Jean Publication date 2020-12
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This chapter reflects on the last decade of scholarly reflections on the question of non-State actors and customary international law and revisits some of the specific argumentative constructions and presuppositions that have informed – and continue to inform – discourses on the contribution of non-State actors to the formationof customary international law. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-State actors and customary law. These constructions can be summarised as follows: the idea that the two-element variant of the doctrine of customary international law originates in article 38 of the Statute of the Permanent Court of International Justice; the continuous attachment of international lawyers – including the International Law Commission – to the distinction between practice and opinio juris; the understanding of the concept of non-State actors as a plain and innocent descriptive category.

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This article engages with the image of the League of Nations as an experiment in international law and the law of international institutions. This image populates international legal literature of the second half of the 20th century and of the 21st century. It corresponds to what is called here the “experiment narrative” about the League. Many of the claims made about international institutional law, collective security and international institutions in international legal discourses are informed by this specific narrative. Drawing on the “experiment narratives” about the League, this article shows that “experiment narratives” in international law constitute a common tool for international lawyers to uphold a progressive and linear global history and to organize their discourses.

in The Gabčíkovo-Nagymaros Judgment and Its Contribution to the Development of International Law Edited by FORLATI Serena, MBENGUE Makane Moise, MCGARRY Brian Publication date 2020-05
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Jean d’Aspremont analyses how the Gabčíkovo-Nagymaros Judgment used the International Law Commission’s (ilc) work on international responsibility – and, in turn, the Judgment’s impact on the Articles on Responsibility of States for Internationally Wrongful Acts (arsiwa) – in order to discuss the ‘symbiotic relationship’ between the icj and the ilc in the construction of general rules of international law.

in European Journal of International Law Publication date 2020-02
NOLLKAEMPER André
AHLBORN Christiane
BOUTIN Berenice
NEDESKI Nataša
PLAKOKEFALOS Ilias
JACOBS Dov
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It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share responsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions of multiple attribution of conduct), the consequences of shared responsibility (notably, the possibility of joint and several liability) and the modes of implementation of shared responsibility. The Guiding Principles are of an interpretive nature. They build on the existing rules of the law of international responsibility and sometimes offer novel interpretations thereof. They also expand on those existing rules, backed by authoritative practice and scholarship, to address complex questions of shared responsibility.

in African Perspectives in International Investment Law Edited by HODU Yenkong Ngangjoh, MBENGUE Makane Moise Publication date 2020
KÖPPEN Alicia
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International investment law has been weathering contestation since its inception. It suffices to recall the opposition of capital-importing States to the idea of an international minimum standard expressed in the famous Calvo Doctrine which rejected the standards of compensations for expropriation. Contestation also flared with the rejection of an obligation to provide compensation for the expropriation of foreigners that accompanied the Declaration on the Establishment of the New International Economic Order (NIEO).

in Max Planck Encyclopedia of International Procedural Law [MPEiPro] Publication date 2020
CARDENAS Fabian
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Epistemic community is a descriptive and analytical category used in social sciences as a whole to denote a group of technicians or professionals sharing common constructed sensibilities. The concept has proved very popular across disciplines and has been constantly transposed across fields. As a result, it has not been univocally understood and its contours have continuously taken the particular shapes of the discipline to which it has been transposed.

in Canadian Yearbook of International Law Publication date 2020
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La comparaison est un instrument très ordinaire pour les internationalistes. En effet, le droit international s’articule autour d’un certain nombre de constructions qui nécessitent un exercice de comparaison. Ces dernières années, certains internationalistes ont proposé d’aller plus loin et de faire de la comparaison un outil central d’analyse en droit international. Cette idée se retrouve dans le projet de droit international comparé. C’est ce projet comparativiste qui retient l’attention ici. Cet article examine en effet les choix et les caractéristiques du projet comparativiste et cherche à démontrer en particulier que le projet comparativiste, bien loin de promouvoir un certain pluralisme de la pensée et de la pratique en droit international, favorise une pensée colonisatrice. Cet article offre par ailleurs une série de réflexions sur la possibilité de limiter, tant que faire se peut, la pensée colonisatrice dans le droit international. Il démontre qu’il doit être possible pour les internationalistes de se pencher sur l’altérité d’une manière qui ne fabrique pas unilatéralement l’“autre,” le condamne au silence et parle en son nom. Cette approche est dénommée la contre-comparabilité.

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