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State Interest and the Sources of International Law: Doctrine, Morality, and Non-Treaty Law book cover

1st Edition

State Interest and the Sources of International Law Doctrine, Morality, and Non-Treaty Law

By Markus P. Beham Copyright 2018
251 Pages
by Routledge

252 Pages
by Routledge

251 Pages
by Routledge
Also available as eBook on:
This book addresses the disparity between positive non-treaty law and its scholarly assessment in the area of moral concepts, understood as altruistic as opposed to reciprocal legal obligations. It shows how scholars are generously willing to assert the existence of a rule of international law, thereby moving further away from actual state practice, not taking into account the factors of legal... Read more



List of Treaties



List of Cases





Permanent Court of International Justice



International Court of Justice



Arbitral Awards IX



European Court of Human Rights



International Criminal Tribunal for Yugoslavia



United Kingdom Cases



United States Cases



List of Documents





League of Nations



United Nations



International Labour Organization



European Union



United States



Miscellaneous



Foreword



Preface



Abbreviations



1 Introduction





A Do you Believe in International Law?



1 The Quest for the Status Quo



2 Methodology as Added Value



3 Pending Added Value



4 Immediate Goals



5 The Factual



6 The Abstract





B What if I Told You...



1 External Perspectives



2 The International College of Legal Illusionists



3 The "Is" and the "Ought"





C Customary International Law and "Customary International Law"



1 Formation



2 Two "Is"



3 Ensuring Effectivity



4 The Downward Spiral



5 State Interest



6 Reciprocity



7 Moral Concepts





D Case Studies



1 Human Rights



2 Use of Force





E Catch, Before the Fall



1 Controversy and Apology



2 "Legality" and "Morality"



3 "Dogmatik", not "Pedantic'



2 Non-Treaty Sources





A On the "Sources" of International Law



1 Article 38 of the Statute of the International Court of Justice



2 Acceptance and Reception in the Literature



3 Two or Three "Main" Sources?





B Customary International Law



1 Law of a Primitive Society



2 Theories on Custom



3 State Practice



4 Opinio Iuris



5 Paradoxes of the Two-Element Theory



6 Schrödinger's Custom



7 The Man on the Clapham Omnibus



8 Practice of the International Court of Justice



9. "Modern" Approaches to the Formation of Custom



10. Assessment





C General Principles of Law



1 Terminology



2 Identification



3 Excursus: "Civilized Nations"



4 Assessment



3 Morality and State Interest





A Defining Morality and Legality



1 Morality



2 Legality



3 Two Planes



4 Moral Concepts





B State Interest



1 States



2 Interest



3 Interests of States



4 Assessment



4 Doctrine and Indeterminacy





A Human Rights as Non-Treaty Law: Doctrine



1 Prelude: Human Rights and the United Nations



2 Human Rights as Customary International Law



3 Human Rights as

Biography

Markus P. Beham is an Assistant Professor at the Chair of Constitutional and Administrative Law, Public International Law, European, and International Economic Law at the University of Passau, Germany.

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