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Re-engaging with the Pure Theory of Law developed by Hans Kelsen and the other members of the Viennese School of Jurisprudence, this book looks at the causes and manifestations of uncertainty in international law. It considers both epistemological uncertainty as to whether we can accurately perceive norms in international law, and ontological problems which occur inter alia where two or more norms conflict. The book looks at these issues of uncertainty in relation to the foundational doctrines of public international law, including the law of self-defence under the United Nations Charter, customary international law, and the interpretation of treaties. In viewing international law through the lens of Kelsen’s theory Jörg Kammerhofer demonstrates the importance of the theoretical dimension for the study of international law and offers a critique of the recent trend towards pragmatism and eclecticism in international legal scholarship. The unique aspect of the monograph is that it is the only book to apply the Pure Theory of Law as theoretical approach to international law, rather than simply being a piece of intellectual history describing it. This book will of great interest to students and scholars of public international law, legal theory and jurisprudence.
International law is a system of rules and principles that regulates behaviour between international actors in the present, but is based on what is expected to happen in the future. This book explores how risk and uncertainty are imagined, articulated, and managed across the various fields of international law.
One of the most challenging elements during any armed conflict and its aftermath is the need to determine the fate of the missing and to support families dealing with uncertainty. Another layer of complexity is added in cases where a missing person might have been involved in criminal activity. This book examines how international law meets these two distinct, but intertwined, needs. It shows that the duty to account for missing persons is cross-cutting in nature, requiring measures needing implementation before, during, and after armed conflict. At the same time, those measures cannot substitute any required to establish responsibility for IHL/IHRL violations and international crimes. Exploring specific examples, the book examines the role that international law plays in the international community's attempts to articulate humanitarian and accountability-driven efforts when dealing with the missing. By so doing, it suggests how linkages between such efforts can be established, both through legal and policy avenues.
An exploration into how uncertainty and political and ethical biases affect international law governing the use of force.
Reexamining Customary International Law takes on the complex issues and controversies surrounding the history, theory, and practice of customary international law as it reexamines customary law's increasingly important role in world affairs. It incorporates the expertise of distinguished authors to probe many difficult issues that remain unresolved concerning the doctrine of customary law. At the same time, this book engages in a profound exploration of the practical role of customary international law in a variety of important fields, including humanitarian law, human rights law, and air and space law.
Discover how philosophy is essential to the creation, development, application and study of international lawNew for this editionUpdated to cover recent developments in international law, including the 2008 world financial crisis and its effect on international economic and financial law, and the Obama administrations approach to international law in the war on terror Each chapter includes suggestions for further reading, including the most current sources from 2016Anthony Carty tracks the development of the foundations of the philosophies of international law, covering the natural, analytical, positivist, realist and postmodern legal traditions. You'll learn how these approaches were first conceived and how they shape the network of relationships between the signatories of international law.Key featuresExplores four areas: contemporary uncertainties; personality in international law; the existence of states and the use of force; and international economic/financial lawThe historical introduction gives you an overview of the development of the philosophy of international law, from late-scholastic natural law to the gradual dominance of legal positivism, and to the renewed importance of natural law theory in legal philosophy todayRevises the agenda for international lawyers: from internal concerns with the discipline itself outwards to the challenges of international society
This book revisits the theory of the sources of international law from the perspective of formalism. It critically analyzes the virtues of formalism, construed as a theory of law ascertainment, as a means of distinguishing between law and non-law. The theory of formalism is re-evaluated against the backdrop of the growing acceptance by international legal theorists of the blurring of the lines between law and non-law. At the same time, the book acknowledges that much international normative activity nowadays takes place outside the ambit of traditional international law and that only a limited part of the exercise of public authority at the international level results in the creation of international legal rules. The theory of ascertainment that the book puts forward attempts to dispel some of the illusions of formalism that accompany the delimitation of customary international law. It also sheds light on the tendency of scholars, theorists, and advocates to deformalize the identification of international legal rules with a view to expanding international law. The book seeks to revitalize and refresh the formal identification of rules by engaging with some tenets of the postmodern critique of formalism. As a result, the book not only grapples with the practice of law-making at the international level, but it also offers broad theoretical insights on international law, dealing with the main schools of thought in legal theory (positivism, naturalism, legal realism, policy-oriented jurisprudence, and postmodernism). The main theory of law ascertainment presented in this work remains however principally informed by a rejuvenated version of Herbert Hart's social thesis.
This innovative edited collection uncovers the invisible frames which form our understanding of international law. Taking an interdisciplinary approach, it investigates how social cognition and knowledge production processes affect decision-making, and inform unquestioned beliefs about what international law is, and how it works.
Uncertainty in Policy Making explores how uncertainty is interpreted and used by policy makers, experts and politicians. It argues that conventional notions of rational, evidence-based policy making - hailed by governments and organisations across the world as the only way to make good policy - is an impossible aim in highly complex and uncertain environments; the blind pursuit of such a 'rational' goal is in fact irrational in a world of competing values and interests. The book centres around two high-profile and important case studies: the Iraq war and climate change policy in the US, UK and Australia. Based on three years' research, including interviews with experts such as Hans Blix, Paul Pillar, and Brian Jones, these two case studies show that the treatment of uncertainty issues in specialist advice is largely determined by how well the advice fits with or contradicts the policy goals and orientation of the policy elite. Instead of allowing the debates to be side-tracked by arguments over whose science or expert advice is 'more right', we must accept that uncertainty in complex issues is unavoidable and recognise the values and interests that lie at the heart of the issues. The book offers a 'hedging' approach which will enable policy makers to manage rather than eliminate uncertainty.
Why is uncertainty so important to politics today? To explore the underlying reasons, issues and challenges, this book’s chapters address finance and banking, insurance, technology regulation and critical infrastructures, as well as climate change, infectious disease responses, natural disasters, migration, crime and security and spirituality and religion. The book argues that uncertainties must be understood as complex constructions of knowledge, materiality, experience, embodiment and practice. Examining in particular how uncertainties are experienced in contexts of marginalisation and precarity, this book shows how sustainability and development are not just technical issues, but depend deeply on political values and choices. What burgeoning uncertainties require lies less in escalating efforts at control, but more in a new – more collective, mutualistic and convivial – politics of responsibility and care. If hopes of much-needed progressive transformation are to be realised, then currently blinkered understandings of uncertainty need to be met with renewed democratic struggle. Written in an accessible style and illustrated by multiple case studies from across the world, this book will appeal to a wide cross-disciplinary audience in fields ranging from economics to law to science studies to sociology to anthropology and geography, as well as professionals working in risk management, disaster risk reduction, emergencies and wider public policy fields.