Abstract
The argument presented in the preceding eight chapters was propelled by the aim to overcome the dilemma posed by the dichotomy between mainstream public international law and critical theory of public international law. Mainstream public international law sees itself as a matter of imposing limitations on States but at the same time sees itself as based on the consent of States. In the words of the PCIJ in Mavrommatis Palestine Concessions, when dealing with the phrase ‘international obligations accepted by the Mandatory’, appearing in Article 11 of the Mandate for Palestine, it may be said that, in a sense, the whole body of international law has been accepted by States. Critical theory pointed out that, viewed in this way, rules of public international law must simultaneously fulfill two contradictory requirements: to restrict the freedom to act of States and, at the same time, to constitute an exercise of that freedom to act. But, while this criticism seems persuasive, critical theory of public international law did not provide an alternative conception. Its suggestion that the concept of public international law should rather be seen in terms of practical reasoning, left open the point that practical reasoning might, as much as international legal argument, be eclipsed by politics.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Mavrommatis Palestine Concessions, Judgment No. 2 of 30 August 1924, Series A.—No. 2, 24.
- 2.
Hüning 1998, pp. 101–104.
- 3.
Railway Traffic between Lithuania and Poland (Railway Sector Landwarów-Kaisiadorys), Advisory Opinion of 15 October 1931, Series A./B.—No. 42, 108, 112: ‘(…) a Resolution was adopted by the Council on December 10th, 1927, with the concurrence of the two Parties concerned.’; 116: ‘The two Governments concerned being bound by their acceptance of the Council’s Resolution (…)’; Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion of 7 June 1955, Separate Opinion Judge Klaestad, ICJ Reports 1955, 67, 87: ‘When the Union of South Africa, by a concurrent vote in the Council, gave an expression of its acceptance of a Resolution concerning reports and petitions relating to the Territory of South-West Africa, the Union Government became, by reason of that acceptance, legally bound to comply with the Resolution.’
- 4.
Weil 1992, pp. 66–81.
- 5.
Hüning 1998, pp. 83–84.
- 6.
Bleckmann 1978, passim.
- 7.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 392: ‘The existence of a number of sovereignties side by side places limits on the freedom of each State to act as if the others did not exist. These limits define an objective structural framework within which sovereignty must necessarily exist; the framework, and its defining limits, are implicit in the reference in “Lotus” to “co-existing independent communities”.’
- 8.
Kratochwil 1989, pp. 34–39, 205–248.
- 9.
Allott 1990, para 11.11.
- 10.
Chinkin 1993, pp. 39–44.
- 11.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Nyholm, Series A.—No. 10, 60–61: ‘The reasoning of the judgment appears to be that, failing a rule of positive law, the relations between States in the matter under consideration are governed by an absolute freedom. If this reasoning is followed out, a principle of public international law is set up that where there is no special rule, absolute freedom must exist. The basis of this reasoning appear to be that it is vaguely felt that, even outside the domain of positive public international law, the situation of fact as regards relations between nations in itself embodies a principle of public international law. But that is a confusion of ideas. In considering the existing situation of fact, a distinction should be drawn between that which is merely an international situation of fact and that which constitutes a rule of international law. The latter can be created only by a special process and cannot be deduced from a situation which is merely one of fact.’
- 12.
Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints Made against the United Nations Educational, Scientific and Cultural Organization, Advisory Opinion of 23 October 1956, Dissenting Opinion Judge Córdova, ICJ Reports 1956, 77, 160.
- 13.
Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A.—No. 22, 13; ‘Whereas the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties; as consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement.’; Mavrommatis Palestine Concessions, Judgment No. 2 of 30 August 1924, Dissenting Opinion Judge Pessôa, Series A.—No. 2, 88, 91.
Weil 1992, pp. 152–153.
- 14.
Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A.—No. 22, 18; Mavrommatis Palestine Concessions, Judgment No. 2 of 30 August 1924, Series A.—No. 2, 18.
- 15.
Lauterpacht 1933, Chap. V, para 21; Weil 1992, pp. 141–143; Zemanek 1997, paras 245, 609.
- 16.
Weil 1992, pp. 245–260.
- 17.
Case of the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, Series A.—No. 22, 15.
- 18.
Kolb 2006, para 8.
- 19.
Mosler 1974, pp. 288–292; Virally 1983, pp. 232–234.
- 20.
Lauterpacht 1933, part III, para 9.
- 21.
Elias 1980, pp. 296–302.
- 22.
Diversion of Water from the Meuse, Judgment of 28 June 1937, Series A./B.—No. 70, 4, 25: ‘The Court cannot refrain from comparing the case of the Belgian lock with that of The Netherlands lock at Bosscheveld. Neither of these locks constitutes a feeder, yet both of them discharge their lock-water into the canal, and thus take part in feeding it with water otherwise than through the treaty feeder, though without producing an excessive current in the Zuid-Willemsvaart. In these circumstances, the Court finds it difficult to admit that The Netherlands are now warranted in complaining of the construction and operation of a lock of which they themselves set an example in the past.’
- 23.
Diversion of Water from the Meuse, Judgment of 28 June 1937, Dissenting Opinion Judge Anzilotti, Series A./B.—No. 70, 4, 50: ‘I am convinced that the principle (…) inadimplenti non est adimplendum (…) is so just, so equitable, so universally recognized, that it must be applied in international relations also. In any case, it is one of these “general principles of law recognized by civilized nations” which the Court applies in virtue of Article 38 of its Statute.’
- 24.
Diversion of Water from the Meuse, Judgment of 28 June 1937, Separate Opinion Judge Hudson, Series A./B.—No. 70, 4, 76–77: ‘Article 38 of the Statute expressly directs the application of “general principles of law recognized by civilized nations”, and in more than one nation principles of equity have an established place in the legal system. (…) It must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply.’
- 25.
Koskenniemi 2005, pp. 355–364.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2013 J. A. Vos, The Netherlands
About this chapter
Cite this chapter
Vos, J.A. (2013). Conclusion: The Function of Public International Law as the Constituting of International Society Pursuant to Practical Reasoning. In: The Function of Public International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-861-3_16
Download citation
DOI: https://doi.org/10.1007/978-90-6704-861-3_16
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-90-6704-860-6
Online ISBN: 978-90-6704-861-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
