Custom, Power and the Power of Rules: International Relations and Customary International Law

by Michael Byers

• ISBN13: 9780521634083
• ISBN10: 0521634083
• Format: Paperback
• Copyright: 1999-03-13
• Publisher: Cambridge University Press

Summary

This book sets out to explain the most foundational aspect of international law in international relations terms. By doing so it goes straight to the central problem of international law--that although legally speaking all States are equal, socially speaking they clearly are not. As such it is an ambitious and controversial book that will be of interest to all international relations scholars and students and practitioners of international law.

Table of Contents

Foreword	ix
James Crawford
Preface	xi
Acknowledgments	xiv
Table of cases	xvi
Table of treaties	xix
List of abbreviations	xxi
Part 1 An interdisciplinary perspective
Law and power	3	(18)
Some working assumptions	13	(2)
Power and the study of international law	15	(3)
Opinio juris, the customary process and the qualifying effects of international law	18	(3)
Law and international relations	21	(14)
Regime theory and institutionalism	24	(7)
The `English School'	31	(4)
Power and international law	35	(18)
Power and the debate about whether resolutions and declarations constitute State practice	40	(3)
Power and the scope of international human rights	43	(2)
Power and critical legal scholarship	45	(1)
Power as a threat to international law?	46	(7)
Part 2 International law and the application of power
The principle of jurisdiction	53	(22)
Jurisdiction and customary international law	55	(14)
Internal rules	57	(3)
Boundary rules	60	(5)
External rules	65	(4)
Jurisdiction by analogy	69	(6)
The principle of personality	75	(13)
Diplomatic protection	79	(3)
The `international minimum standard'	82	(2)
Stateless persons and refugees	84	(2)
Non-governmental organisations	86	(2)
The principle of reciprocity	88	(18)
Reciprocity and the making of claims	90	(11)
The Truman Proclamation	90	(2)
The Arctic Waters Pollution Prevention Act	92	(5)
An Act to Amend the Coastal Fisheries Protection Act	97	(4)
Reciprocity and negative responses to claims	101	(1)
Reciprocity and persistent objection	102	(4)
The principle of legitimate expectation	106	(23)
Legitimate expectation, acquiescence and customary international law	106	(1)
Legitimate expectation and international institutions	107	(2)
Legitimate expectation and relative resistance to change	109	(1)
Legitimate expectation and mistaken beliefs in pre-existing rules	110	(10)
State immunity from jurisdiction	110	(4)
The breadth of the territorial sea	114	(6)
Legitimate expectation and judgments of the International Court of Justice	120	(4)
Legitimate expectation and treaties	124	(5)
Part 3 The process of customary international law
Fundamental problems of customary international law	129	(18)
The chronological paradox	130	(3)
The character of State practice	133	(3)
The epistemological circle	136	(6)
Inferred consent	142	(5)
International relations and the process of customary international law	147	(19)
The determination of `common interests'	151	(5)
`Cost' and the identification of legally relevant State practice	156	(1)
Repetition and relative resistance to change	157	(3)
Time and repetition	160	(2)
The conspicuous character of some common interests	162	(4)
Related issues	166	(38)
Customary international law and treaties	166	(14)
The persistent objector	180	(3)
Jus cogens	183	(12)
Jus cogens and erga omnes rules	195	(9)
Conclusions	204	(18)
Distinguishing the `New Haven School'	207	(3)
A response to Koskenniemi	210	(4)
The interdisciplinary enterprise	214	(2)
Reconsidering the `realist' assumptions	216	(6)
Bibliography	222	(25)
Index	247