Oscar M. Garibaldi
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199571345
- eISBN:
- 9780191705472
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199571345.003.0015
- Subject:
- Law, Public International Law, Private International Law
This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent ...
More
This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent regime, ceases to be useful when it dictates conclusions that are inconsistent with the text of Article 72 and the context of the ICSID Convention. At that point, applying the contract analogy to Article 72 becomes an instance, in the context of legal discourse, of what J. S. Mill called the fallacy of false analogies. Recent studies have spent more time on the development of alternative theories than on pointing out the limits of the contract analogy. Studies must not only offer an alternative analysis based on those rules of treaty interpretation, but show why the opposing theories are inadequate. The chapter presents an analysis of this issue supplemented with brief observations on the limits of the contract analogy and on the inadequacy of other theories that, though by no means attributable to Professor Schreuer, may tempt those searching for an extra-textual justification for interpreting ‘consent’ in Article 72 as an ‘agreement to arbitrate’.Less
This chapter argues that Professor Schreuer's interpretation of Article 72 is incorrect. The contract analogy, which is unobjectionable as an aid to explaining the basic workings of the consent regime, ceases to be useful when it dictates conclusions that are inconsistent with the text of Article 72 and the context of the ICSID Convention. At that point, applying the contract analogy to Article 72 becomes an instance, in the context of legal discourse, of what J. S. Mill called the fallacy of false analogies. Recent studies have spent more time on the development of alternative theories than on pointing out the limits of the contract analogy. Studies must not only offer an alternative analysis based on those rules of treaty interpretation, but show why the opposing theories are inadequate. The chapter presents an analysis of this issue supplemented with brief observations on the limits of the contract analogy and on the inadequacy of other theories that, though by no means attributable to Professor Schreuer, may tempt those searching for an extra-textual justification for interpreting ‘consent’ in Article 72 as an ‘agreement to arbitrate’.
Guy Fiti Sinclair
- Published in print:
- 2017
- Published Online:
- April 2017
- ISBN:
- 9780198757962
- eISBN:
- 9780191817861
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198757962.001.0001
- Subject:
- Law, Public International Law
This book examines how international organizations have expanded their powers over time without formally amending their founding treaties. It argues that this expansion has been undertaken and ...
More
This book examines how international organizations have expanded their powers over time without formally amending their founding treaties. It argues that this expansion has been undertaken and rationalized as necessary to a process of making modern states on a broadly Western model; and that international law has played a central role in that process. Adopting an interdisciplinary sociolegal approach, it supports this claim through detailed investigations of historical episodes involving three very different organizations: the beginnings of technical assistance in the International Labour Organization from the 1920s until the end of World War II; the emergence of United Nations peacekeeping in the 1950s and early 1960s; and the World Bank’s “turn to governance,” which reached an apotheosis in the 1990s. The book draws on a wide range of original institutional and archival materials, bringing to light little-known aspects of each organization’s activities, identifying continuities in the ideas and practices of international governance across the twentieth century, and speaking to a range of pressing theoretical questions in present-day international law and international relations. In tracing the interaction of legal, moral, and expert modes of authority exercised by each organization, the book illuminates the intellectual history of international organizations law and shows how analogies to constitutional and administrative law have acquired an enduring potency in international law.Less
This book examines how international organizations have expanded their powers over time without formally amending their founding treaties. It argues that this expansion has been undertaken and rationalized as necessary to a process of making modern states on a broadly Western model; and that international law has played a central role in that process. Adopting an interdisciplinary sociolegal approach, it supports this claim through detailed investigations of historical episodes involving three very different organizations: the beginnings of technical assistance in the International Labour Organization from the 1920s until the end of World War II; the emergence of United Nations peacekeeping in the 1950s and early 1960s; and the World Bank’s “turn to governance,” which reached an apotheosis in the 1990s. The book draws on a wide range of original institutional and archival materials, bringing to light little-known aspects of each organization’s activities, identifying continuities in the ideas and practices of international governance across the twentieth century, and speaking to a range of pressing theoretical questions in present-day international law and international relations. In tracing the interaction of legal, moral, and expert modes of authority exercised by each organization, the book illuminates the intellectual history of international organizations law and shows how analogies to constitutional and administrative law have acquired an enduring potency in international law.
Edward Chukwuemeke Okeke
- Published in print:
- 2018
- Published Online:
- May 2018
- ISBN:
- 9780190611231
- eISBN:
- 9780190611262
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190611231.003.0010
- Subject:
- Law, Public International Law, Legal Profession and Ethics
This chapter examines the similarities and differences between the immunities of States and international organizations, as well as their interrelationship with diplomatic immunities. It also points ...
More
This chapter examines the similarities and differences between the immunities of States and international organizations, as well as their interrelationship with diplomatic immunities. It also points out the pitfalls of analogies among the various immunities. The analogy between the immunities of States and international organizations might have proved promising when international organizations came into existence in the twentieth century, but it is now fraught with pitfalls. In an attempt to restrict the jurisdictional immunity of international organizations, it has been analogized to State immunity, but such an analogy is inapt even though the immunity of international organizations had roots in diplomatic and State immunities. Although the immunity of international organizations originated as “a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations.”Less
This chapter examines the similarities and differences between the immunities of States and international organizations, as well as their interrelationship with diplomatic immunities. It also points out the pitfalls of analogies among the various immunities. The analogy between the immunities of States and international organizations might have proved promising when international organizations came into existence in the twentieth century, but it is now fraught with pitfalls. In an attempt to restrict the jurisdictional immunity of international organizations, it has been analogized to State immunity, but such an analogy is inapt even though the immunity of international organizations had roots in diplomatic and State immunities. Although the immunity of international organizations originated as “a general principle resting on the questionable analogy of diplomatic immunities; it has become a complex body of rules set forth in detail in conventions, agreements, statutes and regulations.”
Başak Çalı
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780199685097
- eISBN:
- 9780191765377
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685097.003.0003
- Subject:
- Law, Public International Law, Philosophy of Law
Chapter 2 presents the core argument of the book. It first discusses how we may go about identifying the conceptual characteristics of international law’s authority. It argues that discussions on the ...
More
Chapter 2 presents the core argument of the book. It first discusses how we may go about identifying the conceptual characteristics of international law’s authority. It argues that discussions on the authority of international law are largely modelled on discussions of the authority of domestic laws. It questions whether our concerns with the authority of law in a single state adequately carry over to the international realm. Chapter 2 then looks at how we can systematically think through the authority of international law as having the capacity to impose duties and confer powers on state officials. It illustrates the different types of duty that may be imposed on domestic authorities by international law. The chapter develops, first, the notion of the relational authority relationship and, second, the differentiated duties of obedience, respect, or rebuttal as a conceptual scheme that makes best sense of the authority of specific international laws.Less
Chapter 2 presents the core argument of the book. It first discusses how we may go about identifying the conceptual characteristics of international law’s authority. It argues that discussions on the authority of international law are largely modelled on discussions of the authority of domestic laws. It questions whether our concerns with the authority of law in a single state adequately carry over to the international realm. Chapter 2 then looks at how we can systematically think through the authority of international law as having the capacity to impose duties and confer powers on state officials. It illustrates the different types of duty that may be imposed on domestic authorities by international law. The chapter develops, first, the notion of the relational authority relationship and, second, the differentiated duties of obedience, respect, or rebuttal as a conceptual scheme that makes best sense of the authority of specific international laws.
