Wednesday, June 29, 2005

Latest International Scholarship

While our readership is clearly of the kind who is more than able to track down interesting new scholarship on its own, I thought I would plug a few new entries worth checking out at SSRN. (Tip to Legal Theory Blog)

INTERNATIONAL ORDER: ESSAYS ON RAWL'S LAW OF PEOPLES, Blackwell, Oxford, 2005) by Philip Pettit.

Social ontology does not drive political theory as axioms drive a theorem, but it can have an important shaping or constraining effect; this fits with Rawls's idea that our views on normative and related topics should be in 'wide reflective equilibrium' This paper tries to document the shaping effect of Rawls's social ontology on his theory of international justice. It begins with a characterization of Rawls’s rejection of cosmopolitanism. It reviews the claims that he makes about peoples and tries to articulate the ontology of peoples that they support. And then in the final section it shows how that ontology helps to explain his position on cosmopolitanism.

and from our friend at Opinio Juris:

Christopher Borgen (St. John's University - School of Law), Resolving Treaty Conflicts (George Washington International Law Review, Vol. 37, 2005).

If treaties do not hang together, then the international legal system will fall apart. But as treaties proliferate, they increasingly overlap and frustrate each other's goals. This article assesses whether there are effective rules and tools that policymakers can use to avert or resolve treaty conflicts in general, regardless of the specific policy-areas at issue. It finds that the Vienna Convention on the Law of Treaties (VCLT) neither addresses the types of conflicts that are relevant today nor is it successful in resolving certain types of conflicts it does address. In order to be a more coherent system, international law needs rules and procedures that assist States in avoiding or resolving treaty conflicts in a principled manner, without necessarily having to resort to international tribunals. This requires more than just a revision of the VCLT but rather a more rigorous approach to envisioning how treaties affect one another, a practice of drafting treaty clauses that takes this interplay into account, a purposive method of treaty interpretation that will better spot potential conflicts, and the acceptance and application of "default rules" in cases of conflict.

The article has five main parts. Part I sets out a typology of treaty conflicts. Part II describes classic methods of conflict avoidance and resolution and how these norms have not been applied consistently and are of little use in the types of conflicts that are now common. Part III assesses the VCLT and shows, through recent examples from a variety of substantive areas, that the VCLT is not equipped for the types of problems States face today. Part IV reconsiders what one may learn from analogies to contractual and legislative conflicts. Part V draws from the previous sections to suggest options in addressing treaty conflicts and considers the implications of the preceding discussion on the status of international law as a coherent legal system.

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