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Edited by Gian Luca Burci and Brigit Toebes
Moshe Hirsch and Andrew Lang
International legal scholarship has increasingly turned to various traditions of sociology and social thought to challenge the constraints of orthodox international legal thinking, and to develop new kinds of thinking, more suitable for the rapidly transforming social and political landscape in which contemporary international lawyering is done. This Research Handbook seeks to showcase this work, marking the present fertile period of creative borrowing between the disciplines of international law and sociology with a collection of works at its cutting edge. Each contributor to the Research Handbook situates their intervention within a particular tradition of sociological or social theoretical thinking, and then explains how and why this tradition is useful in thinking about some contemporary development, or problem, within the domain of international law and governance. This introductory chapter seeks to clear the ground for the contributions which follow, by outlining a map of some major theoretical conversations within sociology. It identifies three core approaches which are most commonly identified in sociological literature, and briefly reflects on a number of early engagements between international law and sociology (mainly the writings of Max Huber and Julius Stone). It then argues that more recent engagements between international law and social thought stem in significant part from attempts to understand the nature, dynamics, and stakes of globalization as it relates to law, and reflect the main arena in which the significance of post-structural social theory for international law continues to be negotiated and defined.
Gabriel M. Lentner
The United Nations Security Council (SC) referral to the International Criminal Court (ICC) is arguably the most fundamental operational relationship between the United Nations (UN) and the ICC. It allows the Court to exercise jurisdiction over situations in states not parties to the Rome Statute of the ICC (the Statute, Rome Statute) provided for in art 13(b) of the Statute. In contrast to referrals by states parties (art 14) or the Prosecutor acting proprio motu (art 15), where jurisdiction is conferred to the ICC through the ratification of the Rome Statute, the SC referral would confer jurisdiction to the ICC over situations which it otherwise could not lawfully exercise.
Marcelo G. Kohen and Mamadou Hébié
This chapter introduces the international law framework applicable to territorial disputes and provides an overview of the entire content of the book. Starting with a definition of the terms that delimit the field of the present inquiry, Marcelo G. Kohen and Mamadou Hébié explore important cornerstones of the law applicable to territorial disputes. Thus, the authors proposes a method for analysing territorial disputes, before addressing the impact of the fundamental principles of international law on the settlement of territorial disputes. Among these principles, the authors assess the relevance of the principle of territorial integrity, of the right of peoples to self-determination and of the prohibition of the use of force. Finally, the authors explore the legal significance of technical rules of international law, such as the intertemporal law principle, the critical date and the rules governing evidence, in the assessment of territorial claims.
S Jayakumar, Tommy Koh, Robert Beckman, Tara Davenport and Hao Duy Phan
On 22 January 2013, the Philippines initiated compulsory arbitration against China under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) with regard to their disputes in the South China Sea. The Award on Jurisdiction and Admissibility issued on 29 October 2015 and the Final Award issued on 12 July 2016 have been the most anticipated decisions from an international tribunal in the law of the sea, since the entry into force of UNCLOS in 1994. This introductory chapter provides an overview of UNCLOS dispute settlement mechanisms, the background to the South China Sea disputes and the key legal issues in the South China Sea Arbitration necessary to understand the legal implications of the Awards.
Marcelo G. Kohen and Mamadou Hébié
In this introduction, Marcelo G. Kohen and Mamadou Hébié present the topic and explain the main methodological choices that the editors have made to structure the international law framework applicable to territorial disputes.