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International Law of Cooperation and State Sovereignty

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Delbrück, J. (Ed.) (2002). International Law of Cooperation and State Sovereignty. Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, May 23-26, 2001. Duncker & Humblot. https://doi.org/10.3790/978-3-428-50836-5
Delbrück, Jost. International Law of Cooperation and State Sovereignty: Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, May 23-26, 2001. Duncker & Humblot, 2002. Book. https://doi.org/10.3790/978-3-428-50836-5
Delbrück, J (ed.) (2002): International Law of Cooperation and State Sovereignty: Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, May 23-26, 2001, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-50836-5

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International Law of Cooperation and State Sovereignty

Proceedings of an International Symposium of the Kiel Walther-Schücking-Institute of International Law, May 23-26, 2001

Editors: Delbrück, Jost

Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel, Vol. 139

(2002)

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Abstract

It was in the early 1990s, more precisely in 1991 shortly after the end of the Cold War, that the Walther-Schücking-Institute at Kiel University - within the framework of its biennial international conferences - started a series of international symposia which, in retrospect, can be subsumed under the overall heading of »international law at the frontiers«. The aim of these thematically closely related symposia, bringing together eminent international legal scholars, was to explore the structural changes that the international system and its legal order were undergoing due to the forces of globalization and the political upheavals following the end of the ideological division of the world. The present papers and proceedings of the fifth conference of the series of symposia brings this project to an end. The authors are exploring the meaning of the concept of the international law of cooperation and the obligation to cooperate in three important areas of modern international law: the international protection of human rights (Lori Fisler Damrosch, New York) international economic and environmental law (Christian Tietje, Halle) and international dispute settlement (Anne Peters, Basel). The implications of the state obligations to cooperate for the conceptualization of sovereingty in present international law are the subject of the fourth paper (Christoph Schreuer, Wien). Although the host of information, provided by the rapporteurs, revealed the immense importance of obligations to cooperate in international conventional law as a steering tool in international relations it also became clear that a general concretization of the meaning of obligations to cooperate cannot presently be established - if ever. The concrete meaning of the obligation to cooperate has to be interpreted within the actual context in which such obligations are stipulated. It was also concluded that obligations to cooperate surely constitute major restraints on the sovereign freedom of action of states. However, they are not incompatible with the notion of state sovereignty as it is recognized under modern international law. States today are embedded in a network of institutionalized legal regimes under which sovereignty - in contrast to the pre-World War I era - cannot legally be exercised at will. Sovereignty has to be re-conceptualized in the light of the international law of cooperation and the ensuing obligations to cooperate that at are crucial for the development on an International Civil Society under the rule of law.

Table of Contents

Section Title Page Action Price
Foreword 5
Contents 7
Abbreviations 8
Opening Addresses 11
Rainer Hofmann 11
Jost Delbrück 12
Lori Fisler Damrosch: Obligations of Cooperation in the International Protection of Human Rights 15
A. International Treaties Specifying Obligations of Cooperation Concerning Human Rights 17
B. Concepts of Cooperation in the Field of Human Rights 23
C. Practice, Especially of the United States, in Human Rights Cooperation 30
D. Conclusion 42
Christian Tietje: The Duty to Cooperate in International Economic Law and Related Areas 45
A. Introduction 46
B. International Institutional Cooperation 49
C. Cooperation between International Organizations and States 55
D. Interstate Cooperation 59
E. Concluding Observations: The Scope and Nature of the Duty to Cooperate in International Economic Law and Related Areas 63
Discussion 66
Anne Peters: Cooperation in International Dispute Settlement 107
A. Scope of Inquiry 107
I. „International" Dispute Settlement 108
II. „Cooperation" in Dispute Settlement 111
B. The Traditional Canon of Dispute Settlement Strategies 113
I. „Political" Means 113
1. Negotiation 113
2. Fact-finding 114
3. Mediation, Good Offices, and Conciliation 115
II. Legal Means 117
1. The Blurry Distinction Between Courts and Arbitration 117
2. Arbitration 118
a) State-State Arbitration 118
b) Mixed Arbitration 119
c) The Internationalization of Cooperational Duties in Arbitration 121
C. The Principle of Free Choice 122
I. The Persistence of the Principle 122
II. The Problem of Impasse 123
III. Distinction: No General Duty to Negotiate Absent a Dispute 124
D. Exhaustion of Negotiations as a Precondition for Resort to Adjudication 125
I. Negotiation Clauses and Recent Applications 125
II. The Problem of „Exhaustion" 127
III. No Customary Law Stepladder of Settlement Procedures 129
E. The Principle of Good Faith as a Source of Duties to Cooperate 131
F. Cooperation in Adjudication 133
I. Submission to Jurisdiction 133
1. Ex Post Submission to Adjudication 133
2. Ex Ante Optional Submission 134
3. Ex ante Submission qua Membership to a Material Treaty Regime 135
a) Examples 135
b) The Inadmissibility of Reservations to Compulsory Dispute Settlement Clauses 138
4. Moderations of the Consent Requirement 140
II. Cooperation to Resolve Conflicts of Jurisdiction 140
G. The Doctrine of Non-Frustration of Adjudication 142
I. Non-Appearance of a Party to a Dispute 142
II. Truncated Tribunals 145
H. Duties of Cooperation in International Criminal Justice 147
I. Cooperation with the ICTY 148
1. Evidence 149
a) General obligation to produce evidence 149
b) Extension to International Organizations 150
c) Exemption of the International Committee of the Red Cross 150
2. Surrender 151
II. Cooperation with the International Criminal Court 152
I. Two Antagonistic Trends in International Dispute Settlement 153
I. On the One Hand: Rise of Adjudication 153
1. More Cases, Appellate Levels, and New Courts 154
2. New Actors in Adjudication 155
II. On the Other Hand: New and Varied Political Mechanisms 156
1. Reception of ADR in the International Realm 157
2. Combined Political-Judicial Methods 157
3. Non-Adversarial Compliance Control by Non-Adjudicatory Bodies of the Material Conventions 158
4. Compulsory Conciliation 158
J. Conclusion: A Network of Duties to Cooperate in Dispute Settlement 159
Christoph Schreuer: State Sovereignty and the Duty of States to Cooperate – Two Incompatible Notions? (Summary and Comments) 163
A. Introduction 163
B. The Framework of Cooperation 165
C. Traditional Approaches 167
D. Obligations to Cooperate 169
E. How to Deal with Non-Cooperation 175
F. Unilateralism 177
G. Conclusion 179
Discussion 181
List of Participants 218