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9780415418768_1_pre.qxd 28/11/2008 02:04PM Page i Routledge Handbook of International Law Routledge Handbook of International Law provides a definitive global survey of the interaction of international politics and international law. Each chapter is written by a leading expert and provides a state-of-the-art overview of the most significant areas within the field. This highly topical collection of specially commissioned papers from both established author- ities and rising stars is split into four key sections: (cid:2) The Nature of International Law including the interaction between the disciplines of international law and international relations (cid:2) Evolution of International Law progressing from the ancient world to present day (cid:2) Law and Power in International Society discussing topical issues such as the war in Iraq and the international criminal court (cid:2) Key Issues in International Law including international refugee law, indigenous rights, intellectual property, trade and the challenges presented by ‘new terrorism’ A comprehensive survey of the state of the discipline, Routledge Handbook of International Law is an essential work of reference for scholars and practitioners of international law. David Armstrong is Emeritus Professor of International Relations at the University of Exeter. His research interests include the historical evolution of international legal norms and institu- tions. He is the author and co-author of a number of books and was formerly editor of the Review of International Studies. Contributors: David Armstrong, Mashood Baderin, Robert J. Beck, David J. Bederman, Andrea Bianchi, Allen Buchanan, Anthony Carty, Marie-Claire Cordonier Segger, Anthony D’Amato, Allison Danner, Karen Engle, Markus W. Gehring, Edward Keene, Martti Koskenniemi, Friedrich Kratochwil, Hélène Lambert, Ikechi Mgbeoji, John F. Murphy, Amrita Narkilar, Liliana Obregón, Obiora Chinedu Okafor, Andreas Paulus, Russell Powell, Wayne Sandholtz, William A. Schabas, Shirley V. Scott, Dinah Shelton, Beth Simmons, Gerry Simpson and Marc Weller. 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page ii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page iii Routledge Handbook of International Law Edited by David Armstrong EDITORIAL BOARD Jutta Brunée Michael Byers John H. Jackson David Kennedy 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page iv First published 2009 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Avenue, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” © 2009 Selection and editorial matter, David Armstrong; individual contributors, their contributions All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Library of Congress Cataloging-in-Publication Data Routledge handbook of international law / edited by David Armstrong. p. cm. ISBN 978-0-415-41876-8 – ISBN 978-0-203-88462-1 1. International law–Political aspects. 2. International law. I. Armstrong, J. D. (James David), 1945– KZ1250.R68 2008 341–dc22 2008027374 ISBN 0-203-88462-0 Master e-book ISBN ISBN 13: 978-0-415-41876-8 (hbk) ISBN 13: 978-0-203-88462-1 (ebk) ISBN 10: 0-415-41876-3 (hbk) ISBN 10: 0-203-88462-0 (ebk) 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page v Contents Author biographical sketches viii Preface xiv List of abbreviations xv Legal cases xxii Reports, legislation and treaties xxvi Introduction David Armstrong 1 Section I The nature of international law 11 1 International law and international relations scholarship 13 Robert J. Beck 2 International law and international community 44 Andreas Paulus 3 Legal theory and international law 55 Friedrich Kratochwil 4 Soft law 68 Dinah Shelton 5 The practice of international law 81 Anthony Carty 6 International law as a unitary system 101 Anthony D’Amato v 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page vi CONTENTS Section II Evolution of international law 113 7 International law in the ancient world 115 David J. Bederman 8 The age of Grotius 126 Edward Keene 9 The legacy of the nineteenth century 141 Martti Koskenniemi 10 Latin American international law 154 Liliana Obregón 11 Religion and international law: an analytical survey of the relationship 165 Mashood Baderin 12 The struggle for an international constitutional order 179 Marc Weller Section III Law and power in international society 195 13 Law and force in the twenty-first century 197 Gerry Simpson 14 The nature of US engagement with international law: making sense of apparent inconsistencies 210 Shirley Scott 15 The Iraq war and international law 222 Wayne Sandholtz 16 The International Criminal Court 239 Beth Simmons and Allison Danner Section IV Key issues in international law 247 17 Fidelity to constitutional democracy and to the rule of international law 249 Allen Buchanan and Russell Powell 18 International crimes 268 William A. Schabas 19 Challenges of the “new terrorism” 281 John F. Murphy 20 Law and legitimacy: the World Trade Organization 294 Amrita Narlikar vi 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page vii CONTENTS 21 Attainments, eclipses and disciplinary renewal in international human rights law: a critical overview 303 Obiora Chinedu Okafor 22 Colonial origins of intellectual property regimes in African states 316 Ikechi Mgbeoji 23 Indigenous rights claims in international law: self-determination, culture and development 331 Karen Engle 24 International refugee law: dominant and emerging approaches 344 Hélène Lambert 25 Sustainable development in international law 355 Marie-Claire Cordonier Segger 26 WTO law and sustainable development 375 Markus W. Gehring 27 Looking ahead: international law’s main challenges 392 Andrea Bianchi Bibliography 410 Index 452 vii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page viii Author biographical sketches David Armstrong is Emeritus Professor of International Relations at the University of Exeter. He has published numerous books and articles on many aspects of international relations, including Chinese foreign policy, international organization and revolutionary states. He is a former editor of the Review of International Studies.For the last 10 years he has focused on international law and his most recent book is International Law and International Relations (co-authored with Theo Farrell and Hélène Lambert: Cambridge University Press 2007). Mashood Baderin is Professor of Law at the School of Law of the School of Oriental and African Studies (SOAS), University of London. He is also a barrister and solicitor of the Supreme Court of Nigeria. He is founding co-editor of the Muslim World Journal of Human Rights. He researches in the areas of Islamic law, international law, international and comparative human rights law, human rights and Islamic law, with particular interest in the interaction between international law, human rights law and Islamic law in Muslim states. His most recent book is International Law and Islamic Law (Ashgate 2008). Robert J. Beck is Associate Professor of Political Science at the University of Wisconsin – Milwaukee where he teaches international law. He is author of The Grenada Invasion (1993), co-author of International Law and the Use of Force (1993) and co-editor of International Rules (1996) and International Law and the Rise of Nations (2002) and author of numerous articles in journals including International Security, Review of International Studies, Virginia Journal of International Law and the International Journal of Refugee Law. David J. Bederman is the K.H. Gyr Professor of Private International Law in the Emory University School of Law, Atlanta, Georgia. He holds the Diploma of the Hague Academy of International Law and has also served as a legal advisor at the Iran–US Claims Tribunal in The Hague. After a stint in private practice, he accepted his current teaching appointment at Emory.He is a member of the board of editors of many international law journals, including the American Journal of International Law. His contribution is based on portions of the author’s previous volume, International Law in Antiquity(Cambridge University Press 2001).He is also the author of The Spirit of International Law (University of Georgia Press 2002); The Classical viii 9780415418768_1_pre.qxd 26/11/2008 02:34PM Page ix AUTHOR BIOGRAPHICAL SKETCHES Foundations of the American Constitution (Cambridge University Press 2008) and Globalization and International Law (Palgrave-Macmillan 2008). Andrea Bianchiis Professor of Public International Law at the Graduate Institute of International Studies in Geneva and the Catholic University in Milan. His publications range from international human rights law, international economic law, the law of jurisdiction and jurisdic- tional immunities to international environmental law, state responsibility and the law of treaties. He is currently working on international human rights before municipal courts, the status of the precautionary principle in international and European law and the enforcement of international law norms against terrorism. He edited Enforcing International Law Norms against Terrorism (Hart 2004). Allen Buchanan is James B. Duke Professor of Philosophy and Investigator, Institute for Genome Sciences and Policy, Duke University. Apart from being the author of many books and articles he was official Staff Philosopher for the President’s Commission for the Study of Ethical Problems in Medicine and Behavioral and Biomedical Research, 1982, Consultant to the Office ofTechnology Assessment of the US Congress, Staff Consultant to the President’s Advisory Committee on Human Radiation Experiments, 1994, Consultant to the Transi- tional Government of Ethiopia, Consultant to the European High Commissioner on National Minorities in the Hague and was commissioned by Canadian Government, Office of the Privy Council, to write a commentary on the Canadian Supreme Court Reference Ruling on the Possible Secession of Quebec, 1997. He served on the Advisory Council for the National Human Genome Research Institute, 1997–2000. Anthony Cartyis Professor of Public Law at the University of Aberdeen. He has published various books such as The Decay of International Law (Manchester University Press 1986), Post- Modern Law (Edinburgh University Press 1990), Was Ireland Conquered? (Pluto Press 1996) and Philosophy of International Law (Edinburgh University Press 2007). His interests and articles span history, philosophy, politics, theology and law. He has been a Visiting Professor, inter alia, at the University of Tokyo, Paris I and II, the Free University of Berlin and the Autonomous University of Madrid. Marie-Claire Cordonier Segger is Director of the Centre for International Sustainable Development Law (CISDL), a Fellow of the Lauterpacht Centre for International Law at Cambridge University and directs international affairs at the Canadian Ministry of Natural Resources. Sheserves onthe World Future Council andother bodies working on sustainable development issues. She has authored or edited 12 volumes and numerous articles on sustainable development. Anthony D’Amatois the Leighton Professor of Law at Northwestern University School of Law, where he teaches courses in international law, international human rights, analytic jurispru- dence and justice. He is admitted to practice before the US Supreme Court, the US Tax Court and several US Circuit Courts of Appeal and is a member of the New York Bar. Professor D’Amato was the first American lawyer to argue (and win) a case before the European Court of Human Rights in Strasbourg and he has litigated a number of human rights cases around the world. He was lead counsel at the International Criminal Tribunal for the former Yugoslavia. He is the author of over 20 books and over 110 articles. ix