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Oxford Law Citator
Contents
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Preliminary Material
Dedication
Foreword by Michael Wood
Preface
Table of Contents
Table of Cases
International Court of Justice/Permanent Court of International Justice
International Criminal Tribunal for the Former Yugoslavia
International Criminal Tribunal for Rwanda
Special Tribunal for Lebanon
World Trade Organization Appellate Body
European Court of Human Rights
Inter-American Court of Human Rights
Inter-American Commission on Human Rights
Germany-Venezuela Mixed Claims Commission
Eritrea-Ethiopia Claims Commission
Ad Hoc Arbitrations
Domestic Courts
Federal Republic of Germany
Hong Kong
South Africa
United Kingdom
United States
Table of Treaties
Main Text
Introduction
I The Persistent Objector Rule in Doctrine: Ubiquity and Critique
II The Commonly Accepted Elements of the Persistent Objector Rule
III Voluntarism: The Commonly Advanced Rationale for the Rule
IV A Socio-Legal Positivist Approach
V A Focus on State Practice
VI The Structure of This Book
Part I The Origin and Legal Source of the Persistent Objector Rule
1 The History and Emergence of the Persistent Objector Rule
I The Emergence of the Persistent Objector Rule in Academic Writing
II The Persistent Objector Rule in Pre-1945 Case Law
III The Persistent Objector Rule in Pre-1945 State Practice
IV Conclusion
2 The Persistent Objector Rule in Case Law and State Practice Post-1945
I The Persistent Objector Rule in the Decisions of Courts and Tribunals After 1945
i The Asylum and Fisheries cases as leading authorities
ii Critiques of the authority provided by the Asylum and Fisheries cases
iii The persistent objector rule in jurisprudence beyond the Asylum and Fisheries cases
II The Persistent Objector Rule in State Practice After 1945
III Conclusion
Part II The Criteria for the Operation of the Persistent Objector Rule
3 The Objection Criterion
I The Objector Must Be a State
II Objection to What?
III The Communication of Objection
IV The Form of Objection
i Words or deeds?
ii What ‘types’ of activities can constitute objection?
V Conclusion
4 The Persistence Criterion
I Objection Must Be Repeated
II The Rationale for the Persistence Criterion
III How Persistent is ‘Persistent’?
IV Conclusion
5 The Consistency Criterion
I Objection Must Be Consistent
II The Rationale for the Consistency Criterion
III ‘Absolute’ vs. ‘General’ Consistency
IV Silence as Inconsistency
V Substantive Consistency
VI Conclusion
6 The Timeliness Criterion
I Timeliness and the Subsequent Objector Rule
i General support for the timeliness criterion
ii The source of the timeliness criterion
II The Commonly Advanced Justifications for the Timeliness Criterion Are Unsatisfactory
III Pragmatic Justifications for the Timeliness Criterion and the Justifications Advanced for the Subsequent Objector Rule
i The destabilizing implications of the subsequent objector rule
ii The implications of the subsequent objector rule for the development of legal norms
iii The implications of the subsequent objector rule for norm violation
iv Proposed safeguards for subsequent objection
v Prioritizing pragmatism over voluntarism
IV The Timeline of a Customary Norm’s Development
i Conceptualizing the timeline for new norms of customary international law
ii The problem of identifying the key points on the timeline
V States That Are Unaware of the Norm’s Gestation
VI States With No Interest in the Emerging Norm
VII ‘Instant’ or ‘Accelerated’ Customary International Law
VIII New States
IX Restrictions on When States Can Object Even Within the ‘Period of Emergence’?
i Is objection from the very outset required?
ii How late can a state object?
X Continued Objection Post-Crystallization
XI Conclusion
Part III The Limitations and Role of the Persistent Objector Rule
7 Peremptory Norms and Persistent Objection
I The Nature of Peremptory Norms
II Clarifying the Majority View: Peremptory Norms and the ‘Decay’ of Persistent Objector Status
III The Rationale for the Majority View on Persistent Objection and Peremptory Norms
IV Persistent Objection to Peremptory Norms in State Practice
i The examples: apartheid and the juvenile death penalty
ii Does state practice actually support the proposition that peremptory norms trump persistent objection?
V Persistent Objection to the Jus Cogens Project
VI Conclusion
8 Maintaining Exemption: ‘Fundamental’ Norms and Extra-Legal Factors
I The De Jure Applicability of the Persistent Objector Rule to (Non-Peremptory) ‘Fundamental’ Norms
i Arguments for and against prohibiting persistent objection in relation to ‘fundamental’ norms
ii Dubious assertions of peremptory status
iii Persistent objection to ‘fundamental’ norms in state practice
II The Difficulty in Maintaining Exemption: Extra-Legal Factors
i The claim that it is virtually impossible to maintain objection, de facto
ii Extra-legal factors that may influence the objector’s decision to keep objecting
iii State practice illustrating the influence of extra-legal factors on maintaining exemption
III Conclusion
9 The Role and Value of the Persistent Objector Rule
I Voluntarist Theory and the Persistent Objector Rule
i The commonly advanced role for the rule: plugging the voluntarist ‘gap’
ii The persistent objector rule is flawed as the guardian of voluntarism
iii Voluntarism itself is flawed
II The Communitarian Alternative to Voluntarism and Its Perception of the Persistent Objector Rule
III The Chaotic Reality of Customary International Law
IV The Limits of a Theoretical Approach to Assessing the Role of the Persistent Objector Rule
V A Focus on the Practical Benefits of the Rule
i Rational choice theory
ii The balancing act at the heart of the persistent objector rule
VI The Persistent Objector Rule as a Safety Valve
i Fear of majority rule
ii Reducing the risks of violation, disengagement, or escalation
iii Allowance for short-term adjustment
VII The Persistent Objector Rule and the Development of Customary International Law
i The emergence of new norms
ii Predictability
iii The dialectical value of persistent objection: improving the scrutiny and quality of norms
VIII The Role of State Perception
IX Conclusion
Conclusion
Further Material
Bibliography
Index
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Table of Cases
From:
The Persistent Objector Rule in International Law
James A. Green
Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Published in print:
01 March 2016
ISBN:
9780198704218
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