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QDI S4E Driver
It reiterates something of a truism. Difference of opinions and interpretations of international law do exist.
They are the salt of international law as QDI S4E any legal system. Such differences do not, in and of themselves undermine the unity and universality of international law as a legal system.
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They contribute to its development, adaption, and fine-tuning in changing circumstances. That said, those differences may shift from the physiology to the pathology.
They might become a matter of concern if QDI S4E remain unsolved due to a lack of viable mechanisms and institutions. A legal order that is not in order because of an irremediable uncertainty QDI S4E the content of its norms and precepts can hardly fulfil its chief function of QDI S4E guidance and restraining conduct. As such, it is doomed to irrelevance.
Interesting, however, is that under the CIL approach, the existence of different perspectives and interpretations is not perceived as a normative issue that ought to be remedied through appropriate rules, mechanisms, and institutions.
As such, they could be closer to personal or professional interests than truth. For Roberts, however, the latter attitude is not necessarily the rule. The diversity of opinions is then a QDI S4E and a sociological reality QDI S4E be reflected upon, which commands a change — not of rules — but of attitudes among international lawyers.
Under a CIL approach, differences among international lawyers could be identified, understood, explained, and, ultimately, defused. CIL does not exist only in the mere application of the idea of comparative QDI S4E to the field of public QDI S4E law, as illustrated in the previous section. More than that, the CIL approach seems to be calling for a journey down a somewhat different trajectory from classical comparative law. First, CIL seeks to understand differences of interpretation and approaches within the same legal system, that is, international law, and not only in different legal systems as in classical comparative law.
Moreover, as I understand it, that which is to be compared under the above definition is not only law — however broadly defined that may be.
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That QDI S4E includes the opinion of private individuals because the majority of international lawyers are not governmental officials. Finally, the purpose of the comparative exercise is to understand and explain why international lawyers think of and apply international law in the way they do rather than determining what law should be applied in a given context. As such, the CIL approach seems to be amounting to QDI S4E exercise more akin to sociological analysis rather than to legal analysis.
The fundamental question it asks is why a given claim is made, as opposed to whether it is valid or not.
QDI S4E It does not distinguish whether this claim is made by a public official or by QDI S4E private individual. Assuming that one has correctly grasped the gist of this dimension of the CIL project, questions arise. First, one wonders whether the sociological and political exigencies so perceptively articulated by Roberts can be effectively tackled by a legal methodology such as CIL.
What Roberts has identified are not legal problems per se although they do have legal consequencesbut they may be regarded as flaws in the professionalism and education of contemporary international lawyers. The relationship between Comparative International Law and the normativity of International Law From a substantive perspective, the question arises as to how the aspirations and values that CIL is meant to serve relate to those already codified within primary international law rules.
From a procedural perspective, it can be asked whether CIL may contribute in some way to the normativity of international law and hence to its much-needed effectiveness. The relationship between the CIL approach and what may be referred to as the normativity of international law is presented by Roberts as one of neutrality: CIL provides no criteria, for instance, to distinguish between claims made by States, and international lawyers acting in an official capacity or in a private capacity as scholars.
Moreover, not all the opinions can be validly vented by actors, QDI S4E of the reasons QDI S4E the basis of which they have been formulated. It is a set of reasons that may prompt one to agree or disagree with a given claim, thereby conferring on it legitimacy without, however, relying on normative criteria, but rather on a variety of policy considerations. What is then necessary is some norm of coordination that explains how the wealth of information collected through comparison may impact on existing norms and rules of international law, and whether, for instance, it may justify a departure from them or not.
The latter is given by the factual reality that there are rules and principles agreed upon by States and consolidated in international treaties or norms of customary law.
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The CIL approach focuses on the subjective dimension of international law. Hence, my concern, which can only be flagged for reasons of space, QDI S4E that the CIL approach could attribute more importance to the practice of lawyers rather than to the practice of States as if interpretations provided by States on the content of international law were QDI S4E par with those of international lawyers.
QDI S4E more subjective a legal discipline becomes, the more it loses its capacity to bind all its subjects equally and thus, ultimately, its normativity.
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