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"Joyner, Daniel"
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Why I Stopped Believing in Customary International Law
There has been a recent proliferation of scholarship on the development, identification, and determination of customary international law [CIL]. Much of this has focused on explication of the theoretical and practical problems inherent in the modern use of CIL as a source of international law. However, there are influential voices who argue that CIL nevertheless continues to play a necessary role in the international legal system, and that many of the problems that have been identified are exaggerated. This paper maintains that the problems which have been identified in the processes of identification and determination of CIL are of such a serious and institutionalized nature as to produce a presumptive distrust of any statement about what is or is not CIL. It argues that the process of identifying and authoritatively determining CIL must evolve to more objectively evidence the positive assent of states to the making of customary rules.
Journal Article
I. RECENT DEVELOPMENTS IN INTERNATIONAL LAW REGARDING NUCLEAR WEAPONS
This article examines a number of major developments in international law and State policy regarding nuclear weapons which have occurred over the past two years. However, in order to understand the context and significance of these developments, I must first very briefly address what has gone on previously in this area of international relations. I have argued elsewhere that over the course of the decade ending in 2008 the original balance of principles underlying the 1968 Nuclear Nonproliferation Treaty (NPT), which comprises the cornerstone of the nuclear non-proliferation legal regime, has been distorted, particularly by nuclear-weapon-possessing governments, led by the United States, in favor of a disproportionate prioritization of non-proliferation principles, and an unwarranted under-prioritization of peaceful use and disarmament principles.1 I also argue that this distortion of principled balance by nuclear weapon states has resulted in a number of erroneous legal interpretations of the NPT's provisions.
Journal Article
Non-proliferation Law and the United Nations System: Resolution 1540 and the Limits of the Power of the Security Council
This article argues that in passing Resolution 1540, the UN Security Council has confused the proper scope of its enforcement powers under Chapter VII with the proper scope of its long unused, limited, lawmaking powers under Article 26. It has thereby taken to itself by unilateral exercise of its Chapter VII powers a role which, under the Charter system, it is to share with both the General Assembly, in the exercise of its Article 11(1) powers, and the general membership of the United Nations, to whom it is directed under Article 26 to submit proposals for the creation of new international laws in the area of weapons proliferation.
Journal Article
Non-Proliferation Law as a Special Regime
The fragmentation of international law is an undeniable phenomenon and one that has met with increasing academic interest. This fragmentation is the result of the progressive expansion of both international legal activity and the subject-matter of international law. This expansion brings with it the risk of conflicting rules, principles and institutions. Non-Proliferation Law as a Special Regime focuses on weapons of mass destruction and aims to identify whether there are specific rules applying to this field that depart from the general rules of international law and the rules of other special regimes, in particular with regard to the law of treaties and the law of state responsibility. In providing a systematic analysis of a substantive area of international law and applying the theory of fragmentation and special regimes, the book contributes to the ongoing debate concerning one of the most topical issues in international law.
eBook
Non-Proliferation Law as a Special Regime
The fragmentation of international law is an undeniable phenomenon and one that has met with increasing academic interest. This fragmentation is the result of the progressive expansion of both international legal activity and the subject-matter of international law. This expansion brings with it the risk of conflicting rules, principles and institutions. Non-Proliferation Law as a Special Regime focuses on weapons of mass destruction and aims to identify whether there are specific rules applying to this field that depart from the general rules of international law and the rules of other special regimes, in particular with regard to the law of treaties and the law of state responsibility. In providing a systematic analysis of a substantive area of international law and applying the theory of fragmentation and special regimes, the book contributes to the ongoing debate concerning one of the most topical issues in international law.
eBook
RESTRUCTURING THE MULTILATERAL EXPORT CONTROL REGIME SYSTEM
This article identifies a current disharmony arising from increased expectations for the effectiveness and scope of the multilateral non-proliferation export control regime system, coupled with the reality of regime structures the inherent institutional limitations of which form significant barriers to meeting these expectations. The article will propose that, through employing international legal and organisational theory, this disharmony can be substantially mediated, and that the expectations of the multilateral non-proliferation community can be essentially met through efforts of reform and restructuring of the multilateral export control regimes. These efforts, while endowing the regimes with the increased formality necessary for higher levels of effectiveness, at the same time do not present the serious challenges to notions of state sovereignty that have contributed to the current unwillingness of regime members to institute programmes of reform within the regimes.
Journal Article