Copyright (c) 2005 Berkeley Journal of International Law
Berkeley Journal of International Law
ARTICLE: Why State Consent Still Matters - Non-State Actors, Treaties, and the Changing Sources of International Law
23 Berkeley J. Int'l L. 137
By Duncan B. Hollis*
Following the end of the Cold War and the subsequent proliferation of international rules, processes, and organizations, some international law scholars argued that there was no longer a need to debate the existence of international law. 1 It was, as Thomas Franck coined it, a "post-ontological era," where international lawyers could turn their attention away from debating "whether international law is law" and focus instead on evaluating the law's substantive content. 2 New work soon followed, exploring patterns of compliance with international law, methods for predicting its effectiveness, and standards for evaluating its fairness. 3
Despite the important contributions of such scholarship, recent developments suggest that the pronouncement of a post-ontological age was premature. Issues as diverse as terrorism, hegemony, and globalization all demonstrate that the international lawyer cannot yet dispense with the question of what makes international law "law" and where one looks to find it.
Realpolitik, and with it the ghosts of Austin and Bentham, have returned to prominence in certain circles since September 11, 2001, and the U.S. invasion of Iraq. Many proponents of this approach question the obligatory nature of long-recognized legal regimes ranging from the U.N. Charter to the Geneva Conventions. 4 These proponents argue for the primacy of national security interests - particularly, efforts to combat terrorism and the proliferation of weapons of mass destruction - even if pursuing those interests requires discarding or dismissing existing regimes of international law. 5
Others view the dramatic demonstration of U.S. power ...
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