INFINITE REGRESS UNDER DURESS HOW TO

Footnote 5 Such functionalist rationales illuminate the reasons states may have to comply with specific CIL norms, but they stop short of explaining or justifying the authority of such norms over sovereign states: why are states bound by such norms, and bound by them rather than by other equally functional rules? Others seek consistency by arguing the reverse: consent-based treaty obligations themselves are but instances of CIL since they rest on custom. Thus, some argue that states sometimes have good reason to be bound to CIL norms precisely without their consent, in response to certain collective action problems. Similar challenges arise when resorting to purely hypothetical consent.

INFINITE REGRESS UNDER DURESS HOW TO

Challenges to these strategies are legio, including how to detect the sort of tacit consent that вЂ“ unlike forced acquiescence or mindless habituation вЂ“ can help account for the justificatory binding force of such consent. Some argue to weaken the conception of state consent to include various вЂtacitвЂ™ forms in CIL. How should international courts accommodate non-consent-based CIL and state sovereignty? The following reflections outline one strategy that avoids or helps address challenges wrought against other attempts to create more consistency and coherence between CIL and the other sources of international law вЂ“ whilst securing a central role for state consent. Sovereign states are under a legal obligation to comply with these CIL norms, even though they have not explicitly consented to them. Consider the immunity of foreign heads of state, the principle of non-refoulement, or jus cogens norms that outlaw slavery, torture, genocide, aggression, or crimes against humanity. Footnote 4 Judges and scholars may thus disagree about whether alleged CIL indeed is a rule of CIL вЂ“ whether it satisfies both the two necessary conditions, its specific contents and whether it is jus cogens.Д¬ustomary international law appears to challenge the central role of state consent in accounting for the legitimacy of public international law (PIL) in general.

Footnote 3 Among CIL are various jus cogens norms, with a higher rank than treaty law and other CIL. Rules (and principles) of CIL are unwritten sources of international law with two central constituent features: they form вЂa general practiceвЂ™ which enjoys вЂacceptance as lawвЂ™ ( opinio juris).

Norms of customary international law (CIL) pose a dilemma for international courts.

Infinite regress under duress