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International Law’S Erie Moment, Harlan G. Cohen
International Law’S Erie Moment, Harlan G. Cohen
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Who fills international law’s gaps? Whether over the meaning of bilateral investment treaties, the standards regarding detainee transfer, or the rules of non-international armed conflict, courts and states are increasingly in conflict over the authority to say what the law is. With international law’s increased judicialization, two competing visions of international law have emerged: One, a gap-filled international law, in which law is developed slowly through custom, argument, and negotiation, and a second, gap-less, in which disputes are resolved through a form of common law adjudication.
Drawing on growing literature on the law outside of courts, particularly out-of-court settlements, the …
International Common Law: The Soft Law Of International Tribunals, Timothy L. Meyer, Andrew T. Guzman
International Common Law: The Soft Law Of International Tribunals, Timothy L. Meyer, Andrew T. Guzman
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Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal's decision - its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations - is best characterized as a form of soft law.
Despite its inability to bind states, a tribunal can influence state behavior …