Gaps, the Nuclear Weapons Advisory Opinion and the Structure of International Legal Argument Between Theory and Practice

British Year Book of International Law 2009, Vol. 80, Forthcoming

21 Pages Posted: 16 Jan 2010 Last revised: 21 Apr 2014

See all articles by Jörg Kammerhofer

Jörg Kammerhofer

University of Freiburg - Faculty of Law

Date Written: August 10, 2010

Abstract

A ‘gap in the law’ or lacuna is an absence of something that arguably ought to be there. Gaps are a negative quantity; they depend for their ‘existence’ on the ‘other’ that surrounds them. The question whether there are putative additional characteristics in order to make non-existing norms into ‘gaps’, is one of the central questions and problems of this paper. It is the question of whether there is a benchmark that makes defining ‘gaps in the law’ difficult. the issue will be tackled in four steps: (1) We will begin by analysing the important debate that started with articles on the topic of non liquet in international law between Julius Stone and Hersch Lauterpacht. (2) Forming an important background to both writers’ views are Hans Kelsen’s arguments on the completeness of the law. (3) In a quasi-case study, we will then have a look at the closest international tribunals have come to pronouncing a non liquet to-date, the Nuclear Weapons opinion of 8 July 1996. This paper will close by developing a distinctly neo-Kelsenian view on the matter - in apparent contradiction, but surprising affinity to Kelsen’s theory.

Keywords: Gaps, lacunae, non liquet, Hersch Lauterpacht, Julius Stone, Hans Kelsen

Suggested Citation

Kammerhofer, Jörg, Gaps, the Nuclear Weapons Advisory Opinion and the Structure of International Legal Argument Between Theory and Practice (August 10, 2010). British Year Book of International Law 2009, Vol. 80, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1536582

Jörg Kammerhofer (Contact Author)

University of Freiburg - Faculty of Law ( email )

D-79098 Freiburg
Germany

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