Globalists and the Corruption of Sources

Abstract

For the past twenty-five years a quiet doctrinal war has been raging around the sources of international law. One group of scholars, convinced of the need to take bold action to address certain matters of global concern, have sought to introduce a new set of secondary rules more enabling of the expansion of international law’s empire. At the international level their aim has been to degrade the consensual nature of conventional obligation; at the domestic level, to diminish the role in international lawmaking of a nation’s most sovereignty-minded institutions. The tactics used at each level have been strikingly similar: Customary international law has been weaponized against treaties, and treaties themselves, in both their philosophical conception and practical design, have been subjected to a considerable makeover.

This globalist legal campaign has been opposed at nearly every turn by more nationalistically-minded scholars. Many discrete battles have been fought – and duly documented in the literature. Yet what has been missing to date is an appreciation of the totality of the conflict, as well as an accounting, necessarily comprehensive in nature, of the war as a whole. This Article aspires to be that broader chronicle. It traces the war’s main stages in both theaters of conflict (the international and the domestic), using the United States as the case study for the latter. In providing this retrospective, which encompasses present-day developments, this Article affords a sharper appreciation than is currently available of the state of our international secondary rules and of their likely future evolution.

Keywords: sources of international law, customary international law, treaties, persistent objector rule, persistent objection, Paris Climate, state consent, the consent principle