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The Constitutionalization of International Law$
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Jan Klabbers, Anne Peters, and Geir Ulfstein

Print publication date: 2009

Print ISBN-13: 9780199543427

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780199543427.001.0001

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Law-making and Constitutionalism

Law-making and Constitutionalism

(p.81) 3 Law-making and Constitutionalism
The Constitutionalization of International Law

Jan Klabbers

Oxford University Press

This chapter looks into the question how, in a constitutionalizing world order, international law-making could take place. It identifies two poles: on the one hand, law-making should do justice to the presence and agency of relevant actors, and thus cannot do away with the requirement of consent just yet. On the other hand, law-making should also be responsive to common needs. The chapter suggests that a presumptive approach may be the best way to combine the two polar opposites, and posits the idea that normative utterances best be seen as law unless the opposite can be proven, accompanied by an enumeration of elements that may help rebut the assumption of law.

Keywords:   law-making, treaties, soft law, sources of law, International Relations theory, jurisprudence

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