27 Aust. YBIL i (2008)
The Value of Year Books of International Law

handle is hein.journals/ayil27 and id is 3 raw text is: The Value of Year Books of International Law
James C Hathaway*
Is there still a place for a 'Yearbook' of International Law? Viewed as no more
than an annually published volume of scholarship, one would surely answer in the
negative. There is no shortage of excellent law journals, including journals focused
on international and comparative law. It is thus doubtful that any quality article
published in a yearbook would have failed to find a good home elsewhere. With
even relatively obscure law journals readily available in electronic form at minimal
cost and with maximum ease, the case for a yearbook is surely weak if predicated
simply on the importance of disseminating international legal scholarship. It does
not follow, however, that the yearbook is without value.
The unique importance of a yearbook is perhaps not well understood because it
is very much anchored in a positivist understanding of international law. While
viewed by some as old-fashioned or simply misguided, I have argued elsewhere
that the positivist account of international law retains a principled internal
consistency and political salience unmatched by any other theory. 1 At least if
renovated to take account of modern realities - as Bruno Simma and Philip Alston
did in a pioneering contribution in the pages of the Australian Year Book2 -
positivism allows international law to move firmly beyond the political, and
meaningfully to stand as a constraint on state action. Especially for those of us who
work in the world of international human rights, the positivist paradigm - while
yielding a less broad-ranging normative universe than that asserted by policy-based
theorists - provides a solid marker for standards that are clearly more than
normative preferences.
More specifically, the modern positivist project insists that for customary
international law to be understood as ethical and legitimate, there must be
meaningful evidence of consent by states through their actions, rather than simply
by words. This is, of course, the reason for the classic prescription that customary
law arises only where there is a coincidence of reasonably consistent state practice
and a relevant sense of obligation (opinio juris). So conceived, customary
international law is not simply glorified political science, but is instead a means of
*    Dean and William Hearn Professor of Law, Melbourne Law School, The University of
Melbourne. This preface is based on an address given at the launch of (2007) 26 Aust
YBIL at the ANU College of Law, 28 March 2008.
J C Hathaway, 'A modem positivist understanding of the sources of universal rights'
in J C Hathaway, The Rights of Refugees under International Law (2005) 16.
2    B Simma and P Alston, 'The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles' (1992) 12 Aust YBIL 82. A critical review of the value of legal
positivism in modern context may be found in B Kingsbury, 'Legal Positivism as
Normative Politics: International Society, Balance of Power and Lassa Oppenheim's
Positive International Law' (2002) 13(2) European Journal ofInternational Law 401.

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