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REVIEW ESSAY
* PhD Candidate, Research and Teaching Fellow at the Chair for Public Law, International Public Law and Legal Philosophy (Prof. Dr. Bernd Grzeszick, LL.M.), University of Heidelberg, Germany [
]. The author gratefully acknowledges the helpful comments and suggestions of Tobias Hofmann and two anonymous reviewers. Unless otherwise indicated, translations of quotations from the two books under review are his own.
[T]he world is incomplete if seen only from one point of view but incoherent if from all points of view.1
1.
Introduction
In the course of the last several decades international law has undergone a process of profound change. This change has left neither international law's substantive rules of obligation nor its more formal provisions on law-making, adjudication, and law enforcement unaffected.2In terms of the former, humanitarian concerns have complemented the range of objects legally safeguarded by international norms. While classically restricted to the protection of genuine state interests, international law today evinces an increasing influence of human rights and a growing concern for the environment, and even free trade has emerged as a legally recognized community interest.3Through this development state sovereignty has lost its unique status and forfeited its uncontested priority among international law's values. In terms of international law's rules on law-making, adjudication, and law enforcement, this trend finds its counterpart in the softening of the principle of state consent. The sovereignty-based tenet that states are only bound by rules they have consented to or subjected to law-enforcement measures by bodies whose jurisdiction they have approved in advance no longer goes unchallenged.4For international law and international legal theory this process of substantive and formal 'de-sovereignization' brings up serious issues. Hence, it does not come as a surprise that public international law scholarship has witnessed an increasing interest in the evolving normative foundations of the legal order it is concerned with.5
Recently this debate has received fresh impetus from two extensive studies that present stimulating reinterpretations of the present-day international legal order: Internationales Gemeinschaftsrecht authored by Mehrdad Payandeh and Thomas Kleinlein's Konstitutionalisierung im Völkerrecht. The following review provides a comparative discussion of these two books and the theoretical strands they represent. For this purpose the...