Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism

Abstract

Whose International Law Is It Anyway? The Battle over the Gatekeepers of Voluntarism Authors Shelly Aviv Yeini, University of Haifa Abstract International law has been ruled by the theory of voluntarism for the course of the last two centuries. It is currently being challenged by competing theories, which do not see states’ consent as the main justification for international law. The theories of naturalism, international constitutionalism, and communitarianism all consider justification for international law to lie elsewhere than the realm of consent. While each theory provides a different framework for explaining the validity of international law, they all seek to justify their dissent from consent. Naturalism, international constitutionalism, and communitarianism view states as participators in the making of international law alongside international institutions, nongovernmental organizations, international tribunals, and legal academia. Such entities harness the competing theories to dilute and nullify the traditional voluntarist doctrines of international law. This article aims to portray such phenomena and show how the theoretical supremacy debate is reflected in the contestation between states and non-governmental entities over the validity of the gatekeeper doctrines—the specially-affected states doctrine, the persistent objector doctrine, and the monetary gold principle. Diluting or reconstructing the gatekeeper doctrines may alter the way in which rules of international law are made, developed, and apply. This article argues that while the contestation may aid in the legal development of international law as parties take time to articulate and refine their legal positions regarding the gatekeeper doctrines, it has also created radicalization of positions and uncertainty regarding the gatekeeper doctrines’ content and applicability.