Abstract. At first sight, there is a tension between the creation of international legal rules, and the fundamental notion of state sovereignty. The classic decision of the Permanent Court of International Justice in the Wimbledon case (1923) managed to circumvent the tension embodied in this "sovereignty dilemma", by insisting that treaty-making is actually an attribute of sovereignty. The paper analyzes why, given the circumstances and the timing of the Wimbledon case, such a finding was imminent, and how the Court actually reached it. Having previously been confronted with arguments relating to the "sovereignty dilemma" (in the Nationality decrees opinion and two ILO requests), it was clear to the Court that it would have to find a principled answer sooner or later. Due to the particular circumstances of the dispute, it could not plausibly rely on a rebus sic stantibus argument. Instead, it could make use of an argument first made by Germany (oh the irony), to indicate why sovereign entities can be held bound by their consent. The paper concludes by tentatively suggesting that in order to come to terms with the increased role of non-state actors in international law, a new Wimbledon case is needed. Keywords: sovereignty, law-making,
Austrian Review of International and European Law Online – Brill
Published: Jan 1, 1998
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