Theory Of International Law Research Articles

Beyond 'Freedom Fighters' and 'Terrorists': When, if Ever, is Non-State Violence Legitimate in International Law?

This paper seeks to elucidate the conditions under which non-state violence might be considered legitimate under international law. Contra a tendency to dismiss all non-state violence as terroristic it makes an argument that the conditions of legitimate non-state violence, at the intersection of international law and moral theory, require us to assess the ends and means of such violence, and the conditions in which it is used. This leads one to depart from international law on the use of force as it applies to states in some cases, but also to draw on it in others. The paper concludes with a moderate stance in favor of exceptionally lending strong normative support to certain forms of non-state violence.

International Law and the Objectivity of Value

AbstractThe familiar critical claim that propositions of international law cannot be both objective and normative casts a long shadow over international legal theory. The claim relies on the conjunction of two ideas: first, that the truth-conditions of any proposition of international law will include some element of evaluative judgement (about the right or the good) that gives the proposition its normative character, and, second, that evaluative judgements cannot be objectively true or false. International lawyers have two main strategies for defending their discipline against this sceptical challenge. A more modest strategy would accept that legal objectivity and normativity are incompatible and attempt to sidestep the sceptical critique by abandoning the claim to normativity. A second and more ambitious strategy would resist the sceptical challenge by disputing the plausibility of its attack on the objectivity of evaluative judgements. This strategy would rely on the claim that objectivity and normativity are not mutually incompatible and that the aim of producing an account of international law that displays both features is realistic. My aim in this paper is to show that there exists at least one version of this second strategy that can succeed against the sceptical challenge. I argue that scepticism about values is incoherent and, therefore, that the opposition between the objectivity and the normativity of international law is illusory. Setting such scepticism aside will allow international lawyers to concentrate fully on the substantive normative questions that drive theories of international law and on the values that provide the best account of its content.

Creating the Human Security Discourse and the Role of the Academic-Policy Complex: International Relations as “Japanese Social Science”?

Human security, both its theory and practice, has attracted a significant number of audiences. Japan is no exception. Nowadays the country is equipped with a powerful set of discourse about human-centred security. With these as a background, this paper aims to analyse the relationship between human security and the country’s central pursuer: academic-policy complex.Because of its origin and development, human security itself is not a born-in-Japan concept. However, this paper will argue that it is still in a sense quite “Japanese”. Focusing on major progress both in the country’s intellectual and policy arenas, the paper will regard Japan as a good “assembly line” of human security discourse, where relevant elements have been collected, got together, and actualised as an efficient international policy. The key here is that there are some contributing factors. In particular, two of them are striking: (1) the effective application of social constructivism, policy-oriented theories of international law as well as policy science, and (2) the unique and intimate relationship between national government and academic institutions, under the country’s aspiration for “international contribution”. The paper will conclude although such close cooperation between academic and practical sectors has led to successful production of human security discourse, it also have deficiencies, and therefore needs serious reconsideration.

Cross-Border Insolvency Law in Europe: Present Status and Future Prospects

In May 2007 the European countries celebrated the first lustrum of the EU Insolvency Regulation (1346/2000). This article describes where Europe stands with its model which is based on well known theories of private international law for dealing with cross-border insolvencies. The EU Insolvency Regulation provides for a national court to exercise international jurisdiction to open insolvency proceedings. The basis for international jurisdiction is the debtor\'s “centre of main interests” or COMI. The two most important cases decided by the European Court of Justice (17 January 2006 Staubitz Schreiber and 2 May 2006 Eurofood) are discussed. The article further analyses the regulation\'s legal concept and its procedural context and explains that \'financial institutions\' are not covered by the Insolvency Regulation, but by separate directives (2001/17; 2001/24). After having taken stock several suggestions are submitted for improvement of the system of cross-border insolvency in Europe. * Prof Bob Wessels. Independent legal counsel and advisor.PER/PELJ Vol. 1 2008: pp. 1-35

The Moral Theologian, Oliver O'Donovan and International Law

Oliver O'Donovan renders a singular contribution to the theory and history of international law by identifying the spiritual impoverishment of the discipline following the triumph of state-centred contractarianism in the theory of international relations, with Hobbes, Locke, Kant and, for the present, John Rawls. This contractarian approach to international society has an inherent tendency, which O'Donovan highlights, to ground international order in the hegemonic claim of one or two countries to represent the values of the whole of humanity. With a combination of rational moral theology and biblical interpretation (Revelation), O'Donovan reasserts an international order grounded in the autonomous identities of the nations, which God has recognized as equal. With a theory of political legitimacy which rests upon representation of national identity, O'Donovan points the way to an international order based upon mutual respect among nations under natural law, in the classical medieval sense finally represented by Grotius and Suarez. This article describes again what the natural law tradition meant in the hands of Aquinas and Vitoria, in order to highlight the fact that the ontological dimension of natural law theory provides a way to meet the intolerable insecurities which theories of nationalism appear to generate. Then the article goes on to offer one way to bring natural law thinking up to date for contemporary audiences by drawing upon Paul Ricoeur's phenomenological theory of mutual recognition and respect among the nations as a way of going beyond the contractarian tradition in contemporary international law and relations theory.

Theorising the international rule of law

AbstractRecent trends in international law scholarship recycle objections to international law advanced by an earlier generation of political and legal realists. Such objections fail to understand the place of international law in the global order. To understand that place, we must distinguish the idea of the rule of law from other understandings of law. That idea is an inherently moral one. Theories of international law that ignore the moral element in law cannot distinguish law as a constraint on power from law as an instrument of power. A Kantian theory of international law can help to recover that moral element.

Individuals as Subjects of International Law

Legal positivism has long provided the usual theory for comprehending international law. The typical positivist definition of international law is grounded on a subject-based differentiation between international and municipal rules. Positivism views international law as a set of rules with states as its subjects. Municipal law is thought of as pertaining to individuals who are subjects of a single state. This Article rejects the positivist subject based approach to international law and calls for a definition of the discipline that recognizes individuals as subjects of international law. This Article is divided into three parts. First, it briefly reviews the development of the positivist theory of international law. Second, it tests the subject-based approach against some realities of international practice and shows that international law actually has long involved individual rights and obligations. Finally, it suggests that a different, albeit older, theoretical foundation for international law may be a better way to encompass individuals as subjects of international law.

Marxist International Law Theory as Hegelianism

Between Equal Rights: A Marxist Theory of International Law. By China Mieville. Chicago: Haymarket Books, 2006. 386 pp., $18.00 (ISBN: 1-931859-33-7). Between Equal Rights: A Marxist Theory of International Law has its origin as China Mieville's doctoral dissertation in international relations. The dissertation research was conducted under Fred Halliday, a left-wing intellectual who has spanned the bridge between straight academic work and intelligent public debate. Mieville, who is independently engaged in a range of cultural issues of interest to a literate public, has even more of the hallmarks of this tradition of European intellectuals. This background marks a strength of as well as a limitation to Mieville's work. In Between Equal Rights , Mieville launches an intellectual challenge to international law, which inevitably limits him to critical international legal studies, the only part of the discipline that has a comparable intellectual foundation. In this respect alone, Mieville takes on a considerable challenge. At the same time, Between Equal Rights is not the work of someone who has the technical expertise of an international lawyer, and the intellectual tools that Mieville uses, although very erudite, nonetheless suggest a doctrinaire Marxism. This approach leads Mieville, paradoxically, into the company of those nineteenth-century German international lawyers who followed Hegel in thinking that international law was an expression of the power struggles of states. He quotes Marx as saying that when equal rights collide, force decides. This idea is essentially Hegelian, and Mieville's attachment to it actually provides a rather compelling resurrection of the ideas of international law that dominated thought in Imperial Germany. This result is hardly surprising, given that the heyday of Marxist intellectual life must surely be marked by such figures as Validimir Ilych Lenin and Nikolai Bukharin, who arose during that same era. What is more surprising is that Mieville relies very heavily for his historical picture of international law on the works of Wilhelm Grewe (2000) and Carl Schmitt (2003) …

The History of International Legal Theory in Russia: a Civilizational Dialogue with Europe

This review essay examines the main breaks and continuities in the history of international legal theory in Russia. In particular, it draws on works by leading Russian international law scholars: Peter Pavlovich Shafirov (1670-1739), Fyodor Fyodorovich Martens (1845-1909), Baron Mikhail Taube (1869-1956), Vladimir Emmanuilovich Hrabar (1865-1956), Fyodor Ivanovich Kozhevnikov (1893-1998) and Grigori Ivanovich Tunkin (1906-1993). The reception of these theoreticians’ works in today's Russia is also examined. The history of the discipline in Russia opens itself up as a civilizational dialogue with (Western) Europe. The main questions have been: Is international law universal or fragmented; what is the progressive force in international law? The Russian theory of international law has moved from proving that ‘we too are civilized/European’ in the early 18th century to an aspiration towards Western European civilization in the 18th and 19th centuries to the break with the West and an affirmation of Russia's own distinctiveness and primacy in the 20th century. Those who hurriedly celebrated Russia's reunion with Europe (and Western liberal theory of international law) following the end of the Cold War should not lose sight of the longer historical perspective and especially the experiment of the ‘civilizing’/Europeanizing/liberalizing project in 19th century Russian and Baltic German international law scholarship.

Towards Perfection? History and Theory of International Law

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Erich Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory, International Economic Law Series (Oxford: Oxford University Press, 2009).

Erich Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory, International Economic Law Series (Oxford: Oxford University Press, 2009).

Antislavery Courts and the Dawn of International Human Rights Law

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these anti-slavery courts were the first international human rights courts. They were made up of judges from different countries. They sat on a permanent, continuing basis and applied international law. They were explicitly aimed at promoting humanitarian objectives. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every four or five ships involved in the trans-Atlantic slave trade. These international anti-slavery courts have been given scant attention by historians, and have been almost completely ignored by legal scholars. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. In addition to being of intrinsic historical interest, the story of the anti-slavery courts has important implications for contemporary issues in international law. The history of the anti-slavery courts reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the anti-slavery movement’s use of international law and legal institutions as part of a broader social, political and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights.

The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law

The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law

Preface

This is the preface to the special symposium issue on International Law and Democratic Theory.

Not Anything Goes: War as a Norm-Guided Practice

Norms of War: Cultural Beliefs and Modern Conflict. By Theo Farrell. Boulder: Lynne Rienner Publishers, 2005. 225 pp., $49.95 (ISBN: 1-58826-361-4). Norms of War , by Theo Farrell, traces how war and the preparations for war are shaped by normative and cultural factors. The exposition is elaborated through four empirical case studies: the first on military organization and the Irish army, the second on collective memory and conceptions of mass industrial warfare in World War II, the third on the US nonuse and targeting of nuclear weapons, and the fourth on humanitarian intervention in the 1990s. Challenging arguments that warfare is primarily a rationalistic endeavor, Farrell shows that military practices are deeply embedded in cultural norms and cognitive models. His analysis is grounded in theoretical arguments and literatures drawn widely from political science, sociology, psychology, history, and international law. Farrell is interested in tracing cultural change and the causal impact of norms on military practices. In short, he wants to show “how norms evolve to shape military organization, military mobilization, and military operations” (pp. 15–16). The introduction to Norms of War lays out a theoretical framework that emphasizes mechanisms of norm creation, dissemination, and impact. Each of the subsequent four empirical chapters introduces at least one new literature, including sociological institutionalism, strategic culture, the social construction of technology, theories of international law, and collective memory and imagination. A brief concluding chapter assesses the normative mechanisms in comparative fashion. Overall, Farrell exhibits an impressive command of a wide range of theoretical and empirical material. The strongest chapters (Chapters 2 and …

Legal Protection Against the UN-Security Council Between European and International Law: A Kafkaesque Situation?

Constitutionalism beyond the state concerns itself with the relation among various legal levels and the position of the individual in a multilevel legal system. The question how human rights are protected against international organizations who increasingly take on executive powers cannot be thoroughly answered without confronting a fundamental debate in international law theory: the constitutionalism-fragmentation debate. The European Court of First Instance as well as the European Court of Justice (ECJ) had to deal recently and are still dealing with this complex in a number of cases.

International Judicial Activism and the Commodity-Form Theory of International Law

In his book Between Equal Rights: A Marxist Theory of International Law , China Mieville revisits the work of 1920s Russian jurist E. B. Pashukanis to develop a ' commodity- form ' theory of international law. The theory serves as a valuable and instructive counter- point to infl uential currents in international legal scholarship. However, this essay argues that Mieville is unnecessarily negative about the prospects for international law to contribute to progressive change. Central to his thesis is the critical insight that international law is indeterminate. He maintains that ' for every claim there is a counter-claim and legalistic (anti-imperialism) is therefore ultimately toothless ' . By contrast, this essay contends that indeterminacy and its antipode, determinacy, are not properties of international law. Rather, they are arguments, the emancipatory force of which is not fi xed, but context-dependent.

All Roads Lead to Rome, or the Liberal Cosmopolitan Agenda as a Blueprint for a Neo-Conservative Legal Order

This paper provides an overview of the debate on the democratic peace theory and a non-ruled oriented introduction to its reception in international legal scholarship related to the purported emergence of a right to democratic governance in international law. It focuses next on the work of Fernando Tesón, the self-appointed father of "the Kantian theory of international law" and champion of a post-Rawlsian liberal cosmopolitan approach to international intra-state democratisation. This author's influential proposals of lege ferenda will be, eventually, depicted as an avant-garde blueprint for a neo-conservative international legal order.

REDEFINING SOVEREIGNTY IN INTERNATIONAL ECONOMIC LAW

The concept of state sovereignty is increasingly challenged by a proliferation of international economic instruments and major international economic institutions. States from both the south and north are re-examining and debating the extent to which they should cede control over their economic and social policies to achieve global economic efficiency in an interdependent world. International lawyers are seriously rethinking the subject of state sovereignty, in relation to the operation of the main international economic institutions, namely the WTO, the World Bank and the International Monetary Fund (IMF). The contributions in this volume, bringing together leading scholars from the developed and developing worlds, take up the challenge of debating the meaning of sovereignty and the impact of international economic law on state sovereignty. The first part looks at the issues from the perspectives of general international law, international economic law and legal theory. Part two discusses the impact of trade liberalisation on the sovereignty of both industrialised and developing states and Part three concentrates on the challenge to state sovereignty created by the proliferation of investment treaties and the significant recent growth of investment treaty based arbitration cases. Part four focuses on the domestic and international effects of international financial intermediaries and markets. Part five explores the tensions and intersections between the international regulation of trade and investment, international human rights and state sovereignty

Crime and Punishment: Holding States Accountable

Should states be held responsible and punished for violations of international law? The recent ruling by the International Court of Justice that Serbia cannot be held responsible for genocide in Bosnia reflects the predominant international legal position. But such a position leaves open the possibility that states or nonstate agents can never be held responsible for international crimes. This article argues that they can and should be. While most international ethicists and legal theorists reject the punishment of corporate entities such as states, this article argues that certain types of international violations can only be undertaken by states, and, as a result, states must bear the responsibility for them. Drawing on some neglected strands in international law and political theory, the article sketches a potential institutional framework for the punishment of state crimes, particularly genocide and aggression.