International Legal Argument Research Articles

Fairness and the Quaintness of International Legal Debates in Europe

Fairness and the Quaintness of International Legal Debates in Europe

Resolving the Palestine-Israel Conflict: The Role and Challenges for the United Nations

The conflict between Israel and Palestine has become an important issue in international politics. International organizations such as the United Nations (UN) are trying to resolve this conflict through various resolutions and peace efforts. However, various factors, including differences in views, the influence of the Jewish lobby in the United States, and political obstacles, have hindered significant progress. Israel's separation wall in the West Bank has also become the focus of international legal debate and contention. This article presents an overview of the UN's role in resolving the Palestinian-Israeli conflict and the impact of its policies. The UN, especially the Security Council, has a central role in maintaining international peace, but the difficulties in dealing with these conflicts reveal its limitations.

“Safe Legal Pathways” or New Colonial Frontiers? A Critical Analysis of European Intervention in the Sahel and the Creation of Anomalous Legal Zones

Abstract This article critiques the increasingly popular concept of the “safe legal pathway” in refugee politics, policy and law, using European engagement and intervention in the Sahel as its primary case study. It draws upon neo-colonial studies, necropolitics, border studies and the legal literature on sovereignty and extraterritoriality to explore the function, structure, and import of the “safe legal pathway”, and its compatibility with contemporary understandings of international legal history and argumentation. Divided into four sections, the article focuses on the drivers behind Europe’s migration-development-security objectives in the Sahelout of which the pathways discourse emerges, the EU’s concomitant insistence on criminalising the illusive “people smuggling business model”, and the role which the traditional tropes of sovereignty, territory, and civilisation play in determining policy parameters. Noting the multidirectional nature and multifunctional purposes of pathways, and focusing on the policing of migrant communities both within and outside Europe, this article provides a comprehensive and critical overview of the nature, structure, function, and regulation of the pathway, its susceptibility to being leveraged for the commodification, extraction, discipline and transformation of non-European bodies and narratives, and its place in the creation of differentiated, suspended, and anomalous legal zones for the transfer and manipulation of global norms.

Role of Contingency in Formation of International Law

INTRODUCTION. A group of foreign international scholars has recently published a collective monograph – “Contingency in International Law: on the possibility of different legal histories” [Contingency in International Law…2021]. The starting point of this work is the question why international law is as we know it today, and whether it could be different. The problem of possible alternative ways for development of international law calls challenges the necessity of the current state of international law and urges to research the interrelation among the power of international law itself, historical context and wills of subjects involved in international law-creating.MATERIAL AND METHODS. The research material for the present article is the collective monograph “Contingency in International Law: on the possibility of different legal histories” edited by I. Venzke and K.J. Heller. The study of the presented ideas is based on general scientific methods and private legal methods, as the historical and legal approach.RESEARCH RESULTS. The development of a national international legal scholarship of the theory of international law sometimes needs an intellectual impulse, a bold statement of questions that challenge the dominant theoretical principles. In this regard, the question on the possibility of different ways of developing international law due to a variety of factors, could be a trigger for rethinking positivist attitudes in the Russian theory of international law. The intention in revising the classical theses does not imply rejection of established legal positions, but, on the contrary, it necessitates fruitful reflections on traditional tenets. This assumption is illustrated with the concept of the international legal policy of the state, which originates from the classical theory of coordination of wills, and at the same time makes a number of assumptions or explanations which could answer questions about contingencies in formation of international legal norms. Relying on the materials of the book edited by I. Venzke and K.J. Heller the article provides outlook on questions about chance and regularities in determining the content of international law, about role of context in the creation and development of international law, about the sovereign wills and role of contingencies and extra-legal factors in the concept of international legal policy.DISCUSSION AND CONCLUSIONS. In contrast to the theory of coordination of wills, which is based on strict positivist grounds, the concept of the international legal policy of State assumes influence of extra-legal factors for arrangement of international legal argumentation of States. For example, the problem of context is of great importance in determining the possibility of legitimizing certain international legal positions of State. The arguments of States as such with references to norms of international law remain fruitless outside certain context (including present content of international law, current state of international relations, topics on the international agenda). This is because legitimated legal norms fix the current results of coordination of wills among States, which depend on interaction of legal and nonlegal factors. But it is also important to understand limits of assumptions about impact of certain factors on the content of international law. So, on the one hand, the role of context should not be overestimated, since international law does not succumb to conjuncture, but develops consistently. At the same time, by studying international legal policies of States, one should avoid false determinism. It poses the risk to trace a wrong strategic line of State's legal arguments with over-shadowing ‘irrelevant’ facts. Thus, questions that open perspectives on seemingly solved problems make it possible to develop established doctrinal ideas in a new direction. However, it is necessary to take into account methodological limits of new assumptions for consistent development of contemporary national discipline of international law.

The asylum case: an analysis of the International Court of Justice's leading judgment on political asylum and regional custom

This paper offers an overview of the political background in Peru when a dispute on the political asylum of Victor Raúl Haya de la Torre between Colombia and Peru arose. The claim and counter-claim submitted to the International Court of Justice (ICJ) and the Court´s decision are discussed. It critically reviews the judgment's main issues to the international legal debate: the right of qualification of a political offense, the discussion over regional customary international law, the duty or not to give a safe-conduct, and what should be considered urgency for the purposes of diplomatic asylum. It claims that the unilateral qualification of the offense is essential to the character of diplomatic asylum. It highlights that this was the first decision of an international tribunal that confirms the existence of a regional custom and discusses what is necessary for a local practice to be considered regional custom. It refutes ICJ´s ruling and argues that nowadays, in the Latin-American context, the territorial State is bound to issue a safe-conduct, regardless if it requested the refugee to leave the country. It disagrees with ICJ´s restrictive interpretation of the term “urgent cases” and understands that urgency shall be construed to allow diplomatic asylum in times of political instability and prevent it in times of democratic normality.

“The first difficulty is time”: The impact of gestational age limits on reproductive health and justice in the context of cross-border travel for abortion care in Europe

Drawing on qualitative and quantitative data collected during a 5-year multi-disciplinary European research project, in this article we show how restrictions on access to legal abortion, and particularly gestational age (GA) limits at the end of the first trimester of pregnancy, negatively affect women and pregnant people living in European countries where abortion is legal on request or on broad grounds. First, we examine why most European legislations establish GA limits, and illustrate how abortion is framed in national laws and in the current national and international legal and political debates on abortion rights. We then show, based on research data we collected during our 5-year project and contextualized with existing data and statistics, how these restrictions force thousands of people to travel across borders from European countries where abortion is legal, delaying access to care, and increasing pregnant people's health risks. Finally, we explore, from an anthropological perspective, how pregnant people who travel across borders for abortion care conceptualize abortion access, and the relationship between the right to abortion care and the GA restrictions that limit this right. Our study participants criticize the time restrictions established by the laws in their countries of residence as failing to meet pregnant people's needs, highlight the crucial importance of easy, timely access to abortion care even beyond the first trimester of pregnancy, and suggest a more relational approach to the right to access safe, legal abortion. Abortion travel is also a matter of reproductive justice because access to care depends on specific resources including finances, information, support, citizenship status, and social networks. Our work contributes to scholarly and public debates about reproductive governance and justice, by shifting the locus of attention to GA limits and its impact on women and pregnant people, particularly in geopolotical settings where abortion laws are deemed liberal.

In Defense of Comparisons: Russia and the Transmutations of Imperialism in International Law

AbstractWhile Western imperialism played a crucial role in the creation of modern international law, it is ever more important to analyze the engagements of non-Western imperialist powers with the field so as to comprehend the changing global patterns of legalized violence and expansionism. In this Essay, we analyze Russia's international legal arguments in support of its use of force against Ukraine through the lens of inter-imperial rivalry. In so doing, we call for strict scrutiny of the deployments of jus ad bellum equally by all imperial powers.

Between authority and (in)authenticity: How literary canons shaped jus gentium

AbstractIn this article, I will show how literary imitation qualifies as a specific mode of transmission of jus gentium texts and ideas. Focusing on this specific angle allows us to see how Gentili and Grotius were not just literary erudites, using poetic references to craft their own international legal arguments; they professionalized the use of literary canons in such a way that they became constitutive of jus gentium as a discipline. Canonical references were transmitted through marginalia, the printed annotations we find abundantly in the margins of their texts, and that constituted for at least two centuries the argumentative structure of how jus gentium was written. Thus, a parallel legal history unfolds between the lines of marginalia, a story made of textual interpretations, omissions, and intentional interpolations. I will offer a concrete example of this textual machinery at play, namely Gentili’s and Grotius’ discussion of the same passage from Virgil’s Aeneid. The passage in question, known by literary historians as the ‘Helen episode’, is a case of contested Virgilian authority. The ‘Helen episode’, regardless of its textual reliability, is used by Gentili and Grotius to make a specific claim: that women cannot legally qualify as enemies under the law of nations. Such a story is particularly revealing, as it allows us to acknowledge the jurisgenetic role of literary canons, as well as their powerful role in the production of arguments of order that became constitutive of international law.

Preliminary Objections in the International Legal Proceedings as an Element of International Legal Policy of State

In modern international legal scholarship, preliminary objections are considered procedural means for preventing the consideration of an international dispute in a judicial proceeding. This approach is adopted in works on the classification of preliminary objections. However, preliminary objections must be examined not only autonomously within a concrete litigated case, but as an integral part of the international legal policy of the concerned state. Under the concept of international legal policy, every state must participate in the development of international law following its own special strategy for advancing its international legal positions on different issues. Through coordination of wills on the elaboration of international law, every state aspires to construct its strategy, which would persuade the international community of validity and necessity of an advanced view on certain international issues with minimal concessions to other views. International legal policy is pursued at every life cycle stage of an international legal norm from law making to interpretation, application, and dispute settlement. Preliminary objections can be considered elements of international legal policy on par with other actions and declared positions of the state in the international legal field. On the basis of the international legal policy perspective, this article explores the hypothesis about the interdependence between the raised objections and the outcome of the case. This work reveals that the preliminary objections present the attitude of the state to the international dispute or to the proceedings in general, but they are not a determinative factor for forecasting the states conduct in the proceedings, and most importantly, its compliance with a binding judgment. The review of the practice of International Court of Justice demonstrates that the raise of preliminary objections does not always indicate the weakness of the states international legal arguments for maintaining its standpoint in the judicial process nor predetermines non-compliance with the judgment. Concurrently, the examination of preliminary objections as an integral part of international legal policy on a concrete issue broadens the understanding of the states position in the dispute.

International law, politics and opposition to the Iraq War

Abstract A key feature of the Iraq war was the prominence of international legal argument. This article argues that the motif of the ‘illegal war’ was crucial in mobilisations against the war. It traces the reasons for the prominence of this ‘illegal war’ motif and the wider political consequences of its adoption.

The Precarious Rationality of International Law: Critiquing the International Rule of Recognition

AbstractSome scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviors of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this Article I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and that any reliance upon the existence of an international rule of recognition should be eschewed as a result.

The position of polish anti-communist governments on the issue of state-territorial status of lesser eastern poland – malopołska wschodnia (western ukraine and western belarus) in 1939-1945 (aspects of geopolitics and international law). part 2. from rapture of diplomatic relations (april 1943) to soviet-polish agreements 1945

The international legal arguments and direct activities of the Polish emigrant governments of V. Sikorski (October 1939 – July 4, 1943), S. Mykolaychyk (July 1943 – November 1944), and T. Artsyszewski (1944–1947) on the issue of defining the postwar borders of Poland, including a section with the Ukrainian SSR. An attempt to assess the effectiveness of their activities was

Revolutionary legality and the Burkinabè insurrection

ABSTRACTCoup leaders often purport to restore constitutional order. During Burkina Faso's 2014 ‘insurrection', however, Blaise Compaoré's opponents advanced detailed (international) legal arguments that significantly constrained their subsequent conduct. Theirs was to be a legal revolution. This article situates this stance within Burkina Faso's distinctive history of urban protest, whilst emphasising under-analysed international sources for the insurrection. ‘Insurgent’ lawyers, it argues, used international instruments to reinvigorate longstanding activist attempts to reconcile constitutional rights with a language of popular justice promoted by the revolutionary regime of Thomas Sankara (1983–7). After the insurrection, however, their emphasis on legality was used by Compaoré's supporters to expose the transitional authorities’ double-standards. Meanwhile, insurgent lawyers working for the transition had to work hard to reconcile (international) legal justifications for the insurrection with the expedient politics needed to defend the new dispensation.

The Law of State Immunity before the Brazilian Supreme Court: what is at stake with the “Changri-La” case?

It was 1943 when the Changri-La fishing boat and its ten fishermen crew disappeared near Cabo Frio, Rio de Janeiro. But only in 2001 the Tribunal Marítimo da Marinha do Brasil recognized that the vessel had been sunk by a German submarine. The relatives of the victims sought compensation at the Brazilian courts for its material damages and non-pecuniary losses. However, they stumbled upon a customary norm of Public International Law: the rule prescribing that a State is entitled to immunity in respect of acta jure imperii before the domestic courts of another State. After a long journey within the Brazilian courts, the case reached the Supremo Tribunal Federal (STF) – the Brazilian Supreme Court, which blends functions of constitutional review and court of last appeal – and in March 2021, the trial finally started. In the Extraordinary Appeal with Interlocutory Appeal (ARE) 954858 – currently suspended after Justice Alexandre de Moraes’ request to see the records –, it is discussed whether human rights violations are an exception to the rule of States’ sovereign immunity. While the case has not yet reached a conclusion, some Justices have already expressed their legal views – their votes, as they are called in the Brazilian Supreme Court – offering potential outcomes for the discussion. In this essay, we analyze two issues present in some of the votes: absence of proper engagement with international legal arguments, revealing a detachment from international law, and the possible consequences of the thesis proposed by the reporting Justice, Edson Fachin. Our endeavor is both to comment and to explain what is at stake with the Changri-la case.

Позиція польських антикомуністичних урядів в питанні державно-територіального статусу Малопольські Всходнєй (Західної України та Західної Білорусі) в 1939–1945 рр. (аспекти геополітики та міжнародного права). Частина 1. Від т.зв. Визвольного походу 17 вересня 1939 р. до Катинської справи (квітень 1943 р.)

The international legal arguments and direct activities of the Polish emigrant governments of V. Sikorski (October 1939 – July 4, 1943), S. Mykolaychyk (July 1943 – November 1944), and T. Artsyszewski (1944–1947) on the issue of defining the postwar borders of Poland, including a section with the Ukrainian SSR. An attempt to assess the effectiveness of their activities was

The Precarious Rationality of International Law: Critiquing the International Rule of Recognition

Some scholars assume that the content and validity of international legal norms turns upon the existence of convergent attitudes and behaviours of state representatives and other ‘international legal officials’. By converging upon the criteria for what counts as a ‘formal source’ of international law and what does not, such officials provide a ‘rule of recognition’ in relation to which the normative content of the international legal system is determined. In this paper I present two theoretical problems with this view, arguing that, depending on exactly what role this rule is intended to fulfil within international legal theory, it is either metaphysically insupportable or fundamentally at odds with the disagreements that persist in relation to the formal sources of international law. Both problems risk undermining the rationality of international legal argumentation and any reliance upon the existence of an international rule of recognition should be eschewed as a result.

Anthropological Contributions to International Legal Approaches to Violence Against Indigenous Women

Since the early 1990s, the law and development paradigm of “violence against women” (VAW) has framed gender-based violence against girls and women, especially intimate partner violence, as a grave violation of women's fundamental human rights and a major public health problem demanding concerted state action. Although women of all ages, social classes, races, religions, and ethnicities suffer gender-based violence, international law recognizes that VAW affecting indigenous women is compounded by historical and ongoing racial discrimination. This essay signals the contributions of indigenous women and allied anthropologists in Latin America who draw on decolonial, intersectional, and locally-grounded feminist perspectives to consider the challenges of addressing gender-based VAW. Working in collaboration with different women's collectives and organizational processes, anthropologists have conceptualized and documented the specific, myriad forms of violence affecting indigenous women. In their efforts to understand the origins, nature, and effects of violence, and to envisage possible remedies, they privilege indigenous women's voices, standpoints, and demands for collective self-determination. In this way they have contributed to international legal debates on VAW by highlighting the shortcomings and limitations of universal constructs of women and gender violence.

The Precaution Presumption

Abstract The precautionary principle is a central, if controversial, feature of international legal argument. I explore this controversy through a pluralist lens. What makes the precautionary principle so controversial is that it prevents us from appreciating risk holistically, particularly when appraising responses to policy trilemmas. Instead, claims of precaution focus only on some risks to the exclusion of others. I argue that we can overcome this problem by treating precaution as an evidentiary principle. This approach translates competing precautionary claims into a holistic appreciation of risk in its full factual context. I analyse that existing evidentiary conceptions of precaution (precaution as burden shift and precaution as standard-lowering) do not adequately achieve this goal. I submit that these problems can be overcome when treating precaution as an evidentiary presumption and develop how to formulate it.

International law as a common language across spheres of authority?

AbstractWhen actors express conflicting views about the validity or scope of norms or rules in relation to other norms or rules in the international sphere, they often do so in the language of international law. This contribution argues that international law’s hermeneutic acts as a common language that cuts across spheres of authority and can thus serve as a conflict management tool for interface conflicts. Often, this entails resorting to an international court. While acknowledging that courts cannot provide permanent solutions to the underlying political conflict, I submit that court proceedings are interesting objects of study that promote our understanding of how international legal argument operates as a conflict management device. I distinguish three dimensions of common legal form, using the well-knownEC–Hormonescase as illustration: a procedural, argumentative, and substantive dimension. While previous scholarship has often focused exclusively on the substantive dimension, I argue that the other two dimensions are equally important. In concluding, I reflect on a possible explanation as to why actors are disposed to resort to international legal argument even if this is unlikely to result in a final solution: there is a specific authority claim attached to international law qua law.

Legal Philosophy and Cosmopolitan Constitutionalism. Debates on Morality, Unity, and Power

Cosmopolitan Constitutionalism is a specific proposal in the international legal debate, the goal of which is the application of constitutional principles at the global level to achieve the universal guarantee of human rights. The author proposes that if we want to respond to the question of whether this project is possible and desirable, we need to analyse whether this is a plausible proposal, considering the distinctive features of law in the transnational sphere. In this light, the principal aim of this work is to show the principal challenges that Cosmopolitan Constitutionalism presents for the classic debates of legal philosophy, considering the current conditions of the international sphere. In this paper, the three topics that are considered are the debates between morality and law, law and power, and law and unity. The topics are problematized from the perspective of two contemporary scholars of Cosmopolitan Constitutionalism: Luigi Ferrajoli and Jürgen Habermas.