International Legal Discourse Research Articles

The psychiatrisation of international law in James Lorimer’s The Institutes

Abstract Using the categories of normal and abnormal, James Lorimer’s The Institutes of the Law of Nations subjectivised the native as the abnormal in international relations, denying recognition of their independent communities and providing justification for their perpetual subjugation. This article deploys Foucault’s critique of psychiatry to contextualise the unexplored intersections of Lorimer’s ‘science’ of international law and positivist psychiatry in the 19th century. It rereads Lorimer’s work as a psychiatrisation of international law, thus throwing light on the category of the abnormal and its persistence in international legal discourse.

The concept of an international legal concept

International lawyers refer to concepts such as ‘State immunity’, ‘the high seas’, ‘jus cogens’ and many others as genre-specific – as ‘concepts of international law’. This practice presupposes a definition that can help to distinguish concepts of international law from other concepts used by participants in international legal discourse. This article draws attention to the great complexity of this issue. It starts from the assumption that all genre-specific concepts have an importance for the structuring and development of the branch of activity to which they are said to belong. It arrives at the conclusion that there is in fact not just one way of defining a concept of international law, but several. These definitions are inextricably tied to different conceptions of law. The article argues that it is important that international lawyers openly acknowledge this relationship between different theories of law and different conceptions of an international legal concept. Doing so will enhance the rationality of legal communication and the productivity of international legal discourse.

The Third World and the Quest for Reparations: Afterword to the Foreword by Antony Anghie

Abstract In his Foreword, Antony Anghie contrasts two systems of reparations: the Third World system, which is about reparations for colonial expropriation and disenfranchisement, and the Western system, according to which, in the context of decolonization, newly independent states were allowed to expropriate foreign corporations only in return for full compensation. While the Western system has been firmly anchored in international law through the law of aliens and – later – investment law, the Third World system still meets with resistance in international legal discourse. Convinced that international law should be instrumental in overcoming its own colonial origins, I attempt in the following article to explore possible legal foundations by countering the main arguments raised against demands for reparations from the global South: their disruptive effects on today’s societies, conceptual and technical legal obstacles, as well as the doctrine of non-retroactivity of the law. Not being a TWAIL scholar myself, I hope that this might serve as a constructive contribution to a common cause.

Recovering the Dimensions of Dignity in Religious Freedom: Protecting Religious Proselytization in International Human Rights

AbstractThis article addresses the challenge of conceptualizing the practice of religious proselytism in the context of international human rights law and its significance for the law of religious freedom. The author examines the evolving approach taken to religious proselytism within the landscape of human rights law, revealing that important aspects of religious freedom risk being lost given complex positive and negative views on proselytization. The author then explores the concept of human dignity and argues that there are relational and interactive dimensions associated with human dignity that are obscured in the international legal discourse of religious freedom. Recovering these dimensions of dignity will help address religious proselytization in international human rights law and reinvigorate the law of religious freedom.

Modern International Legal Discourse Regarding the Use of Lead

The problems of environmental protection are still one of the most pressing international legal issues. Among the causes of environmental pollution, and hence the violation of human rights and harm to public health, is the use of lead. The presence of lead in the human body increases the risk of cognitive decline, disruption of the endocrine and reproductive systems, etc. However, young children are most at risk of lead poisoning. Issues of regulating the handling of lead (individually or as part of a group of heavy metals) are the subject of special attention in international law. One of the burning issues is the limitation of the use of lead in paints, implemented through a global partnership of governmental, non-governmental and private organizations and actors. According to the author, this way of solving environmental problems involves the development of a «multi-level» international legal management in the field of handling chemicals. The paper emphasizes the need to take coordinated measures to limit the use and eliminate lead-containing paints, which implies the abandonment of voluntaristic approaches by states to the establishment of regulatory limits for the content of lead in paints. Two ways of resolving the problem are proposed: the creation of an international agreement of a binding nature (following the example of the UN Convention on Mercury), and the prolongation of the practice of global partnership. The main measure of the effectiveness of such a method should be recognized as a sufficient degree of protection of human rights and, in a broader sense, compliance with the principles of international law as a whole.

International law: A discipline of ambition

AbstractThe term ‘ambition’ appears to have infiltrated international legal discourses: it is used to, for instance, lament the lack of state action to tackle major global challenges, praise progress towards difficult goals, or evaluate the outcomes of international law-making processes. Often mobilized, the concept of ambition in international law remains, however, poorly understood. And yet, each narrative offers a specific analytical frame that influences our understanding of the world and sets distinct policy prescriptions. What argumentative functions do ambition narratives play and what implications do they carry for international law, in both its practice and study? To respond to this question, the article explores the occurrence of the term in a field where the rationale of ambition has recently taken centre stage – international climate law – and uses the crisis narrative as a means of comparison to highlight the specificity of ambition discourses. The argumentative implications of ambition are identified in terms of vision, means and temporality: this article suggests that an ambition discourse fulfils objectives that a crisis narrative is unable to accommodate by calling for structural transformations, motivating states to commit to far-reaching objectives and adopting a long-term perspective focused on incremental change. The shortcomings of an ambition narrative are also highlighted, in relation to its determination and evaluation. The study contributes to shedding light on a new international law discourse to offer a different analytical frame for the discipline.

Between the Utopian Imaginaries of Literature and International Law: The Question of the Insurgent Child in International Legal Discourse and Kris Montanez's Youth

Between the Utopian Imaginaries of Literature and International Law: The Question of the Insurgent Child in International Legal Discourse and Kris Montanez's Youth

DIRECTIVE ACTS IN INTERNATIONAL LEGAL DISCOURSE: SCALE OF ILLOCUTIONARY FORCE INTENSITY

The article introduces an eight-component taxonomy of directives in international legal discourse, depending on the degree of illocutionary force, based on the criteria of illocutionary markers, directive force mitigators and modifications of the prototypical structure of directives. The research integrates the methods of speech act analysis, tools of the theory of mitigation and discourse analysis. An eight-point degree of intensity distinguishes directives with the verbs "shall" and "must" to indicate obligations in the performative part of the prototypical structure of directives. The seventh-point degree is marked by “should” to designate recommendation. Explicit directives extended with hedges specifying possibilities of the norm adaptation in favor of the capabilities of states fall under the sixth position. The fifth degree of intensity is typical for acts marked with adjectives indicating the urgency of action. The fourth position on the scale of deintensification pertains to directives with obligative verbs in the passive construction of the propositional component, with the performative component being omitted. Directives occupying the third position on the scale of illocutionary force intensity are marked, in addition to the omitted performative component, with hedges that allow for deviation from the norm in application. A two-point degree of intensity distinguishes acts with an omitted performative component in which the position of the phrasal subject is taken by nominations of the object of obligations, instead of legal subjects. Directives with an omitted performative component, where the legal subject is replaced by the designation of the object of the directive action and the performative verb is replaced by an indirect marker of obligation, occupy the first position in terms of de-intensified illocutionary force level.

Pre-translation Analysis of International Legal Discourse: From Social Semiotics to the Concepts of Lotman and Bakhtin

The discursive model of pre-translation analysis of international legal discourse relies on interrelated modules: the document conceptual space, with the harmonized value opposition between the concepts of "legal justice" and "compensatory justice", "common good" and "sovereignty"; the discourse addresser / addressee, embodied in the metonymic nomination "parties of the document"; the translator as an intermediate system, the semiospheres; extra-textual internalized realities. "Unifying" modules include semiospheres of international universal and basic branch documents, as well as universal human values and a shared internalized reality. The shared values underpin basic discursive strategies of consensus, solidarity, cooperation, marked by explicit and implicit intertextual means and additional strategies for minimizing imposition and hiding differences, implemented with tactics of generalization, mitigation and declarativeness based on passivation, nominalization, "marked theme", etc. Separating modules include semiospheres of the parties national legislations, marked by "without prejudice" clauses, metonymic nominations of "sovereign power", hedges scaling down the directive modality and idiomatic references to "public safety", etc.; semiospheres of recursive and procursive international branch texts that could be interpreted as conflicting with the document and are involved by 'non-affection' clauses and constative speech acts to fix the supremacy of one document over another. The document conceptual space may reflect the diverging interests and values of the parties, derived from implicit opposition between "legal justice" and "compensatory justice", harmonized by the documents. The markers of the "separating" modules are aimed at a combined strategy for predicting variable interpretation of particular norms with an indication of its source and normative harmonization. Keywords: International Legal Discourse, Model of Pre-Translation Analysis, Unifying and Separating Semiospheres, Value Opposition, Discourse-Forming Values.

Law, Adjudication, and the “Experiment of International Administration” (1920–1946)

Abstract The claim that international courts are a necessary precondition for the existence of international law rests on a more general assumption that the way a legal order is institutionalised determines the character of law within that legal order. This article explores the underlying structural association between institution form and the quality of law in the context of the “experiment of international administration”: the concentration, monopolisation and transformation of international authority in the aftermath of the First World War. By examining neglected sites of legal activity, in particular the Advisory Committee on the Traffic of Women and Children and the Permanent Mandates Commission, the article argues that an interwar “administrative turn” opened up new terrain for heterogeneous forms of international legal discourse.

Ukraine, Open-Source Investigations, and the Future of International Legal Discourse

AbstractRussia's aggression against Ukraine has brought into focus the growing significance of open-source information for international legal processes. Enabled by novel digital technologies, civil society actors have seized the opportunity provided by the vast amount of publicly available evidence to counter-narrate Russia's pretexts to justify its invasion within the deliberative bodies of the United Nations. This Essay explains the potential of this emerging practice to influence international legal discourse by increasing the costs for actors who base their conduct on false factual claims.

Analysis of Recent International Legal Discourse for the End of Plastic Era

20세기 이후는 이른바 ‘플라스틱’ 시대라고 상징될 정도로 현대 문명에서 플라스틱의 유용성이 갖는 의미는 실로 크다. 그래서인지 인류가 살아가는 현재는 플라스틱에 기반한 인간 활동이 지구에 급격하도고 지배적인 변화를 일으켰다는 점에서 새로운 지질시대인 ‘인류세(Anthropocen)’로 진입했다는 견해가 제기되고 있다. 인류가 무분별하게 사용한 플라스틱의 폐기물이 지층에 남아 ‘플라스틱 화석’이 되어 오늘날을 비추는 지표석이 될 수 있다는 것이다. 이러한 주장은 플라스틱 오염 현실에 경종을 울리고 있다.BR 이러한 엄중한 현실에 대응하기 위해 2022년 3월, 유엔환경총회 제5.2차 회의에서 유엔회원국 175개국은 플라스틱 오염을 종식시키고자 2024년까지 법적 구속력이 있는 국제협약을 마련하기로 합의하는 결의를 채택하였다. 한편, 플라스틱 규제와 관련해서는 무역기반 접근이 수반될 수밖에 없는데, 세계무역기구에서도 2020년 11월 일부 회원국간 ‘플라스틱 오염과 환경적으로 지속가능한 플라스틱 무역에 관한 비공식 대화체’가 발족되어 관련 논의를 이어가고 있다. 세계무역기구의 공식적인 협상은 아니지만 지속적으로 플라스틱 오염에 관한 회원국들의 주의를 환기시키고 있다는 점에서 긍정적으로 평가받을 수 있을 것이다.BR 플라스틱 규제 협약에 대해서는 2022년 하반기부터 정부간 협상위원회를 통해 본격적인 협상이 이루어질 예정인바, 그간의 논의를 개관하여 향후 협약에 어떠한 내용이 담길지를 예견하고 평가해보았다. 특히 협약의 목적, 국가결정기여, 이행 및 준수 메커니즘을 핵심축으로 삼아 검토하였다. 이번 협약이 유의미하고 진전된 행보가 되려면 국제사회를 구속하는 구체적인 플라스틱 규제조치가 규정되어야 할 것이다. 그러나 한정된 시간을 고려할 때, 기본협약으로서 제정된 이후 후속 의정서 형태로 보다 구체화될 것이라 예상한다. 기본협약으로서는 오존층 보호를 위한 비엔나 협약이나 파리협정을 모범선례로 삼아 참고할 필요가 있다고 보았다.BR 본고는 ‘탈(脫)플라스틱’, ‘포스트 플라스틱’ 시대에서 유엔환경총회와 세계무역기구에서 논의되는 최근의 플라스틱 오염 방지에 관한 국제적 논의를 개관하며 결과적으로는 현재 국제사회가 현재 나아가는 방향은 ‘플라스틱 없는(plastic-free)’, 완전한 ‘제로 플라스틱(zero-plastic)’이라기보다는 지속가능하고 친환경적인 플라스틱 생산과 소비로의 전환을 앞당기는 행보임을 확인하였다. 기본협약을 필두로 당사국 총회와 여타 부속기구 등을 설치하여 향후 역사적인 다자간 환경협정으로서 평가받기를 기대한다.

Constructing Colonial Peoples: W. E. B. Du Bois, the United Nations, and the Politics of Space and Scale

This article examines W. E. B. Du Bois's transnational political thought during his work with the UN and the NAACP in the 1940s. Focusing on unpublished speeches, essays, and correspondence, it explores how he exploited the conceptual elasticity of terms like “colonial status” and “colonial peoples” in order to build a transnational majority on a global scale. The conceptual capaciousness of the term “colony” and its cognates allowed him to connect disparate forms of domination and dependence across boundaries of race, nation, and empire, thus binding colonial and semicolonial peoples together in a common program of international action. The fruition of these efforts, I argue, was Du Bois's 1948 petition to the UN, An Appeal to the World. Through the appropriation of international legal discourse, he sought to politicize the jurisdictional bifurcation of domestic and international politics embedded in the UN Charter and expand the spatial scale of democracy by placing civil rights struggles in imperial context.

Commissive Modality of International Legal Discourse: An Implicit Mitigation of the Bindingness

This research focuses on the problem of the correlation between discursive modality and illocutionary force - with substantiating variations in illocutionary force as a pragmatic basis for the scale-paradigm of deontic modality, influencing the binding force of international instruments. Guided by the criterion of explicitness and implicitness of illocutionary force markers, as well as their localization in performative or propositional part, the paper categorizes five classes of commissives in relation to speech acts: direct commissives, hedged direct commissives, indirect commissives, indirect implied commissives, hedged indirect implied commissives. Direct commissives when hedged preserve the performative verbs of self-commitment in their illocutionary part, while contain hedge structures and means of generalization in propositional part, scaling down the strength of commissive illocutionary force and associating deontic modality of commitments. Indirect commissives are illocutionary bicomponent acts, combining either expressive-commissive or assertive-commissive illocutionary forces. Indirect implied commissives and hedged indirect implied commissives rank at the penultimate and last levels of the scale of commissive deontic modality. They are devoid of a phrase subject designating the subject of the implementation of obligations. Predicates with the meanings of ‘necessity’ and ‘requirement’ indirectly mark obligations assumed whereas passive structures, nominalization, hedges, generalization, and other markers of decreased illocutionary force and associated deontic modality de-intensify such in international legal discourse.

Intangible Cultural Heritage: Conceptual Approaches to the Phenomenon Definition

The article considers the main conceptual approaches to the definition of the phenomenon of intangible cultural heritage in contemporary humanitarian knowledge, in the international institutional and legal discourse of UNESCO, in Russian legislation and cultural policy. Despite the widespread use of the term “intangible cultural heritage” in international cultural practice in the interpretation of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, national approaches to understanding and theoretical justification of this concept in all three of the above directions differ at the level of fundamental foundations.Structural changes in the Russian cultural sphere and the transition to sustainable development strategies using the potential of intangible cultural heritage led to the transformation of practical aspects of its protection and representation. In this regard, the issues of determining the intangible component of culture and improving the terminological base are an urgent area of research from both theoretical and practical points of view. The article analyzes the main stages of the formation of the term “intangible cultural heritage” in UNESCO’s international activities, the most significant directions of this discourse, its understanding in Russian normative and legal practice (in matters of defining and typologizing heritage, the relationship between its material, spiritual, contextual, spatial and landscape components, authenticity and integrity), as well as its impact on cultural policy and practice of protecting such heritage. In addition, the authors highlight the content and functional approaches to the determination of this phenomenon in social and humanitarian knowledge, examine the basis of the criteria of authenticity, and offer an author’s definition of intangible cultural heritage.

International Law of State Responsibility and COVID-19: An Ideology Critique

Abstract Despite minimal prospects of success, international lawyers spent the first few months of the global pandemic discussing whether the rules of state responsibility could be invoked against states, especially China, for their acts and omissions regarding COVID-19. In this piece, we take these debates seriously, if not necessarily literally. We argue that the unrealistic nature of these debates does not make them irrelevant. Rather, we propose an ideology critique of state responsibility as a legal field. Our approach is two-fold. First, we argue these debates need to be situated within the rise of geopolitical competition between the US and its allies on the one hand and China on the other. In this context, state responsibility is always laid at the feet of one’s opponents. Secondly, we posit that my emphasising the role of states, recourse to state responsibility renders invisible the role of transnational processes of capitalist production and exchange that have profound effects on nature and set the stage for the emergence and spread of infectious diseases. Drawing from the work of the geographer Neil Smith, we argue against the ‘naturalisation’ of disasters performed much of the international legal discourse about COVID-19.

Terminology as a source of difficulty in translating international legal discourses: an empirical cross-genre study

Abstract Despite the persistent focus on terminology in legal translation studies, to date, no large-scale research has empirically explored the difficulty of terminology in translating legal genres. Approaches to translation difficulty in translation studies more broadly remain limited in scope. To fill this gap, a study was conducted to measure the difficulty associated with the translation of legal terminology and phraseology, as well as with terminology of other domains, in the LETRINT 1+ corpus, including nine representative genres of three institutional settings (the European Union, the United Nations and the World Trade Organization). For comparative purposes, four levels of translation difficulty were assigned to multiple terminological features by a group of specialized translators through a consensus-building process of annotation based on the cognitive effort estimated for translation decision-making. The difficulty scores obtained confirm the correlation between legal singularity and higher translation difficulty, as well as the connection of more commonly used legal terms and phrasemes, and core economic terms, with lower difficulty levels. The findings also provide evidence of the prominence of non-legal specialized terminology in institutional legal discourses, and the aggregate terminological difficulty levels of each genre examined, which can be particularly useful for informing translation quality assurance, project management and translator training.

Модель перекладу міжнародно-правового дискурсу: до проблеми застосування трансформаційної моделі і моделі еталонного набору ознак

Abstract. The article focuses on analyzes of the translation of international legal discourse applying the transformational model of translation analysis and the model involving tertium comparacionis - the language-mediator as a standard for comparing the original and target texts. The aim of the article is to highlight the peculiarities of the application of the transformation model and the model of the reference set of features for translation analysis of international legal discourse. The article used a complex research methodology involving methods of translation analysis, componential analysis, structural transformational analysis, as well as the elements of comparative method and text-interpretive analysis. The study reached the following conclusions. First, the transformation of nuclear structures of the English original text into surface text structures of the Ukrainian translation, carried out in accordance with the three-stage model of transformational analysis, shows the need to reproduce in Ukrainian translation conditional relations implied in the form of explanatory or attributive meanings. It is found that none of the obtained transformational structures completely coincides with the official translation into Ukrainian. In addition, the Ukrainian translation omits the modal verb of obligation shall, which is present in the English original text, so that the fragment of the translation loses the connotations of imperative modality, which does not correspond to the style of the translated text. The application of the translation analysis model related to the identification of the reference set of features for the original and target texts showed the presence of both common and different features from the reference set. The difference in the text of the translation is revealed by such allomorphic features as (a) "object of action in the singular", in contrast to the original fragment with the object of action in the plural, (b) change from modality of possibility to epistemic modality with verb in the present tense, as well as (c) implicated condition relations in the target Ukrainian text, in contrast to the explicit expression of the condition of the text of the original.

Concepts as Tools of Legal Reasoning – How Pragmatics May Promote the Rationality of International Legal Discourse and the Work of Legal Scholars

Abstract Concepts are an important element of the way international lawyers think and talk about international law. They materialise as conceptual terms, such as ‘jurisdiction’, ‘self-defence’ and ‘abuse of rights’. To enable a critical evaluation of international law and legal discourse, it is important that single instances of use of such terms be fully understood. This task presupposes a full recognition of the social meaning of legal utterances. Conceptual terms are uttered not only to describe the law, but also to affect the beliefs, attitudes and behaviour of readers and listeners. International lawyers are acquainted with this social side of legal meaning but lack a theory firmly grounded in pragmatic research that can help them systematically describe and investigate it. This article provides precisely such a theory. Crucially, it also explains how the suggested theory of meaning may promote the rationality of international legal discourse and the work of legal scholars.

Засоби вираження і відтворення в українських перекладах асертивної ілокуції текстів міжнародного права

The article focuses on the analysis of assertive speech acts in international legal discourse. The main types of assertives are distinguished based on the criterion of presence or absence of markers of assertive illocutionary force. The paper has Identified the following types of acts: direct assertive, marked performative devices of assertive illocution; direct assertives that do not contain a performative verb and assertives with illocutionary force of indirect directives. The peculiarities of translation transformations used during the translation of assertives from English into Ukrainian are revealed