scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

Seismic Shifts: The COVID-19 Pandemic’s Gendered Fault Lines and Implications for International Law

2021 ◽  
Vol 39 (1) ◽  
pp. 91-104
Author(s):  
Shruti Rana
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Order ◽  
Private Life ◽  
Legal Order ◽  
Public And Private ◽  
State Action ◽  
Role Of The State ◽  
International Legal Order ◽  
Fault Lines

Abstract The Covid-19 pandemic and related shutdowns created seismic shifts in the boundaries between public and private life, with lasting implications for human rights and international law. Arriving just as the international legal order was wobbling in the wake of a populist backlash and other great challenges, the pandemic intensified fault lines of marginalisation and state action, amplifying the forces that had already left the liberal international order in crisis and retreat. This article examines the pandemic’s impacts on the international legal order through a gendered lens. It argues that in the short-term, the pandemic has reinforced public-private divides in international law, reinvigorating previous debates over the role of the state in protecting its people from harm. It argues that in the long-term, these developments threaten to unravel the most recent gains in international law and global governance that have supported and expanded the recognition of human rights to marginalised groups. Left unaddressed, this unraveling will further entrench such divides and contribute to the further retreat of the liberal international order. Examining these fault lines and their implications can help us re-imagine a post-pandemic international legal order that offers more protection for human rights, even as multilateral institutions and cooperation sputter or fail.

System Values and Understanding Legal Language

2008 ◽  
Vol 21 (1) ◽  
pp. 29-61 ◽  
Author(s):  
MAKSYMILIAN DEL MAR
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Legal Order ◽  
Legal Language ◽  
International Legal Order ◽  
Institutional Contexts ◽  
International Law Commission ◽  
Fragmentation Of International Law ◽  
Law Commission ◽  
The Ideal

AbstractThis paper argues that the concerns and methodology of the recently completed Report of the International Law Commission (ILC) over the fragmentation of international law presuppose a particular way of understanding legal language which tends to separate the understanding of rules from their factual adaptability to certain recurring social problems faced within specific institutional contexts. The paper argues that separating rules from their factual adaptability focuses the analysis on surface coherence – coherence at the level of abstract terms and phrases. It is the argument of this paper that this presupposition is not warranted, and that the understanding of rules cannot be thus separated. An alternative model of the understanding of legal language is developed on the basis of the work of Bernard Jackson and Geoffrey Samuel. This is further supplemented by the approach to the study of institutional contexts in the recent work of Robert Summers and John Bell. Together, these resources can lead to the analysis of the deep coherence of the international legal order, that being one that prioritizes not the unity of that order, but its responsiveness. The ideal of responsive law is elaborated upon by reference to the work of Philip Selznick and Philippe Nonet. Finally, a different agenda for the ILC is offered on the basis of the methodology of deep coherence. The upshot is that the paper calls for a reorientation of international legal theory, away from concerns about ‘the law itself’ and towards an engagement with the responsiveness of legal work performed in international legal institutions.

scholarly journals No cosmopolitan morality without state sovereignty

2017 ◽  
Vol 43 (10) ◽  
pp. 1072-1094 ◽  
Author(s):  
Kjartan Koch Mikalsen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Political Legitimacy ◽  
Legal Order ◽  
State Sovereignty ◽  
Bodily Integrity ◽  
Common View ◽  
Ultimate Concern ◽  
International Legal Order ◽  
The Common

This article takes issue with the common view that cosmopolitan normative commitments are incompatible with recognition of state sovereignty as a basic principle of international law. Against influential cosmopolitans, who at best ascribe a derivative significance to the sovereignty of states, the article argues that state sovereignty is not only compatible with, but also essential to the recognition of individuals as units of ultimate concern. The argument challenges a problematic distributive conception of justice underlying many cosmopolitans’ support for reforms of the international legal order towards a system where respect for basic human rights is the only criterion for political legitimacy. An alternative relational conception of justice makes it possible to see why there is an internal connection between the rights of individuals and the rights of states. The argument adds up to a novel defence of the so-called domestic analogy, which regards the territorial integrity of states as an international parallel to the bodily integrity of individuals.

The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics, Bill Bowring, Routledge-Cavendish, 2008

2010 ◽  
Vol 18 (1) ◽  
pp. 193-207
Author(s):  
Robert J. Knox
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Order ◽  
Revolutionary Change ◽  
Progressive Politics ◽  
The Real ◽  
International Legal Order

AbstractBill Bowring’s book attempts to argue for a Marxist account of international law that embraces it as a tool for progressive politics and revolutionary change. He argues it is necessary to give a substantive account of both, locating them in the real struggles of the oppressed. Specifically, he locates human rights in the three great revolutions ‐ the French, the Russian and the anticolonial. However, this revolutionary heritage has been ‘degraded’ by recent events. As such, it is necessary to adopt ‘revolutionary conservatism’, invoking international law’s origins against its current degradation. This review argues that, owing to international law’s indeterminacy, Bowring’s project is susceptible to imperial appropriation. This means, however, that Bowring cannot give an account of why we should use international law. It then argues that Bowring’s account of Pashukanis is wrong, and that Pashukanis’s work can better make sense of Bowring’s insights and international law more generally.

Immanuel Kant and Jurisdiction in International Law

2019 ◽  
pp. 80-96
Author(s):  
Stephan Wittich
Keyword(s):  
Human Rights ◽  
Immanuel Kant ◽  
International Law ◽  
Legal Order ◽  
Traditional View ◽  
Regulatory State ◽  
Perpetual Peace ◽  
International Legal Order ◽  
Cosmopolitan Law ◽  
Traditional Understanding

This chapter discusses Immanuel Kant’s notion of jurisdiction. Kant’s work contains several thoughts and ideas on the scope of regulatory state activities that may well be read as pertaining to the exercise of imperium in the sense of jurisdiction how it is commonly used today. In his philosophical sketch on Perpetual Peace, Kant proceeded from a traditional understanding of jurisdiction as coexistence between states as a cornerstone of international law. In this traditional view, jurisdiction is nothing more than a reasonable mutual delimitation of jurisdictional spheres based on territoriality or personality. Yet, at the same time, he also developed a visionary idea of cosmopolitan law which would significantly affect the traditional rules of jurisdiction, especially the personality principle through the emergence of individual rights. Kant’s approach thus foreshadowed a development towards an anthropocentric international legal order epitomized by the concepts of human rights and universal jurisdiction.

scholarly journals Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox

2011 ◽  
Vol 19 (2) ◽  
pp. 113-127 ◽  
Author(s):  
Bill Bowring
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Order ◽  
Self Determination ◽  
Fourth Section ◽  
International Legal Order ◽  
The Right ◽  
Irish Question

AbstractThis response to Robert Knox’s very kind and constructive review1 of my 2008 book The Degradation of the International Legal Order: The Rehabilitation of Law and the Possibility of Politics gives me the opportunity not only to answer some of his criticisms, but also, on the basis of my own reflections since 2008, to fill in some gaps. Indeed, to revise a number of my arguments. First, I restate my attempt at a materialist account of human rights. Next I explain why, for me, the right of peoples to self-determination is absolutely central to a materialist understanding of human rights; and also fill a serious gap in my own account in the book. This leads me not only to a reply to Robert Knox on the question of ‘indeterminacy’ in international law, but also to a disagreement with him on the use or misuse of the language of self-determination. My fourth section returns to our very different evaluations of the significance and meaning of the work of Yevgeny Pashukanis, and what, for me, is Pashukanis’s misunderstanding, for reasons consistent with his general theoretical trajectory, of Marx and Lenin on the Irish question. Finally, I present an outline of a re-evaluation of Marx’s principled position on self-determination.

scholarly journals INTERNATIONAL LAW IN THE CONDITIONS OF TRANSFORMATION OF CONTEMPORARY WORLD ORDER

2015 ◽  
Vol 1 (5) ◽  
pp. 0-0
Author(s):  
Анатолий Капустин ◽  
Anatoliy Kapustin
Keyword(s):  
International Law ◽  
Legal Theory ◽  
World Order ◽  
Legal Order ◽  
Modern World ◽  
Contemporary World ◽  
International Policies ◽  
International Legal Order ◽  
And Function ◽  
The Relationship

The article discusses the role and function of international law in the transformation of the modern world order. A brief description of the main features of international contemporary international relations and the role of international law in maintaining international legal order is given. The relationship and interaction of international policies of States and international law is examined. Scientific schools of international law exploring the relationship of international law and foreign policy are analyzed. In this regard, the author draws attention to the problem of the legitimacy of international law and established international legal order. The assessment of challenges to the legitimacy of international law and its reflection in the current international legal theory is made.

Farewell to the f-word? fragmentation of international law in times of the COVID-19 pandemic

2021 ◽  
pp. e20210007
Author(s):  
Sivan Shlomo Agon
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal Order ◽  
Test Case ◽  
International Courts ◽  
Post Cold War ◽  
International Response ◽  
International Legal Order ◽  
Negative Impacts ◽  
Fragmentation Of International Law

The proliferation of international legal regimes, norms, and institutions in the post-Cold War era, known as the ‘fragmentation’ of international law, has sparked extensive debate among jurists. This debate has evolved as a dialectical process, seeing legal scholarship shifting from grave concern about fragmentation’s potentially negative impacts on the international legal order to a more optimistic view of the phenomenon, with recent literature suggesting that the tools needed to contain fragmentation’s ill-effects are today all at hand, thus arguing that the time has come ‘to bid farewell to the f-word.’ Drawing on the COVID-19 crisis as a test case and considering the unresolved problems in existing fragmentation literature that this crisis brings to the fore, this article asks whether such calls have perhaps been premature. Existing works on fragmentation, the article submits, including those bidding farewell to the f-word, have mainly focused on the problems of conflicts between international norms or international institutions, especially conflicts between international courts over competing jurisdictions and interpretations of law. But, as the COVID-19 case – and, particularly, the deficient cooperation marked between the numerous international organizations reacting to the crisis – shows, the fragmentation of the international legal order does not only give rise to the potential consequences of conflicts of norms and clashes between international courts. Fragmentation also gives rise to pressing challenges of coordination when a proactive and cohesive international response is required to address global problems like COVID-19, which cut across multiple international organizations playing critical roles in the creation, administration, and application of international law. By foregrounding cooperation between international organizations as a vital-yet-deficient form of governance under conditions of fragmentation, the article argues, the COVID-19 crisis not only denotes that the time is not yet ripe to bid farewell to the f-word. It further points to the need to expand the fragmentation debate, going beyond its conflict- and court-centred focus, while probing new tools for tackling unsettled problems that arise from the segmentation of international law along sectoral lines.

The Islamic Law of War and Peace and the International Legal Order: Convergence or Dissonance?

2021 ◽  
pp. 379-394
Author(s):  
Sohail H. Hashmi
Keyword(s):  
International Law ◽  
Classical Theory ◽  
Islamic Law ◽  
World Order ◽  
Legal Order ◽  
War And Peace ◽  
Public International Law ◽  
State Practice ◽  
International Legal Order ◽  
Mutual Relations

Sohail Hashmi introduces Part VI on non-Western perspectives on the justification of war and international order by engaging with Islamic discourses on war and peace: Muslim jurists working in the eighth through the fourteenth centuries developed a wide-ranging theory of world order (siyar) that elaborated laws of war (jihad) and peace. This theory was never fully implemented in state practice, but given the conservatism of Muslim jurisprudence in later centuries, it was neither revised nor renounced. Thus, this classical theory exists as a sort of parallel legal system to public international law today, confronting modern Muslims with questions of conflict or compatibility between the two. Three broad Muslim responses may be discerned: assimilation, accommodation, and rejection. The assimilationists treat the classical theory largely as a historical and now obsolete conception of world order. They accept the universality of international law and argue that most Muslims do so as well. The accommodationists claim that while international law appropriately governs the conduct of Muslim states in international society as a whole, Islamic law should have a role in the mutual relations of Muslim states. In other words, they see the potential for an Islamic international law alongside public international law. The rejectionists view international law as an alien code imposed on Muslims by Europeans. They affirm the superiority of Islamic law over international law and call for its application by Muslim states, not just in their mutual relations, but with non-Muslim states as well. Of these three positions, Muslim scholarship and practice overwhelmingly favour the assimilationist or accommodationist views. The rejectionist position is propounded by a limited number of the most conservative scholars and activists.

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