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4732. The Peremptory Norms of the International Community
- Author:
- William E. Conklin
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- This article claims that the quest for the identity of peremptory norms in terms of sources is misdirected. Instead of the identity of a discrete rule or right of international law, one needs to examine why a peremptory norm is binding. The latter issue addresses the referent of the identity issue: namely, the international community as a whole. Various significations of the latter are recognized and found wanting. The article examines three general forms of the international community: the community as an aggregate of inter-dependent states, the community as a rational construction, and the community as a social-cultural ethos independent of members and yet for the members. The first two forms are found wanting. First, they presuppose that a state is a self-creative author expressing its own will. Secondly, the community is reified vis-à-vis the social-cultural ethos in which the community is immersed. Thirdly, the community is exclusionary. The three problems take for granted that a territorial-like boundary separates outsiders from between insiders. The article concludes that the notion of an international community needs excavation before jurists can be assured that peremptory norms exist and why they exist.
4733. Peremptory Norms of the International Community: A Reply to William E. Conklin
- Author:
- Alexander Orakhelashvili
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- Professor Conklin's analytical effort to explain the nature of jus cogens is not only highly impressive, but also very timely. It demonstrates the continuing relevance of jus cogens as it increasingly arises in multiple areas of international law, regardless of doctrinal calls from the 1980s onwards that it should have faded away. Since then, there have been those who have suggested that jus cogens does not make sense and should be abandoned, those who suggest that jus cogens has merely aspirational relevance and does not make a difference on the ground, and those who argue that jus cogens is merely 'primary' law, not to be applied in the area of enforcement. What happens interestingly – and problematically – is that doctrinal debates on the conceptual rationale of jus cogens and on its more specific effects are often pursued separately. Conklin's contribution is a gentle reminder of the crucial issues of the background and essence of jus cogens that both writers and practitioners often tend to overlook when addressing the implications of jus cogens in specific areas of international law.
4734. The Peremptory Norms of the International Community: A Rejoinder to Alexander Orakhelashvili
- Author:
- William E. Conklin
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- Alexander Orakhelashvili has generously responded to my 'The Peremptory Norms of the International Community' with an understanding which requires a clarification on my part. On the one hand, consistently with my argument, he urges the departure from the '“cut and paste” repetition' of the sources of law. Such sources offer an 'ordinary, or mainline, justification' which is 'insufficient or irrelevant' to justify peremptory norms. On the other hand, he insists that 'none of this is meant to challenge positivist foundations of international law'. Although he emphasizes public policy as an important factor in that foundation, he also highlights fundamental values and the will, choices and universality of an international community. Orakhelashvili adds that the international social ethos, which I privileged, was 'a correct premise for jus cogens, but not a sufficient one'. What is also needed, he advises, is that the ethos be given 'a legal expression' or language. When the nature of such a legal language is addressed, one is advised that the language remains a 'consensual positivism'. Public policy is emphasized as such an expression commonly accepted in domestic and international legal discourses, we are advised.
4735. Lessons of Imperialism and of the Law of Nations: Alberico Gentili's Early Modern Appeal to Roman Law
- Author:
- Andreas Wagner
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili's interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili's work. In line with Gentili's own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his 'natural/private law' paradigm that might apply also to current suggestions of how to organize international law.
4736. Sundhya Pahuja. Decolonising International Law. Development, Economic Growth and the Politics of Universality. Cambridge: Cambridge University Press, 2011. Pp. 303. £65.00. ISBN:9780521199032.
- Author:
- Muin Boase and Mansur Boase
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- The book under review, which was awarded an ASIL Certificate of Merit, critically examines international law in the period following decolonization. Engaging both legal history and philosophy, the gnawing question which motivates this work, and risks getting lost under the wealth of scholarship, is: ‘Why has international law failed the Third World?’. The author claims that in order to answer this question, we must trace how a development thesis has been universalized and expose the transformative dynamic of a new ruling rationality based on the twin concepts of development and economic growth. The outcome is a regulatory framework, universally applied, which has subsumed the creative promise of international law. The claim is not that international law has shifted the operation of power, but rather that international law has itself become a new mode of power. Despite affirming political equality, the Third World, by avowing economic backwardness, unwittingly endorsed a rhetoric of development and a separation of the economic from the political. Once institutionalized through the Bretton Woods Institutions and the United Nations respectively, this disembedding of economics from politics, which we know from Polanyi’s The Great Transformation (1944) can only ever be an illusion, has facilitated a new imperialism of international economic law in the national arena. The historical repercussions are well known: the ever-expanding reach of an international technical law positioned as superior to national law, intervening, often violently, to maintain an unfavourable and asymmetric status quo in the name of idealized economic, political, and social models that cast themselves as universal. This pattern is well documented in Anghie’s Imperialism, Sovereignty and the Making of International Law (2004). Anghie argues that the branding of the ‘other’ as uncivilized and particular does not emerge from universals, but rather animates their formation. International law, by this account, was motivated by a civilizing mission, which Anghie terms ‘the dynamic of difference’, and this dynamic endures under very distinctive styles of jurisprudence from 16th century naturalism to 19th century positivism to modern-day pragmatism predicated on an assumed initial consent. Pahuja looks at the most recent form of this dynamic, not so much regarding its consequences as the legal and philosophical reasons for its endurance and even stabilization into the present.
4737. Individual Contributions to Fault Lines of International Legitimacy
- Author:
- Ekaterina Yahyaoui Krivenko
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- Legitimacy has become a popular subject in international law and international relations in the last decade. If previously the issue of legitimacy was addressed only subsidiarily to other issues, today books and articles taking the issue of legitimacy as their main subject abound. The books under review illustrate this trend. They all address 'legitimacy', but approach the notion from different perspectives.
4738. National Courts and the International Rule of Law
- Author:
- Giuseppe Cataldi
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- The book under review concludes research on the practice of domestic courts begun by the author over 10 years ago as part of a project entitled International Law in Domestic Courts. As pointed out in the preface, international doctrine lacked a systematic analysis of the domestic judicial application of international law, one based not on a theorization of relations between domestic law and international law but on an accurate analysis of data emanating from the decisions of domestic courts.
4739. World Trade Law after Neoliberalism. Re-imagining the Global Economic Order.
- Author:
- Michael Fakhri
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- Accounts of trade law usually are written in a technical style or focus on the WTO's legitimacy. Nevertheless, an increasing number of scholars are asking theoretical questions regarding why WTO law is structured as it is and operates the way it does. Some look to political or economic theory to answer the question. Lang, like some others, focuses more on social dynamics.
4740. Jean d'Aspremont. Formalism and the Sources of International Law. A Theory of the Ascertainment of Legal Rules. Oxford: Oxford University Press, 2011. Pp. 266. £60. ISBN:9780199696314 Jörg Kammerhofer. Uncertainty in International Law. A Kelsenian Perspective. Oxon New York: Routledge, 2011. Pp. 288. £85. ISBN:9780415577847.
- Author:
- Mónica García-Salmones
- Publication Date:
- 08-2012
- Content Type:
- Journal Article
- Abstract:
- The two books reviewed here invite international lawyers to mobilize. Jean D'Aspremont's Formalism calls for a renewal of the practice of formally ascertaining international legal rules. D'Aspremont attempts to develop a theory for this endeavour to be employed in an age of pluralized normativity. Essentially this theory is grounded in a social thesis with robust Hartian support. Jörg Kammerhofer's Uncertainty in International Law, for its part, argues in favour of a much more theoretical approach to international law, one that is normativist and, more specifically, Kelsenian. Both texts are original and challenging in their effort to draw our attention to new ways of thinking about form. In d'Aspremont's view, the most problematic aspect of the ascertainment of law is the absence of social consciousness in law-applying authorities. He views the absence of a subjective (community) commitment to formalism – that is a commitment to respect the necessity of legal boundaries – as more of an obstacle in the objective production of law than fragmentation. The remedy proposed for this problem is the elaboration of written linguistic indicators which ensure the identification of international legal acts – as distinct from informal mechanisms such as the intent of the law-maker. D'Aspremont regards the written linguistic indicators generally as more suitable to the reality of our times, where informal law-making procedures abound, but nevertheless the need to distinguish law from non-law remains. According to d'Aspremont, what is at stake in the issue of formalism is not just an elementary respect for the rule of law, but also the possibility of critique of international legal rules. Kammerhofer dissects important aspects of the positive international legal order: self-defence, customary international law, interpretation and modification, conflicts of norms, and the idea of a constitution, following Kelsen's Pure Theory. The author devotes the larger part of the book to showing the impossibility of avoiding uncertainty in current international law. The climax is reached in the last chapter with a call to rethink the need for the Grundnorm (Kelsen's famous basic norm) in international legal theory. As Kelsen famously put it, the cognition of a norm as norm, rather than as a psychological or sociologico-empirical reality, is possible only if the norm has a presupposed Grundnorm, because to deny the dichotomy of Is and Ought means to deny the nature of (international) norms. According to Kammerhofer we need, and will always need, to return to the Grundnorm. In essence – and here is the gist of Kammerhofer's formalism – this means to accept the distinction between reality and value. Kammerhofer's insight that the Grundnorm does nothing but restate the idea of normativity reveals his reading of Kelsen and, more generally, his familiarity with the Vienna School of Law. But rather than in taking the Vienna School further, his contribution lies in using some of the theories developed in that school to think about current positive international law. Formalism and the Sources of International Law and Uncertainty in International Law both consider that the rules which determine the law-making powers of any given authority have an existence autonomous from the actual relations of power. In that sense, they constitute useful texts for gaining insights into the latest developments in positivist international legal theory.