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381. Sovereign Indignities: International Law as Public Law

Author:
Thomas Poole
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Two analogies lie at the core of Professor Waldron's article. The first is the claim that the standard analogy by which the state in international law is like the individual in domestic law is misleading; the state in international law is more like a government agency in domestic law. The second is that international law is (or is like) a species of public law and should be treated as such by domestic legal systems. I examine both claims, arguing (a) that even if we accept the first analogy it does not get us to the deeper levels of respect and commitment to international law that Waldron argues for, and (b) that the 'floating normativity' inherent in the second claim leads Waldron to overlook the specific organizational and structural conditions of international law. This leaves Waldron's position weakest where it should have most to offer: namely, in instances where our commitment to international law on one hand and the rule of law on the other seem to pull in opposite directions.
Topic:
International Law and Sovereignty

382. Sovereignty, International Law and Democracy

Author:
Samantha Besson
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
In my reply to Jeremy Waldron's article 'Are Sovereigns Entitled to the Benefit of the International Rule of Law?', I draw upon and in some ways expand Waldron's important contribution to our understanding of the international rule of law. First of all, I suggest that Waldron's argument about the international rule of law can be used to illuminate how we should understand the legitimate authority of international law over sovereign states, but also how some of sovereign states' residual independence ought to be protected from legitimate international law. Secondly, I argue that the democratic pedigree of the international rule of law plays a role when assessing how international law binds democratic sovereign states and whether the international rule of law can and ought to benefit their individual subjects. Finally, I emphasize how Waldron's argument that the international rule of law ought to benefit individuals in priority has implications for the sources of international law and for what sources can be regarded as sources of valid law.
Topic:
International Law and Sovereignty

383. Response: The Perils of Exaggeration

Author:
Jeremy Waldron
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Some of the points made in these comments presuppose that I have a more radical agenda than in fact I have. In this article, I wanted to reorient our understanding of the national state's position in international law, from that of subject to that of source and agency of that legal system, and I wanted to explore the implications of this reorientation for our understanding of the rule of law in the international realm. This reorientation of course requires us to take international law seriously. But it does not necessarily require any particular philosophical view of the relation between international law and national law. 1 In particular it does not direct us to any sort of jurisprudential monism (although it is not incompatible with monism). I think it is quite compatible with a dualist view of the relation between international and national law (not that it commits us to dualism either). It simply assigns the state a somewhat different role from that conventionally assigned in dualist theories. My analysis implies that some of what we would call national state and legal functions can (and should) sometimes be conceived as functions of the international legal system. When a state patrols its borders, for example, it is acting in part as an agency of the international refugee regime. 2 But the exercise of any given legal function can be understood in multiple ways. As I …
Topic:
International Law

384. A Transatlantic Friendship: René-Jean Dupuy and Wolfgang Friedmann

Author:
Pierre-Marie Dupuy
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
René-Jean Dupuy and Wolfgang Friedmann were good friends and for a large part shared a common vision of how post-World War II international law was structured and the ways in which it was evolving. It is worth comparing their respective views as they reflect the way in which a generation of international lawyers perceived in particular the impact of international organizations on modern international law seen as a true international legal order. Although influenced by the ideas of that period (the 1960s and 1970s), the views of these two great 'men of vision' remain of immense interest for the present and for times to come.
Topic:
International Law

385. René-Jean Dupuy and the Tragic City. The Surveyor, the Captain and the Poet

Author:
Alix Toublanc
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
R.-J. Dupuy's works are based on a dialectical approach to international law which integrates the inner strife and the various antagonisms that beset the 'terrestrial city'. Nevertheless he refused Hegel's dialectic which opposes thesis and anthithesis to produce a sterile synthesis and leads to rigidity. On the contrary, Dupuy's 'open dialectic' is based on the rejection of mechanistic and deterministic philosophies, and his description of the terrestrial city is dynamic, perpetually confronting opposite points of view through the eyes of the 'Captain', the 'Surveyor', and the 'Poet' symbolizing the need for order, for change, and for transcendence.
Topic:
International Law

386. The Thoughts of René-Jean Dupuy: Methodology or Poetry of International Law?

Author:
Evelyne Lagrange
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
If the thoughts of René-Jean Dupuy had to be reduced to an expression, it would be his method of 'open dialectic' applied to international law and society which enabled him to highlight the dynamic opposition of 'relational' and 'institutional' international trends in an impressive array of short surveys and ambitious synthesis. This article first aims to remind readers of the accuracy of Dupuy's comprehensive approach to international law and society, in that he never disregarded the meaning of rules and institutions for actors – mainly political ones – the underlying values and justice considerations or even myths beyond technical rules or political antagonisms. But it does not suffice to celebrate the visionary and rhetorical skills of Dupuy. His contribution to the methodology of international law has to be assessed. Did he build up a new paradigm? Considering some incertainties in the method of open dialectic and some shortcomings in his core concepts (inter alia a quite static conception of sovereignty), it may be doubted.
Topic:
International Law and Sovereignty

387. The Audacity of the Texaco/Calasiatic Award: René-Jean Dupuy and the Internationalization of Foreign Investment Law

Author:
Julien Cantegreil
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
The Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic awards refer to concession contract provisions and a political context that are now obsolete. Thus, this article argues on the one hand that the award on the merits, delivered in January 1977, provides an unparalleled opportunity to survey almost every facet of the world of international investment arbitration of the past. On the other hand, the award must nevertheless also be read as forward-looking. By fostering a shift from the traditional hegemony of national jurisdiction in international investment law to the internationalization of international contracts, the article underlines that the award on the merits remains the finest example of René-Jean Dupuy's long-lasting contribution to international law doctrine. By way of conclusion, it suggests that it provides the very best expression and point of entry into Professor Dupuy's understanding and shaping of what he coined 'la communauté'.
Topic:
Government and International Law
Political Geography:
Asia, Libya, California, and Arabia

388. A Democratic Rule of International Law

Author:
Steven Wheatley
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
This article examines the way in which we should make sense of, and respond to, the democratic deficit that results from global governance through international law following the partial collapse of the Westphalian political settlement. The objective is to evaluate the possibilities of applying the idea of deliberative ('democratic') legitimacy to the various and diverse systems of law. The model developed at the level of the state is imperfectly applied to the inter-state system and the legislative activities of non-state actors. Further, regulation by non-state actors through international law implies the exercise of legitimate authority, which depends on the introduction of democratic procedures to determine the right reasons that apply to subjects of authority regimes. In the absence of legitimate authority, non-state actors cannot legislate international law norms. The article concludes with some observations on the problems for the practice of democracy in the counterfactual ideal circumstances in which a plurality of legal systems legislate conflicting democratic law norms and the implications of the analysis for the regulation of world society.
Topic:
International Law
Political Geography:
Westphalia

389. The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks

Author:
Jean d'Aspremont
Publication Date:
05-2011
Content Type:
Journal Article
Abstract:
Although going down a different path, this article reaches similar conclusions to those formulated by Susan Marks. It starts by showing that the years 1989–2010 can be hailed as an unprecedented epoch of international law during which domestic governance came to be regulated to an unprecedented extent. This materialized through the coming into existence of a requirement of democratic origin of governments which has been dubbed the principle of democratic legitimacy. However, this article argues that the rapid rise of non-democratic super-powers, growing security concerns at the international level, the 2007–2010 economic crisis, the instrumentalization of democratization policies of Western countries as well as the rise of some authoritarian superpowers could be currently cutting short the consolidation of the principle of democratic legitimacy in international law. After sketching out the possible rise (1) and fall (2) of the principle of democratic legitimacy in the practice of international law and the legal scholarship since 1989, the article seeks critically to appraise the lessons learnt from that period, especially regarding the ability of international law to regulate domestic governance (3) and the various dynamics that have permeated the legal scholarship over the last two decades (4). In doing so, it sheds some light on some oscillatory dynamics similarly pinpointed by Susan Marks in her contribution to this journal.
Topic:
International Law

390. Protection of civilians under international humanitarian law: trends and challenges

Author:
Camilla Waszink
Publication Date:
08-2011
Content Type:
Working Paper
Institution:
Norwegian Centre for Conflict Resolution
Abstract:
This paper examines challenges faced in ensuring the adequate protection of civilians during armed conflict in accordance with international humanitarian law (IHL). While IHL establishes a comprehensive legal framework to protect civilians from the effects of military operations, this stands in stark contrast to the situation that civilians in conflict-affected areas face on the ground. Civilians account for a high proportion of the victims in most contemporary armed conflicts, whether as an unintended result of the fighting or because they are deliberately targeted by belligerents. Even in situations where the parties are seemingly committed to implementing their obligations under IHL, military operations often result in high numbers of civilian casualties and widespread destruction of civilian property.
Topic:
Political Violence, Human Rights, Human Welfare, Humanitarian Aid, International Law, and War