Search

Digital and non-digital modes of governing the international legal order co-exist. This imbrication brings with it a particular constellation of actors, new sites and processes of governance and new modalities of law-making. Claudia Aradau and Tobias Blanke, in Algorithmic Reason , guide us through the complex cartographies of global governance. They eloquently map the networks and infrastructures of algorithmic governance and show how they affect the relations between the governing and the governed. Thereby, they help us visualize the imbrication of the local and the global, of private and public infrastructural logics beyond the static binaries that shape our traditional understanding of the international legal order. Throughout multiple case studies, two major transversal claims emerge in the book that are relevant to international lawyers. The book, in my view, argues for (i) an anti-solutionist and (ii) an anti-formalist analysis of global algorithmic governance. As these two transversal claims are not always fully unpacked and explicitly embraced, this review essay aims to draw the contours of these claims, unpack them and show how valuable they can be to think about global algorithmic governance and the functions of international law in the equation. [ABSTRACT FROM AUTHOR]

The article focuses on the examination of dominant functionalist approaches in international organizations law and explores the quest for alternative theoretical perspectives, particularly regarding accountability. It reflects on past efforts to identify alternative modes of thinking through the examination of influential scholars and concludes that international organizations law largely remains entrenched in functionalism.

This article examines the work of Mexican diplomat and jurist Jorge Castañeda as an insight into the trajectory of international legal thought in the semi-periphery on international organizations. It argues that Castañeda adopted a distinct approach to international organizations law that foregrounds power asymmetries. The article considers three interventions made by Castañeda that express this semi-peripheral approach and have lasting relevance. First, it shows how, by focusing on the interests of small powers, Castañeda's work in the 1950s departed from functionalist optimism and stressed the tension between rule by international organizations and domestic rule, emphasizing the centrality of the reserved domain and drawing lessons for strategic legal engagement for small powers. Second, this article studies how Castañeda's concern for the cause of small powers shaped his views on regionalism, grounding his critique of Pan-Americanism and his vindication of the United Nations (UN) to attenuate the perils of regionalism. Third, this article retrieves Castañeda's defence of the UN General Assembly as a platform for international law-making, contextualizes it within the rise of decolonization and explores the implications for his earlier sceptical views about the expansion of UN powers. The article concludes by highlighting the significance of the thought of semi-peripheral jurists for any efforts aimed at re-theorizing international organizations. [ABSTRACT FROM AUTHOR]

Taking on this Symposium's invitation to rethink international organizations law by focusing on scholars and practitioners outside the mainstream, this article explores and evaluates the legacy of Anne-Marie Leroy, the World Bank General Counsel from 2009 to 2016. In her attempt to trade the formal, rigid language of law for the deformalized routine of risk management – described as a 'paradigm shift' from 'rules to principles' – Leroy could be portrayed as an antipode to those who developed or nurtured the discipline of international organizations law. Yet it is precisely by focusing on figures working outside (and against) the diagrams of the discipline that we can gain a critical perspective on the evolving life of law in international institutions. The article specifically focuses on how Leroy's paradigm shift sought to bypass, manage, and overcome problems of operational expansion and institutional accountability to the outside world – perhaps the two frontiers where the conceptual normative confidence of mainstream, functionalist approaches most manifestly hit their limits. In both domains, the article shows, the principled (occasionally prohibitive) posture of liberal legalism instilled by some of Leroy's predecessors had to be traded for an attitude of 'agility' and enhanced 'risk appetite'. This article traces these changes in the professional sensibility and material practice of international law(yering) and critically evaluates the 'new normative architecture' of 'risk' that underpins it. It is by dwelling in this disjunction between familiar doctrinal dilemmas and mundane material practices of lawyering – a space teeming with unexpected rules and routines – that a critical reinvigoration, reorientation, and re-theorization of international organizations law can emerge. [ABSTRACT FROM AUTHOR]

After so many decades since the emergence of international organizations, the question of their international legal status – the terms on which they participate in the international legal system – remains the subject of debate. Among all the scholars that have contributed to this debate, Finn Seyersted stands out for having offered a forward-looking, sophisticated and uncompromising account of what international organizations are under general international law and of what international rights, obligations and capacities they consequently possess. Yet Seyersted is perceived as a left-field scholar with a bee in his bonnet. His work is often name-checked but rarely engaged with properly. This article highlights Seyersted's invaluable contribution to the theory of international organizations, which has the merit, among others, of having sensed the direction in which international practice was going. It also ponders how Seyersted's relative lack of success in becoming a more influential scholar can be viewed as a cautionary tale, for there are empirical, conceptual and normative challenges in the quest for international legal status that his work was not able to meet. [ABSTRACT FROM AUTHOR]

This article examines critical approaches to liberal internationalism in international law. It argues that, despite ongoing disavowals of the liberal international legal order, most critical international lawyers are yet to let go of liberal vocabularies in order to re-imagine how order might be constituted anew. The article proposes a disordering critique of international law. Disordering international law comprises a process of reflective discernment. Through this process, norms, conventions and principles are determined with reference to a multiplicity of spatial and temporal orders and reframe any understanding of how legal order is constituted internationally. Drawing from the concept of non-duality proposed by Ratna Kapur and the writings of Justice Cançado Trindade, it then conceptualizes a disordering sensibility. Scholars embarking on international legal disordering would ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is 'order' determined as a result? What sequence, pattern or method am I imposing and how does that affect any characterization of 'legal' ordering? Whose knowledge is included, whose knowledge is excluded and why? The analysis, however, does not stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? The return to practice provides a path towards change, which the article argues is urgently needed. I commence with some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames. [ABSTRACT FROM AUTHOR]

The article focuses on the functionalist approach's dominance in international organization law and proposes the need for other viewpoints. It discusses the shortcomings of the functionalist approach, particularly in terms of accountability to third parties. It mentions the finding of unnoticed innovations by Anne-Marie Leroy, former World Bank legal counsel, who presented a distinct legal risk management approach that deviates from typical techniques based on legal permissiveness.

The article focuses on liberal democracy that would become regnant in the world and a New International Legal Order replace the old First World/Second World/Third World distinctions. Topics include considered that components of which interestingly predate the first, investigates the democratic credentials of the international legal system itself.

There has been a tremendous rise in the participation of non-state actors – notably business – in international rule-making. While such participation has many benefits, the risk that rule-making gets captured – that is, that rules are made in line with business' profit-driven interest rather than in the public interest – has increased too. This article, first, explores the growing problem of capture in international rule-making and identifies three modes of capture that have become particularly prevalent in international policy-making: information capture, representational capture and resource capture. The article then explores the World Health Organization's (WHO) 2016 Framework of Engagement with Non-State Actors (FENSA) and how effectively it manages these risks. FENSA is interesting because it is the first policy by an international organization seeking to comprehensively and systematically regulate non-state actor engagement and to prevent related risks. In assessing FENSA, the article focuses on the WHO's engagement of two main actors: the Big Food industry and voluntary donors. Finally, the article seeks to draw more general lessons as to the capacity of FENSA-like reforms to prevent capture in international rule-making. [ABSTRACT FROM AUTHOR]

This article situates C. Wilfred Jenks as a central figure in the emergence and development of the law of international organizations. Deeply informed by his work as a legal advisor at the International Labour Organization (ILO), Jenks' scholarly writings during and immediately after World War II established a basis for, and elaborated the details of many aspects of, classical international organizations law. Moreover, the article argues that Jenks' oeuvre also articulated a number of insights and approaches that, in retrospect, may be read as suggesting a series of alternative futures for international organizations law. By examining Jenks' foundational works on international organizations law, therefore, the article seeks to recover aspects of Jenks' thinking that might have led – and might still lead – the field to explore different paths. [ABSTRACT FROM AUTHOR]

While the responsibility of international organizations and their member states has been on the agenda of courts and scholars for decades, the adoption of the Articles on the Responsibility of International Organizations (ARIO) by the International Law Commission in 2011 has given new impetus to the debate. Nikolaos Voulgaris' Allocating International Responsibility between Member States and International Organizations is one of the few general books on the topic that post-dates the adoption of the ARIO. Despite its broad title, however, the focus of the book is rather narrow: it concentrates on the responsibility of an international organization or a state in connection with the act of a/another state or international organization, which Voulgaris describes as 'indirect responsibility'. Considering the book's extensive discussion of the function and nature of international responsibility, this review essay first submits that the book's actual aim is a rethinking of indirect responsibility. Second, it examines Voulgaris' reconceptualization of the pertinent provisions on indirect responsibility in terms of what he calls the 'complicity' and 'derivative responsibility' models. This review essay concludes that the reader who expects detailed guidance on the allocation of responsibility between international organizations and their member states will be left wanting. Instead, the interaction between international organizations and their member states serves as an illustration for the book's insightful analysis of the under-theorized provisions on international responsibility in connection with the act of another. [ABSTRACT FROM AUTHOR]

This article, part of the symposium on 'theorizing international organizations law', discusses the work (and a little of the life and influence) of Henry G. (Hein) Schermers, arguably the leading functionalist international organizations lawyer of the post-war era. The article discusses how Schermers' work solidified and consolidated functionalism and unwittingly laid bare its 'Achilles heel'. Confronted with the growing popularity of human rights and keenly devoted to human rights, Schermers faced a dilemma when the possible responsibility of international organizations for human rights violations came up – a dilemma his functionalism was unable to solve. Therewith, zooming in on Schermers' handling of the dilemma confirms that functionalist international organizations law is unable to address the responsibility of international organizations towards third parties. International organizations law will need to find different theoretical resources in order to come to terms with responsibility. [ABSTRACT FROM AUTHOR]

It is common in international practice that several states and/or international organizations contribute together to the indivisible injury of a third party. Examples thereof are aplenty in relation to climate change and other environmental disasters, joint military activities and cooperative actions aimed at stemming migration. Such situations are hardly captured by the existing rules of the law of international responsibility. In particular, the work of the International Law Commission, which is widely considered to provide authoritative guidance for legal questions of international responsibility, has little to offer. As a result, it is often very difficult, according to the existing rules of the law of international responsibility, to share responsibility and apportion reparation between the states and/or international organizations that contribute together to the indivisible injury of a third party. The Guiding Principles on Shared Responsibility in International Law seek to provide guidance to judges, practitioners and researchers when confronted with legal questions of shared responsibility of states and international organizations for their contribution to an indivisible injury of third parties. The Guiding Principles identify the conditions of shared responsibility (including questions of multiple attribution of conduct), the consequences of shared responsibility (notably, the possibility of joint and several liability) and the modes of implementation of shared responsibility. The Guiding Principles are of an interpretive nature. They build on the existing rules of the law of international responsibility and sometimes offer novel interpretations thereof. They also expand on those existing rules, backed by authoritative practice and scholarship, to address complex questions of shared responsibility. [ABSTRACT FROM AUTHOR]

This article argues that international organizations 'as such' can contribute directly to the creation of customary international law for three independent reasons. First, the states establishing an international organization may subjectively intend for that organization to be able to contribute to the creation of at least some kinds of customary international law. Second, that capacity may be an implied power of the organization. Third, that capacity may be a byproduct of other features or authorities of the international organization – specifically, the combination of international legal personality and the capacity to operate on the international plane. Affirming international organizations' direct role in making customary international law will not dramatically change the content of customary international law or the processes by which rules of customary international law are ascertained. But recognizing that role is significant because it will reinforce other conclusions about how international organizations fit into the international legal system, including that customary international law binds international organizations. Such recognition may also shift the way lawyers within international organizations carry out their work by affecting the sources they consult when answering legal questions, the materials they make publicly available and the kinds of expertise that are understood to be necessary to discharge their responsibilities. Finally, affirming international organizations' role in creating customary international law may make international organizations more willing to comply with those rules. [ABSTRACT FROM AUTHOR]

Starting from the observation that there has long been - and continues to be - a preference for a plurality of international courts and tribunals, this article explores the emerging threads of a managerial approach in the fabric of international dispute settlement due to the increased number of fora in recent years. It argues that, while plurality remains the choice, both judges and states are actors in efforts to order this plurality as the need for judicial awareness and tools to organize jurisdiction has become more acute. In particular, judicial actors have woven common normative threads through various communicative practices and their approach to matters of procedure. Further, procedural mechanisms are being used to a greater extent to mitigate the risks of overlapping jurisdiction and parallel proceedings. In this respect, international economic law is serving as a laboratory for the development of these mechanisms. They include, among others, adapted versions of lis pendens, connexité, or fork-in-the-road provisions. That said, similar threads of a managerial approach can be seen to be emerging beyond international economic law. Further reflection is needed on a creative means for ensuring coordination and coherence without compromising the preference for plurality. [ABSTRACT FROM AUTHOR]

Asian states are the least likely of any regional grouping to be party to most international obligations or to have representation reflecting their number and size in international organizations. That is despite the fact that Asian states have arguably benefited most from the security and economic dividends provided by international law and institutions. This article explores the reasons for Asia's under-participation and under-representation. The first part traces the history of Asia's engagement with international law. The second part assesses Asia's current engagement with international law and institutions, examining whether its under-participation and under-representation is in fact significant and how it might be explained. The third part considers possible future developments based on three different scenarios, referred to here as status quo, divergence and convergence. Convergence is held to be the most likely future, indicating adaptation on the part of Asian states as well as on the part of the international legal order. [ABSTRACT FROM AUTHOR]

The door may be closed (for now) on lifting state immunity for human rights violations on the basis of a jus cogens exception, but there is some hope that the commercial activity and employment contract exceptions to immunity might open up possibilities for relief. Holding states, diplomats and international organizations accountable for human rights abuses that occur in an employment context is the 'new' human rights dilemma. These abuses range from breach of contract to discrimination, harassment and human trafficking. This article examines the dilemma from the perspectives of principle, practice and policy. It proposes a framework for analysing employment disputes involving claims of immunity and identifies trends and variables in the practice of 20 jurisdictions. It also considers whether requiring a prospective waiver of immunity from embassies and organizations may be a best practice model for states to adopt. [ABSTRACT FROM AUTHOR]

This article critically examines the use of science in the formation of global animal law. It focuses on two international legal decisions that made a significant contribution to the development of global animal law in 2014: the report of the Appellate Body of the World Trade Organization (WTO) in EC - Seal Products, and the judgment of the International Court of Justice (ICJ) in Whaling in the Antarctic. The authority of science, and the interaction between scientific and juridical methods, lie at the heart of both of these decisions. In Whaling in the Antarctic, the ICJ ruled that Japan's whaling programme in the Southern Ocean is not 'for purposes of scientific research' within the meaning of the International Convention on the Regulation of Whaling. In EC - Seal Products, the WTO Appellate Body ruled that the European Union's ban on seal products was justifiable under Article XX(a) of the General Agreement on Tariffs and Trade as a matter of public morals because it was based on European citizens' moral objections to cruelty in seal hunting. Both cases, as well as the controversies over whaling and sealing that led up to them, illustrate the persuasive power of the 'appeal to science', enlisting scientific objectivity and rigour to underpin the credibility of legal arguments. At the same time, both judgments vindicate the final authority of jurists to determine questions of justice and confirm that such questions cannot be simply outsourced to science. The article analyses the way science is used in the reasoning of both tribunals and finds that both decisions appropriately distinguish between the roles of scientific and legal reasoning. It concludes by proposing, following the direction suggested by Judge Cançado Trindade's separate opinion in Whaling in the Antarctic, that the basis of international obligations towards animals is to be found not so much in scientific evidence as in our shared humanity and ethical conscience. [ABSTRACT FROM AUTHOR]

In his EJIL Foreword, Jan Klabbers argues that the contemporary application of functionalism, understood as organizations being assigned functions, in order both to realize the common good and to deepen inter-state cooperation, is something of a theoretical straitjacket. However, can functionalism really be described as a 'one-size-fits-all' concept? It is the contention of this Comment that there are, in fact, different manifestations of the concept, including neo-functionalism and formal or informal functionalism. New realities in this field also reflect an evolved conception of functionalism, such as the increasing diversity of actors affected by, and influencing, international organizations, as well as the fact that institutions have become authorities in their own right. As a consequence, we may also observe the emergence of principles, often referred to as global administrative law principles, aimed at dealing with these new realities. The article recognizes that a functional orientation in designing the mandates of international organizations has contributed to overlaps and inefficiency. However, it argues that efforts have been made in pursuance of greater efficiency. [ABSTRACT FROM AUTHOR]

This article offers a re-examination of the international legal status of what is here termed the Vatican/Holy See complex (VHS), focusing on claims to statehood. The problematic 'effect' of Vatican City, of the Holy See, of the papacy and of associated entities is interrogated at the level of international law, entering as little as possible into administrative or theological distinctions. The various grounds cited as supporting status amounting to statehood are argued to be inadequate. The continuing exchange of representatives with states by the VHS is missionary and hierarchical in character and is reflective neither of the reciprocity of peers nor of customary obligation going to law. Agreements entered into by the papacy with the Kingdom of Italy (the Lateran Pacts) in 1929, relating to the status of the geographical territory known as Vatican City, cannot be determinative of international status. Nor can membership of international agreements and organizations confer a status amounting to statehood. Events and practices since 1929 have not substantially altered international status as of 1870. The Roman Catholic Church is but one of many faith-based international movements, and since the eclipse of the papal state nearly one-and-a-half centuries ago, the status in international law of its temporal headquarters in Rome should not be privileged. [ABSTRACT FROM AUTHOR]

This article argues that the growth of international organizations over the past century has been imagined and carried out in order to make modern states on a broadly Western model. The proliferation of international organizations and the expansion of their legal powers, through both formal and informal means, raise profound questions regarding the relationship between international law's reforming promise and its imperialist perils. The article proposes a new analytic framework for understanding these phenomena, focusing on the rationalities of international organizations' powers and the technologies through which they are made operable. It argues that both the growth of international organizations and the cultural processes of state formation are impelled by a dynamic of liberal reform that is at once internal and external to law. That dynamic and the analytic framework proposed here are both illustrated and exemplified through a critical account of the emergence of international organizations in the 19th century. [ABSTRACT FROM AUTHOR]

The contribution of the late French Professor Michel Virally to international law is vast and touches on most areas of this discipline. Yet, Virally devoted particular attention to two main areas of inquiry, namely the philosophy of law and international organization. I have analysed Virally’s contribution to the former elsewhere. This article focuses on his contribution to international organization widely understood as the study of international organizations and that of world organization. Virally considered international organization as a new political phenomenon, which would shape the dynamics of the two main driving forces of the second half of the 20th century, i.e., the East–West and the North–South divides. He developed a sophisticated theory of international organizations, with a strong functional focus. He used this theory to shed light on questions such as the management of international conflicts, the decolonization process, or the increasing influence of newly independent and developing states. His views on how these forces would shape the evolution of international law were far-sighted and allowed him to identify, with remarkable accuracy, the areas of international law where development considerations would require deep transformation, namely trade, investment, and the environment. In this regard, Michel Virally is also our contemporary and his contribution remains fully relevant for the analysis of international organization at large. [ABSTRACT FROM PUBLISHER]

The article concentrates on the core issue of Walther Schücking’s scientific efforts and his literary production as a publicist – the idea of international organization. It begins by situating Schücking’s methodological approach, notably his desire to move beyond legal positivism, before moving on to analyse Schücking’s specific understanding of the notion of international organization. Schücking argued that the general motto ‘peace through law’ should be attained by a ‘republican organization’ of the world and stated that a relevant trend towards a true rule of law on the international level was already on its way. In fact, Schücking went even further and postulated a world confederation ‘Weltstaatenbund’ as the centrepiece of the reform of international law and the key for the realization of all further progress in the field. Having assessed features of Schücking’s reform programme, which he put forward with considerable consistency, the article argues that Schücking is rightly seen as a pioneer who broke new ground in analysing the phenomenon of international organization. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

The article discusses the question whether Waldron's new analogy shifts the paradigm of international governance from a relationship that is based on law to a relationship that views participating actors as involved in some kind of common creative problem-solving effort. The implied change from ‘law’ to ‘process’ would raise serious concerns about what it might entail for the rights of citizens. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

The applicability of the ideal we call ‘the Rule of Law’ (ROL) in international law (IL) is complicated by (1) the fact that there is no overarching world government from whom we need protection (of the sort that the ROL traditionally offers) and it is also complicated by (2) the fact that IL affects states, in the first instance, rather than individuals (for whose sake we usually insist on ROL requirements). The article uses both these ideas as points of entry into a consideration of the applicability of the ROL in IL. It suggests that the ‘true’ subjects of IL are really human individuals (billions of them) and it queries whether the protections that they need are really best secured by giving national sovereigns the benefit of ROL requirements in IL. For example, a national sovereign's insistence that IL norms should not be enforced unless they are clear and determinate may mean that individuals have fewer protections against human rights violations. More radically, it may be appropriate to think of national sovereigns more as ‘officials’ or ‘agencies’ of the IL system than as its subjects. On this account, we should consider the analogous situation of officials and agencies in a municipal legal system: are officials and agencies in need of, or entitled to, the same ROL protections as private individuals? If not, then maybe it is inappropriate to think that sovereign states are entitled to the same ROL protections at the international level as individuals are entitled to at the municipal level. [ABSTRACT FROM AUTHOR]

The article discusses various reports published within the issue including on the symposium related to treaty interpretation, articles in the Critical Review of International Governance, and a review essay by Sergio Dellavalle on global order.

The article addresses the issue of whether conduct in international peace operations is attributable to the troop contributing states or to the United Nations, taking the European Court of Human Rights' admissibility decision in the Behrami and Saramati cases as a point of reference. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attributable to the United Nations. The article examines the content of the `ultimate authority and control' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view difficult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's decision, when seen in connection with previous case law, in practice renders the European Convention on Human Rights irrelevant in international peace operations. [ABSTRACT FROM AUTHOR]

The Inter-American Court of Human Rights has elaborated a significant body of human rights jurisprudence through interpretation of regional human rights conventions and the adaptation of European and global precedents and global soft law. The Inter-American Court has also aspired to influence outside its region by offering innovative interpretations of human rights and by identifying norms as jus cogens. The Court's methodology in recent years has appeared to give insufficient consideration to the consent of the regional community of states as a factor in the evolutive interpretation of a human rights treaty. The article illustrates and criticizes that trend, and contends that greater attention to indicia of regional consent could improve the acceptance and effectiveness of the inter- American human rights system. [ABSTRACT FROM AUTHOR]

The 20th century saw the transformation of international law into a legal discipline concerned with the practical application of law. It was fuelled by a manifold variety of treaties, procedures and institutions. Still, international lawyers persisted in conceiving and judging their discipline against a background coloured by national legal traditions. International lawyers did not overcome the optimist and evolutionary tradition based on the assumption that international law is but an ever closer approximation of national legal systems; nor did lawyers escape the flip side of this tradition, i.e., doubt and insecurity about international law and its basis. Rather than facilitating international law as a practical discipline, a superficial understanding of internationalism reinforced fetishisms of the discipline's theoretical past, not least the axiom that states only are proper subjects of international law. To a degree, international law has expanded at the price of becoming less separate from national law and national legal traditions. [ABSTRACT FROM AUTHOR]

International lawyers have in recent years expressed much unease about the perceived fragmentation of their legal system. In truth, however, international law has always been fragmented without losing its ability to operate. A threat, rather, arises from the ongoing proliferation of special regimes endowed with strong institutional frameworks and an ability to set new international norms. This expansion begs an uncomfortable question: What if such -- seemingly independent -- entities were to claim autonomy and challenge the validity of general international law? A salient feature, of this debate is the preoccupation with 'self-contained regimes' and their status under international law. In a recent report to the International Law Commission, for instance, Martti Koskenniemi concluded that no such regime can be created outside the scope of general international law. Drawing on a particularly controversial example, this article therefore reviews the law and practice of the World Trade Organization to determine how that body has positioned itself in the debate. While its judiciary has recognized that the rules on world trade do not exist in isolation of general international law, a closer look at actual case law unveils a far more ambivalent picture. The chimera of self-contained regimes, in other words, is not easily dispelled. [ABSTRACT FROM AUTHOR]

This article aims to extract from the jurisprudence of the International Court of Justice a basic theory of legal effects of unilateral instruments of international organizations in public international law. These effects can be divided into three categories. The first is substantive effects. These include binding, authorizing and (dis)empowering effects. The second category is causative effects, whereby determinations of fact or of law bring substantive effects into existence. The third category is modal effects -- how and when the substantive effects come into existence (e.g. immediate or deferred, retroactive or non-retroactive, reversible or irreversible effect). Each of these categories of legal effects behaves differently according to whether the effects are intrinsic or extrinsic. Intrinsic effects are based on the special treaty powers of the United Nations Security Council and General Assembly. In this hypothesis, all three categories of effects exist to the full extent that the explicit and implicit powers of the adopting body allow for them. Extrinsic effects are directly based on general international law, in particular on the rules of formation of customary international law. Here, there are no causative effects. Substantive effects do not strictly speaking exist: only pre-substantive ones do. And modal effects are always immediate, non-retroactive and reversible. [ABSTRACT FROM AUTHOR]

International organizations have increasingly joined states as occupiers of territory. Yet international law doctrine and policymakers have regarded occupation by states and administration by international organizations as distinct legal and political phenomena. The stigma associated with state occupation has translated into an assumption that the two operations are governed by different norms and their tactics for asserting control subject to different standards of legitimacy. This article rejects that dichotomy and the doctrinal parsing that comes with it. It emphasizes the common traits and challenges of these occupations and argues for a joint legal and political appraisal. From the legal perspective, the two sorts of missions operate under common legal frameworks; those managing both need to find the proper balance among international humanitarian law, international human rights law, local law, and any mandate from an international organization. As a political matter, each encounters resistance from those in the territory opposed to its presence, leading to coercive responses whose legitimacy will be questioned from within and outside the territory. The article concludes with some modest thoughts on how each sort of occupier might learn something from the other. [ABSTRACT FROM AUTHOR]

This contribution examines certain inherent shortcomings of an 'open-ended' institution-building operation for which the future status of the entity in statu nascendi remains undecided. It first addresses the policy of conditionality through which Kosovo's international administration attempts to measure the performance of local institutions against imported 'standards'. The external representation function of an international administration acting on behalf of a non-state territorial entity, as an agent of necessity, is then analysed, considering recent and little-known developments and suggesting that UNMIK's practice supports the argument that 'internationalized' territories possess limited legal personality. Turning 'inward' to a sphere of domestic governance, the contribution highlights some of the problems encountered with regard to the privatization of public assets in Kosovo. Here, it argues that UNMIK is awkwardly caught between the pursuit of both the interests of the territory under its administration and the collective interest of the organized international community -- two sets of interests which can collide head-on. The article concludes by suggesting that an international territorial agent should not, as a rule, attempt to mediate a solution, but endeavour to represent the territory in good faith. [ABSTRACT FROM AUTHOR]

Pays a homage to author Philip Allott. Essence of Allott's vision for the reconstruction of world order. Information on his book "Eunomia"; Faith of Allott in the power of the human mind to reform the future; Role that international law should play in the questions of international order; Views of Allott on law as a social order.

Despites Franck's claim that public international law (PIL) has moved into its 'post-ontological state', where controversy no longer surrounds its status as law, controversies over the ontology of PIL, and especially of customary international law (CIL) remain endemic. These controversies fuel the attack by Critical Legal Studies (CLS), and New Approaches to International Law (NAIL), scholars against a liberal-legal order all too easily portrayed as fundamentally indeterminate, a cover for its subjects' political interests. These critiques cannot be simply ignored, but neither can they be met easily, nor without cost. While CLS, and other critical discourses, seek to 'uncover' and 'explode' the ideologies and biases of law to demonstrate its inability to fulfil its promises, the present paper is intended to initiate the task of demanding that law, and especially CIL, live up to these very promises. But first, the nature of these promises, and the structure and purpose of law must be examined, analysed, and where necessary contested and decided; or rather, defined. In this regard, the hidden assumptions of legal theory must be uncovered and problematized; the debates over law must be disaggregated, before law itself can be properly determined. Only after these tasks have been completed can the nihilist challenges of NAIL be met. [ABSTRACT FROM AUTHOR]

The United Nations Security Council is the most powerful institutional body ever established at the global level. Its existence and powers, as based on the United Nations Charter, firmly evidence the support of the entire international community. At the same time, the will of the international community as a whole can be expressed at different levels and in different ways. In today's international law, there can be little doubt that the international community as a whole attaches special importance and effects to peremptory norms of general international law (jus cogens) and endows them with high status. The interaction between those high-ranking norms and the powers of the Security Council is therefore among the most central issues of international law. In searching for a preferable approach, it is proposed to consider the treaty-based character of the Security Council's powers. The Council is not free of legal limitations, and this conclusion cannot be rebutted even by referring to the classical debate on the interaction between the concepts of peace and justice in international relations, because the General Assembly and Security Council have repeatedly affirmed the relevance of the observance of law in maintaining and restoring international peace and security, notably with regard to the conflicts of the Middle East and Former Yugoslavia. Bearing all this in mind, this article will examine the scope and legal effects of the legal limitations imposed on the Security Council by the operation of peremptory norms. [ABSTRACT FROM AUTHOR]

Martti Koskenniemi's criticism of the 'universality' of international law, ensuing from the European tradition, initially sounds quite stimulating, although not really new. Yet, one may be inclined to think that such criticism is also rather inaccurate, inasmuch as it remains both equivocal and ambiguous. This seems particularly true at a time when general international law, as it claims in essence to be universal in scope, is under attack from those who, in the name of their assumed unique position in the world community, aim to weaken the very notion of an international legal order. Nevertheless, as this order is indeed 'cosmopolitan', in the Kantian sense of the word, it is at the same time celebrated, especially by a number of non-governmental organizations which constitute the most active component of international civil society. Martti Koskenniemi's reductive vision does not seem to take account of this important phenomenon. [ABSTRACT FROM AUTHOR]

In his Private Law Sources and Analogies of International Law (1927), Hersch Lauterpacht claimed that many rules and concepts of international law stemmed from private law. He also showed that it was common practice in international adjudication and arbitration to look for inspiration there. The rules of private law that had found their way to international law were often common to the great municipal law systems. Many had their origins in Roman private law. This article examines whether and how the International Court of Justice has made use of Roman law rules and concepts. Roman law can be thought to fulfil its role as a source of inspiration for international law in three ways. First, it might have served as a direct historical source during the formative period of the modern law of nations. Second, it might have served as an indirect historical source because of its enduring impact on the great municipal law systems afterwards. Thirdly, it might still be considered ratio scripta, the expression of a timeless and universal law. For the purpose of examining which of these roles Roman law plays in the eyes of the ICJ, the analysis is restricted to two examples of private law analogies: occupation of terra nullius and acquisitive prescription. [ABSTRACT FROM AUTHOR]

The article focuses on the general statements and repetition regarding the historical or sociological context of the international law. It examines the important role of repetition and generalities in which the general course act as ritual recreation of the international law as separate entity from politics, diplomacy and the rest of the legal world. It also mentions professor Georges Abi-Saab's 1987 general course on international law.

The article explores the contribution of the purity of Kelsen's theory of international law to the exclusion of ethics and political analysis from the workfield of the international lawyer. It is argued that Kelsen's own approach is an epistemologically grounded argument against involvement in the emotional dimension of political relations, which he dismisses as irrational. This is what justifies professional evasiveness in the face of the continuing self-assertiveness of the nation-state. Kelsen is now such a formidable obstacle to the development of the discipline because the profession lacks his general intellectual culture and so is unable to question the foundations of his system. [ABSTRACT FROM AUTHOR]

Kelsen's monistic theory of law, according to which international and municipal law have the same subject-matter, paved the way for the dominant contemporary doctrine: international law can encompass every aspect of human life which warrants international legal protection of human rights. Kelsen's doctrine of the identification of law and state held the legal order of the modern state to be the pattern of every legal system. Since, moreover, he considered physical coercion to be the very requisite of a legal normative order, Kelsen was bound to look for such a coercive element in the international order and found it in war. The experience of World War Two led Kelsen to develop the doctrine of the ‘just war’ (bellum iustum) as the appropriate sanction for violations of international norms, a theory which is hard to reconcile with his condemnation of every form of natural law. Kelsen's narrow definition of law prevented him from assessing the true nature of normative systems which do not fall within the state-based definition. Such systems may rely on non-physical forms of coercion, forms which are also available, as this article argues, to the international order. [ABSTRACT FROM AUTHOR]

This article focuses on Hans Kelsen's theory of international law and pacifism. Following an analytical reconstruction of Kelsen's these, the author makes a number of critical observations. In particular, the article examines Kelsen's ideas on the primacy of international law, the necessary demise of the concept of sovereignty and the assumption of the doctrine of iustum bellum as the basis for the juridical character of international law. Special attention is given to Kelsen's idea of a ‘Permanent League for the Maintenance of Peace’, inspired by a kind of ‘judicial cosmopolitanism’, and developed in his Peace through Law. It is the author's opinion that Kelsen's internationalism and pacifism brought about an important turning-point in the theory of International law and anticipated by 50 years many of the issues that the international community are today discussing: in particular, individuals as subjects of International law (and not only states) and the use of international criminal tribunals for the punishment of those responsible for war crimes and crimes against humanity. Finally, the author argues that there is some doubt whether Kelsen's theoretical and political goals, Inspired by the Kantian idea of the moral unity of humanity and by a normativist conception of law, may be fulfilled or even be desirable. [ABSTRACT FROM AUTHOR]

The article seeks to analyse the current state of the ‘international community’ in the light of different traditions of thought. It finds the distinctive element of ‘community’ in the prioritization of community interests as against the egoistic interests of individual states. Whereas factual interdependence undeniably exists in the contemporary state system, several traditions of thought shed a different light on the existence of common values and institutions. Modifying a classification coined by Hedley Bull, the article distinguishes four views of the international system: a ‘Hobbesian’ or ‘realist’ tradition, a ‘Vatteltan’ or internationalist tradition, a ‘Grotian’ or ‘communitarian’ tradition, and a ‘Kantian’ or universalist tradition. In an analysis of the current state of affairs, the article claims that the classical ‘Lotus principle’ is giving way to a more communitarian, more highly institutionalized international law, in which states ‘channel’ the pursuit of most of their individual interests through multilateral institutions. Nevertheless, the authors do not deny the aspirational element of the ‘community’ concept. [ABSTRACT FROM AUTHOR]

Proceeding from the summa divisio that Wolfgang Friedmann proposed for international law — into the ‘law of coexistence’ and the ‘law of cooperation’ — the article endeavours to establish the degree of community obtaining in contemporary international society by identifying the position of International law at the relevant moment on the schedule linking these two contrasting types of legal regulation. The article begins by comparing the two approaches, and then follows the evolution of international law through three stages. The first, starting from the Peace of Westphalia, provided the initial configuration of classical international law, the epitome of the law of coexistence. The advent of the industrial revolution called for a different type of legal regulation, which led to the emergence of law of cooperation regimes, albelt limited to technical fields. The two World Wars, and particularly the Charter of the United Nations, brought the approach of the law of cooperation to the centre-stage of international law, especially through the system of collective security. The third part of the article focuses on the Charter era, describing the expanding role of the law of cooperation approach in the initial design of the Charter, then the impact of the Cold War, and finally the post-Cold War present. The article draws the paradoxical conclusion that the end of the Cold War, far from pushing the international society towards a more integrated global community, has introduced new dangers new dangers and bones of contention among the members of this society, which create the risk of causing it to evolve in the opposite direction. [ABSTRACT FROM AUTHOR]

Kelsen holds a unique place in the theory of international law as the only great legal theorist to have placed international law and its relations with domestic law at the centre of his considerations. Kelsen consistently defended the idea that international law was law in its own right. This he did in a paradoxical way, viewing war and reprisals as sanctions that gave international law a positive character. But that was just a first step in his argument. It led on to the prohibition of the use of armed force in international conflicts and the necessary creation of international justice to settle international disputes as the only means of taking international law out of a state of anarchy. But the particularly fascinating point of Kelsen's thinking is not only the cogency and rigour of his reasoning but also the fact that his work, which was reputed to be theoretical, even dogmatic, and remote from the concerns of the real world, provides us with the sharpest conceptual tools with which to think through the contemporary developments of international law. Two examples are given in this paper: I) the theory of centralization of legal orders, which provides some understanding of the advances made by the European Community and situates those advances in the general theory of international law; II) Kelsen's analysis of the role of the individual in International law, which allows us to understand the innovations implied by the theory of state contracts. [ABSTRACT FROM AUTHOR]

A comparison of the major trends of International law during the 1960s and the present time shows the consolidation in positive international law of the basic principles laid down in the UN Charter. There are nevertheless some very substantial differences between the time when the ‘international community’ placed greatest emphasis on the ‘common heritage of mankind’ and the time of globalization, the second posing new challenges to the sovereign state. It remains that the prohibition of force as set down in the Charter establishes the historical development of international law in the perspective of the specific categorical imperative defined by Kant's project of ‘perpetual peace’. In this respect, It has become possible since 1945 to look at the development of International law from the viewpoint of progress. [ABSTRACT FROM AUTHOR]

The essays published in these pages form part of an ongoing symposium. The Institut des Hautes Études Internationales and the European Journal of International Law convened a conference on ‘The Changing Structure of International Law Revisited’ in March 1997, bringing together a group of European and American scholars, to discuss the current state of international law in the light of changes that have occurred, both on doctrinal and practical levels, in recent decades. The symposium identified four areas of investigation: The state between fragmentation and globalization; Is there a hierarchy of norms in international law?; Is international law moving towards criminalization?; Where does the international community stand? Papers on the first theme, with an avant propos by Charles Leben, appeared in EJIL volume 8, number 3. The remaining parts will be published in the next two issues of the journal. [ABSTRACT FROM AUTHOR]