This is a theoretical and empirical investigation into the causal link between international criminal trials and preventing violence through exemplary prosecutions. Specifically how do representative trials of persons accused of having the greatest responsibility for the most serious crimes of concern to the international community as a whole, supposedly bind recurrent violence? The argument pursued is that by using an accused as an example, a court engages in an indirect and uncertain substitution of personal rights for social harmony and order. (...) These prosecutions combine a peculiar rhetoric, logic and aesthetic, all which substitute the responsibilities for a society in general to a particular individual in order to redeem that society by transferring its communal responsibility onto the individual punished as a form of atonement or expiation. International and domestic trials, as well as truth and reconciliation commissions, are part of a suite of options addressing communal mass violence that can work in tandem. However, because those convicted do not have a monopoly on criminality, nor do those merely reconciled have a monopoly on virtue, exemplification through punishment only targets a few on behalf of the many. Indeed such a redemptively sacrificial economy distinguishes legal justice from mere vengeance. (shrink)

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the (...) rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues. (shrink)

The world of international relations and law is constantly changing. There is a risk of the systematic undermining of international organisations and law over the next years. Feminist approaches to international law will need to adapt accordingly, to ensure that they continue to challenge inequalities, and serve as an important and critical voice in international law. This article seeks to tell the story of feminist perspectives on international law from the early 1990s till today through a discussion between three generations (...) of feminist international legal scholars: Hilary Charlesworth, who, with her colleagues, contributed to the area in the immediate post-Cold War years, Gina Heathcote, who over the past decade has published extensively on feminist perspectives on the use of force and collective security, and Emily Jones, an early career scholar working on feminist approaches to international law. The conversation, which began as a Skype discussion, considers both the ways in which feminist approaches to international law have changed over the past two decades, as well as the ways in which they have been shaped by global politics, before turning to consider the future for feminist approaches to international law. The impact of feminist approaches to international law has been considerable. However, it seems that feminist approaches still lack legitimacy and credibility in many mainstream circles, remaining on the disciplinary periphery. Charlesworth, Heathcote and Jones discuss potential ways in which to manage some of these tensions, noting both the importance of ‘speaking to ourselves’ as a creative and nurturing space, as well as the need to be seen as a more credible voice in the mainstream. They note the need, too, for further feminist work beyond the realms of sexual violence and women’s representation. While the great amount of work in this area is, indeed, foundational, having achieved many important legal and political outcomes, feminist approaches should now develop beyond these areas. Doing so will not only propel this area of scholarship in new and exciting directions, but it might help feminist scholarship gain further traction by avoiding categorisation only under the umbrella of “women’s issues” and thus ready dismissal as just another specialist area of international law in the era of fragmentation. (shrink)

This paper examines the tension between the mainstream belief in international law as a source of objectivity distinct from politics and its new stream critics that question the validity of such a distinction. It is argued that, as a type of language, international law is not distinct from politics as a function of objectivity, but rather by the fact that it serves the international community’s thymos. The phenomena of global administrative law and NATO’s use of force in Kosovo are analyzed (...) as examples of how the thymos drives international law. Building on feminist theories of international law, the article sets forth a vision of international law as the primary communicative device for the international community’s thymos. (shrink)

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has (...) never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable. (shrink)

This paper examines the changing relationship between the disciplines of international criminal law and international human rights law; I particularly focus on the associations of the former with comfort and the latter with discomfort. It appears that a shift may be taking place in that ICL is being refashioned from a field enforcing human rights law to one which has assumed an entirely independent status. Indeed, ICL appears to be crowding out international human rights law. The inquiry begins with the (...) question whether ICL is becoming the preferred discursive framework for practitioners, academics, and politicians. A contemporary desire for certainty over contention, action over discourse, and simplicity over complexity is revealed; in short, a preference for comfort over discomfort. The second half of the paper is dedicated to highlighting some of the concerns attached to this preference and suggesting possible techniques for addressing these concerns. Employing the idea of ‘discomfort’, I refer to the relevance of Michel Foucault’s Ethics of Discomfort, Judith Butler’s idea of the Language of Discomfort, and draw on Franz Kafka’s literary exploration of the Comfort in Discomfort. The ideas culminate in a call for relearning the comfort in discomfort of contention, discourse and complexity in international law. (shrink)

This article focuses on a number of cases in international law in which US domestic courts have produced judgments that conflict with those given by the International Court of Justice. The nature of these courts’ judgments has been extremely closely tied to the interpretation given by the US national Executive to a certain international norm. This situation raises a number of questions, which can be broadly categorized into two spheres: the legal (regarding the overall legality of the courts’ decisions) and (...) the semiotic (regarding the manner in which a ‘meaning’ for the norm has been claimed by the courts). In this article we aim to provide answers to a number of these questions, both from the standpoint of international law and from that of a reader-response model of semiosis. We also analyse the level of interdependency that exists between the two spheres. (shrink)

Although the Charter of the United Nations embodied an unresolved tension between state sovereignty and the inviolability of human rights, the fall of the Berlin Wall seemed to herald universal acceptance of the legitimacy of international concern for the protection of human rights. Since that time, however, the sovereignty of states has been pushed with renewed vigour under the guise of cultural sovereignty. Three examples of the role of cultural sovereignty in the international human rights sphere are proposed to demonstrate (...) that the real interest of states is not the protection of cultural identity, but non‐interference, supremacy and control. The paper identifies cultural sovereignty with cultural relativism and argues that the ideology of relativism, combined with the inadequacies of legal positivism, have significantly harmed the efficacy and character of the international human rights regime. (shrink)

An underpinning assumption of modern legal positivism isthat the question of how legal standards differ fromnormative standards in other spheres of human thoughtis resolved via the concept of a legal system and thenotion of internal logic, through use of contextualdefinition. This approach is seen to lead to anuntenable form of structuralism altogether atodds with the positivist's intentions. An alternativestrategy is offered which allows the positivists toretain their deepest insights, though at a price.

Según cuentan algunos de sus colegas y discípulos, al momento de su temprana muerte, en 1993, Carlos Nino estaba comenzando a estudiar la posibilidad de trasladar sus teorías al plano internacional. En este trabajo pretendo retomar al menos un aspecto de aquel proyecto, preguntándome cómo hubiera trasladado Nino su teoría de la democracia al plano global. En otras palabras, intentaré especular respecto de cómo podrían insertarse las ideas nineanas en la discusión actual en materia de democracia global. Mi hipótesis es (...) que, por un lado, Nino habría reclamado la creación de nuevas instancias de participación popular en los procesos de creación e implementación del derecho internacional; pero a la vez, por otro lado, habría defendido el núcleo duro de la “constitución histórica” del derecho internacional, basada en un sistema interestatal y descentralizado. According to some of his colleagues and disciples, when Carlos Nino died, in 1993, he was beginning to work on a project trying to extrapolate his theories to the international realm. In this paper, I pick up at least an aspect of that project, and I analyze how Nino would have extrapolated his theory of democracy to the global arena. In other words, I speculate regarding how could Nino’s ideas be inserted into the current debates on global democracy. My hypothesis is that, on the one hand, Nino would have demanded new instances of popular participation in the processes of creation and implementation of international law, and on the other hand, that he would have somehow defended the “historical constitution” of the international community, based on an decentralized, inter-state system. (shrink)

The aim of the 2008 Roundtable was to focus on the progress to date in the many facets—methodological, epistemological and conceptual—of the field of legal semiotics, specifically the contribution of different schools and forms of semiotics as well as emerging and emergent semiotics approaches which can be used in researching and interpreting law and legal phenomena. The participants sought primarily to engage with the epistemological and methodological challenges which the field currently faces and to discuss the implications of these.

Climate change and fourth industrial revolution (4IR) technologies are massively shifting the material and social conditions of existence on Earth and contribute to a state of indeterminacy and increased political experimentation. While various models for what might become the ‘next iteration of governance’ are currently emerging, this essay turns to specific contemporary political experiments which claim to democratize power, distribute and/or share sovereignty, function as peer-to-peer or actor-to-actor, and move beyond criticism—be it to the moon or to soil. More precisely, (...) I look at extropist experiments in competitive crypto-governance and at (post)critical laboratories closer to the conceptual frame of international law, which both, in different ways, rely on a specific practice of determination characterized by binary relations and existential negation. In favor of an alternative approach, I argue for an ethics of legal thought capable of attending to indeterminacy and the relationalities it enables differently. (shrink)

This article is about the problem of non-disclosure of an assumed method and approach to international law. That makes some real and current issues of international more difficult to grasp – and how to debate about something if there is a misunderstanding of the basics? The problem is depicted with two examples: the attitude of international law toward the statehood of Taiwan along with the on-going development of the Responsibility to Protect doctrine. Both reveal the clash between so-called black-letterism and (...) a policy-approach to international law. Meanwhile the doctrinal method is fully functional and mostly accepted in domestic law, though often contested in international law. But after all, international law being sui generis law is not just an instance of the domestic-type law which is the effect of particular features of the international community. (shrink)

Russia’s war against Ukraine has grave consequences in several political categories. These include: a reassessment of the school of ‘political realism’, one of whose proponents claims to have predicted the war. Was the West partly ‘responsible’ for the war? Second, to what extent does the war of aggression, as an undeniable violation of law, damage the status of international law and justice? Third, the war is embedded in political developments that stretch back a century. It is examined in its context (...) within American foreign policy since the Wilsonian peace programme, in relation to the dangerous reluctance of the EU to pursue a decisive geopolitical policy towards Russia, and interpreted in the light of Stalinist echoes within Russian politics. (shrink)

This article develops a line of theorising the relationship between peace, war and commerce and does so via conceptualising global juridical relations as a site of contestation over questions of economic and social justice. By sketching aspects of a historical interaction between capitalist accumulation, natural rights and state hegemony, the article offers a critical account of the limits of liberal international law, and attempts to recover some ground for thinking about the emancipatory potential of international law more generally.

An exploration of the connections between law, science, and truth, this paper argues that ‘truth’ is an evolving, rather than fixed, concept. It is a human creation, and the processes, or standards, by which it has been evaluated have changed over time. Currently knowledge production is anchored in the natural sciences but reproduced and validated by philosophical rationalisation. There are two problems with this technique of knowledge verification (or ‘veridiction’). First, the natural sciences are not, in fact, practiced according to (...) their ideal forms; and second, the Queen of Sciences, physics, underwent two fundamental paradigm shifts in the early nineteenth century. General relativity and quantum theory entered the scene, sending ripples throughout science, and the social sciences. These changes too have been slowly absorbed by philosophy, giving rise in part to the postmodernist and deconstructivist movements. I chart this gradual evolution of truth and knowledge production in physics and in law and analyse the resistance it has faced from both classical law and classical physics. Finally I argue that this resistance could be overcome, if legal theory, and especially legal positivism, would embrace a more accurate and up-to-date understanding of the science it purports to examine and emulate. (shrink)