On the Value of International Adjudication – Case Against Impunity (original) (raw)
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Rule of Law in the international arena: the importance of practices of legality
Revista de Direito Internacional
Despite the assertion of the need to promote the Rule of Law in the international sphere, there is still a great terminological imprecision regarding the concept. Such imprecision generates criticism regarding the use of the term in international relations, raises doubts about the possibility of adopting an international concept of Rule of Law and makes it difficult to delineate the measures to be taken for its promotion. In this original research, conducted by the deductive method and characterized as being theoretical, qualitative, descriptive, bibliographic and documental, it is sought to debate the existing problems for the acceptance of a basic concept of the term Rule of Law in the international sphere, as well as to identify in what sense the Rule of Law should be understood, what are its inherent elements and how it can be achieved and promoted in such sphere. The hypothesis articulated is that even though domestic concepts of the Rule of Law cannot be transposed to the international sphere, enough elements can be found in such sphere to support the adoption of an international conception of the term. Adopting a theoretical constructivist approach, it is concluded that the promotion of the Rule of Law in the international sphere depends on the construction of a social environment in which the obligation/authority of international law is recognized, a construction that is carried out by constant practices of legality.
An Introduction to International Law, Thomson Reuters, 2021
This chapter introduces the concept and need of public international law, with some of the definitions of international law. It contains a brief introduction to the nature of international law and touches upon the significance of international politics in international law. It also introduces the reader to the commonalities and differences between international and national legal systems. It discusses the issue of international law in an unequal international society and reflects how the statecentric approach affects the realms of international law. It further brings out an interesting case of Social Contract Theory in International Law, whereby the need for international law is pressed with the Social contractarian arguments. The chapter towards the end briefly outlines a comparative sketch between public international law and private international law.
The rule of law is almost universally supported at the national and international level. The extraordinary support for the rule of law in theory, however, is possible only because of widely divergent views of what it means in practice. Disparate national traditions posed few problems while operating in parallel, but efforts to promote the rule of law through international organizations have necessitated a reassessment of this pluralism. This article proposes a core definition of the rule of law as a political ideal and argues that its applicability to the international level will depend on that ideal being seen as a means rather than an end, as serving a function rather than defining a status. Such a vision of the rule of law more accurately reflects the development of the rule of law in national jurisdictions and appropriately highlights the political work that must be done if power is to be channeled through law. two anonymous referees were kind enough to comment on earlier drafts -though not so kind as to take responsibility for errors that remain. This article draws upon passages first written for the "rule of law" entry in the MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Rüdiger Wolfrum ed., forthcoming).
The Status of Law in World Society
2014
When Fritz Kratochwil published his classic Rules, Norms and Decisions in 1989, 1 it was reviewed by an obviously bewildered David Bederman in the American Journal of International Law. 2 Clearly, it seemed, here was something international lawyers should take note of, but equally clearly, Bederman, no intellectual slouch by any standard, had a hard time figuring out what made the book relevant, or even just interesting, for international lawyers. It seems Bederman was expecting something along the lines of a description of the role of law in global politics, but no such story unfolded. Instead, Rules, Norms and Decisions posited not a description, but a way of looking at the role of norms in international politics, and did so unlike much of what had gone on before: this was neither a variation on realism, nor riding the wave of institutional liberalism, nor anything like the New Haven approach or sociological jurisprudence or Henkinstyle behaviouralism. As it turned out, Rules, Norms and Decisions became the closest thing to a manifesto of constructivism in the study of world politics, and therewith became pigeonholed as one of the three grand theories of international relations. This entailed considerable irony and, indeed, ironies abound when Kratochwil is concerned, and do so much to his delight, one suspects. One of these ironies is that Fritz Kratochwil, despite being one of the founding fathers of the grand theory of constructivism in the discipline of international relations, broadly denies the possibility of grand theory in the social sciences. Secondly, there is the irony that while Kratochwil may generally be considered as a theorist, he strongly advocates a practical orientation, distinguishing between scientific reasoning and practical reasoning. 3 And thirdly, amidst all the talk about interdisciplinary scholarship, Kratochwil is both critical of much of this work and, at the same time, arguably its leading practitioner, even if not always recognized as such. 4 For Kratochwil's The Status of Law in World Society is one of the best studies combining international law and international relations, and a few other (sub-) disciplines as well, including most obviously legal theory and political theory. The Status of Law in World Society is, in fact, a work of theory, indeed of grand theory, but it is a grand theory of detail, a grand theory denying any holistic truth claims. His aim is to analyse the political role of 1
INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: A PROBLEMATIC AND/OR A HARMONIOUS RELATIONSHIP?
Yearbook of the Faculty of Philosophy , 2018
The paper focuses on the relationship between International Law and International Relations, i.e. on their interconnectedness as a substantial issue both from a theoretical and practical point of view. The starting premise is that although they constitute distinct academic disciplines, the objects of their interest can hardly be analysed in isolation from each other. Even those who disagree with the thesis of their academic synergy, acknowledge that with no international law there could be no international relations; also, the practice of international politics is a ground that breeds international legal norms. In the analysis of this rather complex relationship, a special emphasis is placed on the need for deconstruction of the wide-spread myth that international law is by default ‘good’ (i.e. positive in a normative sense of the word), while the international politics is to be blamed for all the bad things that happen in the international arena. Instead, we make an attempt to shed some light on the most important strategic and moral limits of the international law, in order to induce a more critical viewpoint on the relations between power, politics and law in the international arena. The paper ends with some suggestions about the need for development of an innovative research agenda in elaboration of this relationship.
RECONCEPTUALIZATION OF THE INTERNATIONAL RULE OF LAW (THEORETICAL RESEARCH)
The article gives description of main approaches to the international rule of law definition and its role in global civil society. The author analyses different rule of law definitions, suggested by foreign scholars. The main focus is placed on the international version of the rule of law concept. Special attention is given to the interrelation between somestic and international manifestations of the researched phenomenon. It is concluded that the idea of the international rule of law is quite challenging, because it is represented by a system of various characteristics (options).
Examining (international) law: towards a systematic, coherent and radical theory
2012
This formal statocentrism is, of course, not without its exceptions and contestations. International Humanitarian Law, for example, can be said to ascribe rights to individuals, while International Criminal Law attributes responsibility to them. However, according to orthodox accounts, the state is still the key actor in the field, either because instances of individual rights and responsibilities are highly specific to a particular issue or situation, or because the treaties and rules of customary law which confer individual rights/responsibilities (and upon which such rights/responsibilities are dependent) are made by, and bind, only nation-states. For a more detailed discussion of this particular issue, see