International Criminal Law and Constitutionalisation: On Hegemonic Narratives in Progress

As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibility of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful narrative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine perspective – or purely descriptive; the first being an impossibility for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation

Serious Breaches, the Draft Articles on State Responsibility and Universal Jurisdiction

On its fifty-first session, the International Law Commission (henceforth, “ILC”) adopted the Draft Articles on State Responsibility (henceforth, “Draft Articles”) and submitted them to the General Assembly for approval in 2001. The work of the ILC on the Draft Articles took more than forty-four years before the Draft Articles reached their final shape. During the process of their drafting, several of its special rapporteurs came up with different solutions to the various problems at hand. One characteristic of the Draft Articles that is especially emblematic of these several (and sometimes turbulent) changes during their preparatory period was the issue of obligations and responsibilities arising out of a breach of a ius cogens norm or – as it was put in the earlier proposals of the Draft Articles – obligations arising out of crimes of states

International Criminal Law and Constitutionalism

As we move towards constructing narratives regarding the future outlook of global governance, constitutionalisation among them, the hope is that whatever shape this world order takes it will, somehow, forestall or hinder the possibili- ty of a hegemonic order. This article tries to deconstruct the notion of hegemony and claims that as it currently stands it is useless in doing its critical work since every successful nar- rative will end up being hegemonic because it will employ the ‘hegemonic technique’ of presenting a particular value (or value system), a particular viewpoint, as universal or at least applying to those who do not share it. The only way for a narrative in this discourse not to be hegemonic would be for it to be either truly universal and find a perspective that stems from nowhere and everywhere – a divine per- spective – or purely descriptive; the first being an impossibil- ity for fallible beings and the other not worth engaging with since it has nothing to say about how things should be structured or decided in a specific situation

The Triumph of International Law: The Clash of Ideas That Shapes International Law

International law has never been more relevant. It touches every corner of the globe and it even extends beyond Earth’s atmosphere and into space. It regulates relations between states, between states and their populations, between states and international organization, and between any combination of these actors. The international system is a multi-level juggernaut juggling multiple communities, multiple loyalties and multiple legitimacies. In this Chapter, I will talk about the two broad intellectual ideas that have shaped the international order since World War II. They have also brought it at a tipping point, where these two ideas are trying to force a change that they cannot fully accomplish. The result of this could be a long-term status quo, an impulse for renewed regionalisation of international relations and a decline in transregional relations

The Triumph of International Law: The Clash of Ideas That Shape International Law

International law has never been more relevant. It touches every corner of the globe and it even extends beyond Earth's atmosphere and into space. It regulates relations between states, between states and their populations, between states and international organization, and between any combination of these actors. The international system is a multi-level juggernaut juggling multiple communities, multiple loyalties and multiple legitimacies. In this Chapter, I will talk about the two broad intellectual ideas that have shaped the international order since World War II. They have also brought it at a tipping point, where these two ideas are trying to force a change that they cannot fully accomplish. The result of this could be a long-term status quo, an impulse for renewed regionalisation of international relations and a decline in transregional relations

Unstable Identities: The European Court of Human Rights and the Margin of Appreciation

All legal systems work under a master narrative – the self-conception of most actors of the system itself. A master narrative is a short and simple story and it is the underlying premise upon which any legal system is based. It is a simple story because it paints the system in quick broad brushstrokes and at (most) times is oblivious to the paradoxes within it. Furthermore, a master narrative is important for legitimization purposes because the actors’ legitimacy will depend on their (perceived) conformity with the system’s master narrative. Therefore, legitimacy is self-referential; the yardsticks for a legitimate action are contained within the system’s master narrative, not outside of it. When talking about different international courts it is important to remember that they are embedded within a master narrative that is contextual and contingent and, at different points, more or less contested. This paper explores the question of what happens when the master-narrative is in a period of transition (from a state cantered to a post-national world order) and when the actors’ legitimacy, their interpretative endeavours the very fundamentals are in a state of flux. I use the margin of appreciation discussion as a focal point of describing the conflicting narratives under which the European Court of Human Rights works, narratives in which the different actors (judges, attorneys, NGO activists, government agents) and their consequences in terms of the interpretation of the European Convention on Human Rights

Interpretation and the Constraints on International Courts

This paper argues that methodologies of interpretation do not do what they promise – they do not constrain interpretation by providing neutral steps that one can follow in finding out a meaning of a text – but nevertheless do their constraining work by being part of what can be described as the legal practice

Freedom of Speech as Related to Journalists in the ECtHR, IACtHR and the Human Rights Committee – a Study of Fragmentation

In its report on the fragmentation in international law, the ILC decided not to deal with the issue of institutional fragmentation – the fragmentation of international law brought on by the existence of different institutions dealing with norms that are “normatively equivalent”. This is a study of institutional fragmentation within human rights law; specifically it is an attempt to gauge the extent of fragmentation through the case-law of three courts, the Inter-American Court of Human Rights, the European Court of Human Rights and the Human Rights Committee, focusing on freedom of speech as related to journalists. It compares the texts, scope, tests and justifications of the three human rights conventions and concludes that, at least in this narrow field, the fear of fragmentation is unwarranted, with a large caveat which pertains to the doctrine of the margin of appreciation as practiced by the ECtHR and its “slipperiness”