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

The ambivalent shadow of the pre-Wilsonian rise of international law

The generation of American international lawyers who founded the American Society of International Law in 1906 and nurtured the soil for what has been retrospectively called a “moralistic legalistic approach to international relations” remains little studied. A survey of the rise of international legal literature in the U.S. from the mid-19th century to the eve of the Great War serves as a backdrop to the examination of the boosting effect on international law of the Spanish American War in 1898. An examination of the Insular Cases before the US Supreme Court is then accompanied by the analysis of a number of influential factors behind the pre-war rise of international law in the U.S. The work concludes with an examination of the rise of natural law doctrines in international law during the interwar period and the critiques addressed.by the realist founders of the field of “international relations” to the “moralistic legalistic approach to international relation

Quality of Reasoning in International Criminal Tribunals

It is not unreasonable to say that international criminal law is, for the most part, a judge made law. For better or worse, given the diffused nature of its sources of law as well as the institutions built to enforce it, the rising case law gave the international criminal courts a chance and a burden to develop international criminal law into an expansive, and familiar, branch of international law. In this Chapter, I attempt to analyse and elaborate the main vehicle through which this transformation has taken place – the judgements of the courts – in terms of the quality of their reasoning. I will piece together some general rules of thumb that have been created in the branch of international criminal law to assess the quality of reasoning of the different International Criminal Courts. My focus will be the work of the International Criminal Court, although the work of the ICC rests to a large degree on the work of the previous ad hoc tribunals. As such, I will analyse the criticisms that have been levelled at the international criminal tribunals in terms of their interpretation and reasoning, highlight some of the continuing concerns and assess the ICC’s current practice

Transitional Justice in a Transnational World: The Ambiguous Role of Law

In situations of military, political or economic transition, the reassessment of the role of law in the transition process becomes a crucial site of a people\u27s or a nation\u27s negotiating the past, present and future. Allusions to a tabula rasa or an annee zero after traumatic collapses of societal order, however, turn into ill-fated attempts to address the challenges of confronting the past when building the future. The law\u27s concern with nations that struggle with transition expresses itself through hybrid concepts such as transitional or post-conflict justice, restorative justice, or reconciliation. This paper revisits these instantiations and places them in the context of an increasingly transnational discourse on transitional justice. In light of the wealth of law and non-law responses to past injustice around the world today, transitional justice emerges as a form of transnational legal pluralism, highlighting the parallels of regulatory challenges confronting transition and established regimes alike

Deciding on appropriate use of force: human-machine interaction in weapons systems and emerging norms

This article considers the role of norms in the debate on autonomous weapons systems (AWS). It argues that the academic and political discussion is largely dominated by considerations of how AWS relate to norms institutionalised in international law. While this debate on AWS has produced insights on legal and ethical norms and sounded options of a possible regulation or ban, it neglects to investigate how complex human-machine interactions in weapons systems can set standards of appropriate use of force, which are politically-normatively relevant but take place outside of formal, deliberative law-setting. While such procedural norms are already emerging in the practice of contemporary warfare, the increasing technological complexity of AI-driven weapons will add to their political-normative relevance. I argue that public deliberation about and political oversight and accountability of the use of force is at risk of being consumed and normalised by functional procedures and perceptions. This can have a profound impact on future of remote-warfare and security policy

Remarks on Andrew Lang's World Trade Law After Neo-Liberalism

No abstract available

The International Law of Secession and the Protection of the Human Rights of Oppressed Sub-State Groups: Yesterday, Today and Tomorrow

This paper focuses on significant patterns/features in the historical development of the international law of secession and its contribution over time (or the lack thereof) to the struggle to afford greater protection to oppressed sub-state groups the world over. It was Crawford Young who once observed that “the state as an analytical quarry is an elusive and complex prey.” With the necessary modifications, this observation applies with almost equal force to the international law of secession. Complexity and confusion loom too large in this area of international law. For example, there is, at best, little clarity in the literature of the discipline of international law and in related fields of study regarding the existence or otherwise of an international legal entitlement to secession in favor of even the most highly oppressed and subjugated sub-state groups

NAFTA Chapter 11 as Supraconstitution

More and more legal scholars are turning to constitutional law to make sense of the growth of transnational and international legal orders. They often employ constitutional terminology loosely, in a bewildering variety of ways, with little effort to clarify their analytical frameworks or acknowledge the normative presuppositions embedded in their analysis. The potential of constitutional analysis as an instrument of critique of transnational legal orders is frequently lost in methodological confusion and normative controversy. An effort at clarification is necessary. We propose a functional approach to supraconstitutional analysis that applies across issue areas, accommodates variation in kinds and degrees of supraconstitutionalization, recognizes its simultaneously domestic and transnational character, and reflects its uneven incidence and impacts. We apply this framework to NAFTA to consider whether and how it superimposes a supraconstitutional legal order on member states\u27 domestic constitutional orders. We show that the main thrust of this contemporary supraconstitutional project is to restructure state and international political forms to promote market efficiency and discipline, enable free capital movement, confer privileged rights of citizenship and representation on corporate capital, insulate key aspects of the economy from state interference, and constrain democratic decision-making