Comparativism and Colonizing Thinking in International Law

2020 ◽  
Vol 57 ◽  
pp. 89-112
Author(s):  
JEAN D’ASPREMONT
Keyword(s):  
International Law ◽  
The Other ◽  
Legal Studies ◽  
Legal Thought ◽  
Central Mode

AbstractComparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon, constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called comparative international law. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a thought-colonizing enterprise. The article ends with some reflective observations on the possibility of limiting colonizing thinking in international legal studies. In doing so, it argues that it must remain possible for international lawyers to engage with alterity in a way that does not unilaterally manufacture the “other,” silence it, and speak on its behalf. This approach is called counter-comparability.

Russia in Transition: Reflections on International Law Doctrines

1997 ◽  
Vol 66 (4) ◽  
pp. 475-504
Author(s):  
Keyword(s):  
Social Change ◽  
International Law ◽  
Historical Materialism ◽  
The Other ◽  
Economic Systems ◽  
Peaceful Coexistence ◽  
Legal Thought ◽  
The Social ◽  
The One

AbstractThe article discusses the development of the Russian international law doctrine from the Soviet to the Russian era. The analysis is conducted by way of examining two Russian international law textbooks, the one being from the Soviet era and the other from the post-Soviet era. At first sight, one is inclined to expect that a deep-going social change, such as the one Russia has experienced, would indeed be reflected in doctrines about international law. The Soviet doctrine of international law claimed to provide a Marxist account of law. However, the base-superstructure analysis and historical materialism are premises that are not easily reconcilable with international law. Therefore, the Soviet writers were prone to much abstract theorizing about the “essence”and “nature” of international law. Furthermore, the revolutionary argument combined with extreme positivism led to a methodological schizophrenia in the Soviet international law doctrine. Now, the Marxism-Leninism is abandoned and the socialist dogmas of “peaceful coexistence of states belonging to different socio-economic systems” as well as “the principles of socialist internationalism” have accordingly become obsolete. The aim of this article is to establish to what extent the social change is reflected in the present Russian international legal thought.

Law for Tanzimat: Islam and Sovereignty in Kemalpaşazade Sait’s Legal Thought

2019 ◽  
Vol 59 (2) ◽  
pp. 171-188
Author(s):  
Nobuyoshi Fujinami
Keyword(s):  
International Law ◽  
Legal Studies ◽  
Legal Thought ◽  
Tanzimat Reforms ◽  
Domestic Law

AbstractKemalpaşazade Sait (1848-1921) is widely acknowledged as one of the first Ottomans to have published textbooks on both international and domestic law, but few studies inquire into the characteristics of his thought in the context of modern legal studies. In his discussion of international law, Sait neglects Islam and fails adequately to examine the question of semi-sovereignty, a vital concern of Ottoman diplomacy at the time. In the field of domestic law, Sait concentrates on praising Reşit Pasha and the Tanzimat reforms he orchestrated, by identifying Islam with the modern Western ideal of law. Throughout his texts, Sait has little to say about the (secular) state’s sovereignty and its exercises. Sait’s approach to Islam and sovereignty, arguably two of the most fundamental issues in Ottoman law, apparently failed to keep pace with the development of legal studies after the Young Turk Revolution.

International Legal Thought

2017 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Historical Analysis ◽  
Critical Potential ◽  
Self Reflection ◽  
Legal Thought ◽  
History Of ◽  
Nineteenth And Twentieth Centuries

This contribution reflects on the role of tradition-building in international law, the implications of the recent ‘turn to history’ and the ‘presentisms’ discernible in the history of international legal thought. It first analyses how international legal thought created its own tradition in the nineteenth and twentieth centuries. These projects of establishing a tradition implied a considerable amount of what historians would reject as ‘presentism’. Remarkably, critical scholars of our day and age who unsettled celebratory histories of international law and unveiled ‘colonial origins’ of international law were also criticized for committing the ‘sin of anachronism’. This contribution therefore examines the basis of this critique and defends ‘presentism’ in international legal thought. However, the ‘paradox of instrumentalism’ remains: The ‘better’ historical analysis becomes, the more it loses its critical potential for current international law. At best, the turn to history activates a potential of disciplinary self-reflection.

Cardinal Richelieu between Vattel and Machiavelli

2018 ◽  
Author(s):  
Anthony Carty
Keyword(s):  
Seventeenth Century ◽  
International Law ◽  
Rule Of Law ◽  
Natural Law ◽  
Historical Research ◽  
Practical Implementation ◽  
The Rule Of Law ◽  
God's Will ◽  
Legal Thought ◽  
Rule Of Reason

The view that no form of international law existed in seventeenth-century France, and that this time was a part of ‘prehistory’, and thus irrelevant for international legal thought today is challenged. In addition, the traditional claim of Richelieu to be an admirer of Machiavelli and his Ragion di Stato doctrine to the detriment of the aim of concluding treaties and keeping them (as sacred), is refuted by careful historical research. In Richelieu’s thinking, there is a role for law to play but it is law as justice, law in the classical natural law tradition. Those who rule are subject to the rule of law as justice, the rule of God, or the rule of reason. In Richelieu’s world, kings and ministers are rational instruments of the practical implementation of God’s will on earth.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

The Agreement between Greece and Italy on the Delimitation of their Respective Maritime Zones: An Italian Perspective

2021 ◽  
Vol 30 (1) ◽  
pp. 283-294
Author(s):  
Marina Mancini
Keyword(s):  
Continental Shelf ◽  
International Law ◽  
The Other ◽  
Boundary Line ◽  
Great Success ◽  
Ionian Sea ◽  
National Interests ◽  
The Mediterranean

In 2020 Greece and Italy concluded a maritime delimitation agreement, extending the already-established boundary line between their respective continental shelf areas to the other maritime areas to which they are entitled under international law. The Greek authorities hailed the agreement as a great success, stressing that it fully reflects their position vis-à-vis maritime delimitation in the Mediterranean and it meets their national interests in the Ionian Sea. This article critically analyzes the agreement, in the light of various recent events, and it finds that it serves Italian interests too. In particular, the 2020 Italo-Greek agreement furthers Italy’s growing interest in delimiting the maritime zones to which it is entitled under international law, so as to prevent its rights and jurisdiction over them being impaired by the proclamation of overlapping zones by its neighbours. It also sets the stage for future proclamation by Italy of an EEZ covering the waters adjacent to its territorial sea in the Ionian Sea.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

scholarly journals TECHNOPOLITICS OF A CONCESSIONARY CONTRACT: HOW INTERNATIONAL LAW WAS TRANSFORMED BY ITS ENCOUNTER WITH ANGLO-IRANIAN OIL

2018 ◽  
Vol 50 (4) ◽  
pp. 627-648 ◽  
Author(s):  
Katayoun Shafiee
Keyword(s):  
International Law ◽  
Oil Industry ◽  
Legal Studies ◽  
Nation States ◽  
Resource Nationalism ◽  
International Court ◽  
Court Proceedings ◽  
Set Up ◽  
Foreign Control ◽  
The Right

AbstractThe Iranian government's decision to nationalize its British-controlled oil industry in 1951 was a landmark case in international law. The Anglo-Iranian Oil Company and the Iranian government clashed over whether international authorities had the right to arbitrate for them in disputes over the terms of the oil concession. Scholarship in Middle East studies has overlooked the role of concession terms in shaping political disputes in the 20th century. Rather than seeing legal studies of the oil industry on one side and power struggles and resources on the other, this article examines international court proceedings at The Hague to argue that Anglo-Iranian oil transformed international law. Novel mechanisms of economic and legal governance, set up to deal with an expanded community of nation-states, worked as techniques of political power that equipped the oil corporation with the power to associate Iran's oil with foreign control while generating new forms of law and contract that undermined resource nationalism.

Responsibility and obligation in the ‘Responsibility to Protect’

2010 ◽  
Vol 36 (S1) ◽  
pp. 25-46 ◽  
Author(s):  
WILLIAM BAIN
Keyword(s):  
International Law ◽  
Real World ◽  
The Other ◽  
Responsibility To Protect ◽  
Men And Women ◽  
The Real

AbstractThis article takes up Louise Arbour's claim that the doctrine of the ‘Responsibility to Protect’ is grounded in existing obligations of international law, specifically those pertaining to the prevention and punishment of genocide. In doing so, it argues that the aspirations of the R2P project cannot be sustained by the idea of ‘responsibility’ alone. The article proceeds in arguing that the coherence of R2P depends on an unacknowledged and unarticulated theory of obligation that connects notions of culpability, blame, and accountability with the kind of preventive, punitive, and restorative action that Arbour and others advocate. Two theories of obligation are then offered, one natural the other conventional, which make this connection explicit. But the ensuing clarity comes at a cost: the naturalist account escapes the ‘real’ world to redeem the intrinsic dignity of all men and women, while the conventionalist account remains firmly tethered to the ‘real’ world in redeeming whatever dignity can be had by way of an agreement. The article concludes by arguing that the advocate of the responsibility to protect can have one or the other, but not both.

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