The Rhetoric of Fragmentation: Fear and Faith in International Law

2009 ◽  
Vol 22 (1) ◽  
pp. 1-28 ◽  
Author(s):  
ANNE-CHARLOTTE MARTINEAU
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Historical Perspective ◽  
Legal Discourse ◽  
The Other ◽  
Current Debate ◽  
Critical View ◽  
Political Implications ◽  
The One ◽  
Fragmentation Of International Law

AbstractOver the last decade international lawyers have been increasingly concerned with the ‘fragmentation’ of international law. However, given that this expression has been repeatedly used by the profession since the mid-nineteenth century to depict the state of international law, one may wonder about its recent revival in the international legal discourse. Why has it re-emerged? What can we learn from previous invocations? An answer may be sought by contextualizing the fragmentation debate in a historical perspective. This brings out the repetitive and relatively stylized modes in which the profession has narrated legal developments. This essay suggests a correlation between periods of crisis in general and a critical view of fragmentation on the one hand, and periods of scholarly enthusiasm and the prevalence of positive views about fragmentation on the other. This analysis sheds critical light on both the implicit assumptions and political implications of the current debate on fragmentation.

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.

Part I Histories, Ch.6 The Ottoman Empire, the Origins of Extraterritoriality, and International Legal Theory

2016 ◽  
Author(s):  
Özsu Umut
Keyword(s):  
Nineteenth Century ◽  
International Law ◽  
Ottoman Empire ◽  
Legal Theory ◽  
The Other ◽  
State Institutions ◽  
The One ◽  
Intellectual Production

This chapter argues that it was partly through engagement with the Ottoman Empire, particularly its tradition of extraterritorial consular jurisdiction, that nineteenth-century European and American jurists came to view China, Japan, and a number of other states as ‘semi-civilized’, setting them against ‘civilized’ states on the one hand and ‘savage’ peoples on the other. These states on the ‘semi-periphery’ exercise a greater degree of agency in international law, given their closeness to dominant centers of economic and intellectual production that had come under their influence, as well as their possession of national traditions and state institutions resilient enough to resist formal colonization. These traits are especially evident in the case of the Ottoman Empire, a powerful state that made a point of modifying its profile for different audiences.

The Nature of Social Human Rights Treaties and Standard-Setting WTO Treaties: A Question of Hierarchy?

2007 ◽  
Vol 76 (4) ◽  
pp. 435-464 ◽  
Author(s):  
Hans Morten Haugen
Keyword(s):  
Human Rights ◽  
International Law ◽  
Standard Setting ◽  
The Other ◽  
Adequate Food ◽  
Human Rights Treaties ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Fragmentation Of International Law

AbstractSocial human rights are not held to belong to the category of jus cogens norms. At the same time these human rights protect vital matters, such as the right to adequate food, which obviously has a relationship to the right to life. On the other hand, the annexes to the World Trade Organization (WTO) Agreement, which are binding on all WTO member States, has implied a shift from the old General Agreement on Trade and Tariffs (GATT) to the WTO, from pure contractual treaties to more standard-setting treaties. The article seeks to analyse if the obligations erga omnes and the concept of 'multilateral obligations' are applicable to distinguish between human rights treaties on the one hand and WTO agreements on the other. The background of the analysis is also the work of the International Law Commission (ILC) Study Group on fragmentation of international law, finalised in 2006. The article finds that there is still uncertainty regarding the exact meaning of the term 'multilateral obligations'. Hence, other concepts such as 'absolute obligations' might be preferred in order to characterise human rights treaties, and hence implicitly acknowledge that treaties that protect vital matters may prevail over other treaties, based on the interests which are to be protected.

Der Erzieher als Manager

2019 ◽  
Vol 95 (4) ◽  
pp. 517-530
Author(s):  
Diana Lohwasser
Keyword(s):  
Educational Process ◽  
The Other ◽  
Critical View ◽  
Other Hand ◽  
The One ◽  
Short Time ◽  
Time Diagnosis

Abstract The Educator as a Manager. A Critical View In the following article tasks and motifs of the educator as manager are described. It is clear that there are other educator metaphors and associated behaviors. To some extent, the actions of the different educator metaphors overlap, but they differ in their purpose and perspective on the educational process and the person to be educated. First, a short time diagnosis is made, which describes the context of this metaphor of the educator as manager. Subsequently, on the one hand, the various motifs, tasks and objectives of an educator as manager are discussed. On the other hand, it is asked if it is possible in the current discourse to take a different perspective on the educational process.

Gender and Social Exclusion in European Migration Crisis

2018 ◽  
pp. 658-676
Author(s):  
Marlou Schrover
Keyword(s):  
Twentieth Century ◽  
Social Exclusion ◽  
Historical Perspective ◽  
The Other ◽  
Men And Women ◽  
Refugee Women ◽  
Other Hand ◽  
Migration Crisis ◽  
The One ◽  
European Migration

This chapter discusses social exclusion in European migration from a gendered and historical perspective. It discusses how from this perspective the idea of a crisis in migration was repeatedly constructed. Gender is used in this chapter in a dual way: attention is paid to differences between men and women in (refugee) migration, and to differences between men and women as advocates and claim makers for migrant rights. There is a dilemma—recognized mostly for recent decades—that on the one hand refugee women can be used to generate empathy, and thus support. On the other hand, emphasis on women as victims forces them into a victimhood role and leaves them without agency. This dilemma played itself out throughout the twentieth century. It led to saving the victims, but not to solving the problem. It fortified rather than weakened the idea of a crisis.

COMMUNICATING EMPIRE: THE HABSBURGS AND THEIR CRITICS, 1700–1919

2009 ◽  
Vol 19 ◽  
pp. 117-138 ◽  
Author(s):  
R. J. W. Evans
Keyword(s):  
Eighteenth Century ◽  
Roman Empire ◽  
Theory And Practice ◽  
Holy Roman Empire ◽  
The Other ◽  
Current Debate ◽  
Free Standing ◽  
Power Base ◽  
The One ◽  
At Home

ABSTRACTIn the vibrant current debate about European empires and their ideologies, one basic dichotomy still tends to be overlooked: that between, on the one hand, the plurality of modern empires of colonisation, commerce and settlement; and, on the other, the traditional claim to single and undividedimperiumso long embodied in the Roman Empire and its successor, the Holy Roman Empire, or (First) Reich. This paper examines the tensions between the two, as manifested in the theory and practice of Habsburg imperial rule. The Habsburgs, emperors of the Reich almost continuously through its last centuries, sought to build their own power-base within and beyond it. The first half of the paper examines how by the eighteenth century their ‘Monarchy’, subsisting alongside the Reich, dealt with the associated legacy of empire. After the dissolution of the Holy Roman Empire in 1806 the Habsburgs could pursue a free-standing Austrian ‘imperialism’, but it rested on an uneasy combination of old and new elements and was correspondingly vulnerable to challenge from abroad and censure at home. The second half of the article charts this aspect of Habsburg government through an age of international imperialism and its contribution to the collapse of the Dual Monarchy in 1918.

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.

To what question is the Badiouan notion of the subject an answer? On the dialectical elaboration of the concept in his early work

2016 ◽  
Vol 43 (1) ◽  
pp. 96-120
Author(s):  
Jan-Jasper Persijn
Keyword(s):  
Direct Consequence ◽  
The Other ◽  
The Political ◽  
Academic World ◽  
Systematic Account ◽  
Political Field ◽  
Political Implications ◽  
The Subject ◽  
The One ◽  
Work Up

Alain Badiou’s elaboration of a subject faithful to an event is commonly known today in the academic world and beyond. However, his first systematic account of the subject ( Théorie du Sujet) was already published in 1982 and did not mention the ‘event’ at all. Therefore, this article aims at tracing back both the structural and the historical conditions that directed Badiou’s elaboration of the subject in the early work up until the publication of L’Être et l’Événément in 1988. On the one hand, it investigates to what extent the (early) Badiouan subject can be considered an exceptional product of the formalist project of the Cahiers pour l’Analyse as instigated by psychoanalytical discourse (Lacan) and a certain Marxist discourse (Althusser) insofar as both were centered upon a theory of the subject. On the other hand, this article examines the radical political implications of this subject insofar as Badiou has directed his philosophical aims towards the political field as a direct consequence of the events of May ’68.

scholarly journals Reviewing the National Courts in Creating Orderly International Law and Community

2017 ◽  
Vol 3 (2) ◽  
pp. 148
Author(s):  
Johanis Leatemia
Keyword(s):  
International Law ◽  
National Court ◽  
National Interest ◽  
The Other ◽  
Peaceful Coexistence ◽  
National Sovereignty ◽  
Customary International Law ◽  
National Courts ◽  
The One

Orderly international community and international law are determined by a national court. Essentially, the national court must be competent to maintain the balance between the national interest which based on the national sovereignty as well as the provisions of international law within the framework of peaceful coexistence. This article reviews the role of national courts in creating and developing the customary international law. As it turns out in practice, however, it has certain weaknesses, particularly in view of the accountability and legitimacy aspects of its establishment. This purpose could be achieved if national courts were able to maintain a balance between the national interest based on the sovereignty of State on the one hand and the provisions of international law on the other. The function of the national court was to maintain a balance between international law and national law.

scholarly journals Desecuritization as Displacement of Controversy: geopolitics, law and sovereign rights in the Arctic

Politik ◽  
2017 ◽  
Vol 20 (3) ◽  
Author(s):  
Marc Jacobsen ◽  
Jeppe Strandsbjerg
Keyword(s):  
Arctic Ocean ◽  
International Law ◽  
Indigenous Peoples ◽  
North Pole ◽  
The Other ◽  
The Arctic ◽  
The Arctic Ocean ◽  
Securitization Theory ◽  
The Media ◽  
The One

By signing the Ilulissat Declaration of May 2008, the five littoral states of the Arctic Ocean pre-emptively desecuritized potential geopolitical controversies in the Arctic Ocean by confirming that international law and geo-science are the defining factors underlying the future delimitation. This happened in response to a rising securitization discourse fueled by commentators and the media in the wake of the 2007 Russian flag planting on the geographical North Pole seabed, which also triggered harder interstate rhetoric and dramatic headlines. This case, however, challenges some established conventions within securitization theory. It was state elites that initiated desecuritization and they did so by shifting issues in danger of being securitized from security to other techniques of government. Contrary to the democratic ethos of the theory, these shifts do not necessarily represent more democratic procedures. Instead, each of these techniques are populated by their own experts and technocrats operating according to logics of right (law) and accuracy (science). While shifting techniques of government might diminish the danger of securitized relations between states, the shift generates a displacement of controversy. Within international law we have seen controversy over its ontological foundations and within science we have seen controversy over standards of science. Each of these are amplified and take a particularly political significance when an issue is securitized via relocation to another technique. While the Ilulissat Declaration has been successful in minimizing the horizontal conflict potential between states it has simultaneously given way for vertical disputes between the signatory states on the one hand and the Indigenous peoples of the Arctic on the other.

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