De-territorializing and Re-territorializingLotus: Sovereignty and Systematicity as Dialectical Nation-Building in Early Republican Turkey

2009 ◽  
Vol 22 (1) ◽  
pp. 29-49 ◽  
Author(s):  
UMUT ÖZSU
Keyword(s):  
International Law ◽  
International Justice ◽  
The Other ◽  
Close Reading ◽  
Positive Power ◽  
Sovereign State ◽  
Normative Authority ◽  
International Legal System ◽  
Early Republican ◽  
The One

AbstractThe chief aim of this article is to unearth, explicate, and contextualize the various techniques on which Mahmut Esat, Turkey's agent before the Permanent Court of International Justice in theLotuscase, drew in order to narrate a fresh understanding of Turkish ‘nationhood’ during a period of intense vulnerability for the newly established Republic. The argument advanced by Turkey in this case – that it need not demonstrate the existence of a specific jurisdictional exception in international law in order to proceed with its prosecution of the French captain of theLotus, a French vessel – has often been dismissed as an example of cynical apologetics. Nevertheless, a close reading of Turkey's pleadings reveals that it was inclined to oscillate between a variety of universalistic and particularistic approaches, Esat litigating theLotuswith an eye to exploiting the schism that lies at the heart of the concept of ‘civilization’ so as to submit Turkey to the normative authority of the international legal system while bolstering its positive power as an independent sovereign state. More specifically, it was by merging two modes of reasoning – the one prizing systematicity, the other prioritizing sovereignty – that Esat sought to construct a new, robustly reconciliatory identity for the ‘Turkish nation’, one that would enable it to embrace its commitment to international order by securing its place in ‘la civilisation contemporaine’ while amplifying the ambit of its autonomy as ‘un état civilisé’.

New States, Regionalism and International Law

1967 ◽  
Vol 5 ◽  
pp. 118-141 ◽  
Author(s):  
L. C. Green
Keyword(s):  
General Practice ◽  
International Law ◽  
International Justice ◽  
The Other ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The World ◽  
New States ◽  
The One

Traditionally, international law has come to be regarded as consensual in nature, depending for its authority upon the recognition and acceptance of those entities which it seeks to bind. This view was accepted by the Permanent Court of International Justice in the S.S. Lotus: “The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Article 38 of the Statute of the World Court, when listing the “sources” of international law, also acknowledges its consensual basis. In its substantive portion the article refers to conventions “establishing rules expressly recognized by the contesting States.” It then refers to custom “as evidence of a general practice accepted as law,” which has been explained by the International Court of Justice in the Asylum Case: “The Party which relies on a custom … must prove that this custom is established in such a manner that it has become binding on the other Party. [It] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the [one] State … and a duty incumbent on the [other] State.”

Verfassung ohne Staat

2019 ◽  
Keyword(s):  
International Law ◽  
Systems Theory ◽  
World Society ◽  
Point Of View ◽  
The Other ◽  
Private International Law ◽  
Sovereign State ◽  
Political Processes ◽  
Theory Of Law ◽  
The One

On the basis of systems theory, Gunther Teubner has developed a sociologically informed theory of law and constitutionalism that does not rest on the sovereign state, but on the functionally differentiated society. From this point of view, law and constitutionalism can also emerge without a state: in transnational political processes on the one hand and in the ‘private’ spheres of world society on the other. The search for unity and hierarchy in the law may be futile under these circumstances. As Teubner suggests, however, collisions between the various constitutional fragments may be addressed by a new kind of conflicts law that follows the model of private international law. With contributions by Ino Augsberg, Anna Beckers, Gralf-Peter Calliess, Pasquale Femia, Karl-Heinz Ladeur, Andreas Maurer, Riccardo Prandini, Ralf Seinecke, Thomas Vesting, Lars Viellechner

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.

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 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.

International Law Obligations Arising in relation to Nationally Determined Contributions

2018 ◽  
Vol 7 (2) ◽  
pp. 251-275 ◽  
Author(s):  
Benoit Mayer
Keyword(s):  
Climate Change ◽  
International Law ◽  
Paris Agreement ◽  
The Other ◽  
Other Hand ◽  
Legal Obligations ◽  
Nationally Determined Contributions ◽  
The One

AbstractThis article analyzes the international law obligations that arise in relation to nationally determined contributions (NDCs). It argues that distinct and concurrent obligations arise from two separate sources. On the one hand, treaty obligations arise under the Paris Agreement, which imposes an obligation of conduct on parties: they must take adequate measures towards the realization of the mitigation targets contained in their NDCs. On the other hand, communications such as NDCs may constitute unilateral declarations that also create legal obligations. These unilateral declarations impose obligations of various types, which may extend beyond mitigation. For example, they may specify measures of implementation or demand the achievement of a particular result. The potential ‘double-bindingness’ of NDCs should be a central consideration in the interpretation of international law obligations regarding climate change.

Part 1 Refugees, 2 Refugees Defined and Described

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma
Keyword(s):  
International Law ◽  
International Community ◽  
The Other ◽  
Refugee Status ◽  
Other Hand ◽  
Local Protection ◽  
Ordinary Usage ◽  
The One ◽  
Prompt Response

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

3. The law of treaties

2021 ◽  
pp. 33-48
Author(s):  
Ilias Bantekas ◽  
Efthymios Papastavridis
Keyword(s):  
International Law ◽  
International Organizations ◽  
The Other ◽  
Vienna Convention ◽  
Written Form ◽  
The Law ◽  
The One ◽  
Definition Of

This chapter examines the rules of international law governing the birth, the life, and the death of treaties. Treaties, a formal source of international law, are agreements in written form between States or international organizations that are subject to international law. A treaty falls under the definition of the Vienna Convention on the Law of Treaties (VCLT), no matter what form or title it may have. The most important factor is that it sets out obligations or entitlements under international law. The VCLT enumerates the rules governing the ‘birth’, ie the steps from the negotiation until the entry into force of the treaty; the ‘life’, ie the interpretation and application of the treaty; and its ‘demise’, ie its termination. The two fundamental tenets are, on the one hand, the principle ‘pacta sunt servanda’ and, on the other, the principle of contractual freedom of the parties.

Not Like the Others? The Position of Associated States and Dependent Territories in Fishing Disputes

2020 ◽  
Vol 22 (3-4) ◽  
pp. 471-486
Author(s):  
Marco Benatar
Keyword(s):  
International Law ◽  
Fisheries Management ◽  
Dispute Settlement ◽  
The Other ◽  
Applicable Law ◽  
International Dispute ◽  
The Pacific ◽  
The One ◽  
Regional Fisheries Management Organizations ◽  
Law Making

Abstract Fisheries are of vital concern to associated states and dependent territories located in diverse regions ranging from the Pacific to the Atlantic. The special characteristics of these actors have led to innovative international law-making, including the terms that have been agreed within regional fisheries management organizations and arrangements to facilitate representation of non-metropolitan territories’ interests. The question may be raised whether similar innovations can be found in the field of international dispute resolution. The aim of this brief article is to consider some linkages between associated states and dependent territories on the one hand and international dispute settlement concerning fishing on the other. Four such connections will be examined in turn: access to court, representation in proceedings, applicable law in proceedings, and the territorial exclusion of disputes.

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