The International Rule of Law—Rise or Decline?—Approaching Current Foundational Challenges

The chapter undertakes a preliminary assessment of current developments of international law for the purpose of mapping the ground for a larger research project. The research project pursues the goal of determining whether public international law, as it has developed since the end of the Cold War, is continuing its progressive move towards a more human-rights- and multi-actor-oriented order, or whether we are seeing a renewed emphasis of more classical elements of international law. In this context the term ‘international rule of law’ is chosen to designate the more recent and ‘thicker’ understanding of international law. The chapter discusses how it can be determined whether this form of international law continues to unfold, and whether we are witnessing challenges to this order which could give rise to more fundamental reassessments.

The International Rule of Law in Light of Legitimacy Claims

The International Rule of Law ◽

10.1093/oso/9780198843603.003.0018 ◽

2019 ◽

pp. 277-301 ◽

Cited By ~ 1

Author(s):

Thilo Marauhn

Keyword(s):

Cold War ◽

International Law ◽

Rule Of Law ◽

A Value ◽

The Cold War ◽

The chapter looks at legitimacy claims, contrasting them with theories of legitimacy and discussing how such claims may contribute to the ‘rise or decline’ of the international rule of law. The author studies examples from the areas of the ius ad bellum and the ius in bello. He concludes that legitimacy considerations will not allow a proper assessment of ‘rise or decline’ in themselves. Rather it is important to first establish a realistic perspective on what international law can achieve at all. In contrast to expectations that have been raised in particular after the end of the Cold War by many scholars, international law has not become a value-based constitutional arrangement of its constitutive entities, whether these are states or individuals.

Unilateral Economic Sanctions, International Law, and Human Rights

Ethics & International Affairs ◽

10.1017/s0892679419000339 ◽

2019 ◽

Vol 33 (3) ◽

pp. 291-302 ◽

Cited By ~ 1

Author(s):

Idriss Jazairy

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Economic Sanctions ◽

Self Determination ◽

Berlin Wall ◽

The West ◽

Eventual Collapse ◽

The Cold War ◽

United Nations Charter

AbstractAs part of the roundtable “Economic Sanctions and Their Consequences,” this essay examines unilateral coercive measures. These types of sanctions are applied outside the scope of Chapter VII of the United Nations Charter, and were developed and refined in the West in the context of the Cold War. Yet the eventual collapse of the Berlin Wall did not herald the demise of unilateral sanctions; much to the contrary. While there are no incontrovertible data on the extent of these measures, one can safely say that they target in some way a full quarter of humanity. In addition to being a major attack on the principle of self-determination, unilateral measures not only adversely affect the rights to international trade and to navigation but also the basic human rights of innocent civilians. The current deterioration of the situation, with the mutation of embargoes into blockades and impositions on third parties, is a threat to peace that needs to be upgraded in strategic concern.

After International Law: Anthropology Beyond the “Age of Human Rights”

AJIL Unbound ◽

10.1017/aju.2021.42 ◽

2021 ◽

Vol 115 ◽

pp. 289-293

Author(s):

Mark Goodale

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Local Level ◽

Collective Identities ◽

Post Cold War ◽

Legal Norms ◽

Anthropological Research ◽

Legal Strategies ◽

This essay examines the ways in which anthropologists have tracked the rise and fall of international law after the end of the Cold War. It argues that anthropological research has made important contributions to the wider understanding of international law as a mechanism for social and political change, a framework for protecting vulnerable populations, and a language through which collective identities can be expressed and valorized. Yet, over time, international law has lost many of these expansive functions, a shift that anthropologists have also studied, although with greater reluctance and difficulty. The essay explains the ways in which particular categories of international law, such as human rights and international criminal justice, grew dramatically in importance and power during the 1990s and early 2000s, a shift whose complexities anthropologists studied at the local level. As the essay also explains, anthropological research began to detect a weakening in human rights implementation and respect for international legal norms, a countervailing shift that has broader implications for the possibilities for international cooperation and the resolution of conflicts, among others. At the same time, the retreat of international law from its highpoint in the early post-Cold War years has given way to the reemergence of non-legal strategies for advancing change and accounting for past injustices, including strategies based on social confrontation, moral shaming, and even violence.

2000–2020: twenty years later, where are we in terms of the unity of international law?

Cambridge International Law Journal ◽

10.4337/cilj.2020.01.01 ◽

2020 ◽

Vol 9 (1) ◽

pp. 6-23

Author(s):

Pierre-Marie Dupuy

Keyword(s):

International Relations ◽

United Nations ◽

International Law ◽

Rule Of Law ◽

Legal Order ◽

Public International Law ◽

International Legal Order ◽

The Hague ◽

Peremptory Norms ◽

Twenty years have passed since the author's delivery in 2000 of the general course of public international law at the Hague Academy of International Law, titled ‘The Unity of the International Legal Order’. That course was designed to combat the all-too-common idea that international law was in the process of ‘fragmentation’. It did so by developing a theory focused on the existence of and tension between two forms of unity in the international legal order: the formal unity (concerning the procedures by which primary norms are created and interpreted, and their non-compliance adjudicated) and the material unity (based on the content of certain norms of general international law, peremptory norms). Twenty years later, the time is ripe to revisit this theory to determine the extent to which it is still valid as a framework for the analysis of international law, particularly as an increasing number of ‘populist’ leaders very much seem to ignore, or voluntarily deny, the validity of some of the key substantial principles on which the international legal order was re-founded within and around the United Nations in 1945. When confronted with the factual reality of the present state of international relations as well as with the evolution of the law, one can conclude that the validity of the unity of the international legal order is unfailingly maintained, and that its role in upholding the international rule of law is more important now than ever.

Conclusion

Criminalizing Atrocity ◽

10.1093/oso/9780198850441.003.0007 ◽

2020 ◽

pp. 174-188

Author(s):

Mark S. Berlin

Keyword(s):

Human Rights ◽

Cold War ◽

Civil Society ◽

International Law ◽

Criminal Law ◽

Large Scale ◽

Legal Norms ◽

Reform Processes ◽

Human Rights Norms ◽

This chapter summarizes the book’s findings and discuses their implications for research on atrocity justice, human rights, and international law. It highlights the importance of technocratic criminal law specialists in the spread of human rights norms and contrasts these actors with the types of civil society groups that receive much attention in the human rights literature. The chapter also discusses how the book’s findings complicate the narrative of the Cold War period as a time of “hibernation” for the advancement of international atrocity justice. Finally, the chapter highlights the importance of the book’s findings for understanding the domestication of international law more generally. The chapter then discusses how the book’s findings may generalize to explaining the spread of other legal norms that have been shown to be associated with improvements in human rights outcomes. It suggests a number of conditions under which the spread of legal norms will benefit from forms of technocratic legal borrowing inherent in large-scale reform processes.

The International Rule of Law

Law Beyond the State ◽

10.1093/oso/9780197543894.003.0004 ◽

2021 ◽

pp. 86-110

Author(s):

Carmen E. Pavel

Keyword(s):

Human Rights ◽

International Law ◽

Rule Of Law ◽

Moral Status ◽

International Institutions ◽

Intrinsic Value ◽

State Autonomy ◽

Fundamental Goal ◽

Internal Affairs ◽

This chapter argues that one of the main goals of an international rule of law is the protection of state autonomy from arbitrary interference by international institutions and that the best way to codify this protection is through constitutional rules restraining the reach of international law into the internal affairs of a state. State autonomy does not have any intrinsic value or moral status of its own. Its value is derivative, resulting from the role it plays as the most efficient means of protecting autonomy for individuals and groups. Therefore, the goal of protecting state autonomy from the encroachment of international law will have to be constrained by, and balanced against, the more fundamental goal of an international rule of law: the protection of the autonomy of individual persons, best realized through the entrenchment of basic human rights.

The Myth of Universality: The UNESCO “Philosophers’ Committee” and the Making of Human Rights

Law & Social Inquiry ◽

10.1111/lsi.12343 ◽

2018 ◽

Vol 43 (03) ◽

pp. 596-617 ◽

Cited By ~ 5

Author(s):

Mark Goodale

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Intellectual History ◽

Development Policy ◽

Social Activism ◽

Alternative Interpretation ◽

Cultural Narrative ◽

History Of ◽

This article reexamines one of the most enduring questions in the history of human rights: the question of human rights universality. By the end of the first decade after the end of the Cold War, debates around the legitimacy and origins of human rights took on new urgency, as human rights emerged as an increasingly influential rubric in international law, transnational development policy, social activism, and ethical discourse. At stake in these debates was the fundamental status of human rights. Based in part on new archival research, this article offers an alternative interpretation of the rediscovery by scholars in the late 1990s of a 1947 UNESCO survey that purported to demonstrate the universality of human rights through empirical evidence. The article argues that this contested intellectual history reflects the enduring importance of the “myth of universality”—a key cultural narrative that we continue to use to find meaning across the long, dark night of history.

The same as it never was? Uncertainty and the changing contours of international law

Review of International Studies ◽

10.1017/s0260210511000386 ◽

2011 ◽

Vol 37 (5) ◽

pp. 2163-2182 ◽

Cited By ~ 3

Author(s):

OLIVER KESSLER

Keyword(s):

Cold War ◽

International Law ◽

Dispute Settlement ◽

Private International Law ◽

Attribution Of Responsibility ◽

Public International Law ◽

World Polity ◽

The World ◽

Definition Of ◽

AbstractInternational law has changed significantly since the end of the Cold War. As long as the international was thought to be populated by sovereign states predominantly, international law was conceived of as a means for peaceful dispute settlement. That is: the reference to state sovereignty not only divided public from private international law, but structured most of public international law itself; from the very definition of and associated rights and duties to the attribution of responsibility. With the emergence of the post-national constellation, a reduction of law to questions of states' practices is increasingly problematic. At the same time, the post-national constellation denotes more than just a structural shift in the world polity. It challenges established dogmas rooted in an individualistic philosophy of science and thereby calls for a different understanding of how the world is (made) known. What uncertainty has to offer is the provision of a different vocabulary detached from the state through which we can reconsider some changes in international law.

Vicarius Christi: Extraterritoriality, pastoral power, and the critique of secular international law

Leiden Journal of International Law ◽

10.1017/s0922156521000285 ◽

2021 ◽

pp. 1-24

Author(s):

Daniel Ricardo Quiroga-Villamarín

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Limited Range ◽

The Other ◽

Deep Roots ◽

The Past ◽

Pastoral Power ◽

History Of ◽

Abstract Since the end of the Cold War, the content, scope, and extent of extraterritorial human rights obligations has become a pressing concern for international lawyers. On one end of the debate, mainstream scholarship argues that jurisdiction is primarily territorial, identifying a limited range of situations in which jurisdiction (and responsibility) is triggered. On the other end, critical scholars suggest that Empire still haunts jurisdiction. By reconstructing the history of this doctrine, they show that the imperial reach has always been extra-territorial and that the intimate linkage between state, territory, and population is of a rather recent and tenuous origin. In both of these narratives, however, lies the assumption that jurisdiction operates as a secularized power. Even if empires/states were once religious, faith’s legacy remains confined to the past. In this article, conversely, I trace a critical genealogy of Christian authority as a jurisdictional structure, in which territoriality was never presumed. After all, one cannot forget that Catholicism and Universalism were forged in the same etymological crucible. By drawing from Foucault’s analysis of pastoral power, I argue that international law has deep roots in Christianity’s claims of governmentality upon ‘men and souls’ instead of over defined territories.

Part 1 The Cold War Era (1945–89), 22 The Ugandan–Tanzanian War—1978–79

10.1093/law/9780198784357.003.0022 ◽

2018 ◽

Author(s):

Chan Kenneth

Keyword(s):

Human Rights ◽

Cold War ◽

International Law ◽

Final Section ◽

Humanitarian Intervention ◽

Human Rights Violations ◽

Self Defense ◽

Desirable Outcome ◽

Head Of State ◽

This chapter examines the conflict between Uganda and Tanzania, which resulted in the removal of President Idi Amin as head of state in the late 1970s. The initial passage lays out the facts of the case before considering the legal positions presented by the main parties to the conflict and the reactions of the international community. The final section assesses the broader international law implications of the episode. Although the legal justifications provided for Tanzania's actions by its government were vague and wide-ranging, in light of the massive human rights violations being committed by Amin, Tanzania's actions have been historically viewed as an early humanitarian intervention effort. This claim is however only somewhat supported on the facts. Ultimately, the international community's willingness to overlook the illegality of Tanzania's invasion and violation of Uganda's sovereignty (which far exceeded the scope of its right to self-defense) can be understood as a matter of political convenience, wherein the removal of a notoriously difficult head of state was viewed as a politically and morally desirable outcome.