Coming to Terms with the Past: Some Elements of German Practice Since 1945 in the Light of International Law

2021 ◽  
Vol 28 (1) ◽  
pp. 27-56
Author(s):  
Helmut Philipp Aust
Keyword(s):  
Author(s):  
Rowan Nicholson

If the term were given its literal meaning, international law would be law between ‘nations’. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities. An important conclusion of the book is that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state: subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Another conclusion is that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; pre-colonial African chiefdoms; ‘states-in-context’, an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.


1997 ◽  
Vol 50 (1) ◽  
pp. 421-441
Author(s):  
M. Mendelson

1914 ◽  
Vol 8 (1) ◽  
pp. 25-49
Author(s):  
Alfred L. P. Dennis

War has marked the year 1913; and charges and countercharges as to alleged atrocities by belligerents have been rife. Treaties were drawn to be promptly torn up; and solemn declarations of intention and policy often proved futile. The existence of internal disorder and the outbreak of domestic revolutions in several countries have also exerted disturbing influences on international relations. The result was economic loss and diplomatic tension even well beyond the field of military operations. And these conditions have led to renewed activity in the struggle for concessions and investment in renascent communities. Racial and religious sentiments have also aroused bitter feeling; while political leaders in several countries compel renewed consideration of the weight of individuals in the determination of the world's affairs.In large part the problems of 1913 were historic; but in part they were affected by apparently impending changes which we cannot as yet define. Thus the influence of socialism and of various forms of radical thought on international relations is a factor. The adoption of oil as a naval fuel, the opening of the Panama Canal, the plans for administrative reorganization of Turkey, and its capitalistic development, the renewed debate as to the Monroe doctrine, and the problem of China are all matters whose future significance scarcely concern us here; but their influence in the past year has been unquestionably great. We cannot estimate as yet the true value of many recommendations touching various fields of international coöperation; and the value of delay in international action still remains in dispute. So on the whole the year 1913 has apparently been the year of the cynic.


2020 ◽  
Vol 7 (2-3) ◽  
pp. 365-388
Author(s):  
Pablo Kalmanovitz

Abstract Over the past 25 years, criminal prosecutions for war crimes have become a central element in the long-standing project of governing hostilities in international law. According to many, the threat of criminal prosecutions can be a general deterrent against violations of the laws of war, and can contribute more broadly to the diffusion and domestic appropriation of humanitarian norms. This article discusses some unintended effects of this “anti-impunity turn” in the laws of war in the context of non-international armed conflicts. Specifically, it examines the consequences of the fact that states typically have a monopoly over the means of legitimate criminal investigation for alleged crimes committed in their territory. Far from operating on a level playing field, criminal investigations in war contexts must be undertaken under institutional conditions that tend to favor state agents over non-state opposition groups. The article spells out some implications of this form of state bias and argues that it can contribute to exacerbate conflict and prolong violence in war.


1927 ◽  
Vol 21 (4) ◽  
pp. 716-736
Author(s):  
James Brown Scott

The scientific organizations which flourished before the World War have had great difficulty in continuing their labors after its termination. The Institute of International Law has been no exception. It was to have met in Munich in September, 1914, and its program had been completely arranged; but the war which started in August, 1914, necessarily put an end to all arrangements for the session. A resort to arms inevitably brings with it a desire for its avoidance; and the greater the war, the greater the desire. A decade, a generation struggles in the mists and shadows, seeking to extricate itself from the post-war spirit, condemning the past somewhat indiscriminately and advocating innovations which, new in expression, are nevertheless the aspirations of those who, in all time, crushed and bruised by force, seek to replace it by justice.


2010 ◽  
Vol 5 (2) ◽  
pp. 41-53 ◽  
Author(s):  
Ljiljana Gavrilović

This paper looks at the use of the Serbian terms "kulturna baština" and "kulturno nasleđe" (both of which are translated as "cultural heritage") to refer to elements of culture preserved from the past and considered valuable enough to be preserved as part of the musealization of reality in its various forms. It offers an analysis of how, through the (re)introduction of the old/new term baština, patriarchy and essentialism – two elements of non-material cultural heritage that are ostensibly undesirable and not to be retained since they are contrary to international law – are being reinstated in the sphere of culture by bureaucratic means.


Legal Studies ◽  
2014 ◽  
Vol 34 (3) ◽  
pp. 469-496 ◽  
Author(s):  
Aoife O'Donoghue

In the pantheon of approaches open to participants in the pacific settlement of disputes, good offices holds a noteworthy place. The evolution of good offices over the past century is concurrent with a trend of considerable transformation within international law, including – amongst other changes – a move away from a state-led legal order, including in good offices following the emergence of the heads of international organisations as its prime users, and a process of legalisation and specialisation within the subject that has entirely altered its character. These changes have led to a redefinition of good offices that stresses the actor carrying out the role above the form that it takes. To accompany these changes in practice, there is a need for a transformation in the legal analysis and definition of good offices. One potential option in achieving this end is Bell'slex pacificatoria. If good offices is to continue to play a significant role in the settlement of violent conflicts, a fully developed legal analysis is necessary to grasp both its historical development and its potential future role.


Race & Class ◽  
2018 ◽  
Vol 60 (2) ◽  
pp. 40-62 ◽  
Author(s):  
Tazreena Sajjad

Through a critical examination of European immigration policy and using the case of Afghan asylum seekers in the European continent, this article argues that the politics of labelling and the criminalisation and securitisation of migration undermine the protection framework for the globally displaced. However, the issue goes deeper than state politicking to circumvent responsibilities under international law. The construction of migrants as victims at best, and as cultural and security threats at worst, particularly in the case of Muslim refugees, not only assists in their dehumanisation, it also legitimises actions taken against them through the perpetuation of a particular discourse on the European Self and the non-European Other. At one level, such a dynamic underscores the long-standing struggle of Europe to articulate its identity within the economic, demographic and cultural anxieties produced by the dynamics of globalisation. At another, these existing constructions, which hierarchise ‘worthiness’, are limited in their reflection of the complex realities that force people to seek refuge. Simultaneously, the labels, and the discourse of which they are part, make it possible for Europe to deny asylum claims and expedite deportations while being globally accepted as a human rights champion. This process also makes it possible for Europe to categorise turbulent contexts such as Afghanistan as a ‘safe country’, even at a time when the global refugee protection regime demands creative expansion. Ultimately, the politics of European migration policy illustrates the evolution of European Orientalist discourse – utilised in the past to legitimise colonisation and domination, now used to legitimise incarceration and deportation.


This volume asks a question that is deceptive in its simplicity: Could international law have been otherwise? In other words, what were the past possibilities, if any, for a different law? The search for contingency in international law is often motivated, including in the present volume, by the refusal to accept the present state of affairs and by the hope that recovering possibilities of the past will facilitate a different future. The volume situates the search for contingency theoretically and within many fields of international law, such as human rights and armed conflict, migrants and refugees, the sea and natural resources, and foreign investment and trade. Today there is hardly a serious account that would consider the path of international law to be necessary and that would deny the possibility of a different law altogether. At the same time, however, behind every possibility of the past stands a reason – or reasons – why the law developed as it did. Those who embark in search of contingency soon encounter tensions when they want to recover past possibilities without downplaying patterns of determination and domination. Nevertheless, while warring critical sensibilities may point in different directions, only a keen sense of why things turned out the way they did makes it possible to argue about how they could plausibly have turned out differently.


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