CH APTER 3
Legal evolution and the redemption of
The dilemma of internationallaw is that of ecclesiastical dogma.
Elastic interpretation adapted to diverse needs increases the number
of the faithful. Rigid interpretation, though theoretically desirable,
provokes secessions from the church. (E. H. Carr, 19391)
It has become a commonplace to note that the modern body of inter
national law, shared by a society of civilised nations, has its roots in
the classical tradition of jus gentium and in a ‘law of nations’ applicable
to a family of
International organisations are a central component of modern international society. This book provides a concise account of the principles and norms of international law applicable to the intergovernmental organisation (IGO). It defines and explains inter-governmentalism and the role of law in its regulation. The book presents case studies that show how the law works within an institutional order dominated by politics. After a note on the key relationship between the IGO and its member states, it examines the basic relationship between the UN and states in terms of membership through admissions, withdrawal, expulsion, suspension, and representation. The debate about the extent of the doctrine of legal powers is addressed through case studies. Institutional lawmaking in the modern era is discussed with particular focus on at the impact of General Assembly Resolutions on outer space and the Health Regulations of the World Health Organization. Non-forcible measures adopted by the UN and similar IGOs in terms of their legality (constitutionality and conformity to international law), legitimacy and effectiveness, is covered next. The different military responses undertaken by IGOs, ranging from observation and peacekeeping, to peace enforcement and war-fighting, are discussed in terms of legality and practice. The book also considers the idea of a Responsibility to Protect and the development of secondary rules of international law to cover the wrongful acts and omissions of IGOs. It ends with a note on how the primary and secondary rules of international law are upheld in different forms and mechanisms of accountability, including courts.
This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations on the underlying treaties that form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a ‘real-life’ discussion of the type of conduct over which the International Criminal Court may take jurisdiction.
This book focuses on the paradoxical character of law and specifically concerns the structural violence of law as the political imposition of normative order onto a "lawless" condition. The paradox of law which grounds and motivates Christoph Menke's intervention is that law is both the opposite of violence and, at the same time, a form of violence. The book develops its engagement with the paradox of law in two stages. The first shows why, and in what precise sense, the law is irreducibly characterized by structural violence. The second explores the possibility of law becoming self-reflectively aware of its own violence and, hence, of the form of a self-critique of law in view of its own violence. The Book's philosophical claims are developed through analyses of works of drama: two classical tragedies in the first part and two modern dramas in the second part. It attempts to illuminate the paradoxical nature of law by way of a philosophical interpretation of literature. There are at least two normative orders within the European ethical horizon that should be called "legal orders" even though they forego the use of coercion and are thus potentially nonviolent. These are international law and Jewish law. Understanding the relationship between law and violence is one of the most urgent challenges a postmodern critical legal theory faces today. Self-reflection, the philosophical concept that plays a key role in the essay, stands opposed to all forms of spontaneity.
serious gap within internationallaw
regarding the use of legal mechanisms to deal with economically motivated
activities during conflict: ‘the liability of economic actors would not be for
economic crimes, as these are essentially absent from the Rome Statute
[which governs the ICC], save for the war crime of “pillage and plunder”. . .
The prosecutors in the ICTY and ICTR have shown little interest in pursuing
economic actors’ (2005: 427–429). At present, international tribunals and
law are not equipped to deal with the economic activities which may fuel or
Liberal reform and the creation of new conflict economies
Jenny H. Peterson
which its institutions
have not yet encountered. An international mission privatising enterprises in
a protectorate against the wishes of a sovereign state is one example of such
an encounter. Yet despite bringing in expertise, inexperience in the field of
privatisation has hampered the process. The problem of a lack of experience by
international institutions in privatisation has been made more acute by a lack
of legal guidance. As one interviewee notes, the problem is that in terms of
internationallaw, what the international community is doing in Kosovo is
Although there are controversies about the UN Security Council making binding laws of general application considered in Case Study 8, this should not disguise the fact that the UN has been hugely influential in shaping internationallaw since 1948 (with the adoption of the Universal Declaration of Human Rights). This has occurred primarily through the General Assembly and the specialised agencies. Despite a dramatic increase in the institutionalisation of lawmaking the orthodox view remains that the legal outputs of IGOs do not challenge traditional forms of
perpetrators that participating in CRSV/M is considered
a grave violation of the internationallaw, and the prosecution approach should be
the same as is the case in obtaining justice for CRSV against women ( Lewis, 2009 : 49). Encouraging men to speak
about their CRSV experiences, particularly to the humanitarian service providers,
may make them more inclined to offer the care and support they need. Therefore, the
move towards a language that is vividly gender-inclusive recognises that both men
An Interview with Caroline Abu Sa’Da, General Director of SOS MEDITERRANEE
unlawful but European
institutions are endorsing it. So SOS says: ‘No! Actually, according to internationallaw,
these are the obligations of states.’ It’s kind of a vigilante of the
Right now, my problem with NGOs like MSF and Save the Children and Oxfam is not what they do
out in the field. It is that their staff generally don’t act as citizens. They go out to
Uganda or DRC or whatever but they don’t engage with politics in their own home countries.
Perhaps this is a result of the way NGO workers see themselves. My PhD research was