SSRN PAPER: Ryan MITCHELL, International Law as Project or System?

(image: library; source: Wikimedia Commons)

Abstract:

Classical authors on international law tended to understand it as an immanent system of norms, emerging from natural reason, self-interest, and/or customary state behavior. This view largely kept hold well into the Vienna System era of multilateral diplomacy, indeed becoming more conceptually clear even as the language of natural law grew increasingly marginal. By the early twentieth century, however, international law had turned into a domain for intentional legislative projects on a global scale. Ultimately, this new legislative function of international law was endowed to permanent organizations focused on norm-development in specialized areas. With this transformation, international law’s forms of legislation and, later, also of interpretation and adjudication transitioned from assuming “unwilled” to “willed,” intentional norms. This Article traces the conceptual history of this shift in the self-understanding of legal actors. It also argues that the now-prevalent epistemic model of international law as a collective project necessarily raises questions, including those rooted in Third World critique, as to whose project it is in practice. Finally, it suggests that further attention to international law’s “problem of authorship” can aid in understanding the way that legal discourses—such as those concerned with norms of freedom of navigation, trade, or international human rights—produce specific forms of knowledge and political possibilities.

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SSRN PAPER: Jacob KATZ COGAN, "A History of International Law in the Vernacular" (JHIL, forthcoming)

(image source: Wikimedia Commons)

Abstract:

Histories of international law have typically focused on the origins of legal rules and doctrines, the decisions of courts and other formal tribunals, the views of professors and legal theorists and diplomats, and the evolution of the legal profession. That is, international legal histories have centered on the concerns of lawyers and states and have reflected a positivist vision of international lawmaking. We need a history of international law that focuses more on international law in action—the invocation, elaboration, and contestation of rules in and through their everyday application, not just by states, high-level state actors, legal theorists, and state-organized domestic and international institutions, but also by individuals, low-level officials, private groups, and nongovernmental actors and in places outside of the usual fora where “international law” is said to be found. We need a history of international law in the vernacular.

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SSRN PAPER: Jean d'ASPREMONT, Turntablism in the History of International Law

(image: library; source: Wikimedia Commons)

Paper abstract:

This article uses the metaphor of turntablism to shed light on how international lawyers’ engagement with history has remained confined to the same terms, vocabularies, and categories of the very historical narratives they seek to evaluate, disrupt, or displace. In this article, turntablism is understood as the art of creating new music and sound effects by using one or several turntables on which a record is placed. This article argues that twenty-first century international lawyers engaging with the history of international law are talented turntablists. The many historiographical works produced by such lawyers, since the so-called ‘historical turn’, have remained confined to the very terms, categories, and vocabularies of the histories whose creation they discuss and theorise. This article ultimately shows that turntablism is not the inevitable fate of international lawyers engaging with history, and that a radical historical critique is possible and should be promoted.

(source: SSRN)

SSRN PAPER: Anna LUKINA, Opening the Pandora’s Box: Kelsen and the Communist Theory of Law

(image: Hans Kelsen; source: Wikimedia Commons)

Abstract:

This paper examines Hans Kelsen’s Communist Theory of Law in the context of his general critique of natural law theories. Kelsen argues that since there is no such thing as objectively determined natural law, a theory that attempts to use it to establish constraints on positive law is at risk of automatically justifying the latter. Kelsen deploys this ‘Pandora’s Box Objection’ in his characterization of the Communist theory of law as the ‘handmaiden’ of the Soviet government that conserved, rather than challenged, oppressive policies. The Objection is limited in scope. Firstly, it applies only to ‘forward-looking’ Communist theories of law that justify transitional socialist legal arrangements rather than seek to abolish the legal form as a whole. Secondly, it does not eliminate the Rule of Law constraints that are independent from natural law fetters - hence the state does not have a ‘blank cheque’ to introduce any positive law.

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SSRN PAPER: Jean d'ASPREMONT, Comparativism and Colonizing Thinking in International Law

(image source: Wikimedia Commons)

Paper abstract:

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called Comparative International Law (‘the comparativist project’). The comparativist project has attracted enormous attention and enthusiasm in the international legal literature. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a dangerous thought-colonizing enterprise. The article ends with some observations on the need to promote counter-comparability thinking as a guarantee against colonizing thinking in international legal studies.

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Antonios TZANAKOPOULOS, "La Russie et le Conseil de sécurité : les trois époques de la pratique (Russia and the Security Council: Three Epochs of Practice)" (Revue Générale de Droit International Public CXXIX (2019))

(image source: KUL)

Abstract:

French Abstract: Cette contribution concerne la pratique de la Russie dans sa qualité comme membre permanente du Conseil de sécurité des Nations Unies. Elle tracerait la participation soviétique/russe au Conseil de sécurité en discernant approximativement trois époques de cette participation : l’époque soviétique du « deadlock », de l’impasse, pendant la guerre froide ; l’époque de retrait russe, de consensus entre les membres permanents et, par conséquence, de l’hégémonie américaine ; et l’époque actuelle paradoxale de réengagement, quand la Russie utilise les arguments occidentaux contre l’Occident. English Abstract:This paper discusses the three different epochs of Soviet/Russian practice in the Security Council. After recounting the 'switch' from the Soviet Union to the Russian Federation as a permanent member of the Security Council, the paper traces the three epochs it identifies: from the Soviet era of the deadlock during the Cold War, to the era of Russian retreat during the New World Order and US hegemony, to the current paradoxical era of Russian re-engagement, where Russia invokes Western arguments against the West.

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SSRN PAPER: Thomas KLEINLEIN, "Managing the German Debt"

(image: the "Big Four" at the Versailles Peace Conference; source: Wikimedia Commons)

Abstract:

This chapter analyses the essential provisions of the Versailles reparations scheme and argues that this scheme, with its concept of reparations and with other features, was unprecedented in the history of peace treaties. The chronology of the management of the German debt – a story of treaty execution and treaty revision from 1920 to 2010 – can be divided into various reparation schemes, most significantly those of the Dawes Plan and the Young Plan. However, the degree to which already the Paris Conference set the basic patterns for this entire history of reparations is striking. Its themes, schemes and devices appeared again and again in one guise or another. The chapter concludes on what these recurrent themes can mean for the legal framework of sovereign debt management beyond the singular experience of the Versailles Treaty.

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(source: International Law Reporter)