The aim of this article is to flesh out the implications of seeing universal jurisdiction as a claim to authority. While the idea that jurisdiction is an exercise of authority may seem obvious, the ...article invites attention to the 'claim' inherent within it, particularly where the exercise of jurisdiction intrudes upon or displaces competing claims. Legal scholars and practitioners tend to focus on the legal source of authority to exercise universal jurisdiction. The consequence is a tendency to think in binary terms; a court either has jurisdiction, in which case the matter will proceed without further attention to the question of jurisdiction, or it does not, in which case the whole matter is at an end. Jurisdictional thinking invites attention to the need for those asserting such a claim to take responsibility for these claims to authority, encouraging responsiveness to the normative communities that such claims put into relation and the potential need to rethink conventional modes of operation. The article proceeds in two parts. Part 1 examines the deficiencies in the dominant 'legal source' narrative on universal jurisdiction. Part 2 assesses the value of understanding the legal-political dimension of universal jurisdiction as a claim to authority that must be understood, and justified, with attention to its purpose and the community (or communities) it is intended to serve.
Due Process in the United Nations Hovell, Devika
The American journal of international law,
01/2016, Volume:
110, Issue:
1
Journal Article
Peer reviewed
Open access
“For hard it is for high and stately buildings long to stand except they be upholden and staid by most strong shores, and rest upon most sure foundations”
—Jean Bodin, The Six Books of a Commonweale ...(1576)
It has been said of the redemptive quality of procedural reform that it is “about nine parts myth and one part coconut oil.” Yet, as the recent history of the United Nations shows, failure to enact adequate procedural reform can have damaging consequences for an organization and its activities. In the targeted-sanctions context, litigation in over thirty national and regional courts over due process deficiencies has had a “significant impact on the regime,” placing it “at a legal crossroads.” In the peacekeeping context, the United Nations’ position that claims in the ongoing Haiti cholera controversy are “not receivable” has been described in extensive and uniformly critical press coverage as the United Nations’ “Watergate, except with far fewer consequences for the people responsible.” Complacency in the face of allegations of sexual abuse by UN blue helmets led to the unprecedented ousting of a special representative to the secretary-general in the Central African Republic. Economizing on due process standards is proving to be a false economy.
Sexual abuse is a very human stain that has marked many organizations that define themselves through virtue, including the church, schools, scouting organizations and other humanitarian ...organizations. The exposure of sexual abuse by United Nations (UN) peacekeepers reveals behaviour that is undoubtedly unconscionable, but surely not inconceivable. While the UN was constructed from plans to deliver peace, security, development and human rights, the organization was inescapably hewn from the crooked timber of humanity. The UN is ultimately a creature of the world upon which it seeks to act. The reality of sexual abuse by UN peacekeepers has been destructive of the organization's legitimacy, yet so is any fantasy about the imagined purity of the organization and its personnel. Scholarly attention to the development of an accountability framework for UN peacekeeping is critical so as to avoid not only overly romantic, but also overly cynical, readings of the nature of the organization.
Enforcement by way of unilateral economic sanctions has been described as “one of the least developed areas of international law.” The term “sanctions” is notoriously difficult to define and does not ...itself appear in the key international instruments. With economic sanctions regularly referred to as President Trump's “weapon of choice,” and with opposition to such measures growing, greater certainty is needed in this area of law if the legitimacy and effectiveness of sanctions are to be preserved. This essay distinguishes UN-authorized sanctions from three types of “autonomous” sanctions (collective corrective sanctions, unilateral corrective sanctions, and unilateral coercive sanctions) and argues that many uses of unilateral sanctions are either unregulated or based on questionable legality.
Some three and a half years ago, EJIL published half a dozen contributions on influential theorists in international organizations law. The underlying idea was to see if the dominant theory of ...functionalism in international organizations law had ever had serious competition, and whether it could have utilized alternative, non-functionalist intellectual resources in order to overcome or mitigate some of its most glaring defects, none more so than the problem of accountability. Under functionalism, it is reasonably clear, it is nigh-on impossible to think of ways to hold international organizations accountable towards third parties. This is not just because of privileges and immunities (although that too), but more fundamentally because in the functionalist picture, third parties have no presence: functionalism has always been all about relations between the organization and its member states. After all, the member states endow their organizations with functions, so when it comes to damage to third parties (whether it concerns the non-performance of a contract, the transmission of infectious diseases, sexual abuse of civilians or mistreatment of staff), the law has no response. These things fall outside the purview of functionalism. And so the question arose whether there ever had been serious theoretical alternatives, offering possibilities to think of accountability and other matters in different ways.
International organizations law, it is fair to say, is dominated by a functionalist approach. States, so this approach provides in a nutshell, create international organizations to tackle ...transboundary problems. States delegate functions and competences to those organizations, and international organizations law has developed to facilitate the work of the organizations. International organizations can boast such 'implied powers' as are necessary for their effective functioning, and are typically granted privileges and immunities to ensure that functioning is unimpeded.
This note analyses the twelve-year span of the Kadi litigation in the European courts. The litigation raises the textbook question of the relationship between international and municipal legal ...orders, yet demonstrates that it is high time to move the description of this relationship beyond the orthodox yet outdated monist/dualist dichotomy that was seen to provide the answer in less complicated times. The note examines the different approaches taken at the three key phases of the litigation: the 'supremacy' position adopted by the Court of First Instance in 2005, the 'subversive' approach of the European Court of Justice in 2008 and the 'subsidiarity' position of the Court of Justice of the European Union in 2013. Ultimately, the note invites attention to the 'Solange equivalence' approach taken by the Advocates-General and argues that this strikes the best balance in normative terms for an enduring approach to power-sharing between legal orders.
Abstract For better or for worse, the ‘English school’ or ‘British tradition’ of international law has eluded systematization or definition. This article examines the responses of a UK legal adviser, ...a British judge on the International Court of Justice and influential scholars to a particular case, the Corfu Channel case. In doing so, it is possible to identify clear synergies in the mainstream legal method of British international lawyers. It should not be surprising that this method follows in the common law tradition, displaying its three key hallmarks of connection to social practice, focus on courts and an anti-theoretical tendency. Identity and analysis of these characteristics helps us to understand the distinctive contribution of British approaches to international law and the work this ‘common law method’ has done in strengthening and shaping international law. Identifying these characteristics is also important in order to understand the more problematic implications of their application in the international legal context. The common law method has consequences for the structure and direction of the international legal system, including the parameters of its community, the site of its authority and the role of theory in its development. Reflection on these strengths and weaknesses helps us better understand British contributions to international law. Paradoxically, the route to a more universal international law requires us first to understand the ways in which it is plural.
Abstract
This article contains a plea for continuing attention to the elements of international legal positivism. Using the language of ‘elements’ deliberately plays on the positivist tendency to ...describe the legal discipline as a legal science. Yet law’s elements differ in important ways from the usual objects of scientific inquiry. Law’s method does not seek to address the structure and behaviour of the physical world, but that of a particular society with its own political polarities, structure and functions. The fact that international law inherits its positivist method from the domestic legal context therefore presents complications. While the adoption of positivism as international law’s predominant legal method was animated in part by a desire to provide international law with the imprimatur it needs to claim credibility as a legal system, it has also served as an impediment to international law’s development in a distinctive fashion from domestic law. International law’s attachment to the positivist method has at times extended to an attachment to certain presuppositions more closely associated with the development of the modern European state. This article takes the position that it is important to engage with international legal positivism on its own terms. Part I traces the lineage of three important traditions of international legal positivism (‘social thesis’ positivism, ‘system-based’ positivism and ‘teleological’ positivism) highlighting their different emphases and in doing so identifying key elements. Part II interrogates certain presuppositions sometimes associated with these traditions and considers whether it is appropriate to rethink or re-engineer these aspects in their application to the international legal system. While positivism is sometimes associated with ‘purifying’ law as a discipline, the article takes the position that the positivist method can only endure if complemented by a rich legal, political and social discourse focused on understanding its relationship to the elements of the international legal system, in particular, international law’s community, authority and functions.
Universal jurisdiction enables the prosecution of international crimes by domestic courts in the absence of any nexus between the prosecuting state and the crime charged. While the temptation is for ...domestic judges to proceed with ‘business as usual’ in the conduct of such trials, difficulties in the practice of universal jurisdiction reflect the importance of developing a better understanding of the distinctive communities, interests, crimes and cultures these trials are intended to serve. The exercise of universal jurisdiction is commonly regarded as a form of domestic jurisdiction exercised pursuant to a sovereign right under international law. This article invites a re‐conceptualisation of the concept of universal jurisdiction, explaining that it is not a form of domestic jurisdiction acquired based on sovereign nexus between the crime charged and the prosecuting state. Instead, it should be recognised as a form of decentralised ‘international jurisdiction’, exercised as part of a state's contribution to the enforcement of international criminal law. This re‐conceptualisation has implications for the way in which domestic courts engage with many of the challenges facing universal jurisdiction trials, including problems of community, case selection, proof and translation.
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