CIAO DATE: 03/02
|
|
|
|
1998 (Volume 09 Issue 2)
Proceeding from the summa divisio that Wolfgang Friedmann proposed for international law - into the 'law of coexistence' and the 'law of cooperation' - the article endeavours to establish the degree of community obtaining in contemporary international society by identifying the position of international law at the relevant moment on the schedule linking these two contrasting types of legal regulation. The article begins by comparing the two approaches, and then follows the evolution of international law through three stages. The first, starting from the Peace of Westphalia, provided the initial configuration of classical international law, the epitome of the law of coexistence. The advent of the industrial evolution called for a different type of legal regulation, which led to the emergence of law of cooperation regimes, albeit limited to technical fields. The two World Wars, and particularly the Charter of the United Nations, brought the approach of the law of cooperation to the centre-stage of international law, especially through the system of collective security. The third part of the article focuses on the Charter era, describing the expanding role of the law of cooperation approach in the initial design of the Charter, then the impact of the Cold War, and finally the post-Cold War present. The article draws the paradoxical conclusion that the end of the Cold War, far from pushing the international society towards a more integrated global community, has introduced new dangers and bones of contention among the members of this society, which create the risk of causing it to evolve in the opposite direction.
The article seeks to analyse the current state of the 'international community' in the light of different traditions of thought. It finds the distinctive element of 'community' in the prioritization of community interests as against the egoistic interests of individual states. Whereas factual interdependence undeniably exists in the contemporary state system, several traditions of thought shed a different light on the existence of common values and institutions. Modifying a classification coined by Hedley Bull, the article distinguishes four views of the international system: a 'Hobbesian' or 'realist' tradition, a 'Vattelian' or internationalist tradition, a 'Grotian' or 'communitarian' tradition, and a 'Kantian' or universalist tradition. In an analysis of the current state of affairs, the article claims that the classical 'Lotus principle' is giving way to a more communitarian, more highly institutionalized international law, in which states 'channel' the pursuit of most of their individual interests through multilateral institutions. Nevertheless, the authors do not deny the aspirational element of the 'community' concept.
A comparison of the major trends of international law during the 1960s and the present time shows the consolidation in positive international law of the basic principles laid down in the UN Charter. There are nevertheless some very substantial differences between the time when the 'international community' placed greatest emphasis on the 'common heritage of mankind' and the time of globalization, the second posing new challenges to the sovereign state. It remains that the prohibition of force as set down in the Charter establishes the historical development of international law in the perspective of the specific categorical imperative defined by Kant's project of 'perpetual peace'. In this respect, it has become possible since 1945 to look at the development of international law from the viewpoint of progress.
Kelsen holds a unique place in the theory of international law as the only great legal theorist to have placed international law and its relations with domestic law at the centre of his considerations. Kelsen consistently defended the idea that international law was law in its own right. This he did in a paradoxical way, viewing war and reprisals as sanctions that gave international law a positive character. But that was just a first step in his argument. It led on to the prohibition of the use of armed force in international conflicts and the necessary creation of international justice to settle international disputes as the only means of taking international law out of a state of anarchy. But the particularly fascinating point of Kelsen's thinking is not only the cogency and rigour of his reasoning but also the fact that his work which was reputed to be theoretical, even dogmatic, and remote from the concerns of the real world, provides us with the sharpest conceptual tools with which to think through the contemporary developments of international law. Two examples are given in this paper: i) the theory of centralization of legal orders, which provides some understanding of the advances made by the European Community and situates those advances in the general theory of international law; ii) Kelsen's analysis of the role of the individual in international law, which allows us to understand the innovations implied by the theory of state contracts.
This article focuses on Hans Kelsen's theory of international law and pacifism. Following an analytical reconstruction of Kelsen's theses, the author makes a number of critical observations. In particular, the article examines Kelsen's ideas on the primacy of international law, the necessary demise of the concept of sovereignty and the assumption of the doctrine of iustum bellum as the basis for the juridical character of international law. Special attention is given to Kelsen's idea of a 'Permanent League for the Maintenance of Peace', inspired by a kind of 'judicial cosmopolitanism', and developed in his Peace through Law. It is the author's opinion that Kelsen's internationalism and pacifism brought about an important turning-point in the theory of international law and anticipated by 50 years many of the issues that the international community are today discussing: in particular, individuals as subjects of international law (and not only states) and the use of international criminal tribunals for the punishment of those responsible for war crimes and crimes against humanity. Finally, the author argues that there is some doubt whether Kelsen's theoretical and political goals, inspired by the Kantian idea of the moral unity of humanity and by a normativist conception of law, may be fulfilled or even be desirable.
Kelsen's monistic theory of law, according to which international and municipal law have the same subject-matter, paved the way for the dominant contemporary doctrine: international law can encompass every aspect of human life which warrants international legal protection of human rights. Kelsen's doctrine of the identification of law and state held the legal order of the modern state to be the pattern of every legal system. Since, moreover, he considered physical coercion to be the very requisite of a legal normative order, Kelsen was bound to look for such a coercive element in the international order and found it in war. The experience of World War Two led Kelsen to develop the doctrine of the 'just war' (bellum iustum) as the appropriate sanction for violations of international norms, a theory which is had to reconcile with his condemnation of every form of natural law. Kelsen's narrow definition of law prevented him from assessing the true nature of normative systems which do not fall within the state-based definition. Such systems may rely on non-physical forms of coercion, forms which are also available, as this article argues, to the international order.
The article explores the contribution of the purity of Kelsen's theory of international law to the exclusion of ethics and political analysis from the workfield of the international lawyer. It is argued that Kelsen's own approach is an epistemologically grounded argument against involvement in the emotional dimension of political relations, which he dismisses as irrational. This is what justifies professional evasiveness in the face of the continuing self-assertiveness of the nation-state. Kelsen is now such a formidable obstacle to the development of the discipline because the profession lacks his general intellectual culture and so is unable to question the foundations of his system.
This article situates Kelsen and his work in the context of the Austrian culture in the early part of this century. After sketching out the cultural and social influences that affected his family life and education, the author outlines the basic ideas of Kelsen's principal work, the Pure Theory of Law. He then goes on to discuss the dynamic links and exchanges between Kelsen and his circle and other intellectual movements active at the time in Vienna. Three such movements are examined at length. While Kelsen never actually joined a political party, he expresses some sympathy for 'Red Vienna' and took part in discussions and activities associated with the Austrian Social Democratic Party. Kelsen's neo-Kantian concept of the norm was clearly not in line with the Logical Empiricism of the Vienna Circle. yet, his concern with the development of human thinking brought him close to Neurath. Finally, Kelsen's contacts with Freud were manifold and the influence of Freud's theories is tangible in his writings.