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CIAO DATE: 03/04
2003 (Volume 14 Issue 4)
The Destruction of the Buddhas of Bamiyan and International Law by Francesco Francioni and Federico Lenzerini
Throughout history, destruction and loss of cultural heritage have frequently occurred as a consequence of fanatic iconoclasm or as 'collateral' effects of armed conflicts. The devastation of the great rock sculptures of the Buddhas of Bamiyan by military and para-military forces of the Taliban Government of Afghanistan in March 2001 presents some unprecedented features. The discriminatory intent, reflected in the sheer will to eradicate any cultural manifestation foreign to the Taliban ideology, and the deliberate defiance of the United Nations and international public opinion make this destruction a very dangerous precedent. The authors try to assess the adequacy of international law in dealing with acts of this kind, and to identify gaps as well as relevant principles and rules applicable in the context of the deliberate destruction of cultural heritage. They conclude that extreme and discriminatory forms of intentional destruction of cultural heritage of significant value for humankind constitutes a breach of general international law applicable both in peacetime and in the event of armed conflicts, entailing international responsibility of the acting state and the possibility to make recourse to international sanctions against it, as well as criminal liability of the individuals who materially order and/or perform the acts of destruction.
Introduction: Alf Ross and Life Beyond Realism by Martti Koskenniemi
Alf Ross 1899-1979: A Biographical Sketch by Knud Waaben
A National Lawyer Takes Stock: Professor Ross' Textbook and Other Forays into International Law by Ole Spiermann
In Denmark, Professor Alf Ross was the legal icon of the twentieth century. His sharp and daring intellect made his eloquent writings stimulating reading and attracted many readers abroad. His astute and uncompromising style of analysis, carrying principles and assumptions to their ultimate conclusion, made Ross' writings in the field of international law a fine study of the general conditions of international lawyers as well as of the basis of international law. This was the case, even though Ross was not primarily an international lawyer; indeed, it might have been precisely for this reason that Ross was so thoughtprovoking. Ross' key interest was to study the concept of law when removed from the context of national law. But far more than a 'realist' theory of law, his writings provide witness to the possible impact of national legal thinking on international law. Ross' Textbook of International Law, in which he took stock of international law, offers a good illustration of a more complicated relationship between national and international law, and between national and international lawyers - then as well as today.
Alf Ross: Towards a Realist Critique and Reconstruction of International Law by Alejandro Lorite Escorihuela
The question asked by this article is whether it is possible to adopt a conception of international law based in one way or another on a species of legal realism. The suggested exploration revolves around Ross' association with Scandinavian legal realism and the quest for a consistent expression that this association would then take in Ross' dealings with the law of nations. After presenting Ross' legal realism as essentially guided by a metatheoretical standpoint in turn dictated by an implicit allegiance to philosophical positivism, the article reconstructs the meanders of the critique of international law and its subsequent reconstruction as flowing from Ross' legal scientism. Against a background of various shades of realism in legal theory, I finally and forcefully propose a confrontation between Ross and three other figures of the legal-realist pantheon, in search of a form of lineage between legal and political realism that may support the coherence of Alf Ross' theoretical trajectory. Thus treated, the initial question ends up being far more significant on its own than through the answers it apparently fails to find along the way.
Antinomies of the United Nations: Hans Kelsen and Alf Ross on the Charter by Carl Landauer
In Towards a Realistic Jurisprudence, Alf Ross locates his theoretical position as a via media between the 'pure theory of law' of his teacher, Hans Kelsen, and the American legal realism he identified with Jerome Frank. When Ross and Kelsen came, however, to publish their respective studies of the UN Charter in 1950 - Ross' Constitution of the United Nations and Kelsen's massive The Law of the United Nations - their perspectives converge. This article places their analysis of the UN Charter in the context of their theoretical writings, but despite Kelsen's pure theory of law and Ross' Scandinavian realism, the two share a sense of law's dependence upon sanction and an understanding of the political underpinning of law's creation. And both held a strong commitment to international law doctrine, so that when they came to criticize the Charter, whether for its logical inconsistencies or the increased role of the political, they depict the Charter as ultimately representing a legal system that takes up the space of traditional international law. In their two works, Kelsen and Ross both register a tragic concern about that disappearing act of traditional international law doctrine.
Legal Doctrine between Empirical and Rhetorical Truth. A Critical Analysis of Alf Ross' Conception of Legal Doctrine by Henrik Zahle
The Danish philosopher of law Alf Ross established a theory of legal doctrine with the intention of bringing legal doctrine into line with logical positivism. Ross was aware of the fact that propositions of legal doctrine (as of social science in general) might influence the 'object' of the doctrine, for instance they could influence judicial decision-making. Such influence could be considered fundamental for a theory of legal doctrine. Although Ross considered words which create their object and therefore their own truth to be magic, he did not or could not recommend that legal doctrine refrain from such influence. In this way Ross faced an element of legal doctrine that was incompatible with his positivistic theory.
Scandinavian Realism and Phenomenological Approaches to Statehood and General Custom in International Law by Anthony Carty
The concepts of general customary law and the state are crucial to the structure of the international legal order. They suppose the state is a unified entity, with a single will, which can, in co-ordination with other states, create explicit (treaty) or tacit (customary) international law. Ross adopts a social-psychological causal approach to explain how these supposedly hard positive law concepts are in fact decadent remnants of idealist, natural law provenance. This means lawyers use the language of state will and general custom to express their belief that international legal rules exist. However, this process actually reflects unconsciously, socially induced compulsions. The language of law is one of rationalization. It attaches legal labels to social practices that are of no normative value or significance. However, Ross appears to blink in the face of his own nihilism and recommends that judges, in their decision-making, can best articulate the way any society considers itself to become bound by law.
Legalist Groundwork for the International Criminal Court: Commentaries on the Statute of the International Criminal Court by Andreas L. Paulus
Book Review — Ludwig-Maximilians-Universität Munich Reviewed by Philipp Reszat