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The articles in this issue of the Leiden Journal of International Law (LJIL), on the life and work of Alejandro Álvarez, comprise the first in a series of occasional special issues planned for the LJIL, each of which will focus on the work of a leading international legal scholar from the ‘periphery’. In launching the Periphery Series, the editorial board of the LJIL had in mind the goal of focusing attention on the role played by centre–periphery dynamics in international law. The centre–periphery formulation of international affairs owes its provenance to political economy, in which context it is primarily associated with dependency theory, Immanuel Wallerstein's world systems theory, and more recently, Paul Krugman's model of the geography of trade economics. In part, the Periphery Series invites scholars to confront questions of resource allocation, dependency, and geography highlighted by those bodies of work. In addition, however, this series seeks to foster wider engagement with the discursive function of centre–periphery oppositions in international law, in their many and various iterations.
In this piece we introduce and contextualize the contributions to the special focus on the international theory of Carl Schmitt, and argue that Carl Schmitt's much neglected international thought can provide scholars of both international relations and international law with a new common multidisciplinary research platform pivotal in thinking about the present international predicaments of crisis in international order and legitimacy, of contested liberal hegemony, and of the issue of unipolarity and the emergence of new forms of warfare, such as terrorism and the ‘global war on terror’.
Theorizing about the operation of law in an internationalized territory involves three discrete dimensions, according to which this article is structured. First, liberal legal forms are transmitted without being subject to mediation by a ‘sovereign’. The diffusion of imported norms represents the precise telos of a mission civilisatrice of a postcolonial institution-building mission. Such internationalization projects realize their liberalizing potential through a complex process where they provide legal continuity while importing legal forms that emphasize discontinuity and progress. In the second dimension, the article accounts for the asymmetric co-government setting exhibited in Kosovo in which law is both municipal and international. The syncretic nature of legal sources limits attempts to establish a ‘hierarchy’ of norms in an internationalized territory. Further, the promised advent of a liberal future is challenged by what this article identifies as the third characteristic of such a transitory legal order – the unaccountability of the international administering agent. These three properties of a normative order entail a paradox in which the aspirations of a fiduciary administration operating in the slipstream of liberal internationalism and its ‘civilizing mission’ are qualified by the absence of key criteria of a Rechtsstaat – the democratic creation of laws, the separation of powers, legal certainty, and the judicial control of normative acts.
The article conceives international (or global) constitutionalism as a legal argument which recommends and strengthens efforts (legal and political) to compensate for ongoing de-constitutionalization on the domestic level. Although the notions ‘international constitution’ and ‘international constitutionalism’ have in recent years served as buzzwords in various discourses, the many meanings of those concepts have not yet been fully explored and disentangled. This paper suggests a specific understanding of those concepts. It highlights various aspects and elements of micro- and macro-constitutionalization in international law, and identifies anti-constitutionalist trends. On this basis, the paper finds that, although no international constitution in a formal sense exists, fundamental norms in the international legal order do fulfil constitutional functions. Because those norms can reasonably be qualified as having a constitutional quality, they may not be summarily discarded in the event of a conflict with domestic constitutional law. Because the relevant norms form a transnational constitutional network, and cannot be aligned in an abstract hierarchy, conflict resolution requires a balancing of interests in concrete cases. Finally, because constitutionalism historically and prescriptively means asking for a legitimate constitution, a constitutionalist reading of the international legal order provokes the question of its legitimacy. This question is pressing, because state sovereignty and consent are – on good grounds – no longer accepted as the sole source of legitimacy of international law. International constitutionalism – as understood in this paper – does not ask for state-like forms of legitimacy of a world government, but stimulates the search for new mechanisms to strengthen the legitimacy of global governance.
Alejandro Álvarez's professional trajectory forces us to rethink the traditional modes of reading and writing the history of international law. Álvarez was central to the development of modern international law. He also happened to be a Latin American international lawyer. Should we interpret his work and life against the background of the intellectual and political history of Europe? Are the contexts that relate to the crisis of the European balance of power or the rise of nationalism the only ones that explain the emergence of a modern international legal discourse? This article situates Álvarez's scholarship within the intellectual, economic, and political history of Latin America. Interpreting Álvarez in the context of a genealogy of modernist Latin American thinkers illustrates the extent to which his work was part of a broader regional effort to appropriate European cultural artefacts in ways that granted them both a cosmopolitan and a distinctively Latin American character. Álvarez's modernism reinvented the meaning and uses of international law as a strategic foreign-policy tool in the interest of Latin American countries, a reinterpretation that contributed also to the construction of a Latin American identity and thought.
This article explores the composition of the emerging international value system, including its hierarchical components. It also contrasts this fragile international value system with the more strongly developed European value system (European public order), as concretized by the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. It first argues that international human rights norms constitute the ‘core content’ of a constantly evolving and layered international value system. Within this value system, a special but fragile hierarchical status is granted to those human rights norms that qualify as jus cogens and/or erga omnes norms. Thereafter it explores the manner in which the European Court of Human Rights has concretized the normative superiority of obligations under the European Convention on Human Rights for member states vis-à-vis other norms of public international law, to the extent that a conflict between these norms arises. It concludes by examining whether these developments could also strengthen the international value system through a spill-over effect via the work of international human rights bodies and national courts. This, in turn, would strengthen the ability of the international value system to determine the outcome of conflicts between international obligations stemming from different international regimes.
Carl Schmitt's Der Nomos der Erde allows us to rethink his interlinked proposals for the organization of the Weimar Republic, namely his theory of ‘democratic dictatorship’ and the ‘concept of the political’. Connecting the domestic homogeneity of an empowered people with the pluralism of the Westphalian state system, Schmitt seeks to humanize war; he objects to the renaissance of the ‘just war’ tradition, which is premised on a discriminating concept of war. Schmitt's objections are valid today, yet their Eurocentric foundations are also partially outdated. We are thus to argue with Schmitt against Schmitt to reflect on possibilities for the humanization of war.
Many transitional countries face the problem of establishing the rule of law in a weak justice sector where a gulf separates local legal norms from national, constitutional norms that are drawn largely from the international sphere. As a case study of East Timor this article challenges simplistic positivist notions about the normative hierarchy of laws within a constitutionally bounded polity. It argues that in transitional countries such as East Timor legal pluralism is important but must be properly tuned to serve the rule of law. Legal pluralism poses certain dangers when it operates without any of the checks or balances that ensure accountability and the promotion of constitutional values such as equality. The rule of law is not served by an informal system where there are no formal avenues of appeal and thus minimal accountability and transparency. A more promising version of legal pluralism that comports with the rule of law is one that empowers the state to monitor local decisions to ensure that they observe the norms set out in East Timor's Constitution.
This article focuses on the evolution of the concept of legal order in Carl Schmitt's thought and in particular on the spatial perspective he developed in his internationalist thought. In order to grasp its relevance, it is necessary to understand it in relation to the theoretical problems and concepts which underlie Schmitt's oeuvre. For this reason the first part of the article focuses on the theoretical problem of the possibility of a legal order in a plural context, trying to assess the distinctiveness of Schmitt's thought in relation to his contemporaries and to the approaches and schools of thought with which he is often associated. The second part then examines the evolution of his constitutionalist output, something which is fundamental to an understanding of his internationalist thought. The third part then focuses on his internationalist thought, and in particular on the theory of the nomos, which represents a synthesis of his whole thought.
Governments perceive UN human rights conventions and the law of the World Trade Organization (WTO) as separate legal regimes. WTO jurisprudence, by contrast, interprets WTO rules as parts of international law and may soon be confronted with legal claims that WTO obligations are to be construed with due regard to the human rights obligations of WTO members. The diverse constitutional traditions of WTO members, and their political opposition to linking WTO law to human rights, make it unlikely that WTO members will respond to the UN proposals for a ‘human rights approach to trade’ by adopting a WTO Declaration clarifying that WTO rules are flexible enough to be interpreted and applied in conformity with the human rights obligations of WTO members (section 1). Following the invitation by WTO Director-General Pascal Lamy to form ‘cosmopolitan constituencies’ in support of global public goods (like a rules-based world trading system), this article makes concrete proposals for the initiative by the International Law Association (ILA) to elaborate an ILA Declaration clarifying the complex interrelationships between trade law, human rights and WTO jurisprudence (section 2). As many human rights arguments presented in trade disputes in the EC Court and in the European Court of Human Rights could likewise be raised in WTO dispute settlement proceedings, the article examines whether the ‘constitutional methodologies’ applied by European courts offer lessons for further ‘constitutionalizing’ trade governance in the WTO in conformity with the human rights obligations of all WTO members.
State-centrism is a key concept in discussions of sovereignty, justice, and the global political order and of changes within that order. Thus we routinely hear: ‘that analysis is far too state-centric!’ Or: ‘earlier approaches were marred by excessive state-centrism, and need to be reconsidered in the light of contemporary circumstances’. Or even: ‘I'm state-centrist and proud of it’. This article brings into focus some of the themes associated with state-centrism in international legal writing, and suggests something of the limits of this way of framing issues. It also raises the possibility that these themes may provide clues to certain characteristic and apparently deep-rooted, but not always clearly recognized, anxieties on the part of those who work in this field. Borrowing a phrase from Harold Bloom, the article refers to these as anxieties of influence.
This essay focuses on Alejandro Álvarez's seminal article, ‘Latin America and International Law’, published in 1909 in the American Journal of International Law. Offering and in-depth analysis of the text, it foregrounds the strategic meaning of Álvarez's work in the light of the international politics of his day. It posits that, more than simply a diplomatic history of Latin American particularity, Álvarez presents the case for a different hemispheric international order, based on an ‘American international law’ extending to the United States. He draws primarily an Latin American Precedents – based on historical and stituational commonalities – to argue for a common public law. He then grafts an idiosyncratic interpretation of the Monroe Doctrine as the United States' main contribution to this common law, as well as the fact of US sponsorship of various Americas-wide conferences resulting in the ratification of regional treaties. Notably, and this is one of the main points of this is one of the main points of this essay, Álvarez elevates certain Latin American states as leaders in regional international law and capable agents of its enforcement across the hemisphere. In short, this essay advances the claim that Álvarez's project of pan-American law in effect entreats the United States to share its hegemony and wield its power in the region jointly with Latin America's ‘better-constituted’ states.
This article, focusing on Alejandro Álvarez's Le droit international américain (1910), locates Álvarez in his second home, Paris, within the French sociological/historical school of ‘solidarist’ legal thought. Álvarez's book provides a heroic image of Latin America developing its own regional international law away from the decadent forces of Europe and making significant contributions to international law generally. To tell his story, Álvarez also highlights the dark side of his native continent, in part to sell Álvarez as a practitioner of a bold method. Álvarez adopts racial hierarchy as part of his explanatory model, displaying the tendency of Latin Americans of Spanish descent to identify with and distance themselves from the metropole while separating themselves from the ‘other’. And despite the progressive manifesto rhetoric of the book and its claims for the Latin American role, the substance of Álvarez's international law was ultimately fairly domesticated for his French audience.
According to many international lawyers, humanitarian interventions without authorization by the UN Security Council are unlawful, but are sometimes morally justified. This discrepancy between legality and legitimacy has led to proposals for making international law more congruent with morality. This article examines the legitimacy of humanitarian interventions by discussing the major justifications by Walzer, Rawls, and Tesón. It argues that these justifications are open-ended: they fail to show that intervention should be limited to cases of violation of basic human rights, and do not categorically rule out intervention in the name of liberal and democratic rights. This is one more reason for being cautious with attempts to establish a law of humanitarian intervention.
Who shall have the power to define international terrorism? To answer this question, which means determining the international public enemy, is an eminently political task. According to Carl Schmitt, politics is essentially about determining the public enemy. When it comes to a situation of emergency, whoever is in the position to distinguish friend from enemy holds ultimate power. While Schmitt was still thinking primarily in terms of the nation-state, the determination of the public enemy has now become an international issue. To demonstrate this point, this article examines the political struggle behind the legal debate on the definition of international terrorism. This is done by comparing two debates on international terrorism, one held in the 1970s and the other in the 2000s. Both these debates had, and still have, their institutional locus in the UN General Assembly and its Legal Committee. In the 1970s the non-aligned countries tried to challenge the discretion of the West in determining the international public enemy. In the 2000s the incumbent regimes of the Third World agree with Western states that terrorism is a common threat. The main cleavage is now between the leading Western powers that would like to determine the public enemy on a case-by-case basis (the United States and the United Kingdom), and the status quo states that would like to tie these hegemonic powers by a legal definition. It is precisely the absence of such a legal definition that makes it possible for the hegemonic powers and their followers to determine the international public enemy on a case-by-case basis. A legal definition would increase the coherence of the international coalition against terrorism and serve as a limitation on the discretionary power of the hegemonic states.
International human rights law has been the subject of much scrutiny by feminist scholars over the past two decades, principally because of the way in which it is seen as privileging the realities of men's lives while ignoring or marginalizing those of women. The international prohibition on torture is identified by feminist writers as a classic example of this ‘male’-gendered nature of human rights law. This article explores the extent to which key feminist critiques of the 1980s and 1990s are now reflected in the commentary and jurisprudence on torture of various international human rights bodies. It asks: have the critiques of international human rights law been satisfied by interpretations applied by international and regional bodies to this so-called ‘male’ right? It concludes by offering both caution and counsel – it cautions against the potentiality of new interpretations simply replacing old gender-based stereotypes with new ones and counsels international decision-makers to focus on the individual or personalized characteristics and circumstances of each claim, of which sex/gender may be but one factor.
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
This article is written in memory of Judge Carl-August Fleischhauer, who died on 4 September 2005, aged 74, during the first year of his retirement after a long and rewarding career in the service of both his native country Germany and the United Nations. The first part of the article sketches Judge Fleischhauer's background and career before being elected to the International Court of Justice, the second part describes his contributions to the work of the Court, and in the last part the authors reflect on the significance of Judge Fleischhauer's contributions to international law.
The received wisdom of the times is that a wide gulf has opened up between ‘Europe’ and ‘America’ – or at least has finally become visible. A commitment to a certain vision of international law is presented as a European trait that divides Europe from the United States. ‘European’ international law premises perpetual peace on rules that protect state sovereignty and sustain a world divided into territorial states, and it is at odds with the US preparedness to wage ‘total war’ in the name of some purportedly universal ideal, such as ‘human rights’ or ‘democracy’. This conception of ‘European’, territorially based international law versus US (or Anglo-Saxon) universalism is articulated most forcefully by the extreme-right legal and political theorist Carl Schmitt in his 1950 work, Der Nomos der Erde, and related essays; Schmitt, realizing that the state had met its demise with the fall of the Nazi project that he supported, now conceived of a world divided into Grossraume rather than states. Schmitt's conception was challenged by the Marxist-Hegelian philosopher Alexandre Kojève, both in correspondence with Schmitt and in a public lecture that Kojève gave in Düsseldorf at Schmitt's invitation in the 1950s. Kojève articulated an alternative view of global order and Europe's place in it – a view that accepted global Anglo-American military supremacy while advocating a distinctive place for Latin or continental Europe in the building of global justice and prosperity through economic and legal integration and the construction of a just relationship in trade and finance with the developing world. This essay evaluates the debate between Schmitt and Kojève and draws lessons for contemporary discussion of the place of Europe in a one-superpower world.
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
The ICJ considered the Wall in terms of the structure of the Israeli occupation and the settlements, which is one of de facto annexation. By contrast, the Israeli HCJ uses proportionality to regulate within the occupation. This approach may be inherent in humanitarian law, but involves a misplaced transplantation of the proportionality doctrine and an imbalanced rights/security equation. Contrary to the HCJ's determination, which attributes the different conclusions of the two courts to the different factual backgrounds available to them, this article argues that they reflect the courts' variant attitudes towards the barrier and its place within the broader context of the occupation and its structure. The looming shadow of the ICJ affected the HCJ's decision. On critical questions of international law, however, a wall separates international law as articulated in The Hague and the decisions issued in Jerusalem, pointing to the need for a new articulation of existing theories on transnational legal processes.
The long life of Alejandro Álvarez, the most renowned Latin American international legal scholar of the twentieth century, was dedicated to the persistent promotion of projects of a continental (American), regional (Latin American), and universal international law. This article undertakes an overview of his oeuvre through a reading of Álvarez's work as coming from a criollo (or Creole) and social legal consciousness presented through the three consistent tropes of renewal, reform, and rupture. Although much of Álvarez's work has been forgotten, during his lifetime he generated profound admiration and even a school of thought, but also rejection and ridicule on both sides of the Atlantic. Álvarez may be considered a scholar from the ‘periphery’ because of his country of origin and regionalist claims, but his life and works show that he was also at the forefront of the leading issues and institutions of international law in the first half of the twentieth century.