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1
Minority groups and judicial discourse in international law: A comparative perspective. Leiden: Martinus Nijhoff Publishers, 2009.
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2
Mugabe, John. Intellectual property protection, and traditional knowledge: An exploration in international policy discourse. Nairobi, Kenya: ACTS Press, African Centre for Technology Studies, 1999.
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3
Children's bioethics: The international biopolitical discourse on harmful traditional practices and the right of the child to cultural identity. Leiden: Martinus Nijhoff Publishers, 2009.
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4
Holdgaard, Rass. External relations law of the European Community: Legal reasoning and legal discourses. Alphen aan den Rijn: Kluwer Law International, 2008.
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5
Lemière, Sophie, ed. Illusions of Democracy. NL Amsterdam: Amsterdam University Press, 2019. http://dx.doi.org/10.5117/9789462989887.
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Illusions of Democracy: Malaysian Politics and People offers an up-to-date and broad analysis of the contemporary state of Malaysian politics and society. Transcending disciplinary boundaries, it offers a look at Malaysian politics not only through the lens of political science but also anthropology, cultural studies, international relations, political economy and legal studies touching on both overlooked topics in Malaysian political life as well as the emerging trends which will shape Malaysia’s future. Covering silat martial arts, Malaysia’s constitutional identity, emergency legislation, the South China Sea dilemma, ISIS discourse, zakat payment, the fallout from the 1MDB scandal and Malaysia’s green movement, Illusions of Democracy charts the complex and multi-faceted nature of political life in a semi-authoritarian state, breaking down the illusions which keep it functioning, to uncover the mechanisms which really underlie the paradoxical longevity of Malaysia’s political, economic and social system.
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Jemielniak, Joanna. International Commercial Arbitration: Legal Discourse and Interpretation. Taylor & Francis Group, 2014.
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7
Linderfalk, Ulf. Understanding Jus Cogens in International Law and International Legal Discourse. Edward Elgar Publishing, 2020. http://dx.doi.org/10.4337/9781786439512.
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A, Williams Lucy, and International Social Science Council, eds. International poverty law: An emerging discourse. London: Zed Books, 2006.
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9
Pentassuglia, Gaetano. Minority Groups and Judicial Discourse in International Law: A Comparative Perspective. Ebsco Publishing, 2009.
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10
Jean, d'Aspremont. The Discourse on Customary International Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780192843906.001.0001.
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This book argues that it does not suffice to simply invoke and demonstrate the two constitutive elements of customary international law, practice and opinion juris, to successfully and plausibly make a claim under the doctrine of customary international law. Behind what may look like a very crude dualist type of legal reasoning, a fine variety of discursive constructions are at work. By unpacking these discursive constructions, the book depicts the discursive splendour of customary international law. It reviews eight discursive performances at work in the discourse on customary international law and makes a number of original and provocative claims about this aspect of law. For example, the book claims that customary international law is not the surviving trace of an ancient law-making mechanism that used to be found in traditional societies. Indeed, as is shown throughout, the splendour of customary international law is everything but ancient. In fact, there is hardly any doctrine of international law that contains so many of the features of modern thinking. The book also puts forward the idea that all discursive performances of customary international law are shaped by texts, are articulated around texts, echo and continue pre-existing texts, unfold in a textual space, or, more simply, originate in a text-constituted environment.
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Academic Legal Discourse and Analysis: Essential Skills for International Students Studying Law in the United States. Wolters Kluwer Law & Business, 2019.
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12
Baffy, Marta, and Kirsten Schaetzel. Academic Legal Discourse and Analysis: Essential Skills for International Students Studying Law in the United States. Wolters Kluwer Law & Business, 2019.
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13
Robert, Howse. Part I Histories, Ch.11 Schmitt, Schmitteanism and Contemporary International Legal Theory. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198701958.003.0012.
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This chapter provides an overview of the concepts and arguments of Carl Schmitt (1888–1985)—Hitler’s chief legal official and an international law apologist for Nazi aggression — that have gained the most purchase in contemporary international legal discourse, primarily international legal theory. The chapter critically engages with a select group of scholars who have deployed Schmitt in contemporary international legal theory. These are: Martti Koskenniemi, Eric Posner and Adrian Vermeule, Paul Kahn, and Nehal Bhuta. Lastly, the chapter concludes with some observations about what the use of Schmitt in contemporary international legal theory may tell one about the state of the discipline, its fault lines, and anxieties.
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Johnstone, Ian, and Steven Ratner, eds. Talking International Law. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780197588437.001.0001.
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Talking International Law examines legal argumentation by states and other actors in the settings where it mostly transpires—outside of courts. Challenging the realist assumption that legal argumentation is largely inconsequential, and addressing a gap in scholarship within international law and international relations theory, this book provides a comprehensive analysis of why it occurs, how, where, and to what effect. The volume explores the phenomenon in a range of issue areas, including security, human rights, the environment, trade, and intellectual property. Diplomats and other governmental actors are the principal participants in international legal discourse, but intergovernmental officials, nongovernmental organizations, academics, corporations, and even non-state armed groups also engage in “law talk.” Through close examination of legal arguments in political and other settings, the authors uncover various motives these actors have for making legal claims—including persuasion, strategic calculations, assertions of identity, and the felt need to legitimate one’s actions or to delegitimate those of an adversary. Legal argumentation can have short-term and long-term effects, both intended and unintended, on immediate participants or on a wider net of actors. By bringing together distinguished scholars with diverse perspectives and senior practitioners from around the world who engage in such argumentation themselves, the volume offers a unique exposure to the multifaceted practice of legal argumentation. It thereby deepens our understanding of how international law actually operates in international affairs.
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Venzke, Ingo. International Courts’ De Facto Authority and its Justification. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198795582.003.0019.
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This chapter argues that the framework chapter’s understanding of de facto authority above all fits the relationship between international courts (ICs) and the parties to a case. Questions arise when it comes to intermediate and extensive audiences. The way in which ICs exercise authority beyond any concrete dispute is, above all, due to the sway they hold over the legal discourse—their semantic authority. ICs have the capacity to establish content-laden reference points for legal discourse that other actors can hardly escape. The chapter also claims that the distinction of authority from persuasion should be maintained as a constitutive feature of both concepts. This is not only in line with a strong tradition of the authority concept, but also clarifies the legitimacy challenge.
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Kadelbach, Stefan, Thomas Kleinlein, and David Roth-Isigkeit, eds. System, Order, and International Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198768586.001.0001.
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The multi-authored volume reviews the early history of international legal thought and considers it to be a project that highlights the intimate relationship of philosophy and law in understanding the present models of global order. The interplay of system and order serves as a leitmotiv throughout the book and helps to link historical models to today’s discourse. It also explains the particular relevance of the period from Machiavelli to Hegel for this framework. In the first part of the book, individual chapters cover thinkers from Machiavelli to Hegel—including Vitoria, Suárez, Bodin, Gentili, Althusius, Grotius, and Spinoza, amongst others. The second part of the book is devoted to horizontal themes that open the opportunity to test old authorities against present-day approaches. Their analyses deepen the understanding of international legal thinking by pointing to often neglected elements, scrutinizing the knowledge-creation of the subject as we know it.
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von Daniels, Detlef. Sources and the Normativity of International Law. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0032.
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This chapter finds that questioning the normativity of the sources of international law inevitably leads into the domain of legal philosophy. For showing that legal philosophy itself is a contested field of approaches, a hermeneutic perspective on the question of normativity is developed that stresses historical and contextual forms of understanding. Incidentally, Kelsen’s theory serves as a switchboard to relate a variety of historical debates to the contemporary discourse in the tradition of analytical jurisprudence. In practical terms, the relevance of this approach is discussed regarding three contested topics: the status of general principles, soft law, and practical reasoning. The historical and theoretical awareness thus achieved provides reasons to oppose contemporary attempts to moralize the legal point of view.
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Bianchi, Andrea, and Moshe Hirsch, eds. International Law's Invisible Frames. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192847539.001.0001.
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Law as a social process carried out by human beings is a stimulating object of investigation for those who would like to analyse social cognition and knowledge production processes. Humans acquire and form their knowledge through cognitive processes and in turn form a representation of reality by processing and using this knowledge through different mental channels. To better conceive the invisible frames within which international law moves and performs, we must understand how psychological and socio-cultural factors can affect decision-making in an international legal process, identify the groups of people and institutions that may shape and alter the prevailing discourse in international law at any given time, and unearth the hidden meaning of the various mythologies that populate and influence our normative world. Through illustrations across different areas of international law and insights from various fields of knowledge, this book seeks to investigate the mechanisms that allow us to apprehend and intellectually represent the social practice of international law, to unveil the hidden or often unnoticed processes by which our understanding of international law is formed, and to make us unlearn some of the presuppositions that activate automatic cognitive processes and inform our largely unquestioned beliefs about international law.
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Nollkaemper, André. ‘Failures to Protect’ in International Law. Edited by Marc Weller. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199673049.003.0021.
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This chapter examines failures by outside actors to protect populations from mass atrocities such as genocide and crimes against humanity. It begins by tracing the origins of ‘failures to protect critiques’, whereby many observers express moral outrage against bystander states which they believe should have done more. In this discourse, mass atrocities are attributed to a combination of acts by perpetrators and omissions by bystanders. The chapter analyses the legal basis for applying the ‘failure to protect critique’ to both perpetrators and bystanders. In particular, it discusses the extent to which international law allows holding individual bystander states responsible for a failure to protect. It also discusses the failure to protect-critique on the United Nations and other international organizations. The chapter suggests that international law justifies and even requires inaction among bystander states and international organizations when mass atrocities occur.
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Van Hulle, Inge. Britain and International Law in West Africa. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198869863.001.0001.
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Africa often remains neglected in studies that discuss the historical relationship between international law and imperialism during the nineteenth century. When it does feature, scholarly focus tends to be on the late nineteenth century and on the treaties concluded between European powers and African polities in which sovereignty and territory were ceded. Through a contextual historical analysis, Inge Van Hulle complicates this traditional narrative. By reviewing the use and creation of legal instruments that expanded or delineated the boundaries between British jurisdiction and African communities in West Africa, she highlights the practicality and flexibility of international legal discourse in imperial contexts. The chronological focus of the book is the period between the end of the eighteenth century and the 1880s which the author identifies as an important phase of legal experimentation which saw substantial deviations in the legal relationship between African polities and British imperial agents, not merely from traditional Euro-African normative patterns as they had existed during the Early Modern period, but also from inter-Western international law. By the 1880s the legal techniques that were fashioned in the language of international law in West Africa had largely developed their own substantive characteristics and which included apart from treaties of cession, also commercial treaties, the abolition of the slave trade, extraterritoriality and the use of force. During this period, legal ordering was not done in reference to adjudication before Western courts or the writings of Western learned lawyers, but in reference to what was deemed politically expedient and practically feasible by imperial agents for the preservation of social peace, commercial interaction and humanitarian agendas.
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Schill, Stephan W., and Vladislav Djanic. International Investment Law and Community Interests. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198825210.003.0013.
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In contemporary discourse, international investment law and investor-state dispute settlement (ISDS) are often perceived as threats to community interests in one-sidedly protecting foreign investors and undermining public policies that are to the benefit of the local population and the international community. The chapter promotes a different perspective. First, it argues that international investment law properly construed can be conceptualized as protecting community interests, because it is part of the legal infrastructure necessary for the functioning of the global economy under a rule of law framework. Aimed at supporting economic growth, this helps further economic and noneconomic community interests, including sustainable development. Second, the chapter argues that international investment law and ISDS do not turn a blind eye to the conflicts that can arise between economic and noneconomic community interests, such as environmental protection or human rights. Instead, international investment law and ISDS have numerous mechanisms at their disposal for alleviating tensions with noneconomic community interests.
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Martin, Scheinin, and Åhrén Mattias. Part I The UNDRIP’s Relationship to Existing International Law, Ch.3 Relationship to Human Rights, and Related International Instruments. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780199673223.003.0004.
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This chapter analyses how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) fits within the broader picture of international legal instruments, with specific reference to related human rights norms. In many respects, the general approach the UNDRIP takes towards indigenous rights is natural. Largely from the very day indigenous peoples' representatives started to address the UN in order to claim recognition of and respect for their rights, the focus of such claims has been on allowing indigenous peoples the possibility to preserve, maintain, and develop their own distinct societies, existing side by side with the majority society. In other words, political rights — or sovereign rights — have always been at the forefront of the indigenous rights regime. In that way, indigenous peoples' rights distinguish themselves from those that apply to minority groups that are primarily individual rights. Thus, when placing emphasis on peoples' rights, the UNDRIP follows in the tradition of the indigenous rights discourse in general, as reflected in Article 3 of the Declaration.
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Dingwall, Joanna. International Law and Corporate Actors in Deep Seabed Mining. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192898265.001.0001.
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Corporate participation within deep seabed mining raises unique challenges for international law. Commercial investment by private corporate actors in deep seabed mining is increasing. The deep seabed beyond national jurisdiction (the Area) comprises almost three-quarters of the entire surface area of the oceans, and it is home to an array of prized commodities including valuable metals and rare earth elements. These resources constitute the common heritage of mankind. Acting under the United Nations Convention on the Law of the Sea (UNCLOS), the International Seabed Authority (ISA) is responsible for regulating the Area for the benefit of humanity and granting mining contracts. Although mining activities in the Area remain at the exploration stage, in recent years, there has been a marked growth in investment by private corporate actors, and an increasing impetus towards exploitation. This increasing corporate activity presents challenges, including in relation to matters of common management, benefit sharing, marine environmental protection and investment protection. In part, these challenges stem from the often-contentious role of non-state actors, such as corporations, within the international legal system. A product of its history, the UNCLOS deep seabed regime is an unlikely hybrid of capitalist and communist values, embracing the role of private actors while enshrining principles of resource distribution. As technological advances begin to outstrip legal developments, this study advances the discourse by addressing the extent of any tension between corporate commercial activity in the Area and the achievement of the common heritage of mankind.
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Ulrich, George, and Ineta Ziemele, eds. How International Law Works in Times of Crisis. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198849667.001.0001.
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Crises have always been part of international law discipline and some even say part of the identity of an international lawyer. History shows that international law has developed through reacting to previous experiences of crisis. International law reflects agreement on how to avoid known crisis from repeating. However, human society evolves and challenges existing rules, structures, and agrements. The evolution certainly confronts international law with questions as to the suitability of the existing for the new stages of development. Ulrich and Ziemele have brought together the selected speakers of the European Society of International Law annual conference which took place in Latvia and was organized by the Riga Graduate School of Law and the Society in 2016. The editors have characterized the international law and crisis discourse as dialectic and they have grouped the articles contained in the volume under four main themes—security, immunities, sustainable development, and philosophical perspectives—which show those areas of international law which are currently facing noticeable challenge and confrontation from various developments in society. The surprising general conclusion emerging in this collection is the confirmation that by and large international legal system contains concepts, principles, rules, mechanisms, and formats for addressing the various developments that may prima facia seem to challenge these very same elements of the system. Their use, however, involves informed policy decisions.
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Jeutner, Valentin. Conclusion. Oxford University Press, 2017. http://dx.doi.org/10.1093/oso/9780198808374.003.0005.
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The final part offers some concluding thoughts and attempts to distil the book’s core findings and arguments. The conclusions will be presented in two sections. The first section focuses on the implications of the concept of a legal dilemma on the international legal order itself. Specifically, it will be considered how the acknowledgement of the concept of a legal dilemma influences the operation and character of the contemporary international legal order. In the second section the focus shifts to a more general consideration of the implications of the concept of a legal dilemma on the legal discourse in principle and on law’s relationship with other normative orders.
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Carlarne, Cinnamon, Kevin R. Gray, and Richard Tarasofsky. Mapping The Field. Edited by Kevin R. Gray, Richard Tarasofsky, and Cinnamon Carlarne. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780199684601.003.0001.
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This introductory chapter outlines the scope and development of international climate change law which addresses the unique nature of climate change and its complexities. The twentieth century saw the international community identifying and recognizing climate change as a global problem. Drawing from the basic tenets of international environmental law, the United Nations established two international legal frameworks that form the backbone of the international climate change regime—the United Nations Framework Convention on Climate Change (UNFCCC), and the Kyoto Protocol. The UNFCCC, as a framework instrument, sets the parameters for global discourse and provides an essential forum for dialogue and decision-making on climate change matters. It is extended and complimented by the Kyoto Protocol, which sets out legally binding emission reduction obligations for developed country parties, provides for a series of market-based mitigation tools, and generally adds further contour to the legal framework established under the UNFCCC.
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Outi, Korhonen, and Selkälä Toni. Part III Regimes and Doctrines, Ch.41 Theorizing Responsibility. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198701958.003.0042.
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This chapter divides responsibility under international law into three theoretical interpretants. The first is the hard core of responsibility doctrine, namely the doctrine of state responsibility, a main topic of the United Nations International Law Commission (ILC) since its early establishment. The second interpretant springs from the rise of human rights law discourse in the international arena since the 1960s and 1970s: the never-quite-solidified semi-doctrine of humanitarian intervention that has warped into the (non-)doctrine of the responsibility to protect (R2P) — which has always been the most politically powerful or, at least, the most prominently debated among international legal responsibility concepts. The third sort of international legal responsibility is a catch-all category for the remainder of the duties that imply responsibility and beyond—the response-ability of international law—a category that most obviously transcends, challenges, and pierces openings in the dogmatic and managerial conceptions of law and its responsibility.
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Haggenmacher, Peter. Sources in the Scholastic Legacy. Edited by Samantha Besson and Jean d’Aspremont. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198745365.003.0002.
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This chapter enquires into the sources of international law in the scholastics. In fact the concept of sources of law obtained general currency in legal discourse, and how international law took shape as a legal discipline only after the heyday of scholasticism. But the two main pillars of what was to become classical international law in the eighteenth century—natural law and the law of nations—were both part of the theologians’ teachings of moral philosophy, especially with the Dominicans and later the Jesuits. Examining the two concepts handed down from Antiquity, Thomas Aquinas had assigned them distinct places in his system of legal norms, while fathoming their respective grounds of validity. His endeavours were continued by his sixteenth-century Spanish followers, who set out to explore the ‘internationalist’ dimensions of the Protean concept of ius gentium as well as the ‘fundamentalist’ properties of ius naturae.
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Glover, Leigh, and Paul Thompson. Environmental Justice: International Discourses in Political Economy. Taylor & Francis Group, 2017.
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1949-, Byrne John, Glover Leigh, and Martinez Cecilia, eds. Environmental justice: Discourses in international political economy. New Brunswick, N.J: Transaction Pub., 2002.
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31
López Zamora, Luis A. Normatividad Internacional en Colisión con la Norma Fundamental del Derecho Internacional. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780190923846.003.0005.
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It is undeniable that current international relations are exhibiting regressive trends that target International Law Rule of Law. These trends have limited the space for the construction of a coherent discourse coming from the constitutional school of International Law; however, this scenario is not only the result of speculative behavior of certain states. It lies—as well—in the lack of an articulate theory offered by international constitutionalism directed to explain the consequences of asserting the existence of a fundamental norm in the international realm. If the constitutional movement maintains that International Law has a constitution, then: Why is there no attempt to label current world events, not only as illegal but as breaches of its constitution? Why are legal norms being formed in the context of those breaches not labeled as constitutionally flawed? This chapter will attempt to analyze this in order to strengthen the constitutionalization argument in our discipline.
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Strecker, Amy. The European Landscape Convention. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198826248.003.0006.
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Chapter 6 discusses the origins and implications of the European Landscape Convention (ELC), the first international instrument solely dedicated to the protection, management and planning of landscape, adopted by the Council of Europe in 2000. It assesses the radical definition and concept of landscape espoused by the ELC as well as its institutional framework, before moving on to problematizing the ELC from a legal perspective. It argues that despite the Convention’s lack of legal bite, it has nevertheless been paradigm-changing for its societal influence and impact on landscape discourse more broadly. The chapter concludes by offering some observations on current proposals for a global landscape convention inspired by the ELC.
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Socher, Johannes. Russia and the Right to Self-Determination in the Post-Soviet Space. Oxford University Press, 2021. http://dx.doi.org/10.1093/oso/9780192897176.001.0001.
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As a concept of international law, the right to self-determination is widely renowned for its lack of clarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, that is to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since, the distinction was made, been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This book situates Russia’s approach to the right to self-determination in that discourse by way of a regional comparison vis-à-vis a ‘Western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the book analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation, illustrated by a total of seven case studies on the conflicts over Abkhazia, Chechnya, Crimea, Nagorno-Karabakh, South Ossetia, Tatarstan, and Transnistria. Complemented by a review of the Russian scholarship on the right to self-determination, it is suggested that Russia’s approach may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.
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Kadelbach, Stefan, Thomas Kleinlein, and David Roth-Isigkeit. Introduction. Oxford University Press, 2017. http://dx.doi.org/10.1093/acprof:oso/9780198768586.003.0001.
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This introduction explains the goals and the framework of the present volume. The volume considers the history of international legal thought to be a project that highlights the intimate relationship of philosophy and law in understanding the present models of global order. The interplay of system and order serves as a leitmotiv throughout the book and helps to link historical models to today’s discourse. It also explains the particular relevance of the period from Machiavelli to Hegel for this framework. The introduction then expounds the plan of the book: In the first part, individual chapters cover thinkers from Machiavelli to Hegel. The second part of the book is devoted to horizontal themes that open the opportunity to test old authorities against present-day approaches. Their analyses deepen the understanding of international legal thinking by pointing to often neglected elements, scrutinizing the knowledge–creation of the subject as we know it.
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John, Byrne, Leigh Glover, and Cecilia Martinez. Environmental Justice: International Discourses in Political Economy, Energy and Environmental Policy (International Discourses in Political Economy, Energy and Environmental Policy, 8). Transaction Publishers, 2002.
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Stavros, Brekoulakis. Part XI Public Policy and Abuse of Process, 32 Public Policy Rules in English Arbitration Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0033.
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This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.
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Dedek, Helge, ed. A Cosmopolitan Jurisprudence. Cambridge University Press, 2021. http://dx.doi.org/10.1017/9781108894760.
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H. Patrick Glenn (1940–2014), Professor of Law and former Director of the Institute of Comparative Law at McGill University, was a key figure in the global discourse on comparative law. This collection is intended to honor Professor Glenn's intellectual legacy by engaging critically with his ideas, especially focusing on his visions of a 'cosmopolitan state' and of law conceptualized as 'tradition'. The book explores the intellectual history of comparative law as a discipline, its attempts to push the objects of its study beyond the positive law of the nation-state, and both its potential and the challenges it must confront in the face of the complex phenomena of globalization and the internationalization of law. An international group of leading scholars in comparative law, legal philosophy, legal sociology, and legal history takes stock of the field of comparative law and where it is headed.
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Stone, Adrienne, and Frederick Schauer, eds. The Oxford Handbook of Freedom of Speech. Oxford University Press, 2021. http://dx.doi.org/10.1093/oxfordhb/9780198827580.001.0001.
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This book discusses freedom of speech, which is central to the liberal democratic tradition. Freedom of speech touches on every aspect of our social and political system and receives explicit and implicit protection in every modern democratic constitution. Moreover, it is frequently referred to in public discourse and has inspired a wealth of legal and philosophical literature. The book provides a critical analysis of the foundations, rationales, and ideas that underpin freedom of speech as a political idea, and as a principle of positive constitutional law. In doing so, it examines freedom of speech in a variety of national and supranational settings from an international perspective.
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Benton, Lauren. Atlantic Law. Edited by Nicholas Canny and Philip Morgan. Oxford University Press, 2012. http://dx.doi.org/10.1093/oxfordhb/9780199210879.013.0023.
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In Atlantic history, law functioned as an element of regional formation. Legal practices and discourses circulated widely, and similar patterns of legal politics produced parallel regulatory shifts around the region. This article describes processes contributing to each trend in Atlantic law. It considers some similarities in strategies for extending sovereignty and notes the prominence of often indirect references to Roman law by European sojourners and settlers. It then turns to repeating patterns of legal pluralism, discussing in particular the regional effects of maritime conflicts and of decentralised legal authority, including control over slaves. This point leads to the observation that, particularly in the late eighteenth century and into the early nineteenth century, legal conflicts in the Atlantic world stood at the centre of new discourses of imperial, constitutional, and international law. While noting the most salient differences between legal systems within the Atlantic world, the article emphasises shared features contributing to the formation and transformation of an inter-imperial Atlantic legal regime.
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Widdig, Vincent, ed. Kulturgüterschutz im System der Vereinten Nationen. Nomos Verlagsgesellschaft mbH & Co. KG, 2021. http://dx.doi.org/10.5771/9783845296166.
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The images of the destroyed Buddha statues of Bamiyan, of the ancient city of Palmyra lying in ruins, and of destroyed World Heritage sites in Timbuktu have received much attention from the international public. At the same time, these cases also reflect a new dimension in the conduct of armed hostilities today, which is increasingly aimed at destroying cultural identities or heritage. Therefore, in addition to the issue of preserving the world's cultural heritage, especially in the context of human rights protection and international humanitarian law, the protection of cultural property is seen as an increasingly important task for the United Nations and its institutions. Pieces of Art, significant written documents, memorials, and places of worship are deliberately destroyed in conflicts by armed or terrorist groups, such as the so-called Islamic State, as they represent core elements of cultural identity. The increasing number of reports on the loss of priceless cultural assets in Syria, Iraq and Mali exemplify this. Increasingly, violent non-state actors are deliberately using the destruction of cultural property as a means of warfare and even "ethnic cleansing." For the international community, this makes the protection of cultural property in armed conflicts and in the field of restoring statehood at the same time increasingly significant. The preservation of this global human memory is one of the greatest challenges of modern social, political, and legal discourses. Although the use of the destruction of cultural property to divide societies, even to erase a collective memory or destroy social structures, has long been part of warfare, this aspect has been insufficiently considered by the media public and especially in academic discourse. With contributions by Frederik Becker, Dr. Manuel Brunner, Paul Fabel, Dr. Martin Gerner, Dario Haux, Ruth Lechner, Prof. Dr. Antionette Maget Dominicé and Vincent Widdig.
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Gilbert, Jérémie. Cultural Rights and Natural Resources. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198795667.003.0006.
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This chapter examines the connections between cultural practices, cultural rights, and natural resources, and focuses on three different approaches. The first examines the human rights discourse on cultural diversity and how international human rights law has developed a link between the rights of minorities’ and indigenous peoples’ cultural practices and natural resources. The second focuses on cultural heritage and explores how the legal framework of cultural heritage is relevant to protecting certain traditional cultural practices and knowledge connected to the use of natural resources. The third concerns the connection between spirituality, religion, and natural resources, and examines how the human rights protection of religious practices and spirituality could be linked to a spiritual connection to natural resources.
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Rodenhäuser, Tilman. The Fallacy of Effective Human Rights Protection under Relevant Treaty Law when Armed Groups Commit Violations. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198821946.003.0007.
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Chapter 5 adds to the contemporary discourse on human rights obligations of non-state armed groups by showing that in many situations, there is a clear legal need for these obligations. This chapter first engages in the debate on whether and to what extent certain human rights treaties address armed groups directly. Second, it shows that under the law of state responsibility, states are generally not responsible for human rights violations committed by non-state entities. Third, it recalls that under international human rights law, states have an obligation to protect human rights against violations committed by armed groups. However, it argues that because this cannot be a strict obligation but is one that depends on states’ capacities and the particular circumstances, often this framework cannot adequately protect individuals against human rights violations by armed groups. The result is a legal and practical need for human rights obligations of non-state armed groups.
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Bilsky, Leora, and Annette Weinke, eds. Jewish-European Émigré Lawyers. Wallstein Verlag, 2021. http://dx.doi.org/10.5771/9783835346277.
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Jewish émigré lawyers, historians, archivists and activists and their individual approaches to International Humanitarian Law. Jewish-European émigré lawyers in the twentieth century were important agents of legal internationalism and served as carriers of intercultural concepts of international legal thought; concepts, which fed into postwar discourses, but were also often forgotten or marginalized. This interdisciplinary volume focusses on a range of international lawyers, historians, archivists and activists and their individual approaches towards International Humanitarian Law. It uses a biographical lens to analyze the impact of subjective experiences like academic socialization, ideological and religious viewpoints (Weltanschauung), social marginalization, political and racial persecution, and forced emigration. Moreover, it investigates the extent to which the emigrants’ experiences shaped typical notions of twentieth century politics and law, such as universalism and particularism, cosmopolitanism and sovereignty, national self-determination, citizenship and statelessness, collective minority rights, and individual human rights.
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Stahn, Carsten. Justice as Message. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198864189.001.0001.
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International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.
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Anne, Peters. Part IV Debates, Ch.48 Fragmentation and Constitutionalization. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198701958.003.0049.
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This chapter discusses fragmentation and constitutionalization—which are understood to be two trends in the evolution of international law. ‘Fragmentation’ has a negative connotation, and is used as a pejorative term (rather than diversity, specialization, or pluralism). ‘Constitutionalization’, in contrast, feeds on the positive ring of the concept of constitution. Both constitutionalization and fragmentation are terms that describe not only legal processes in the real world of law but are also labels for the accompanying discourses (mostly among academics, less so among judges, and even less so among political law-making actors). The putative trends so far do not have a clearly definable end-result, such as a completely fragmented international legal order on the one hand, or a world constitution on the other.
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Heiner, Prof, Bielefeldt, Ghanea Nazila, Dr, and Wiener Michael, Dr. Part 4 Intersection of Freedom of Religion or Belief with Other Human Rights, 4.1 Freedom of Expression Including Questions Related to Religious Conflicts, Religious Intolerance, and Extremism. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198703983.003.0025.
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This chapter examines freedom of religion or belief in relation to freedom of opinion and expression. While these rights have their distinct features and applications, they at the same time share many characteristics. Foremost among these is their role in protecting intellectual and communicative freedoms that contribute to a democratic discourse in pluralistic societies. In addition, the legal formulations in articles 18 and 19 of the International Covenant on Civil and Political Rights show striking similarities. It is all the more surprising that freedom of religion or belief and freedom of expression have come to be seen as allegedly standing in contradiction towards each other. Recapturing their close interrelatedness is also important for designing effective policies of combating incitement to acts of religious hatred, in line with the 2012 Rabat Plan of Action elaborated by the United Nations.
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Bauder, Harald. Labor Movement. Oxford University Press, 2006. http://dx.doi.org/10.1093/oso/9780195180879.001.0001.
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Throughout the industrialized world, international migrants serve as nannies, construction workers, gardeners and small-business entrepreneurs. Labor Movement suggests that the international migration of workers is necessary for the survival of industrialized economies. The book thus turns the conventional view of international migration on its head: it investigates how migration regulates labor markets, rather than labor markets shaping migration flows. Assuming a critical view of orthodox economic theory, the book illustrates how different legal, social and cultural strategies towards international migrants are deployed and coordinated within the wider neo-liberal project to render migrants and immigrants vulnerable, pushing them into performing distinct economic roles and into subordinate labor market situations. Drawing on social theories associated with Pierre Bourdieu and other prominent thinkers, Labor Movement suggests that migration regulates labor markets through processes of social distinction, cultural judgement and the strategic deployment of citizenship. European and North American case studies illustrate how the labor of international migrants is systematically devalued and how popular discourse legitimates the demotion of migrants to subordinate labor. Engaging with various immigrant groups in different cities, including South Asian immigrants in Vancouver, foreigners and Spätaussiedler in Berlin, and Mexican and Caribbean offshore workers in rural Ontario, the studies seek to unravel the complex web of regulatory labor market processes related to international migration. Recognizing and understanding these processes, Bauder argues, is an important step towards building effective activist strategies and for envisioning new roles for migrating workers and people. The book is a valuable resource to researchers and students in economics, ethnic and migration studies, geography, sociology, political science, and to frontline activists in Europe, North America and beyond.
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Pelgrom, Jeremia, and Arthur Weststeijn, eds. The Renaissance of Roman Colonization. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198850960.001.0001.
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The colonization policies of Ancient Rome followed a range of legal arrangements concerning property distribution and state formation, documented in fragmented textual and epigraphic sources. Once antiquarian scholars rediscovered and scrutinized these sources in the Renaissance, their analysis of the Roman colonial model formed the intellectual background for modern visions of empire. What does it mean to exercise power at and over distance? This book foregrounds the pioneering contribution to this debate of the great Italian Renaissance scholar Carlo Sigonio (1522/3–84). His comprehensive legal interpretation of Roman society and Roman colonization, which for more than two centuries remained the leading account of Roman history, has been of immense (but long disregarded) significance for the modern understanding of Roman colonial practices and of the legal organization and implications of empire. Bringing together experts on Roman history, the history of classical scholarship, and the history of international law, this book analyses the context, making, and impact of Sigonio’s reconstruction of the Roman colonial model. It shows how his legal interpretation of Roman colonization originated and how it informed the development of legal colonial discourse, from visions of imperial reform and colonial independence in the nascent United States of America, to Enlightenment accounts of property distribution, culminating in a specific juridical strand in twentieth-century Roman historiography. Through a detailed analysis of scholarly and political visions of Roman colonization from the Renaissance until today, this book shows the enduring relevance of legal interpretations of the Roman colonial model for modern experiences of empire.
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(Editor), Uwe Boker, and Julie A. Hibbard (Editor), eds. Sites of Discourse - Public and Private Spheres - Legal Culture: Papers from a Conference Held at the Technical University of Dresden, December 2001 (Internationale ... & Vergleichenden Literaturwissenschaft). Rodopi Bv Editions, 2002.
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Schiedermair, Stephanie, Alexander Schwarz, and Dominik Steiger, eds. Theory and Practice of the European Convention on Human Rights. Nomos Verlagsgesellschaft mbH & Co. KG, 2022. http://dx.doi.org/10.5771/9783748923503.
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This edited book brings you a collection of current, critical issues regarding the theory and practice of the European Court of Human Rights. The book is divided into three parts: procedural concerns, principles and jurisprudence, and interaction with national legal systems. Each chapter was written by an expert, with each author coming from a distinct background. The authors all presented at the 2019 University of Leipzig’s & University of Dresden’s 1st International Summer School on the European Court of Human Rights, with only select presenters asked to contribute to this book. The book’s goal is to promote further research and discourse on the operation of the Court, a goal that will be continued in the second summer school in 2021. With contributions by Veronika Bilkova, Katharina Braun, Robert Frau, Hanaa Hakiki, Beti Hohler, Stefanie Lemke, Helga Molbaek-Steensig, Jacopo Roberti di Sarsina, Christiane Schmaltz, Barbara Sonczyk, Dominik Steiger, Edith Wagner and Alain Zysset.