This article, based on the non-controversial proposition that the way and degree in which international courts can contribute to the protection of a public good depends, in part, on the procedural law of such courts, sets out to expose the plurality of connections between procedure and substance. Procedures can further the substantive values of public goods but can also serve interests of their own and can even work against such substantive values. This article articulates the normative choices that courts inevitably have to make and reflects on the question of whether, and to what extent, the shaping of these connections is properly part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedures undo state-made substantive law.
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo- graph: people shot up; the ravages of pollution and all other manner of photojournalism.
By studying the continuity between the Ottoman Empire and its succeeding Turkish Republic, this article aims to address one crucial aspect of the denial of the Armenian genocide by the Turkish state, namely the issue of state responsibility. There are psychological barriers in Turkey which have largely suppressed the memories of possible wrongdoings during World War I and the ensuing 'Independence War'. However, the barrier that is created by the issue of state responsibility is identified here as the fundamental obstacle for genocide recognition by the Turkish state. This article aims to apply some of the existing legal principles and theories of international law in order to test their applicability to the two Turkish states and the issue of internationally wrongful acts committed during World War I and the ensuing years. In addition to the Turkish Republic bearing the identity of the Ottoman Empire, this article suggests that the Republic not only failed to stop doing the wrongful acts of its predecessor, but it also continued the very internationally wrongful acts committed by the Young Turk government. Thus, the insurgent National Movement, which later became the Republic, made itself responsible for not only its own wrongful acts but also those of its predecessor, including the act of genocide committed in 1915–1916. The issue of possible liability has ever since the creation of the Republic formed the denialist policy which is Turkey's to this day.
We have been asked by the European Journal of International Law to write a reply to an article entitled 'State Identity, Continuity and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide'. The article accuses Turkey of 'practising a denialist policy' with regard to 'the act of genocide committed during 1915–1916', demanding that it 'make itself responsible for its own internationally wrongful acts committed against Armenians and other Christian minorities', and also accuses it of 'expanding the massacres beyond its borders into the Caucasus and the territories of the independent Republic of Armenia'. According to the same article, there is a state succession and continuation of responsibility from the Ottoman Empire to the Turkish Republic, and the Republic must assume full responsibility for and should also repair the injury caused by the Ottoman Empire.
This article claims that the quest for the identity of peremptory norms in terms of sources is misdirected. Instead of the identity of a discrete rule or right of international law, one needs to examine why a peremptory norm is binding. The latter issue addresses the referent of the identity issue: namely, the international community as a whole. Various significations of the latter are recognized and found wanting. The article examines three general forms of the international community: the community as an aggregate of inter-dependent states, the community as a rational construction, and the community as a social-cultural ethos independent of members and yet for the members. The first two forms are found wanting. First, they presuppose that a state is a self-creative author expressing its own will. Secondly, the community is reified vis-à-vis the social-cultural ethos in which the community is immersed. Thirdly, the community is exclusionary. The three problems take for granted that a territorial-like boundary separates outsiders from between insiders. The article concludes that the notion of an international community needs excavation before jurists can be assured that peremptory norms exist and why they exist.
Professor Conklin's analytical effort to explain the nature of jus cogens is not only highly impressive, but also very timely. It demonstrates the continuing relevance of jus cogens as it increasingly arises in multiple areas of international law, regardless of doctrinal calls from the 1980s onwards that it should have faded away. Since then, there have been those who have suggested that jus cogens does not make sense and should be abandoned, those who suggest that jus cogens has merely aspirational relevance and does not make a difference on the ground, and those who argue that jus cogens is merely 'primary' law, not to be applied in the area of enforcement. What happens interestingly – and problematically – is that doctrinal debates on the conceptual rationale of jus cogens and on its more specific effects are often pursued separately. Conklin's contribution is a gentle reminder of the crucial issues of the background and essence of jus cogens that both writers and practitioners often tend to overlook when addressing the implications of jus cogens in specific areas of international law.
Alexander Orakhelashvili has generously responded to my 'The Peremptory Norms of the International Community' with an understanding which requires a clarification on my part. On the one hand, consistently with my argument, he urges the departure from the '“cut and paste” repetition' of the sources of law. Such sources offer an 'ordinary, or mainline, justification' which is 'insufficient or irrelevant' to justify peremptory norms. On the other hand, he insists that 'none of this is meant to challenge positivist foundations of international law'. Although he emphasizes public policy as an important factor in that foundation, he also highlights fundamental values and the will, choices and universality of an international community. Orakhelashvili adds that the international social ethos, which I privileged, was 'a correct premise for jus cogens, but not a sufficient one'. What is also needed, he advises, is that the ethos be given 'a legal expression' or language. When the nature of such a legal language is addressed, one is advised that the language remains a 'consensual positivism'. Public policy is emphasized as such an expression commonly accepted in domestic and international legal discourses, we are advised.
This review discusses two recent publications – a critical edition of a primary source and a collection of essays – around the Theory of International Law of Alberico Gentili (1552–1608). On the one hand it examines Gentili's interest in ancient Rome and how he used it as a paradigmatic case of imperial order. But on the other, it questions our own interest in Gentili's work. In line with Gentili's own focus on questions of justice, it not only shows that Gentili presents us with his own complex blend of political responsibility and natural law, but highlights structural features and possible blind spots of his 'natural/private law' paradigm that might apply also to current suggestions of how to organize international law.
The book under review, which was awarded an ASIL Certificate of Merit, critically examines international law in the period following decolonization. Engaging both legal history and philosophy, the gnawing question which motivates this work, and risks getting lost under the wealth of scholarship, is: ‘Why has international law failed the Third World?’. The author claims that in order to answer this question, we must trace how a development thesis has been universalized and expose the transformative dynamic of a new ruling rationality based on the twin concepts of development and economic growth. The outcome is a regulatory framework, universally applied, which has subsumed the creative promise of international law. The claim is not that international law has shifted the operation of power, but rather that international law has itself become a new mode of power. Despite affirming political equality, the Third World, by avowing economic backwardness, unwittingly endorsed a rhetoric of development and a separation of the economic from the political. Once institutionalized through the Bretton Woods Institutions and the United Nations respectively, this disembedding of economics from politics, which we know from Polanyi’s The Great Transformation (1944) can only ever be an illusion, has facilitated a new imperialism of international economic law in the national arena. The historical repercussions are well known: the ever-expanding reach of an international technical law positioned as superior to national law, intervening, often violently, to maintain an unfavourable and asymmetric status quo in the name of idealized economic, political, and social models that cast themselves as universal. This pattern is well documented in Anghie’s Imperialism, Sovereignty and the Making of International Law (2004). Anghie argues that the branding of the ‘other’ as uncivilized and particular does not emerge from universals, but rather animates their formation. International law, by this account, was motivated by a civilizing mission, which Anghie terms ‘the dynamic of difference’, and this dynamic endures under very distinctive styles of jurisprudence from 16th century naturalism to 19th century positivism to modern-day pragmatism predicated on an assumed initial consent. Pahuja looks at the most recent form of this dynamic, not so much regarding its consequences as the legal and philosophical reasons for its endurance and even stabilization into the present.
Legitimacy has become a popular subject in international law and international relations in the last decade. If previously the issue of legitimacy was addressed only subsidiarily to other issues, today books and articles taking the issue of legitimacy as their main subject abound. The books under review illustrate this trend. They all address 'legitimacy', but approach the notion from different perspectives.