Presentation Transcript

1. Understanding international law

   Leila Brännström 2013
2. The objectives of international law The study of what objectives international law serves, is ”the study of the political preferences of international actors – what it is that they wish to attain by international law” (Koskenniemi 2010, at 33).
3. The Preamble of the Charter of the U.N. WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS.
4. By and large, doing international law is involvement in an argumentative practice with a view to establish ”hegemony” for ones interpretive position Hegemonic struggle (Mouffe and Laclau, 2001)
5. Can every interest position or belief be translated into an international legal argument? Ifyes, whatthen is the point of international law?
6. The move to international law is a move to a language of commonality a heritage, a number of institutions and a particular set of vested interests and preferences the possibility of formal legal reasoning
7. The language of commonality Lifts a grievance up to the level of a commonconcern Arguments using the language of commonalityopen up a space for politicalnegotiation, contestation and revision The making of international legal claims has a community building aspect
8. The institutions, heritage and vested interests and preferences of IL Making an international legal claim is to try to put something on the agenda of international institutions International law has itsownstructuralbiases
9. Styles of argumentation in IL Instrumentalism – focus is on the objectives to be achieved Pragmatism – focus is on equitableoutcomes Formal legal reasoning –
10. Formal legal reasoning in IL limits the scope of international law to treaties or other formal expressions of state consent pays attention to the wording of legal texts and to ”legislative purpose” as expressed in the process of treaty-making or custom-formation
11. Formal legal reasoning in IL rarely enables us to offer conclusive legal answers does not do away with politics or morality, but allows us to speak of them in other terms creates some distance to the immediate conflict of interests and the actual consequences in the concrete case at hand takes the parties back to a previous point of agreement (to an agreed rule or to the agreed rules for the creation of rules) and to the history of the application of that/those rules
12. Styles of argumentation in IL All styles of argumentation in IL can be used, depending on circumstances, to consolidate or to challangeexisting power relations and status quo No style of argumentation has an intrinsiclink to the ”good” One cannotdispense with formal legal reasoningwhenaddressing a court or a legal tribunal
13. The move to international lawdoes not necessarily mean a move to justice, equality or a to the ”good” in some sense. However, international law raises the expectation of justice, equality and “the good”
14. The international legal landscape Rules of international lawcreating rights and obligations, the doctrine of the sources of law, rules of interpretation The presuppositions of international law Discoursesaffecting IL Analytical tools making intelligible the structure and the functioning of IL Theoriesmapping and explaining the values and forms of knowledgeembedded in IL or evaluating or clarifying the effects of IL