Friday, February 17, 2006

Some thoughts on "The Core"

Our (future :)) readers may be interested in how we arrived at the blog’s title.

Originally, we were aiming for a title that was both catchy and captured the areas of the law we were planning to blog on. “The Core” first of all occurred to us as an allusion to the notion of “core crimes”, i.e. those crimes (aggression, war crimes, genocide, crimes against humanity) that make up the body of international criminal law. However, after having decided on the title for mainly that reason, it occurred to me that it may also be understood to have a deeper meaning, concerning the question of the raison d’être of – or at least basic focus for our understanding of – international law as such.

We all know that traditional scholarship basically sees international law as the law between sovereign states and that under this view, the “core” of international law is the sovereign equality of states and the principle that state consent is a prerequisite for the binding force of international norms.
There are, however, two current trends that replace (or rather complement) this view: The first one, which is usually described as “constitutionalization”, shifts the focus away from the individual states and towards the “international community.” As far as I see it, there are two interconnected strands of “constitutional” or “communitarian” international law scholarship: One more value-centered and resolving around notions such as jus cogens norms, the other more institution-centered, focusing on the United Nations and increasingly the Security Council. (As already mentioned, I have written about the Security Council’s role of international law-maker in the 2005 International Organizations Law Review).

If this view can probably be described as shifting the focus “up” from the state towards the international community as a whole, there is also another view that shifts its view “down”: Not (only) the state, but (also) the individual is at the focus of this view of international law. And this view focuses on precisely the areas of international law that we plan to blog about – human rights as the fundamental norms of international law directly favoring individuals; international humanitarian law as increasingly concerned with the protection of individuals, especially civilians; and international criminal law, which supplements the granting of rights to individuals with individual criminal responsibility for breaches of such rights, giving “bite” to human rights and international humanitarian law. (There are, of course, other bodies of international law protecting or perhaps even granting rights to individuals, such as investment law, but we hope we will be forgiven for not covering this area in any detail.)

This shift of the focus towards the individual person has, on the one hand, been met with some enthusiasm – a prime example is the 2003 General Course of Public International Law at the Hague Academy, delivered by ICTY President Theodor Meron and entitled “International Law in the Age of Human Rights.” (RdC vol. 301 (2003)) Meron traces the influence of human rights on various areas of international law, from the humanization of warfare and the criminalization of violations of humanitarian law to more general questions such as subjects and sources of international law.

There are, however, also a number of critiques of this view, coming from various corners. Some semi-random examples:
  • Human Rights have been criticized from a Marxist point of view for a long time – for a contemporary example see Slavo Zizek’s “Against Human Rights” in the New Left Review 34 (2005).

  • (Some aspects of) Human Rights have also come under critique by “humanitarians” – most famously by Harvard Law School Professor David Kennedy in his recent “The Dark Sides Of Virtue: Reassessing International Humanitarianism” (Princeton Univ. Press, 2004, a video recording of the Harvard “Dean’s Forum” discussing the book can be found here).

  • In “How America Gets Away with Murder”, Prof. Michael Mandel of Osgoode Hall criticizes the ICTY, the establishment of which revived modern international criminal law, as a propaganda arm of NATO and casts doubt on the ability of international criminal law to do more than “round up the usual suspects.”
My own position is that while I am surely not a proponent of a classical state sovereignty centered view of international law, I find myself agreeing with many critics of views centered on human rights or the international community, at least as they currently stand. (Incidentally, I have written reviews of both Mandel’s and Kennedy’s book for the upcoming vol. 48 of the German Yearbook of International Law.)

Okay, this much for now about the title of the blog and about my interest in some of the topics we will be covering.