International law

Is sovereignty still the foundation of international law?

Abstract: 
The answer to the question ‘Is sovereignty still the foundation of international law?’ should probably be ‘yes’ if we examine the wording used in most of the texts of positive international law together with mainstream scholarship and diplomatic language. The language of sovereignty is all around. Yet the answer should probably be ‘no’ if we look, not at what the law says or what is said about it, but instead at what it does in social reality.

The Sociological Argument in Human Rights Doctrine

Abstract: 
Human rights have long been thought of as ‘natural and sacred rights’ from a universalist ‘everywhere and always’ perspective. But relativism arose right from the time of the French Revolution with Burke and Joseph de Maistre contesting this vision of ‘man’ as abstract as opposed to situated. More recently, the sociological approach with the Marxist perspective has set formal rights against real freedoms. Contemporary law has taken all these challenges into account and developed the international corpus of human rights by emphasising effective rights for everyone – ‘without distinction of race, sex, language or religion’ as underscored in Article 1 of the United Nations Charter – rights that are accessible and adaptable to the specific needs of vulnerable groups, including through ‘positive discrimination’. Far from undermining the legal idealism and universality of human rights, the sociological argument enhances it with a permanent dialectic of law and fact.

The Human Right to the Truth in International Law: On Some ‘Untimely Meditations’

Abstract: 
In the second part of his Untimely Meditations, Nietzsche asserts that the motto of History raised to the status of a science in the nineteenth century is fiat veritas, pereat vita. Nietzsche draws a line between the right uses of History that serve life, and the wrong uses that jeopardise life. This text seems to capture or encompass if not all at least many of the criticisms now levelled at the right to the truth. Starting from this critical discourse, the paper tries to answer the following question: might not this ambition to establish the truth and to make truth a ‘human right’ – that is, a universal right deemed to be inherent in human nature – lead to blockages and dead-ends, or even completely jam the social machinery so preventing its renewal and reproduction, in other words preventing it from living?To try answering this question, the paper presents the right to the truth in context in the legal texts as an emerging human right in international law before trying to describe the main challenges that the right to the truth must take up. In conclusion, the paper looks at the role that international supervisory bodies must play in securing the right to the truth nationally.

On the relations between the European Court of Justice and the international ‘authorities’

Abstract: 
One cannot but be struck by the growing number of references made to "international law" in Community (practice) case law. But there is nothing startling about it really. It is not that the Union (Community) is itself a construction of international law insofar as it is based on an agreement among the states that put it in place and those which subsequently joined them. While undeniable, this rooting in treaty cannot conceal the ever greater liberty the Community (Union) has taken with the rules normally applicable to the interpretation and application of international treaties. It has probably not entirely freed itself of a founding agreement, assuming that it ever can. Even so it is no longer saying much to underscore simply that the Community (Union) rests upon a treaty among states as its foundation. There should be no need to labour this point.

Norberto Bobbio and international law

Abstract: 
For an international law scholar who delights in the work of Norberto Bobbio, who was without contest one of the greatest legal theorists of the 20th century, Bobbio’s attitud towards his discipline is downright frustrating. Admittedly, internationalists are used to theorists’ hostile or reserved attitudes towards international law. Remember John Austin explaining that international law is not law "properly so called" but mere "positive morality", or Hart, who saw in international law a set of primary norms without any secondary norms, and so a very primitive system that hardly deserved to be called law at all. But Bobbio’s attitud is even more frustrating. He says next to nothing of international law, not, as we shall see, that he did not make reference to it, but he (almost) never addressed it as a specific subject of reflection for the legal theorist.