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The universality of international law

“The universality of international law [through the development of custom, treaty-making, and participation in universal international organizations]…is inextricably linked to the formality of international law. This formality of international law supports its universality, as it allows coexistence between entities with different values and conceptions of justice.” André Nollkaemper

The 14th Annual Conference of the European Society of International Law will take place at the University of Manchester, from 13th September through 15th September. This is one of the most important events in the international law calendar, attracting a growing network of scholars, researchers, practitioners, and students. The conference not only provides a forum for the exchange of new ideas, but also encourages the study of international law and promotes a greater understanding of its role in the world today.

This year’s conference theme will focus on “International law and universality,” and participants will be tasked with tackling important questions such as: What are the limits of formal and substantive universality? Can international organizations address the diverse needs of the international community? What impact do opposing cultural, socioeconomic, and political influences have on the application of the substantive and primary rules of international law geographically?

In preparation for this year’s meeting, we have asked some key authors to share their thoughts on the subject:

 

“The universality of international law is a heavily contested concept, especially in a diverse world where the issue of “whose international law is universal” is not an easy one to answer. My own work on unilateral sanctions has however brought me to the surprising conclusion that international law’s universality is not as fictitious as we may believe. The practice of non-UN sanctions is certainly not universally accepted; certain States (mainly developed countries) are quick to impose sanctions in response to violations of certain norms, other States (mainly developing countries and emerging powers) are quick to contest this practice. Although it should be acknowledged that sanctions are more frequently adopted to enforce civil and political rights rather than social and economic rights, the dispute surrounding sanctions rarely revolves around the norm the sanctioning entity is seeking to enforce. Seeing as normative agreement is at the basis of any (legal) order, this suggests that States may agree on the norms that lie at the foundation of the international system but disagree on the means through which it should be upheld. Using this as our basis the issue becomes: which enforcement practices can transform the fiction of international law’s universality into a reality?​”

— Alexandra Hofer is a PhD Candidate at Ghent University. She is assistant editor of The Use of Force in International Law: A Case-Based Approach (Oxford 2018), and has published in the Chinese Journal of International Law and in the Journal of Conflict and Security Law.

 

“A way to understand universality in international law is to focus on the common values that international law ought to promote. Does international law promote moral projects of global concern? Can it? The modern state produces a paradox: it is necessary for international law to reflect a universality of values, robustly understood, to solve many of the problems the planet faces today, but it is exceedingly difficult to get international law to reflect these values. Advances in the study of moral cognition inform us that our capacity to care about others evolved to facilitate cooperation within groups but not between groups. Our moral brains stop us from universalizing the commitments of justice across tribes. International law faces special challenges in getting what ought to be our moral regard for others across borders. Overcoming our cognitive limitations requires us to change how we think about international law. Economic and social rights might take a secondary role, coming only after what ought to be done is settled. A more granular focus on the consequences of international law commitments might be more effective, particularly when it comes to burden and benefit sharing in the global economy.”

— John Linarelli, Professor of Commercial Law at Durham Law School, and co-author (with Margot Salomon and M Sornarajah) of The Misery of International Law: Confrontations with Injustice in the Global Economy (Oxford 2018)

Can international organizations address the diverse needs of the international community?

 

“Universality is a facade. Worse still, it is a fake, a phony, an opiate, a weapon of the strong. Recognition of this condition leads to an imperative: step behind the facade to see what has been pushed out of sight and redacted.

Justice provides a clear example. Lady Justice stands strong, her impartiality signified by her blindfold and scales even as she grips the sword of authority. But she has a doppelgänger. This double sometimes peeks through the blindfold — if she wears one at all. Lady Justice also has a history. Her double often goes by other names: Justitia, Themis, Dike, and Maat to name a few.

Once we begin to look for this doppelgänger in the tangles of history and variation, we begin to see the cracks in the facade of Universality that misdirects our gaze even as it offers legitimacy and power. If we follow Lady Justice’s doppelgänger further still, she leads us to the issues of translation and heteroglossia. For Lady Justice speaks only in lingua franca and demands all speak in the voice of Law. Her doppelgänger, in contrast, is a trickster who prefers the vernacular and the moments that universal Justice breaks down in translation.

And so we return to the imperative with which we began, which asks that we begin not with the Universals of international law but with its doubles. Follow the doppelgängers of international law. Step behind the justice facade.”

— Alexander Hinton, Distinguished Professor of Anthropology, Director, Center for the Study of Genocide and Human Rights, UNESCO Chair in Genocide Prevention, Rutgers University, and author of The Justice Facade: Trials of Transition in Cambodia (Oxford 2018)

*The comments expressed in this article are the personal responses of the cited authors, and do not in any way reflect the opinions of Oxford University Press.

Featured image credit: Manchester by timajo. CC0 via Pixabay.

Recent Comments

  1. Beverley L Kennedy

    The article in motioning the sequencing of legal rights and protections mentions how social economic rights are more slowly to be administered and enforced certainly explains why in Canada and elsewhere in western democracies. Financial crimes labled as white collar are treated more lightly
    And why there is such loose control over consumer investor protections once the crown outsources the duties of enforcement administration and redress to funded by industry enemies who naturally focus on their own interests since they are footing the costs.
    It is also falls in line with the global trend of financialization of Western economies where the bottom line is given priority to the rule of law and the best interests of the public.

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