Lectures on international law issues by eminent scholars, practitioners and judges of national and international courts. The lecture series is brought to you by the Public International Law Discussion Group, part of the Law Faculty of the University of Oxford, and is supported by the British Branch of the International Law Association and Oxford University Press. Further details of this series can be found on the Public International Law -https://www.law.ox.ac.uk/research-subject-groups/graduate-discussion-group-index/public-international-law-discussion-group Oxford website.
International Law and the Practice of Legality: stability and change
Professor Jutta Brunnée, University of Toronto, gives a talk for the seminar series on 6th May 2021. Drawing on the practice-turn in constructivism and in international relations (IR) theory more generally, I will argue that a particular approach to managing stability and change is inherent in, and indeed characteristic of, legality in international as in domestic law. The "interactional law" framework that I developed with Stephen Toope places particular emphasis on what we call the "practice of legality". This concept is central to understanding how law can both enable and constrain state actions, and why international law is a distinctive language of justification and contestation. In turn, the focus on stability and change is helpful because it directly confronts some of the persistent doubts and assumptions about international law, in particular in relation to international politics. Our work is animated by the intuition that the dominant views in IR and international law scholarship underestimate international law's capacity to mediate stability and change, in part because they focus on the surface of law (treaties, statutes and so on) and external factors (interests, enforcement). They neglect the deeper structure of what makes norms "law," and the distinctive practices that account for both its relative stability and its capacity for change.
Jutta Brunnée is Dean, University Professor and James Marshall Tory Dean’s Chair, at the University of Toronto’s Faculty of Law. Her teaching and research interests are in the areas of Public International Law, International Environmental Law and International Legal Theory. She has published extensively in each of these areas. Her current research agenda explores the role of international legality and legal practices in mediating between stability and change in international law. Dean Brunnée is co-author of International Climate Change Law (OUP 2017), which was awarded the American Society of International Law’s 2018 Certificate of Merit “in a specialized area of international law” and was recently translated into Korean, and of Legitimacy and Legality in International Law: An Interactional Account (CUP 2010), which was awarded the American Society of International Law’s 2011 Certificate of Merit “for preeminent contribution to creative scholarship.” She was elected Fellow of the Royal Society of Canada in 2013, and Associate of the Institut de Droit International in 2017. In 2019, she delivered a course on “Procedure and Substance in International Environmental Law” at The Hague Academy of International Law, published in the Academy's Collected Courses / Recueil des Cours series (2020). In 2020, Dean Brunnée was appointed University Professor, the University of Toronto’s highest and most distinguished academic rank.
Extraterritorial Human Rights Obligations Between a Rock and a Hard Place - Diverging Jurisprudence at the ECtHR and the UN
Dr Lea Raible University of Glasgow; 2020/21 re:constitution Fellow, gives a talk for the Public International Law discussion group on 20th May 2021.
The Jurisprudence of the Inter-American Human Rights System: Standard-setting or International Law-making?
Ignacio de Casas, Austral University, Argentina, gives a seminar for the PIL discussion group. The terms ‘international human rights standards’ or ‘inter-American human rights standards’ are often used by the Inter-American human rights bodies as almost a synonym for human rights or the obligations that States have in this area. In their discourse, these ‘standards’ are usually considered not to refer solely to the normative expression of human rights in treaties, custom or general principles of law. On the contrary, such expression is given a use that also includes non-binding instruments whose normative (legal) content is doubtful or, at least, its bindingness is not expressly declared or recognized by any international rule (e.g., declarations, resolutions of international organizations, judicial decisions, views and general comments of treaty bodies, case law of the Commission, etc.).
In recent years, the Inter-American Commission in particular has produced many thematic reports of so called ‘Inter-American standards’, which are compendia of the jurisprudence of the Court and the Commission. They contain no clear definition of the concept of standards. Yet, inadvertently or boldly, they are invoked as a rule of conduct (source of obligations) for States, even when their content has clearly not been determined by, or based on, the traditional sources of international law.
It is possible that this term is used as a performative utterance, pursuing a specific ideological intentionality with the meaning attributed (i.e., a progressive case for human rights). Is the jurisprudence of both the Inter-American Commission and Court a source of international law? Have they attributed themselves a law-making power?
C. Ignacio de Casas is an adjunct professor at Austral University in Argentina, where he also coordinates the Graduate Diploma in Human Rights Law. Prior to that, he worked for a law firm focussing on human rights international litigation. He has an Abogado degree from the University of Mendoza, a masters from the University of Oxford and is a PhD candidate at Austral University. He is also co-founder of the Centro Latinoamericano de Derechos Humanos (CLADH).
Hart and Kelsen on International Law
Professor David Dyzenhaus, University of Toronto, currently a Guggenheim Fellow and a Visiting Fellow at All Souls, gives a talk for the Public International Law seminar series. In the recent resurgence of jurisprudential interest in international law, HLA Hart’s theory of law occupies centre stage and doctrinal public international lawyers usually adopt his theoretical vocabulary, in particular his account of the rule of recognition, when they feel the need for some theoretical tools. This is a puzzle because Hart saw philosophy of public international law as peripheral to the main task of jurisprudence—to analyze the ‘distinctive structure of a municipal legal system’—and deemed its study ‘only a relatively small and unimportant part of the most famous and controversial theories of law’. In addition, his own analysis of public international law is widely considered problematic. But while Hart is thought not to have been quite on his game when it came to public international law, it may seem that his is the only game in town when it comes to the place of such law in a general theory of law. I argue that it high time that jurisprudence returned to Kelsen, unhindered by Hart’s distortion of Kelsen’s central ideas, not least because Kelsenian legal theory shows us the benefits of reversing the order of argument about public international law. Instead of, first, constructing a theory of the law of a national legal order and, second, asking whether public international law is law in its light, we should see that understanding the legality of international law illuminates how philosophy of law might productively address some of its central problems. I examine these issues through the lens of the debate about whether the relationship between public international law and national law should be understood as ‘monists’ or as ‘dualists’ urge.
David Dyzenhaus is a University Professor of Law and Philosophy at the University of Toronto, currently a Guggenheim Fellow and a visiting fellow at All Souls. He has just completed The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge, forthcoming).
How International is the International Court of Justice?
Professor James T. Gathii, Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law, gives a talk for the Oxford Public International Law seminar series. This talk will present the findings of an empirical study that sought to establish two primary data points. First, the nationalities of the lawyers who argued cases before the International Court of Justice between 1998 and 2019. Second, the share of time lawyers from different countries had audience before the Court. The assumption underlying this study was that the more diverse the set of nationals who appear before the Court, the more international it is and vice versa. To find out the share of time lawyers from different countries had audience before the Court, the lawyers were divided into two groups. Those with the nationality of member states of the Organization for Economic Cooperation and Development, (OECD), were categorized as originating in or based in Western States. Those with non-OECD nationality were designated as originating or based in non-Western States. After presenting the findings of the empirical study, the talk will advance several hypothesis to account for the results.
James T. Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law since July 2012. He is a graduate of the University of Nairobi, Kenya, and Harvard Law School. He sits on the board of editors of the American Journal of International Law, the Journal of African Law and the Journal of International Trade Law and Policy, among others. He is co-editor in Chief of the African Journal of International Economic Law. He was the Grotius Lecturer at the 2020 American Society of International Law Virtual Annual Meeting. His research and teaching interests are in Public International Law, International Trade Law, Third World Approaches to International Law, (TWAIL), Comparative Constitutional Law and Human Rights. Professor Gathii served an Independent Expert of the Working Group on Extractive Industries, Environment, and Human Rights Violations in Africa formed by the African Commission on Human and Peoples’ Rights between 2012 to 2020. He is also an expert member of the Working Group on Agricultural Land Investment Contracts of the International Institute for the Unification of Private Law, (UNIDRIOT), the Food and Agricultural Organization (FAO) and the International Fund for Agriculture (IFAD). He has sat as an arbitrator in two international commercial arbitrations hosted by the Permanent Court of Arbitration in the Hague. He is a founding member of the TWAIL network. He is an elected member of the International Academy of International Law. He has consulted for the Office of the United Nations High Commissioner for Human Rights, (OHCHR), and the Economic Commission for Africa, (ECA), among others. Professor Gathii is a founding Editor of Afronomicslaw.org, the blog on international economic law issues relating to Africa and Global South. His books include African Regional Trade Agreements as Legal Regimes (Cambridge University Press, 2011, Paperback 2013); War, Commerce and International Law (Oxford University Press, 2010); and The Contested Empowerment of Kenya’s Judiciary, 2010-2015: A Historical Institutional Analysis, (Sheria Publishing House, 2016). His latest edited book is The Performance of Africa’s International Courts: Using Litigation for Political, Legal, and Social Change, (Oxford University Press in 2020). In addition to his books, Professor Gathii has authored over 90 articles and book chapters.
The PIL Discussion Group hosts a weekly speaker event and is a key focal point for PIL@Oxford. Due to the current public health emergency, the PIL Discussion Group series will be held remotely for Hilary 2021. Speakers include distinguished international law practitioners, academics, and legal advisers from around the world. Topics involve contemporary and chall
The Laws of War in International Thought
Professor Pablo Kalmanovitz, International Studies Division at CIDE, Mexico City, gives a talk for the Oxford PIL discussion group. The Law of Armed Conflict is usually understood to be a regime of exception that applies only during armed conflict and regulates hostilities among enemies. It assigns privileges to states far beyond what they are allowed to do in peacetime, and it mandates certain protections for non-combatants, which can often be defeated by appeals to military necessity or advantage. The Laws of War in International Thought examines the intellectual history of the laws of war before their codification. It reconstructs the processes by which political and legal theorists built the laws’ distinctive vocabularies and legitimized some of their widest permissions, and it situates these processes within the broader intellectual project that from early modernity spelled out the nature, function, and powers of state sovereignty. The book focuses on four historical moments in the intellectual history of the laws of war: the doctrine of just war in Spanish scholasticism; Hugo Grotius’s theory of solemn war; the Enlightenment theory of regular war; and late nineteenth-century humanitarianism. By looking at these moments, it is shown how challenging and polemical it has been for international theorists to justify the exceptional and permissive character of the laws of war.
Pablo Kalmanovitz is research professor and head of the International Studies Division at CIDE (Centro de Investigación y Docencia Económicas) in Mexico City. He has held permanent or visiting positions at the Universidad de los Andes in Bogotá, the European University Institute, Yale University, McGill University, and the University of Ulster. His research focuses on historical and theoretical aspects of the international regulation of armed force, on which he has published numerous articles and book chapters. His book The Laws of War in International Thought was published by Oxford University Press in 2020.
The PIL Discussion Group hosts a weekly speaker event and is a key focal point for PIL@Oxford. Due to the current public health emergency, the PIL Discussion Group series will be held remotely for Hilary 2021. Speakers include distinguished international law practitioners, academics, and legal advisers from around the world. Topics involve contemporary and challenging issues in international law.