Delsol Unjust Justice

Over one hundred and eighty sovereign states are members of the United Nations and they have different constitutions. Some have to provide for a federal structure, in others although unitary, include different legal systems within the one state. The disparities between constitutions deals with momentous ethnic, linguistic and religious considerations. Their vagueness requires a prudent imposition on what ?is? and what ?ought? to be the law. The premise of this piece is on Global Administrative Law, with an exegesis on critical legal studies.

When comparing apples to pears, one is not making a fair comparison, but a disproportionate comparison. Often times when international law is discussed or attempts are made to understand international law; many often attempt to compare international law with existing laws such as national law or domestic law. Making such disproportionate comparisons leads to many misconceived notions and attitudes toward international law. For an adequate comparison of international law to other laws, one should look closely at the available facts. This essay will demonstrate the vitality of international law, in a world of nations which continue to increase in interdependence.

In “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law,” Antony Anghie discusses the concept of sovereignty and membership. He uses the term “family nations” to illustrate the relations of states. Anghie seeks to find the answer to how “new” Europe deal with the task of “how order is created among sovereign state.” To which he asserts that “special doctrine” of shared norms and values have been devised for purpose of determining states’ sovereignty. Hence, states have resorted to the development of an international law to help them govern and set out the criteria that are required in order to be acknowledged as a sovereign state. Anghie subsequently put forth that this “international law applied only to the sovereign states that composed the civilized “Family Nations.” This definition excluded third world countries who were deemed as being “non-civilized states” such as “non-European states.” This definition is problematic as it a very biased perception. The term sovereign state is arguably a social construct made by European as it is mainly of a Western European origin. Anghie acknowledges that states could be formally considered “sovereign” only if “they satisfied the criteria [for] membership in the civilized international society, they lacked the comprehensive range of power enjoyed by the European sovereigns.”

There is a close relationship between human rights and criminal law. The scope of my paper will surround human rights and the International Criminal Court (ICC) in addition to human rights and international crimes. International criminal justice in this context speaks to those interested in prosecuting against the background of international human rights and humanitarian norms. The use of criminal law has many positive effects and pursues many goals that are worth considering. For example, deterrence, accountability and punishment are important principles that will be discussed in the context of human rights. Is the International Criminal Court an effective method to promote and protect human rights internationally? If so, why and how?

In Empire, Michael Hardt and Antonio Negri report a new shift in the international politics and outline the structure of its power. They claim that a new sovereignty is rising in the world system, and its structure of the rule has emerged along with the global market. Since the global market is eroding the Westphalia sovereignty, the economic factor of production and exchange move easily across the national boundaries. Throughout the process of globalization, the sovereignty of the nation-state has progressively declined in the hand of capitalism. Even the dominant nation cannot be called a supreme and sovereign authority either outside or within its territory. Hardt and Negri (2000) state, “The

The goal of the “post-Westphalian democratic justice” is to change the current state-territorial borders and the way they are drawn. This process, along with globalization, forces the former monological process (experts making decisions) to become dialogical (collective decisions, made in a political manner and reached through dialogue). Furthermore, framing should respect the “all affected principle” (anyone affected has a voice—not based on physical geography but rather a common point—concerning that issue). In sum, Fraser defines justice as the parity of participation at all levels and dimensions. In a globalized world where numerous problems cross borders, this requires a democratic international decision-making

In the collective culmination of the state of nature, individuals in society create a different state; that is, “a legal entity that possesses a permanent population, a well-defined territory and a government capable of exercising sovereignty” (Kegley & Raymond 2005, p. 47). The state, often used interchangeably with the terms ‘nation’ or ‘nation-state’, is the most important actor in the Realist international system. Possessing no superior authority (sovereignty), the respective states of the world interact in a condition of anarchy. With this provision, the state is unrestrained by the ‘social contract’ imposed on individuals at a domestic level. Thus, the actions taken

In the pursuit of positive peace for the global community, certain mechanisms are necessary in order to better protect human rights and resolve interstate conflicts. Prior to the events of World War II, a cogent set of laws defining those human rights, much less violations therein were never heard at an international scale. The International Criminal Court has the role as both appellate for justice and voice for peace in the international community but has not yet resolve the contradictory ends of both roles. That contradictory end is that many countries proclaim the necessity of the International Criminal Court as an advocate for conflict resolution and peace advocacy while being resist or outright antagonistic towards the court when their own state has committed those same crimes. To the ends of defending basic universal rights, the International Criminal Court (hereafter ICC) serves that capacity when state level systems cannot or will not act accordingly.

Mearsheimer’s argument states that great powers are always in competition with each other to become a hegemon. There are five assumptions about the international system from which this statement comes from: that the international system is anarchic (there is no higher authority above the states), that great powers inherently possess some offensive military capability (they are potential threats to each other), that states can never be sure about other states’ intentions, that survival is the primary goal of great powers, and that great powers are rational actors (Krieger, 50-51). Individually, these five assumptions do not make one believe that great powers should act aggressively toward each other, but together, they give great powers strong incentives to do so. They also result in three behaviours: fear, self-help, and power maximization (Krieger, 51). Great powers do not trust each other and this creates fear amongst them that another state could attack at any moment. Due to this fear, states emphasize self-help. The cannot trust or depend on other states and must therefore always be prepared to help and lookout for themselves. States learn that the best way to survive is to be the strongest state, ideally a hegemon. This creates a strong deterrence in weaker states from attacking the stronger states. Mearsheimer’s claim is that it is the structure of the international system and not characteristics of states and their leaders that causes states to act aggressively

There are numerous reforms in the International Criminal Court that needs to bé established to the national justice system in order to uphold the same aims of International law. The International Criminal court needs to increase its universality of the scope of the court, although the icc statute has been ratified by many states, efforts to reinforce its universality must be strengthened, such as the United states, Russia and China, this complicates, if not makes it impossible, for the court to exercise its jurisdiction. This limitation of its jurisdiction contributes to the misperception that the court is not impartial, which is unfortunately further reinforced by the fact that all the current ongoing investigations are conducted on the

Abstract: Which political and juridical foundation can justify the transit from the Western, particular, to the universal? John Rawls tries to answer this question in his article, "The Law of Peoples," proposing a kind of contract or agreement. A first agreement should be attained among liberal-democratic societies on a few political and social issues such as human rights. Then this agreement can be widened to non-liberal/democratic but well organized hierarchical societies or those that satisfy the requisites of being peaceful, of having a reasonably well organized legal system, of admitting a measure of freedom-political and religious-and of admitting the right of emigration. These two

Jurisdiction is arguably the most versatile term in current international law. Frequently used in international legal instruments and yet never defined, the term can have different meanings in different contexts. Depending on the circumstances, jurisdiction may refer to the totality of the power or authority that a state has or exercises, in which case it is fully identifiable with “sovereignty,” another often-used but likewise never clearly defined term in international law. Jurisdiction is an aspect of state sovereignty. International law scholars have increasingly taken the view that the term ‘sovereignty’ means all and only those attributes which are given to a state under international law descriptive of the scope of state freedom as a legal rather than factual matter sovereignty. In this conception does not define, but is defined by the legal powers of a state within an international society of states. It does not exist prior to law, but as a set of attributes of the legal construct that is the state, existing as a consequence of law. As one scholar expressed it, sovereignty is nothing more or less than ‘the legal competence which states have in general. The power of a sovereign to affect the right of persons, whether by legislation, executive decree, or by a judgement of a court is called jurisdiction. The power of soveiregn, therefore to affect legal rights depends upon law; and upon the law must be based all sovereign jurisdiction. Through the concept of

This paper will be focus predominately on the primary sources of International Law, examining the purpose and meanings of

“Sovereignty is far more problematic than recognized in the classical model, that important elements of hierarchy exist in the global system, and that both our theories and practice of international politics would be improved by explicitly incorporating variations in hierarchy.”

The United Nations is widely regarded and respected as the most powerful institution that promotes international cooperation and human rights action. In theory, actions implemented by and within the United Nations are based on the mutual global goal of protecting international human rights and preventing human sufferings. These actions are constituted through three main mechanisms: the Treaty-based system, the Human Rights Council, and Security Council and Humanitarian Interventions, with the level of confrontation and seriousness in each mechanism increases respectively. While aimed to serve the mutual goal of protecting human rights over the world and have shown some successes, in a world of sovereignty, actions when implemented are in fact grounded by the national interests of each state, including embracing its national sovereignty, concreting its strategic relationships with other states, and enhancing its reputation in the international community. This paper will analyze the successes and failures of each of the three mechanisms of the United Nations regime, through which it aims to prove that when it comes to actions, states focus more on their national, and in some cases, regional interests than on the mutual goal of strengthening human rights throughout the world, thus diminishing the legitimacy of the whole United Nations system.