The Kelsen/Schmitt Controversy and the Evolving Relations between Constitutional and International Law

The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post‐Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹     

Fundamental rights in the EU after Kadi and Al Barakaat

This article takes stock of the emerging scholarship on the European Court of Justice's 2008 Kadi decision and seeks to make sense of the court's apparent evasiveness towards international law. The article argues that Kadi is best understood as an act of civil disobedience prompted by the UN Security Council's misapplication of foundational principles of the international order. In turn, the court's forceful articulation of the stakes in this case signals a prioritisation of basic rights within the supranational constitutional architectonic. In this respect, the ‘domestic’ constitutional implications of Kadi are just as far reaching as its consequences for the EU's status as an actor under international law.     

Schmitt's Critique of Kelsenian Normativism*

Abstract. The aim of this paper is to underline the relevance of Schmitt's critique of Kelsenian normativism in the context of today's debate about the status of legal positivism. Schmitt's underlining of the limits which a certain kind of positivism imposes upon itself highlights a contemporary issue about what legal theory should aim at when accounting for the normative dimension of law. Schmitt's ultimate failure to take up the theoretical challenge he himself raised (with its well‐known consequences) is deemed to illustrate—negatively—the importance of providing a plausible account of the social practices which bring law into existence.     

Work Rules: How International NGOs Build Law in War‐Torn Societies

Drawing on socio‐legal literature and fieldwork in South Sudan, this article argues that international aid groups operating in conflict settings create and impose a rules‐based order on the local people they hire and on the domestic organizations they fund. Civil society actors in these places experience law's soft power through their daily, tangible, and mundane contact with aid agencies. As employees they are subject to contracts and other rules of employment, work under management and finance teams, document routine activity, and abide by organizational constitutions. In analyzing how South Sudanese activists confront, understand, conform to, or resist these externally imposed legal techniques and workplace practices, this article decenters state institutions as sites for understanding law's power and exposes how aid organizations themselves become arenas of significant legal and political struggle in war‐torn societies.     

Kelsen's Theory on International Law during His Exile in Geneva

Kelsen's monistic theory of international law was shaped during his exile in Geneva (1933–1940), but its deep roots are to be found in his Pure Theory of Law, centred on the neo‐Kantian notion of “system.” According to this conception, a legal system can only descend from a single principle. Consequently, Kelsen constructed a monistic theory of law, i.e., a legal system incorporating all norms into a pyramidal structure culminating in a single principle: the fundamental norm. This Kelsenian pyramid must also include international law, considering that if international law were a legal system different from national law (as the dualistic theory assumes), the theoretical construction would need two fundamental norms. This dualism is as incompatible with Kelsen's monistic vision as Schmitt's theory of “Great Spaces,” creating a hierarchical system of international relations. In the Kelsenian pyramid, international law occupies a position superior to national law: The consequences of this assumption are discussed in some documents recently published in German and French.     

Ameron International: Expanding Insurance Recovery for Administrative Environmental Proceedings

In Ameron Int'l Corp. v. Ins. Co. of Pennsylvania, the California Supreme Court issued its long-awaited reconsideration of Foster-Gardner v. National Union Fire Ins. Co. which adopted the minority position that administrative notice letters are not “suits” that trigger a CGL insurer's duty to defend. In an important development for insurers and policyholders alike, Ameron limited Foster-Gardner, holding that an administrative process that resembles a court proceeding is a “suit” insurers must defend. This article surveys the majority rule, Ameron, and Ameron's possible impact in minority rule jurisdictions with Foster-Gardner-like precedent.     

The Problem of Emergency in the American Supreme Court

Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt and Agamben in order to come to a better understanding of this important set of cases.     

Instituting Authority. Some Kelsenian Notes

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view     

Public Diplomacy,Smith-Mundt and the American Public

The U.S. Information and Educational Exchange Act of 1948, also known as the Smith-Mundt Act, is a mostly unknown and widely misunderstood piece of legislation. Revised multiple times, the law bans domestic dissemination of Voice of America and other U.S. international broadcast content in the United States. Presenting government-supported international broadcasting as an example of public diplomacy, this article discusses the long-term misrepresentation of Smith-Mundt's original intent and highlights the consequences of the continuing ban. The article considers prospects for ending the ban and emphasizes potential opportunities presented by its elimination, concluding that ending the ban might eliminate incongruity between American foreign policy goals of democracy promotion and the reality of banned domestic content. Repeal of the ban may also result in unexpected remedies for challenges facing the American media industry and the American public's desire for international news.

The United States government may be the largest broadcaster that few Americans know about. Although its networks reach 100 countries in 59 languages, they are banned from distribution in the United States by a 1948 law devised to prevent the government from turning its propaganda machine on its own citizens. ^{1 1}Mark Landler, A New Voice of America for the Age of Twitter, N.Y. Times, June 7, 2011 at 9. The broadcasters comprising the U.S. international broadcasting operation are the Voice of America (VOA), Alhurra, Radio Sawa, Radio Free Europe/Radio Liberty, Radio Free Asia, and Radio and TV Marti. The Broadcasting Board of Governors (BBG) is “a bipartisan agency … that acts as a ‘firewall’ between the U.S. government and international broadcasting entities it funds.” Kim Andrew Elliott, America Calling: A 21st-Century Model, Foreign Service J., Oct. 2010, at 31. When Smith-Mundt was passed in 1948, USIB authority fell under the Department of State. Later, Congress created the United States Information Agency (USIA) to facilitate American public diplomacy operations. After the end of the cold war, Congress dismantled USIA and returned responsibility for American public diplomacy efforts to the Department of State. For an excellent history of the rise and fall of the USIA, see Nicholas J. Cull, The Cold War and the United States Information Agency: American Propaganda and Public Diplomacy 1945–1989 (2008).      

Laws of Inclusion and Exclusion: Nomos,Nationalism and the Other

This article explores how and why contemporary nationalist ‘defence leagues’ in Australia and the UK invoke fantasies of law. I argue these fantasies articulate with Carl Schmitt’s theory of ‘nomos’, which holds that law functions as a spatial order of reason that both produces and is produced by land qua the territory of the nation. To elucidate the ideological function of law for defence leagues, I outline a theory of law as it relates to (political) subjectivity. Drawing on the work of Foucault, Agamben and Brown, I demonstrate how subjects form and are formed by historically contingent relationships to law in the contemporary neo-liberal moment. Turning to Lacan, I show how nationalistic invocations of law provide nationalists with a fantasy that the nation’s law represents them and holds them together (as the nation itself). Similarly, I argue that nationalists imagine that the other has their own law as well, which not only corresponds to the other, but functions as a legible index of the other’s otherness—a metonym for the threatening uncertainty and radical difference that the other represents. Drawing on Lacan’s concept of the big Other, I ultimately argue that nationalists aggressively (re)assert law not only to defend the nation, but to ensure their own symbolic and ontological security therein.

     

Don't Mention the War! R. v Bottrill,ex parte Kuchenmeister (1946) Revisited

R. v Bottrill, ex parte Kuchenmeister (1946) established that a ministerial certificate is determinative of whether a state of war exists between the United Kingdom and another state. But of the ‘Aryan’ German, Kuchenmeister, long a resident in Britain and with a British family, virtually nothing is known. The present paper seeks to uncover the complex story of Kuchenmeister's business activities in the British armaments industry before the war, MI5’s determination to have him interned on the not wholly convincing footing of his loyalty to Germany during the war, and Kuchenmeister's prolonged legal battles with the Home Office. A distinction between the law in books and the law in action may be sharply drawn from the affair.     

‘Tesco for Terrorists’ Reconsidered: Arms and Conflict Dynamics in Libya and in the Sahara-Sahel Region

How does arms availability affect armed conflict? What implications does increased arms availability have for the organisation of armed groups involved in war against the state? This article explores these questions by looking into the civil war in Libya and the subsequent proliferation of weapons in the broader Sahel/North Africa region. Its argument is based on secondary sources: online databases, international organisations reports and news media. First, we examine the question of firearms in Libya in order to understand how changing conditions of weapons availability affected the formation of armed groups during different phases of war hostilities (February–October 2011). We highlight that, as weapons became more readily available to fighters in the field during this period, a process of fragmentation occurred, hindering efforts to build mechanisms that would allow control of the direction of the revolutionary armed movement. Next, as security continued to be a primary challenge in the new Libya, we consider the way in which unaccountable firearms and light weapons have affected the post-war landscape in the period from October 2011 to the end of 2013. Finally, we put the regional and international dimensions under scrutiny, and consider how the proliferation of weapons to nearby insurgencies and armed groups has raised major concern among Libya’s neighbours. Short of establishing any causal relationship stricto sensu, we underscore the ways in which weapons from Libya have rekindled or altered local conflicts, creating permissive conditions for new tactical options, and accelerating splintering processes within armed movements in the Sahara-Sahel region.     

Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order

The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger and Omega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, ‘so long as’ those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle—those essentials which each order requires the others to respect—does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing influence on the interpretation of shared commitments in particular conflicts, that they reserve the right to interpret essential principles, within broad and shared limits, and accord this right to others. The embrace of variants of the Solange principles by many coordinate courts, in obligating each to monitor the others' respect for essentials, creates an institutional mechanism for articulating and adjusting the practical meaning of the overlapping consensus.     

Machiavelli at 500: From Cynic to Vigilant Supporter of International Law

Machiavelli's 500‐year‐old treatise The Prince outlined the central features of the realist tradition in international relations. His premises led him to question the likelihood of efficacious and stable international law and international courts, a skepticism that has present‐day proponents. Machiavelli's reluctance was due to a combination of features of human nature and a focus on anarchic features of the relations among states. This article challenges these assumptions and implications: Other interpretations of human nature are closer to Machiavelli's text, and current relations among states are significantly different. The revised assumptions should make Machiavelli's followers more optimistic about international law and international courts.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

The Troika: The Interlocking Roles of Commission v. Luxembourg and Belgium,Van Gend en Loos and Costa v. ENEL in the Creation of the European Legal Order

Through comparisons with dispute resolution procedures in the North American Free Trade Area's Side Agreements, and with the debate over the direct effect of World Trade Organization obligations in the European legal order, this paper demonstrates that three of the European Court of Justice's most important decisions—Commission v. Luxembourg and Belgium, Van Gend en Loos and Costa v. ENEL—should be understood as combining to reorganise general international law's relationship between the EU Member States by substituting national court application of European obligations for the use of interstate retaliation as an enforcement mechanism, and thus providing the foundations for the EU's distinctive legal order.     

Withdrawal of Parental Responsibility: Lost Authority and a Lost Opportunity

This comment examines Re D (Withdrawal of Parental Responsibility), the first reported Court of Appeal decision on withdrawal of parental responsibility pursuant to section 4(2A) of the Children Act 1989. It demonstrates that the Court overlooked earlier Court of Appeal authority, resulting in tension in the Court's guidance. The comment criticises the Court of Appeal's characterisation of parental responsibility as entirely child‐centred and its uncritical acceptance that the child's welfare is the paramount consideration in applications for withdrawal of parental responsibility. It argues that such an approach may not adequately respect the parent's interests in retaining parental responsibility, especially in the context of an order which is more draconian in effect than a care order. The impact upon applications for removal of parental responsibility of the new presumption of parental involvement, which was implemented shortly after the decision in Re D, is also considered.     

Law,Genre and the Voice of the Friend

The article attempts to think friendship in its relation to law and justice and provides some arguments for the importance of this concept in Derrida’s ethical, legal and political philosophy. It draws on early texts such as Of grammatology and reads them in conjunction with later texts such as The animal that therefore I am. The relation of friendship to law and justice is explored by means of Derrida’s notion of “degenerescence” understood as the necessity or law of indeterminateness that cuts across, both limiting and de-limiting, all laws, types and generic partitions, for instance, juridical (natural and positive right), humanistic (human and animal), anthropological (sexual difference), philosophical (physis and nomos). Drawing on Derrida’s readings of “sexual difference” in Heidegger and the latter’s evocation of “the voice of the friend” in Being and time, the article addresses the theme of Geschlecht and articulates the exigency to think sexual difference beyond duality together with the exigency to rethink law and right otherwise than on the ground of nativity and “natural fact” and in terms of what Derrida calls “a friendship prior to friendships” at the origin of all law and socius.     

“Great Men,” Law,and the Social Construction of Technology

Is Alexander Graham Bell's fame owed to law and lawyers? Two recent histories argue that some popular tales of invention originated with lawyers and judges as part of patent litigation battles (Stathis Arapostathis and Graeme Gooday , Patently Contestable: Electrical Technologies and Inventor Identities on Trial in Britain [2013]; Christopher Beauchamp , Invented by Law: Alexander Graham Bell and the Patent That Changed America [2015]). Bringing law into the historical project of understanding the social construction of technology, the authors unsettle “great man” narratives of invention. A tale of a recent patent war is a case study in the persistence of such narratives, highlighting the uses of legal storytelling (Ronald K. Fierstein , A Triumph of Genius: Edwin Land, Polaroid, and the Kodak Patent War [2015]). Together, these works invite consideration of the cultural power possessed by invention origin stories, the role of narratives in law and history, and the judicial performance of truth finding in Anglo‐American law .