The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. These fundamental principles distinguish a liberal system of criminal justice from an authoritarian system. However, recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. The object of inquiry in this article is the discourse in ICL: the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims, and how these forms of reasoning in fact engender contradictions with the liberal values proclaimed by the system. This article argues that, in drawing (as it necessarily did) on national criminal law as well as international human rights and humanitarian law, ICL absorbed contradictory assumptions and methods of reasoning. These contradictions in reasoning lead to contradictions in doctrine and departures from the stated principles of the system. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include: interpretive approaches, substantive and structural conflation and ideological assumptions. The identity crisis theory helps explain how a liberal system of criminal justice - one that strives to serve as a model for liberal systems - has come to embrace illiberal doctrines. The article argues that we need to critically examine not only what we think, but how we think, in order to advance ICL as a coherent discipline.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1718688_code1010966.pdf?abstractid=1127851&mirid=3

The Identity Crisis of International Criminal Law

International Law and New Wars examines how international law fails to address the contemporary experience of what are known as 'new wars' - instances of armed conflict and violence in places such as Syria, Ukraine, Libya, Mali, the Democratic Republic of Congo and South Sudan International law, largely constructed in the nineteenth and twentieth centuries, rests to a great extent on the outmoded concept of war drawn from European experience - inter-state clashes involving battles between regular and identifiable armed forces The book shows how different approaches are associated with different interpretations of international law, and, in some cases, this has dangerously weakened the legal restraints on war established after 1945 It puts forward a practical case for what it defines as second generation human security and the implications this carries for international law

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International Law and New Wars

Local Space, Global Life engages with the expansive, ground-level and intertwined operations of international law and the development project by discussing the current international focus on local jurisdictions. Since the mid-1980s, and through the discourse of decentralization, municipalities and cities in emerging nations have become the preferred spaces in which to promote global ideals of human, economic and environmental development. Through an ethnographic study of Bogota's recent development experience and the city's changing relation to its illegal neighbourhoods, Luis Eslava interrogates this rationale and exposes the contradictions involved in the international turn to the local. Attentive to historical and current transformations, norms and praxis, and both ideology and materiality, he provides an innovative reading of the nature of international law and the development project, and reveals their impact on local spaces and lives at the urban periphery of today's world order.

Local Space, Global Life: The Everyday Operation of International Law and Development

The Paris Agreement has struck a careful balance between the need for ambitious and effective climate action and for fair effort sharing among parties based on differentiation. This article provides an overview of the negotiation history of differentiation and analyzes the ‘dynamic differentiation’ as built into the architecture of the Agreement. While being set against the normative background of the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement adopts a more diversified way of differential treatment among parties, approaching it in three complementary ways: firstly, on a principled basis, reflecting common but differentiated responsibilities and respective capabilities (CBDR-RC), in the light of different national circumstances; secondly, in the content of its articles, in particular on mitigation, finance and transparency; and thirdly, on the basis of the principles of progression and highest possible ambition, which represent new and dynamic aspects of differentiation. The authors argue that ‘highest possible ambition’ is reflective of a duty of care that states now need to exercise. It implies a due diligence standard, which requires each government to act in proportion to the risk at stake and to take all appropriate and adequate climate measures according to its responsibility and its best capabilities. By expecting parties to apply this standard at each successive preparation of nationally determined contributions (NDCs), and to progress beyond previous ones, the Paris Agreement has set up reiterative processes, an ‘international normative pull’ and a collective learning environment. This, in turn, creates a reflexive approach to parties’ determination of effort, promoting the evolution of voluntary cooperative behaviour.

‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement

This volume focuses on the rise of transnational constitutional laws, primarily created by the interaction between national and international courts, and by the domestic transformation of international law. Through detailed analysis of patterns of institutional formation at key historical junctures in a number of national societies, it examines the social processes that have locked national states into an increasingly transnational constitutional order, and it explains how the growth of global constitutional norms has provided a stabilizing framework for the functions of state institutions. The book adopts a distinctive historical-sociological approach to these questions, examining the deep continuities between national constitutional law and contemporary models of global law. The volume makes an important contribution to the sociology of constitutional law, to the sociology of post-national legal processes, and to the sociology of human rights law. This title is also available as Open Access.

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A Sociology of Transnational Constitutions: Social Foundations of the Post-National Legal Structure

Machine generated contents note: Introduction James Crawford and Martti Koskenniemi; Part I. The Contexts of International Law: 1. International law in diplomatic history Gerry Simpson; 2. International law in the world of ideas Martti Koskenniemi; 3. International law as 'law' Frederic Me;gret; Part II. International Law and the State: 4. Statehood - territory, people, government Karen Knop; 5. Uses of 'sovereignty' in the law James Crawford; 6. Exercise and limits of jurisdiction Bruno Simma and Andreas Muller; 7. Lawfare and warfare David Kennedy; Part III. Techniques and Arenas: 8. Law-making and sources - the argumentative basis Hilary Charlesworth; 9. Judicial settlement and arbitration - the invisible centre of international law Benedict Kingsbury; 10. International institutions Jan Klabbers; 11. Policing and sanctions Dino Kritsiotis; Part IV. Projects of International Law: 12. Constituting order Anne Orford; 13. Legitimating the rule of law B. S. Chimni; 14. Human rights in disastrous times Susan Marks; 15. Attacking evil Sarah Nouwen; 16. Regulating trade and investment Helene Ruiz-Fabri; 17. The role of international law in reproducing massive poverty Thomas Pogge; 18. Conserving resources Sundhuya Pahuja.

Surabhi Ranganathan

Papers

The Cambridge Companion to International Law

International law chronology