Abstract
International law is expanding into areas previously addressed by domestic law. As it does so, it is becoming increasingly consolidated and effective, with distinctly different types of logic applied to different subjects. Regional systems of integration are providing regulatory mechanisms that reinforce this dynamic. The increased legitimacy of international norms is reinforcing their validity, as is the idea of a core of inviolable, irrevocable norms of international law. Multiple uncoordinated sources of conflict resolution have emerged. Formal, traditional rules of hierarchy have been abandoned in favor of new logic emphasizing choice of applicable law. Legal subsystems achieve effectiveness through new normative manifestations, but these are not considered sources of international public law. Each normative subsystem creates its own unique governance structure.
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Notes
- 1.
Teubner identifies in this process the proliferation of fragmented constitutional cores in international law. The greater specialization of international law leads to the need for validation of the second order of legal norms. Beyond the traditional legal/illegal analysis, there is a second analysis that varies by subsystem. Thus, in international economic law, the norm is analysed through the logic of specific principles such as most favored nation and national treatment. See Teubner (2012), p. 103.
- 2.
Teubner (2012).
- 3.
This illustrates the change of discourse and not the correctness of these interventions. See UNSC, Resolution 138 (1960), 24 June 1960; UNGA, Resolution 2793 (XXVI), from 12 December 1971; Resolution 34/32, from 14 November 1979 (Kampuchea); Resolution 38/7, from 2 November 1983 (Granada) and 11 November 1983 (Nicaragua). ICJ, Case between United States and Nicaragua over military and paramilitary activities in Nigaragua, see Koskenniemi (2005), p. 237.
- 4.
Jouannet (2011), p. 7.
- 5.
Hobsbawn (1994).
- 6.
Shah (2012).
- 7.
Paust (2002).
- 8.
Rotberg (2004), p. 2.
- 9.
There were protests against the position of the United States in several countries on 15 February 2003. Protesters were estimated at 750,000 in London; 600,000 in Madrid; 500,000 in Berlin; 150,000 in Melbourne; and 100,000 in New York. This capacity for collective action across global capitals demonstrates civil society’s organizational capacity and ability to express coordinated opinions that reveal the United States’ lack of legitimacy in the case. The Security Council’s approval and coordinated action on the part of states would have made this intervention more legitimate, in my view. Cf. Brunnee and Toope (2010), p. 1.
- 10.
The effectiveness of these measures was questioned. At any rate, it is interesting to analyze their legal justifications. Talk given by the Legal Counsel for the Department of State, H. Koh, and his team, George Washington University, March 2012.
- 11.
CIJ, Opinion piece on the legality of the use or threat of use of nuclear arms, from 1 Jan. 1995. See also Koskenniemi (2005), p. 594.
- 12.
For the International Criminal Court for the Former Yugoslavia, see Resolution 808; for Rwanda, see Resolution 955, from 1994.
- 13.
Delmas-Marty (2007), p. 380.
- 14.
Habermas (2003), pp. 40 e 47.
- 15.
- 16.
The United States’ reconstruction efforts in Iraq constitute the greatest commitment of resources to another country’s reconstruction since the Marshall Plan, but it has had unsatisfactory results because of challenges to the formulation and implementation of public policy.
- 17.
Jouannet (2011), pp. 106 and ff.
- 18.
Verdross (1927).
- 19.
The opening speech by the Secretary General of the UN at the World Conference on Human Rights, 14 June 1993, Vienna, is exemplary: “As an historical synthesis, human rights are, in their essence, in constant movement. By that I mean that human rights have a dual nature. They should express absolute, timeless injunctions, yet simultaneously reflect a moment in the development of history. Human rights are both absolute and historically defined. (…)In this context, the State should be the best guarantor of human rights. It is the State that the international community should principally entrust with ensuring the protection of individuals. However, the issue of international action must be raised when States prove unworthy of this task, when they violate the fundamental principles laid down in the Charter of the United Nations, and when—far from being protectors of individuals—they become tormentors.” (A/Con. 157/22).
- 20.
The quotation is from M. Delmas-Marty, in discussions of the research network Figuras da Internacionalização do Direito.
- 21.
Cassese (2005), p. 974.
- 22.
Huntington (1997).
- 23.
Several authors, including Habermas and Jouannet, criticize this fact, as we will see in the final chapter.
- 24.
Security Council embargos against arms were in place when the United States invaded Yugoslavia. In spite of these arms embargos, that country supplied arms through Islamic groups to the Bosnian government.
- 25.
Delmas-Marty (2003), p. 127.
- 26.
The idea of transnational legal processes has been evolving in U.S. theory since the 1950s and comprises the construction of international legal norms through arguments of authority, depending on the importance of actors in each issue addressed.
- 27.
“IRAQ war was illegal, says Annan” In: http://news.bbc.co.uk/2/hi/middle_east/3661134.stm.
- 28.
Koh (2004) pp. 345–348.
- 29.
Kelsen (1944), pp. 106–107.
- 30.
Created by Resolution 827 (1993) of the UN Security Council.
- 31.
Created by Resolution 955 (1994) of the UN Security Council.
- 32.
Created by Resolution 1664 (2006) of the UN Security Council.
- 33.
Created by the Rome Statute.
- 34.
Agreement between the United States and the government of Sierra Leon on the establishment of a Special Tribunal for Sierra Leon, from 16 October 2002, available at: http://www.sc-sl.org/, accessed on 9 February 2012.
- 35.
- 36.
Extraterritoriality was introduced in Chap. 1.
- 37.
Burke-White (2002), p. 975.
- 38.
Delmas-Marty (2005), p. 17.
- 39.
Teubner (2006), pp. 331–332.
- 40.
See Jessup (1957).
- 41.
Delmas-Marty (2010). The system of military tribunals begins with an accusation against a person subject to the Military Commissions Act of 2009 (which establishes its procedures). The new law adjusts the definition of people eligible to be tried by military tribunal. Besides the category of war prisoners defined in the terms of the Geneva Convention (1949, by the term “unprivileged belligerent”), it includes the category “unprivileged enemy belligerent”, which not only characterizes those who engage in or support hostility against the United States and its allies but also adds anyone who belonged to Al Qaeda. (§ 948a. (6) and (7) of the Military Commissions Act of 2009). Available: http://www.defense.gov/news/2009%20MCA%20Pub%20%20Law%20111-84.pdf.
- 42.
Delmas-Marty (2010), pp. 68–72.
- 43.
In the original, more complete form, “What is meant by ‘national security’ is a question of construction and therefore a question of law within the jurisdiction of the Commission, subject to appeal. But there is no difficulty about what ‘national security’ means. It is the security of the United Kingdom and its people. On the other hand, the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.” Vote of Lord Hoffmann in the Chamber of Lords, Case of Secretary of State for the Home Department v. Rehman, from 11 October 2001, available at http://www.públications.parliament.uk/pa/ld200102/ldjudgmt/jd011011/rehman-2.htm, Accessed on 7 May 2012. See also Benvenisti (2007).
- 44.
This example serves as inspiration for the Supreme Court of Israel, in the verdict of 12 December 2006. See High Court of Israel 769/02, The Public Committee against Torture in Israel v. The Government of Israel, verdict 12 de December 2006. See also Delmas-Marty (2007), p. 22.
- 45.
Benvenisti (2007). Available at SSRN: http://ssrn.com/abstract=965638, pp. 4–5.
- 46.
Some examples are (a) Hong Kong, Leung Kwok Hung v. HKSAR (Hong Kong Court of First Instance HCAL 107/2005, Decision from 9 February 2006) (Hong Kong Unreported Judgments, available on Lexis como [2006] HKCU 230); the decision questioned whether legislation that authorized electronic surveillance, such as telephone interception, could be carried out by the executive, without judicial authorization and a violation of the right to privacy; (b) New Zealand, Zaoui v. Attorney-General (No 2) [2006] 1 NZLR 289, § 93, about the possibility of extradition in cases where torture is likely,(“[T]he Minister, in deciding whether to certify under s 72 of the Immigration Act 1987 that the continued presence of a person constitutes a threat to national security, and members of the Executive Council, in deciding whether to advise the Governor-General to order deportation under s 72, are not to so decide or advise if they are satisfied that there are substantial grounds for believing that, as a result of the deportation, the person would be in danger of being arbitrarily deprived of life or of being subjected to torture or to cruel, inhuman or degrading treatment or punishment”), cited by Benvenisti (2007) p. 9.
- 47.
Benvenisti (2007), pp. 11–12.
- 48.
- 49.
CIJ. Litigation between France v Rwanda on the extradition of Hissène Habré.
- 50.
Respectively, Supreme Court of the United States, Rasul v. Bush, 542 US 466 (2004); and Hamdi v. Rumsfeld, 542 US 507 (2004). See also http://docs.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2002cv01130/19153/153/0.pdf?1270179349, accessed on 22 February 2012.
- 51.
Berman (2004), p. 4.
- 52.
Supreme Court of the United States, Yaser Esam Hambdi and Esam Fouad Hamdi v. Donald H. Rumsfeld, Secretary of Defense (422 US 507), Decision from 28 June 2004.
- 53.
See Agamben (1998).
- 54.
Benvenisti (2007), p. 13. These cases must be developed based on other authors as well.
- 55.
- 56.
Benvenisti (2007), pp. 14–16. The German decision can be found at http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html.
- 57.
Security Council, Resolution 1718 (2006), on North Korea, and 1747 (2007), on Iran.
- 58.
- 59.
Delmas-Marty (2010), p. 22.
- 60.
The United States subjects members of its military to punishment for crimes committed in the course of service. However, the United States should publish these domestic procedures and results to establish its commitment to justice as a public fact.
- 61.
I had the opportunity to discuss this subject in a course led by high European magistrates, in UNITAR, in Geneva, in 2010. The principal argument against participation or punishment for crimes against humanity provoked in their territories and nonsubmission to the ICC was that these crimes would be punished in their territories. The function of the ICC is to fill gaps where grave crimes against humanity would otherwise go unpunished, which is the case more often in Africa than in Europe.
- 62.
ICTY. Milosevic Case. Trial Chamber. Decision on Preliminary Motions, from 8 November 2001. DM IV, p. 121. Verdict: http://www.icty.org/x/cases/dragomir_milosevic/acjug/en/091112.pdf; Trial: http://www.icty.org/x/cases/dragomir_milosevic/tjug/en/071212.pdf.
- 63.
UN doc. S/2004/616, Rétablissement de l’État de droit… rapport cité (DM IV, p. 144).
- 64.
Delmas-Marty (2007), p. 51.
- 65.
Onuma (2010), p. 220.
- 66.
Delmas-Marty (2007), pp. 13 and 15.
- 67.
Delmas-Marty (2007), p. 54.
- 68.
- 69.
Clearly, the most economically powerful countries may stay out of this process, with the example of China, which took years to join the WTO, or Russia, which is still not a member.
- 70.
Teubner (2012), p. 55.
- 71.
This can be seen in the translation of the name of the body to Portuguese: in Portugal, it was translated as Litigation Settlement Body; in France, as Différends; in the United States, Disputes; in Brazil, the less litigious word Controvérsias was used. Brazil was among the first countries to recognize the jurisprudence of this body, which was contested by legal theory and governmental institutions. Today, there is relative consensus on this issue.
- 72.
Varella (2009), pp. 5–21.
- 73.
DSB/WTO. United States—Law on compensation (Byrd amendment). Decision from 16 January 2003 (WT/DS/217).
- 74.
DSB/WTO. United States—subsidy for upland cotton. Decision from 3 May 2005 (WT/DS/267).
- 75.
Cf. Varella (2009), pp. 5–21.
- 76.
Perrone-Moisés (1999), pp. 179–196.
- 77.
Shelton (2003), pp. 12–14. The International Union for the Conservation of Nature, for example, prepared a preliminary version of the World Charter for Nature, which was sent by the UN General Assembly to member states for their comments and was later approved by the General Assembly.
- 78.
Calsing (2010).
- 79.
Wolfrum (1998), p. 49.
- 80.
- 81.
Among the different related themes, a recent work stands out: Pahuja (2011), pp. 119 and ff.
- 82.
Resolution 3.281, from 12 December 1974: Charter of economic rights and responsibilities of states—contains principles for a new international economic order and speaks to national sovereignty over natural resources. Texaco Calistic v. Government of Libya, 104 J.D.I 319 1977.
- 83.
Examples are the resolutions cited above about a New Global Economic Order. See Bedjaoui (1979).
- 84.
Sen (2000). The concept of development as increases in happiness is adopted by the same author beginning in 2004, in a number of works: Interview with A. Sen in Tokyo, 2005.
- 85.
Varella (2009).
- 86.
The following chapter discusses this topic further.
- 87.
See, for example, CITES or the Convention against whaling.
- 88.
See, for example, U.S. actions to protect dolphins and sea turtles in cases that were later questioned by the WTO. The United States published internal laws prohibiting the importation of tuna and shrimp, and derived products, when their capture might harm the protection of dolphins and sea turtles. The different laws led to a number of several lawsuits with GATT and the WTO. Although the measure was lauded by many environmentalists, the result was disfavorable to the United States in the case about dolphins but favorable in the third hearing of the shrimp case. DSB/WTO. United States—Prohibition of importation of certain shrimp and shrimp products (WT/DS58OSC/WTO). United States—Measures concerning the importation, marking, and sale of tune and tuna products (WT/DS/381).
- 89.
ICJ, Barcelona Traction, Decision from 5 February 1970, Cf. Turgis (2012).
- 90.
Teubner (1997), pp. 1–2.
- 91.
Goodman and Jinks (2004), Available at: http://ssrn.com/abstract=519565.
- 92.
In this sense, this means surpassing the domain reserved to states in the creation of international law and diversity of means and the identity of constructive purposes of a universal law of human rights. Cf. Cançado Trindade (1999), pp. 13–53.
- 93.
Teubner (2006), p. 327.
- 94.
A historical analysis proves the argument of several authors with regard to the superiority of European law over non-European laws. It is not a matter of denying such superiority. According to Koskenniemi, it would seem unnatural, or even aggressive, to apply European law in all its rigor to other states. Europeans would be responsible for educating and preparing other, less civilized nations for the adoption of a European international law. See Koskenniemi (2005), p. 147
- 95.
Supreme Court of Missouri. Ropper v. Simmons, appeal available on http://www.njdc.info/pdf/death_penalty/48%20nations.pdf; Supreme Court of the United States. McCarver v. Estado North Carolina. Available on http://www.internationaljusticeproject.org/pdfs/emccarver.pdf. Both accessed on 19 March 2012.
- 96.
- 97.
“There are nations that consider themselves infinitely more educated than us. For a long time the Chinese have called themselves the only wise and ingenious ones, proudly stating that Europeans have only one eye and that all other peoples are completely blind. One even encounters people who scorn the sciences we cultivate so carefully and that see them as a strange remedy we use to try to make up for our lack of knowledge” In: Pufendorf (1706),, p. 179. Also see Jouannet (2011), p. 101.
- 98.
Jouannet (2011), pp. 155–170.
- 99.
- 100.
Lafer (1999), pp. 441 and ff.
- 101.
Turgis (2012), p. 221.
- 102.
This final point is particularly controversial since it refers to the right to freedom of expression as relates to hate speech, permitted in the United States by the First Amendment but prohibited in the European Union and Brazil.
- 103.
Discussion with M. Delmas-Marty, in Washington, on 1 April 2012.
- 104.
Toufayan (2010), p. 17.
- 105.
Onuma (2010), pp. 220 and ff.
- 106.
Several authors present this critique. They view western legal culture, especially in academia, to be oriented by secular, positivist, northern countries, nonempirical, universalist with regard to moral values, and given to top-down application of values. Cf. Twining (2010), p. 508.
- 107.
Discussion with Onuma Y. in videoconference with doctoral students at Centro Universitário de Brasília, on 23 March 2012.
- 108.
Adopted by the General Assembly through Resolution 54/200, from 18 December 2002, in force as of 22 June 2006.
- 109.
Adopted by the General Assembly through Resolution 34/180, from 18 December 1979, in force as of 03 September 1981, whose additional procol, open to ratification through Resolution 54/4 from 6 October 1999, only went into effect on 22 December 2000.
- 110.
Adopted by the General Assembly through Resolution 44/25 from 20 November 1989, in force as of 2 September 1990. Additional procols went into effect respectively on 12 February 2002 and 18 January 2003.
- 111.
Adopted through Resolution 45/158, from 18 November 1990, in force on 1 July 2003.
- 112.
Adopted by the General Assembly through Resolution 51.106, de 13/12/2006, in effect as of 3 May 2008.
- 113.
Adopted through Resolution 61/177, 20 December 2006, in force as of 23 November 2010.
- 114.
ICJ. Lagrand litigation between the United States and Germany, decision from 27 June 2001. Avena litigation between the United States and Mexico, decision from 31 March 2004. Ahmadou Saio Diallo litigation, from Guinea and the Democratic Republic of Congo, Decision 24 May 2007. Opinion on the Legal Consequences of the construction of a wall in Palestinian territory, opinion 9 July 2004. Litigation on prosecutions initiated in France between Congo and France; case closed at the request of the Congo, 17 November 2010. Dispute between Ecuador and Colombia, on the use of herbicides (ongoing); Litigation between Georgia and Russia on Racial Discrimination (ongoing), dispute between France and Senegal on the obligation to extradite the risk of torture against Hissène Habré, still in progress.
- 115.
CADH. Case of Michelot Yogogombaye v. Senegal. Decision from 15 December 2009.
- 116.
Turgis (2012), pp. 39–42.
- 117.
Peters (2006), pp. 579–610.
- 118.
Teubner (2012), p. 138.
- 119.
Goodman and Jinks (2004), pp. 1–55.
- 120.
Van de Kerchove and Ost (1994), pp. 131–132. A citação de Ost é inspiradora: “in which there would be no convergence among the moral, legal, and political orders. In short, in either of these societies law would no longer have any place: in the one case, the complete overlap of ethics by politics would mean the disappearance of State and law, as in the dream of a communist society totally lacking in alienation, while, in the other hypothesis, anarchy would obviously be accompanied by the most complete anomy. It therefore seems that, for the same reasons, the autonomy and specificity of a legal system in relation to other normative systems-such as ethical, political, or religious systems-should be preserved, even though we possess good reasons to think that they are only partial and precarious.”
- 121.
Goodman and Jinks (2004), p. 31.
- 122.
E.g., lex mercatoria, lex eletronica, lex desportiva etc. See Teubner (2012), p. 127.
- 123.
- 124.
Parties to the suit were the South African Association of Pharmaceutical Producers, Alcon Laboratories, Bayer, Bayer Ag, Bristol-Myers Squibb, Bristol-Myers Squibb Company, Byk Madaus, Ely Lilly, Eli Lilly And Company, Glaxo Welcome, Hoechst Marion Roussel, Ingelheim Pharmaceuticals, Janssen-Cilag Pharmaceutica, Knoll Pharmaceuticals South Africa, Lundbeck South Africa, Merck MSD, Novartis, Novo Nordisk, Pharmacia & Upjohn, Rhone-Poulenc, Rorer, Roche Products, Schering ScheringPlough, Scientific Pharmaceuticals, Smithkline Beecham Pharmaceuticals, Universal Pharmaceuticals, Wyeth, Xixia Pharmaceuticals, Zeneca, Boehringer-Ingelheim International Gmbh, Boehringer-Ingelheim Kg, Dr. Karl Thomae Gmbh, Hoffmann-La Roche Ag, Merck Kgaa, Merck & Co, Rhone-Poulenc Rorer S. A., Smithkline Beecham Plc and Oliver Cornish.
- 125.
- 126.
Nigeria Court of Appeals. Case Muojekwu v. Ejikeme, Decision from 09.12.1999, Supreme Cort of Índia, Case Vishaka and others v. State of Rajasthan & Others, Decision of 13.08.1997. Nigerian decisions available at http://www.equalrightstrust.org/ertdocumentbank/Mojekwu%20&%20others%20v%20Ejikeme%20&%20others%20_2000_%205%20NWLR%20402.pdf; Índia: http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20Vishaka_edited.pdf. These cases are discussed by Bahdi (2001), p. 56.
- 127.
Guidelines and norms laid down by the honorable Supreme Court in Vishaka & ors. v. State of Rajasthan & ors (JT 1997 (7) SC 384).
- 128.
See recent protests against Nike, Apple, Walmart, Total, etc.
- 129.
Chesterman (2008).
- 130.
There was an attempt to include the possibility of jurisdiction to the International Criminal Court against legal persons who committed serious human rights violations. The text included the investigation and punishment of entities “when crimes were committed in the name of such persons or their representatives or agencies” but was removed before the final version. Various treaties, however, are moving toward imposing on states a duty to promote human rights, sanctioning organizations that commit violations without specifying for certain whether these violations occurred within or outside a state’s jurisdiction. Thus, the International Convention against violations of all forms of Racial Discrimination, the Convention against Torture, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child support action against private actors that commit violations. The International Convention against Violations of All Forms of Racial Discrimination (art. 2 d), the Convention against Torture (Article 4), the Convention on the Elimination of All Forms of Discrimination against Women (art. 2, and ), the Convention on the rights of the Child (art. 2 (2), 3 (3) and 19 (1) provide for measures against private actors who commit violations. Cf. De Schutter (2004), pp. 6–7.
- 131.
Teubner (2006), pp. 327–330.
- 132.
Ramos makes an interesting analogy, saying that human rights arise through natural childbirth, arising not only from social changes but also through “cesarean section”—when they come from international courts of human rights. See the reference work: Ramos (2005), p. 11.
- 133.
In Brazil, the ratification of the Statute of the Inter-American Court of Human Rights took place in 1992 only after the process of democratization.
- 134.
The African Court of Human Rights currently has 53 members (March 2012).
- 135.
CJI, La Grand Case, (Germany v. United States of América). Available at http://www.icj-cij.org/docket/files/104/8552.pdf#view=FitH&pagemode=none&search=%22lagrand%22, accessed on 03.12.2012.
- 136.
Menezes (2011), p. 282.
- 137.
Casella (2010), pp. 176–177.
- 138.
Simma (2009), p. 290.
- 139.
Delmas-Marty (2005), p. 216.
- 140.
www.african-court.org, accessed on 10 April 2012.
- 141.
EDHC. McCann and others v. United Kingdom, from 27 September 1995.
- 142.
ECHR. McKerr v. Reino-Unido, from 4 May 2001.
- 143.
ECHR. Chipre v. Turquia, from 10 May 2001.
- 144.
ECHR. Issaïeva, Youssoupova and Bazaïeva v. Russia and Issaïeva and outros v. Russia, from 24 February 2005.
- 145.
ECHR. Taïs v. France, from 1 June 2006.
- 146.
Turgis (2012), p. 285.
- 147.
Another innovation of human rights courts is to facilitate access for individuals, who may directly or indirectly sue states. Private persons can sue states in international arbitrations; in general, these are companies that sue in courts of investments, such as the World Bank’s ICSID, not individuals. The logic of this particular branch of law is changing the contours of international law by allowing better access of individuals to the system. There is no uniformity on this point: in the ECHR, individuals may go directly to court and sue states; however, in the Inter-American Court of Human Rights, individuals are not considered persons able to file suit. The complaints brought by individuals are first analyzed by the Commission on Human Rights; then, if the commission finds that there was a serious violation of human rights and there is no settlement between the parties, it will file the suit in the Court against the state.
- 148.
The court’s basis was art. 29, d, of the American Convention on Human Rights, on rules of interpretation, which provides that “nothing in this Convention shall be interpreted as … (d) eliminating or limiting the effects they can have the American Declaration of Rights and Duties of Man and all other international acts of the same nature.” See IACHR. Advisory Opinion OC-10/89. IACHR. Blake v. Guatemala. Decision from 2 July 1996, preliminary exceptions, paragraph 36. See also Turgis (2012), pp. 285ff and pp. 388ff.
- 149.
IACHR. ALoeboetoe and others v. Suriname. Decision from 10 September 1993, paragraph 57.
- 150.
IACHR. James Terry Roach and Jay Pinkerton v. United States, paragraph 60.
- 151.
González-Salzberg (2010).
- 152.
The numbers in the Inter-American system are much lower than in the European system. Although it receives approximately 7,500 notifications of violations, the Inter-American Commission on Human Rights, by 2011, its most productive year, had sent only 23 cases to the IACHR. Although many are discarded in the admissibility analysis, there is a clear mismatch between the expectations placed on the system and the system’s responsiveness. The average duration of internal procedures, for example, varies between five and ten years, in part due to the lack of staff and in part due to organizational problems. Talks given by K. Quintana and D. Cerqueira, lawyers of the Commission, Commission on Human Rights, May 2012.
- 153.
As discussed in Chap. 3, on the Decision of the Constitutional Court of Spain, 31 January 2004.
- 154.
The IACHR based itself on the ECHR to establish its own IACHR precept. Vivana Gallardo and others. 13 November 1981, decision based on ECHR. Frome Wilde, Ooms, and Versyp. Then, in the case Akdivar v. Turkey, decision from 16 September 1996, the ECHR based its decision on the position of the IACHR to assert that administrative practices could lead to the exhaustion of domestic remedies. See Turgis (2012), p. 483.
- 155.
Neves (2009), p. 74.
- 156.
Ramos (2005), pp. 110 and ff.
- 157.
Koskenniemi (2005), pp. 38 and 43.
- 158.
- 159.
Jennings (1992). Similarly, Cogan cites different manifestations of international judges, as Judge B. Simma, International Court of Justice: “‘inappropriete self-restraint’ and the ‘unnecessarily cautious way[s] of his colleagues (Oil Platforms (Iran v.U.S.), 2003 I.C.J. 161, 327 (nov. 6) (separate opinion of Judge Simma); Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J. Lexis 7 (dec. 19) (separate opinion of Judge Simma) … and Judge ad hoc Shearer argued in an opinion that it was for the ITLOS to strike ‘[a] new ‘balance’ in the law since ‘circumstances have now changed’, (The “Volga” Case (n. 11) (Russ. v. Austl.), 42 I.L.M. 159, 196 (Int’l Trib. L. of the Sea 2002) (dissenting opinion of Judge ad hoc Shearer), available at http://www.itlos.org/start2_en.html)… International judges are also believers in the power of international law and adjudication. The courts through their decisions can, some judges claim, “secur[e] the promotion of international peace and security and the development of friendly relations between States.’ (Arbitral Award of 31 july 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J. 53, 121 (nov. 12) (joint dissenting opinion of Judges Aguilar Mawdsley and Ranjeva)”. See Cogan (2008), pp. 435–436; Helfer and Slaughter (2005), p. 39.
- 160.
ECHR, Schalk and Kopf v. Austria, de 24 June 2010. In the words of the Court, “Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State.” Para 61.
- 161.
ECHR, Campbell and Cosans v. United Kingdom, decision from 25 February 1982, Cf. Delmas-Marty (2003) pp. 130 and ff.
- 162.
ECHR. Pretty v. UK, Decision from 29 July 2002.
- 163.
ECHR, McCANN et al. v. United Kingdom, Decision from 27 September 1995.
- 164.
ECHR, Open Door v. Ireland, Decision from October 29th 1992. All cases listed by Delmas-Marty (2003), p. 131, but with changes on some dates.
- 165.
Interviews with Daniel Lopes Cerqueira, Mario Lopez, lawyers with the IACHR, and Francisco Quintana, Director of the Center of Justice and International Law, in July 2012 and August 2013. The CEJIL filed nearly 50 % of the lawsuits decided by the IACRH.
- 166.
IACHR, Escher and others v. Brasil. Sentencing on 6 July 2009. (Preliminary exceptions, merit, reparations and legal costs). Available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_200_por.pdf Accessed on 13 March 2012.
- 167.
Ximenes Lopes case, IACHR. Ximenes Lopes v. Brasil. Sentencing from 4 July 2006. (Merit, reparations and legal costs). Available at http://www.corteidh.or.cr/docs/casos/articulos/seriec_149_por.pdf. Accessed on 13 March 2012.
- 168.
Petersmann (2008), p. 777.
- 169.
Goodman and Jinks (2004), pp. 28–29.
- 170.
Goodman and Jinks (2004), p. 35.
- 171.
Petersmann (2008), p. 777.
- 172.
Bahdi (2001), p. 29.
- 173.
Several texts point in this direction, including Declaration of the UN General Assembly of 08 March 2005; the UNESCO Declaration, 1997 and 2005, and its report from 2009; WHO Resolution 1998 and Regional declarations of the African Union (1996), and Europe, with the European Union Charter of 2000, the Oviedo Convention and its Additional Protocol of 1997.
- 174.
Delmas-Marty (2005), pp. 53–62.
- 175.
Expression of G. Diniz, in a doctoral thesis with the same title, at the University Center of Brasilia. According to B. Mathieu, the texts on bioethics and the hesitant word of judges … great fathers instituted in the service of interpretation of sacred texts relativize the prohibitions and develop exemptions for the international protection of human rights. "La bioéthique ou comment déroger au droit commun des droits de l’homme" In: Maljean-Dubois (2006); Mathieu (2005), p. 85.
- 176.
Goodman and Jinks (2004), pp. 56–57.
- 177.
Teubner (2012), p. 31.
- 178.
Teubner (2006), pp. 28–32 and 36.
- 179.
Teubner’s reference is interesting because he states that Luhmann, on this point, begins to sound like some rival theorists, such as Foucault, in his analysis of disciplinary power, the critique of the political exclusion of Agamben, Lyotard’s theory of closed discourse, and Derrida’s deconstruction of justice, in Teubner (2006), p. 333 and Teubner (2006), pp. 6–8.
- 180.
Teubner (2006), p. 6–8.
- 181.
Derrida (1989–1990), p. 972.
References
Agamben G (1998) Homo sacer. Poder soberano e vida nua. Presença, Lisboa
Bahdi R (2001) Globalization of judgement: transjudicialism, international human rights law and commonwealth courts. A thesis submitted in conformity with the requirements for degree of LL.M. Graduate Departament of Law, University of Toronto
Bedjaoui M (1979) Pour un nouvel ordre économique international. UNESCO, Paris
Benvenisti E (2007) United we stand: national courts reviewing counterterrorism measures. In: Bianchi A, Keller A (orgs) Democracy, séparations of powers and the fights against terrorism. Available at SSRN: http://ssrn.com/abstract=965638
Berman PS (2004) Judges as cosmopolitan transnational actors. Articles and working papers, paper 38, University of Connecticut School of Law
Bradford A, Posner E (2010) Universal exceptionalism in international law. Public Law and Legal Theory Working Paper, n. 290, The Law School, The University of Chicago. http://ssrn.com/abstract=1551355
Brunnee J, Toope SJ (2010) Legitimacy and legality in international law: an interactional account. CUP, Cambridge
Burke-White W (2002) A community of courts: toward a system of international criminal law enforcement. Mich J Int Law 24(1):2–101
Burke-White W (2004) International legal pluralism. Mich J Int Law 25:963–979
Calsing R (2010) Les contrats internationaux de mise en oeuvre du droit international de l’environnement. Les cas particulier du changement climatique. Editions Universitaires Européenne, Sarrebruck
Cançado Trindade AA (1999) O legado da Declaração Universal e o futuro da proteção internacional dos direitos humanos. In: Amaral Junior AA, Perrone-Moisés C (eds) O cinqüentenário da Declaração Universal dos Direitos do Homem. EdUSP, São Paulo, pp 13–53
Casella PB (2010) Manual de direito internacional público, 18th edn. Saraiva, São Paulo
Cassese S (2005) The globalization of law. Int Law Polit 37:973–993
Chesterman S (2008) To turn to ethics: disinvestment from multinational corporations for human rights violations – the case of Norway’s Sovereign Wealth Fund. New York School of Law, Public Law & Legal Theory Research Papers Series, Working Paper, n. 08-25. http://ssrn.com/abstract=1082685. Accessed 23 Feb 2012
Cogan JK (2008) Competition and control in international adjudication. Va J Int Law 48(2):412–449
De Schutter O (2004) The accountability of multinationals for human rights violations. In: European law. Center for Human Rights and Global Justice Working paper, 2004/1
Delmas-Marty M (2003) Les forces imaginantes du droit, v. I: Le relatif et l’universel. Seuil, Paris
Delmas-Marty M (2005) Les forces imaginantes du droit, v. II: Le pluralisme ordonné. Seuil, Paris
Delmas-Marty M (2007) Les forces imaginantes du droit, v. III: La refondation des pouvoirs. Seuil, Paris
Delmas-Marty M (2010) Les forces imaginantes du droit, v. IV: Vers une communauté de valeurs? Seuil, Paris
Derrida J (1989–1990) La force de loi: le “fondement mystique de l’autorité”. Cardozo Law Rev 11(920):920–1045
Jennings R (1992) The role of international court of justice in the development of international environmental protection law. Rev Eur Community Int Environ Law 1(3):240–242
González-Salzberg DA (2010) La effectividad del sistema interamericano de derechos humanos: un estudio sobre el cumprimiento de las sentencias de la Corte Interamericana de Derechos Humanos por los Estados miembros. In: International Law: Revista Colombiana de Derecho Internacional, n. 16, ene./jun. 2010. http://www.scielo.org.co/scielo.php?script=sci_arttext&pid=S169281562010000100005&lng=es&nrm=iso. Accessed 02 Apr 2012
Goodman R, Jinks D (2004) How to inflence States: Socialization and International Human Rights Law. Duke Law J 54:1–55, http://ssrn.com/abstract=519565
Habermas J (2003) Era das transições. Tempo Brasileiro, Rio de Janeiro
Helfer LR, Slaughter A-M (2005) Why States create international tribunals: a response to professors Posner and Yoo. Calif Law Rev 93:3–30
Hobsbawn EJ (1994) A era dos extremos, O breve século XX. Companhia das Letras, São Paulo
Huntington S (1997) Choque de civilizações. Objetiva, Rio de Janeiro
Imperiali C (1998) L’effectivité du droit international de l’environnement. Contrôle de la mis en oeuvre des conventions internationales, Coopération et développement. Economica, Paris
Jessup PC (1957) Transnational law. Yale University, New Haven
Jouannet E (2011) Le droit international liberal-providence. Une histoire du droit international. Bruylant, Bruxelles
Kelsen H (1944) Peace through law. The University of North Carolina, Chapel Hill
Van de Kerchove M, Ost F (1994) The legal order between order and disorder. Clarendon University Press, Clarendon
Van de Kerchove M, Ost F (1992) Le droit ou les paradoxes du jeu. PUF, Paris
Kiss A (1991) Environnement et développement ou environnement et survie? J Droit Int 118(2):263–288
Koh HH (2004) Jefferson Memorial Lecture, transnational legal process after September 11th. Berk J Int Law 22:337–354
Koskenniemi M (2005) From apology to utopia. The structure of international legal argument, reissue with a new epilogue. Cambridge University, Cambridge
Lafer C (1999) Resistência e realizabilidade da tutela dos direitos humanos no plano internacional no limiar do século XXI. In: Amaral Júnior AA, Perrone-Moisés C (eds) O cinquüentenário da Declaração Universal dos Direitos do Homem. EdUSP, São Paulo, p 441 e ss
Maljean-Dubois S (2006) Rélations entre normes techniques et normes juridiques: ilustrations à partir de l’exemple du commerce international des produits biotechnologiques. In: Brosset E, Truilhé-Marengo E (orgs) Les enjeux de la normalisation technique internationale, entre environnement, santé et commerce international. La Documentation Française, Paris
Mathieu B (2005) La Bioéthique, ou comment déroger au droit comme des droits de l’homme. In: Maljean-Dubois S (dir) La société internationale et les enjeux bioéthiques. Pedone, Paris
Menezes W (2011) A jurisdicionalização do direito internacional: conflitos de competência entre tribunais internacionais, sua prevenção e resolução. Tese apresentada à Faculdade de Direito da Universidade de São Paulo, como exigência parcial à obtenção do título de Livre-Docência, São Paulo
Neves M (2009) Transconstitucionalismo. Martins Fontes, São Paulo, p 87
Nussbaum A (1947) A concise history of the law of nations. MacMillan, New York
Onuma Y (2010) A transcivilizational perspective on international law, questioning prevalent cognitive frameworks in the emerging multi-polar and multi-civilization world of the twenty-firsty century. Recueil Cours de l’Acad Droit Int 342
Ost F, Van de Kerchove M (2002) De la pyramide au reseau. Pour une théorie dialectique du droit. Públications des Facultés Universitaires Saint-Louis, Boulevard du Jardin Botanique, Bruxelles
Pahuja S (2011) Decolonising international laz. Development, economic growth and the politics of universality. CUP, Cambridge
Paust JJ (2002) International law as law of the United States: trends and prospects. Chin J Int Law 1(2):615–646
Perrone-Moisés C (1999) Direitos humanos e desenvolvimento: a contribuição das Nações Unidas. In: Amaral Júnior AA, Perrone-Moisés C (eds) O cinqüentenário da Declaração Universal dos Direitos do Homem. EdUSP, São Paulo, pp 179–196
Peters A (2006) Compensatory constitutionalism: the function and potential of fundamental international norms and structures. Leiden J Int Law 19:579–610. Available at SSRN: http://ssrn.com/abstract=1564125
Petersmann E-U (2008) Human rights, international economic law and constitutional justice. Eur J Int Law 19(4):769–798
Pufendorf S (1706) Le droit de la nature et des gens ou système général des principes les plus importants de la moral, de la jurisprudence et de la politique. Traduit du latin par le Baron Jean de Barberac. Henri Schelte, Amsterdam
Ramos AC (2005) Teoria geral dos direitos humanos na ordem internacional. Renovar, Rio de Janeiro
Rigaux F (1986) Le juge, ministre du sens, in Justice et argumentation. Essais à la mémoire de Chaïm Perelman. Ed. de l’Université Libre de Bruxelles, Bruxelles
Rotberg RI (2004) When States fail: causes and consequences. Princeton University, Princeton
Schimitt C (2008) O conceito do político – Teoria do Partisan. Del Rey, Belo Horizonte
Sen A (2000) Desenvolvimento como liberdade. Companhia das Letras, Rio de Janeiro
Shah PZ (2012) My drone war in Foreign Policy, mar/abr 2012. Matéria também publicada no New York Times, em 13.05.2012. http://www.foreignpolicy.com/articles/2012/02/27/my_drone_war
Shelton D (2003) Commitment and compliance. The role of non-binding norms in the international system. OUP, Oxford
Simma B (2009) Universality of international law from the perspective of a practitioner. Eur J Int Law 20(2):265–297
Teubner G (ed) (1997) Global law without a state. Dartmouth, Hants
Teubner G (2012) Constitutional fragments. OUP, Oxford
Teubner G (2006) The anonymous matrix: human rights violations by ‘private’ transnational actors. Mod Law Rev 69(3):327–346
Toufayan M (2010) Identity, effectiveness, and newness in trasjudicialism’s coming age. Mich J Int Law 31:307–383
Truyol Serra A (1946) The principles of political and international law in the work of Francisco de Vitoria. Cultura Hispânica, Madrid
Turgis S (2012) Les intéractions entre les normes internationales relatives aux droits de la personne. Pedone, Paris
Twining W (2010) Normative and legal pluralism: a global perspective. Duke J Comp Int Law 20:473–517
Varella MD (2004a) Direito internacional econômico ambiental. Del Rey, Belo Horizonte
Varella MD (2004b) The WTO, intellectual property and AIDS. Case studies from Brazil and South Africa. World J Intellect Property Genebra 7(4):523–549
Varella MD (2009) Efetividade do Órgão de Solução de Controvérsias da Organização Mundial do Comércio: uma análise sobre os seus doze primeiros anos de existência e das propostas para seu aperfeiçoamento. Rev Brasil Polít Int 52(2):5–21
Verdross A (1927) Le fondement du droit international. Recueil Cours l’Acad Droit Int
Verdussen M (1999) L'origine et la légitimité du Conseil supérieur de la justice. In: Le Conseil supérieur de la justice, sous la dir. de Verdussen, Bruxelles, Bruylant
Viera GD (2012) La protéction des droits fondamentaux dans l’Union Européenne. Unité ou dualité? (Tese de Doutorado). Université de Paris I, Panthéon-Sorbonne
Wolfrum R (1998) Means of ensuring compliance with and enforcement of international environmental law. Recueil Cours de l’Acad Droit Int 272
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Varella, M.D. (2014). New Features of the Internationalized Legal System: Expansion, Consolidation, Plurality, and Effectiveness. In: Internationalization of Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54163-6_5
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