Time: 4:00 - 6:30pm
Venue: Room 313, Law Building, Queen Mary University of London, Mile End Road, London E1 4NS
The Centre for Law and Society in a Global Context (CLSGC) is hosting The Fourth Annual Scandinavian Legal Realism Seminar.
Chair: Professor Stuart Toddington (Huddersfield)
Astrid Kjeldgaard-Pedersen will present some of the core arguments of her book 'Personality and the Separation of Legal Orders - The Individual as the Ultimate Subject of International Law' (working title, forthcoming OUP, 2017):
This presentation builds on a study of the historic and current position of the individual in international law. The study shows that positive law developments since the 18th century consistently corroborate Hans Kelsen’s idea that the international legal personality (ILP) of any entity is solely contingent upon interpretation of international legal norms. However, very few contemporary scholars overtly subscribe to Kelsen’s conception of ILP even though they effectively support his idea that the international legal rights and obligations of non-state entities are exclusively a matter of interpretation of international law. Presumably, many disapprove of his ‘obsessive search for scientific method’ as Koskenniemi puts it in The Gentle Civilizer of Nations. Another possibility is that scholars believe Kelsen’s ideas about ILP to be inextricably linked to his highly controversial monistic construction of the relationship between international law and domestic law. Yet, as the presentation will demonstrate, the notion that the concept of ILP is inherently connected to the question of the distinction of international legal norms from domestic legal norms is nothing more than an idea originating from the orthodox positivist ‘states-only’ definition of ILP, which has been almost unanimously abandoned since the end World War II. A notable exception is Alf Ross, who in 1947 maintained that ‘[i]nternational law will exist as long as its subjects are the self-governing states and not individuals.’ In order to accommodate post-World War II reality within the orthodox ‘states-only’ framework, Ross designated legal norms directed at non-state entities as various genera of national law – as exemplified by his curious characterization of the European Commission of the Danube as ‘the organ of a special “River State”.’ It is difficult to find a contemporary international legal scholar who would admit to supporting Ross on this particular issue. Nevertheless, the presentation will show that the rationale underlying his argument still thrives. Remarkably, even 21st century scholars whose errand is to promote the ILP of individuals build their reasoning on the orthodox positivist link between the conception of ILP and separation of legal orders. Thereby, they end up partly endorsing the very theoretical position on ILP they set out to criticize. This point will be illustrated by examples from international constitutionalist scholarship. Finally, the presentation will argue that Kelsen’s conception of ILP is a result of the exclusion of non-legal elements from the objective ‘science of law’ in conjunction with the notion that all law by definition governs human behaviour. Kelsen does not – in contrast to the orthodox positivists – employ the concept of ILP as a means to distinguish between legal orders. He only discusses ILP in relation to the possible material content of a norm of international law. On this basis, it is submitted that Kelsen’s conception of ILP is not incompatible with the dualistic (or pluralistic) approach to the relationship between the international legal system and national legal systems, which is currently endorsed by most scholars as the better reflection of positive law.
Urszula Grabowska will talk about 'The reception of Alf Ross into Polish Legal Theory'.
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