JPIL Vol 2 Issue 1 2007 - Editorial

Editorial Introduction

 

Anthony Carty

 

It is an honour and a pleasure to be able to present the second selection of articles for the JPIL 2007.  These articles have been chosen on the basis of quality, rather than because they are related to a single theme.

The first article undertakes a critical analysis of the methodology of international legal scholars in relation to the development of customary international law. Approaches which remain within the boundaries of international legal scholarship tend to view the State as a unitary corporate entity and only analyse the external conduct of States in order to determine when custom becomes legally binding.  Chalen Westaby argues instead that it is necessary to undertake an interdisciplinary approach (especially using literary and historical materials) in order to pierce the corporate veil of the state. The State is then seen as an historical, cultural, interpretative community, where decisions are made through the dialectical discourse between the members of that community. Westaby thereby grounds the origin of a states commitment to a customary law rule much more convincingly.

The second article, exploring Derrida and international law, asks whether the distinction between international and domestic law is not structured like the metaphysical opposition of writing and speech? Veijo Heiskanen uses Derridas famous distinction between speech and writing to explore whether the distinction between international and domestic law is not a simple neutral opposition or distinction but a conceptual hierarchy in which the concept of domestic law represents the higher and the more developed form of law to which the concept of international law is subordinated?  In order to deconstruct this conceptual opposition  and in order to translate the problematic of deconstruction into the language of international law  could one not simply replace writing by international law and speech by domestic law in the writings of deconstruction? 

The third article is an exercise in the history of both legal and political philosophy applied to a most pressing actual concern. Petar Bojanic asks whether it is possible to explain terrorism by analyzing the relationship between the words terror and explosion (the phrase bomb attacks can be the explosion of an airplane as a bomb, as well as the explosion of a suicide bomber who activated a bomb on himself)? Perhaps this sort of definition of terrorism does not have to be narrow (Coady, Rodin) and can have certain advantages as opposed to other definitions?

The final article, by Paulo de Brito, asks whether there some core principles, which represent a reference for the whole international community, whose transgression could justify the use of force? If international legality is not reducible to mere positivity, this makes room to consider a possible role for natural law. Can humanitarian interventions be regarded as legal if their purpose is to promote justice for people outside of national boundaries? At a time when the legality of interventions in Nicaragura, Kosovo, and Iraq has often been questioned, it seems important to lay down new theoretical foundations for such debate.


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