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The Individual in International Law – History and Theory

Head of Section:

Anne Peters

About the Project:

The interrelationship between international law and the individual has been the subject of a great and growing interest by scholars in recent years. In many or most of international law’s subfields and specialisms, the appropriate relationship between in the interests of individuals and those of other actors is the subject of important debates. Moreover, a myriad of shifts (of greater and lesser magnitude) across the corpus of international law show that the international legal system is more closely aligned to the interests of the individual than at any time in the last century. These changes have been described as a humanisation of international law.

Despite an impressive (and growing) scholarship on this topic, a number of questions are yet to be addressed. Among these, it is noticeable that the analysis conducted of the individual’s position remains, in the main, an examination of the positive law. There is, therefore, a notable gap in the existing scholarship on this subject, in particular regarding questions from the perspectives of history and theory. Moreover, the lack of an adequate historical and theoretical grounding for this area of law is does not present obstacles only to scholarship in this field:  it impedes the understanding of positive law more widely, both in scholarship and in the practice of law.

The impediment posed by the lack of a rigorous historical and theoretical grounding can be seen, for example, in the study of legal history, and the contextualised study of present day law. Absent a longitudinal view of legal development, it is more difficult to assess the scale and significance of the positive law changes that have been identified. It is an open question whether these represent a “next step” in the development of an international legal system that remains grounded in a set of premises stable through time, or whether this is a moment of decisive break with international law as it has been practiced and interpreted in the past. Similarly, it is unclear whether the shift towards human and human community interests is novel, or is a return to an earlier system logic which applied prior to the positivist turn of the long 19th and 20th centuries.

An equally pressing set of questions apply to the theoretical issues. Theoretical inquiry into the relationship between individuals, States and international law promises insights both into the ‘humanisation’ scholarship, and into the adequacy of the theoretical paradigms ranging from iusnaturalism through feminism to neomarxism. With regard to the humanisation thesis, exploration of the boundaries of legally sound arguments within the system of international law as constructed in the paradigm can be used to “test” or confirm the insights that have been generated by the positive law analysis. The inverse is also true: asking under which theoretical paradigms the changes in positive law that have been observed could be explained and accommodated (for example as a manifestation of an anthropolgical constante, or of a gendered society, or as a capitalist plot) offers an opportunity to assess the coherence of the theoretical positions involved, as well as their continued relevance in this era of system change.

This project will address these shortcomings through an intensive historical and theoretical examination of the humanisation of international law.  International law will benefit in two primary regards. First, a deepened historical and theoretical debate on the position of the individual in international law promises fascinating insights, and may provoke a new and exciting debate on these topics within legal scholarship more broadly.  This debate is likely to touch upon a number of the most pressing problems of international law at present:  human rights, international humanitarian law, environmental law, international criminal law, international jurisdiction, questions of sovereignty, and the appropriate status to be given to non-State and non-human actors (such as corporations, terror groups, and independence movements).  Secondly, the insights of the project will enable an assessment of the extent, scale, and significance of the positive law changes that have to date been identified in the academic literature.

In the first phase of the project, we are organising a workshop that will bring together leading academics from the various fields concerned. That workshop will take place in June 2020. Thereafter, the contributions from the workshop will be published as a collected volume, edited by the project team.

Staff Member(s):

Tom Sparks

Workshops and Events

International Authors' Workshop, 25-26 June 2020

In June 2020, Anne Peters and Tom Sparks will convene a workshop at Berlin's Harnack-Haus, in order to discuss the draft contributions to our edited volume, The Individual in International Law - History and Theory. The workshop will take place on the 25th and 26th June, 2020.

 

We are currently seeking applications from scholars to take part in the workshop as engaged listeners. Those wishing to do so are warmly invited so submit a letter of motivation (max. 400 words) together with an up-to-date CV to by 30th November 2019. We particularly welcome applications from early-career scholars, and from scholars working at institutions in the global south. Please consult the Call for Engaged Listeners (below) for more information.

Call for Engaged Listeners

Call for Engaged Listeners - Individual in Intl Law (PDF, 229.4 KB)

Funding

Fritz Thyssen Foundation

We are grateful to the Fritz Thyssen Foundation for their generous support of our June 2020 workshop.

Further Link

Of possible further interest the project: The Individual in International Law