Forum 5: International Law Between Hope and Threat - Changing Perceptions

Chaired by Professor Christine Chinkin

After shedding the shackles of the Cold War’s containment policies, international law was free to serve as an instrument of change. But have social groups and political and judicial actors perceived international law any differently since the end of the Cold War? Have they used international law as a transformative force and, if so, how? Has this been a universal phenomenon or is it limited to certain regions or to certain sectors of international law? 

Rising Expectations on the Role of National Judges in the Promotion of Global Justice: An Appraisal

PROFESSOR CARLOS ESPÓSITO, Professor of Public International Law, Autónoma University de Madrid

Abstract: The end of the Cold War marks a new beginning for the judge as a main participant in the development and enforcement of international law. Not only have new institutional settings been created in the international realm so as to facilitate the involvement and contributions of international judges; in varied ways also the role of the national judge has been reinforced. Indeed, a significant post-Cold War development, spurred by globalization forces, is the great expectations that different actors and subjects have come to place on the national judges in fulfilling the promises that international courts and tribunals have not been able to meet in the promotion of global justice. Against this background, this paper will focus on how the rise of these expectations have come to be manifested in contemporary international law and practice, how the national judges have responded to these expectations, and what are some of the main challenges that national judges face as a result of this development.

Biography: Carlos Espósito is Professor of Public International Law at the Autónoma University of Madrid. He studied law at the University of Buenos Aires (1989), and received his doctorate in law from the Autónoma University of Madrid (1995). He has been Visiting Professor of Law at the University of California, Berkeley, Boalt Hall (1998), Visiting Fellow of the Lauterpacht Centre for International Law, University of Cambridge (2007), and Visiting Professor at Göttingen University (2010), among others. He served as Counsel and Deputy Head (2001-2004) of the International Law Department of the Spanish Ministry of Foreign Affairs, and was a Senior Researcher at the international relations think tank FRIDE (2004-2005). Founder of two legal journals, he is now the editor of a collection of books on international law and Member of the Board of Editors of the Journal of International Economic Law. His books in Spanish include The Advisory Jurisdiction of the ICJ (1996), The WTO and Private Persons (1999), State Immunity and Human Rights (2007), and the co-edited collection of essays on The Role of Courts in Transitional Justice: Voices from Latin America and Spain (2009, English version expected in 2011).

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Persisting and Developing between Hope and Threat: International Law during the past two Decades and Beyond

DR GEORG NOLTE, Professor of International Law, Humboldt University Berlin

Abstract:  I shall speak about international law resisting hopes and countering threats with respect to itself. While the nineties were predominately a period of hope and advancement, the first decade of the twenty-first century decade saw more threats and resistance to the further development of inter¬natio¬nal law. Regardless of one’s political preferences this period may be interpreted as a sign that inter¬national law is and has been rather resilient towards outside pressures. But this is not enough. The next decade may neither have the hopes of the nineties in store, nor the threats of the past decade. It might raise a question which a stocktaking of the past two decades would not help to resolve: how to preserve international law’s relevance in the face of a lack of comparable grand trends, hopes or threats. Much may depend on how states, institutions, and the law cope below the level of formal processes of change.

Biography: Georg Nolte is Professor of International Law at Humboldt University Berlin since 2008 and a Member of the International Law Commission since 2007. He was a Member of the European Commission for Democracy through Law (Venice Commission) from 2000 to 2007. From 2004 to 2008 he taught at the University of Munich and from 1999 to 2004 at the University of Göttingen. He worked at the Max Planck Institute for International Law from 1987 to 1999 where he wrote his docto¬ral thesis and his Habilitation (“Intervention upon Invitation”). He studied law, political science and philosophy in Berlin and Geneva.

Nolte - Draft ESIL Paper

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The Transformative Potential and Limits of International Law: Developing Countries in the Climate Change Regime

PROFESSOR LAVANYA  RAJAMANI, Professor of International Law, Centre for Policy Research, New Delhi

Abstract: A central challenge of international law, identified by TWAIL scholars, is whether current trends formalize and reinforce a ‘hegemonic international law’ or whether there is potential to transform international law into a counter-hegemonic tool. I propose to draw on examples from the climate change regime to examine how developing countries (and coalitions of developing countries within that general category) have sought to use international law as an explicit counter-hegemonic tool of resistance, and to transform international law in this area. If and where they have been successful, I will examine the hurdles developing countries have faced in retaining their preferred transformative interpretations of international law. Much of this is illustrated by the ongoing battle over the future and fate of the Kyoto Protocol, on which I will focus.

Biography: Lavanya Rajamani is a Professor at the Centre for Policy Research, New Delhi. She was previously a University Lecturer in Environmental Law, and Fellow & Director of Studies in Law at Queens’ College, Cambridge. She researches, writes and advises on international environmental law, in particular international climate change law and policy. Rajamani is author of an OUP Monograph titled Differential Treatment in International Environmental Law, and numerous articles in peer-reviewed journals. She is the Rapporteur for the International Law Association’s Committee on Legal Principles Relating to Climate Change. She has worked on and followed the climate negotiations since 1997, in different capacities, including as a negotiator for the Alliance of Small Island States, and as legal advisor to the Chair of the Ad Hoc Working Group on Long term Cooperative Action under the FCCC in the lead up to the Copenhagen Climate Conference.

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