A review of some of the legacies of Vitoria for international legal scholarship accompanies, in the first part, a retrospective gaze at the first third of the Twentieth century, in order to examine how the founder of the American Society of International Law, James Brown Scott, contributed to (re)establish Vitoria as the father of international law in the inter-war years. The second part provides a genealogy of the critical front of the Vitorian revival in international law today. Special attention is, then, paid to some of the intellectual building-blocks and programmatic tenets which have inspired a Third World Approaches to International Law (TWAIL) anti-imperial narrative of the international legal order along with a TWAIL’s re-interpretation and re-contextualisation of the works of the sixteenth century’s Prima professor of Sacred Theology at the University of Salamanca. The conclusion reflects on the lasting legacy of the Spanish Classics in the American tradition of international law.
The extremely diverse contributions present in the volume edited by Nicholas Tsagourias, Transnational Constitutionalism: International Law and European Perspectives (Cambridge: Cambridge University Press, 2007, pp. 377) are contextualized through an exploration of some of the different strands of international legal doctrine that have been making use of the constitutionalist vernacular in recent years. These strands include among others, the growth in European Union-related constitutionalist discourse and the emergence of a transnational comparative legal realm at the cross-roads of the European and the international spheres; the historical lineage and the contemporary appeal of the constitutional vernacular in the field of international organizations; and the phenomenon of the fragmentation of international law along with the upholding, in reaction to that fragmentation, of a hierarchy of international legal norms. It also includes an examination of the emergence of alternative vocabularies that sustain a “fragmented/societal” model of constitutionalism on the basis of systems-theory as well as an examination of a constitutionalist value ridden perspective of the international legal order that, in mirroring recent developments, attempts to “restate” a classic teleologically conceived narrative of progress without yet leaving the realm of positivism. This article, which confronts “in fine” the “international community school” with its critics, does not aim to provide a complete deconstructed genealogy of each converging strand of doctrine that one might locate behind the current appeal of constitutionalist talk at the dawn of a post-hegemonic era. Yet it is hoped that it might serve as a reminder of the multifaceted factors that lie behind the contemporary renewal of the international constitutionalist arena and, thus, help to strengthen the latter’s potential as a benchmark for diagnosing the legitimacy deficit(s) of international law.
The Democratic Republic of the Congo v Rwanda Judgement of 3rd February 2006 marked the first occasion in which the International Court of Justice expressly pronounced on the jus cogens character of a norm of international law. The Court did also expressly extend, for the first time, the scope of the principle of consensual jurisdiction to cover the relationship between peremptory norms of general international law and the establishment of the Court's jurisdiction. Against this backdrop, this piece revisits some of the main ICJ milestones regarding community interests in light of recent doctrine on the question of ius standi in disputes involving obligations erga omnes and jus cogens norms. It does so in order to examine the main alternatives put forward by the doctrine to circumvent the requirement of state consent for the protection of community interests by jurisdictional means at the international level.
On 29 April 2009 the Spanish National Court opened a cause against the "perpetrators, the instigators, the necessary collaborators and accomplices" of alleged tortures at the Guantanamo camp and other overseas detention facilities. Before examining how these and other causes currently opened in Spain under the principle of universal jurisdiction enshrined by Art. 23.4 of the Organic Law of the Judicial Branch (LOPJ) are likely to be affected by the legislative reform of that very provision approved by the Spanish Congress of Deputies on 25 June 2009, we will first examine the sinuous - and now dramatically indicative in retrospect - jurisprudential evolution of the treatment of the principle of universal justice by Spanish Courts since the Constitutional Court enshrined a doctrine of unconditional universal jurisdiction in its widely celebrated Guatemala Genocide case in June 2005. This is complemented by an overview of the cases that, jurisdictionally based on the principle of universal justice enshrined by Article 23 of the LOPJ, are still currently open (from e.g., Tibet to Rwanda or Gaza) before Spanish Courts. In addition, set against the background provided by the release of the four so-called "torture memos" by the Obama Administration in April 2009, there is a brief examination of the possibilities of jurisdictional prosecution of both the perpetrators and those who formulated the legal guidance authorizing the "enhanced interrogators techniques" in both the U.S. domestic law system and international legal jurisdictional settings, including at the ICJ level. Eventually, an examination of the hasty procedure through which the new relevant Spanish provision in this area has been adopted and the legal effects, with reference to cases currently opened before the Spanish courts, of the newly reformed article give place to a brief reflection on the prospects of international law in the age of an emerging new international judiciary in view of the structural deficit of mechanisms of participatory democracy on the domestic plane with relevance in the international realm as dramatically epitomized at this juncture by the Spanish legal system.