Academic journal article Australian International Law Journal

Operating International Law in a Global Context: Presentation of a Three Steps Method

Academic journal article Australian International Law Journal

Operating International Law in a Global Context: Presentation of a Three Steps Method

Article excerpt

Abstract

The operation of international law, in the variety of global legal situations, has its own dynamism. It cannot result from the mere application of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. In a single situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in one or several spaces or on one or several levels, by one or by multiple actors. This distinctive dynamic, which the lawyer must be conscious of when passing from one context--national, international or European--to another, has an influence over the law, its uses and, sometimes, its content. This article is a general presentation of a three steps method: comparison, combination and hierarchization of the operations of the law in the national, international and European contexts.

I Introduction

In a globalised environment, the expression 'global legal pluralism' (3) refers to a particular form of legal pluralism brought about by the phenomenon of the globalisation of law and its different forms (transnationalisation, standardisation, fragmentation, regionalisation, etc.). Although this pluralism has not escaped from forms of domination, it describes the multiplication of the sites of the application of international law which appear outside of, or transcend, the strict state model.

International law does not only operate within a single sphere. It results from the particular activity of national, international and regional organisations, notably European, whether they have a state origin (United Nations (UN), World Trade Organisation (WTO), International Labour Organisation (ILO), World Health Organisation (WHO), World Intellectual Property Organisation (WIPO), European Union (EU), International Court of Justice (ICJ), Permanent Court of Arbitration (PCA), International Centre for the Settlement of Investment Disputes (ICSID), the European Court of Human Rights (ECtHR), etc.) or a private origin (non-governmental organisations, multinationals, professional associations, etc.). The national context, which also features forms of legal pluralism, has not disappeared. But it coexists with the legal methods and solutions applied in the international or European context. The process of operating international law in a context of global legal pluralism is distinctive. The law applied develops, in a variety of global legal situations, its own dynamism. It cannot result from the mere operation of a method or a legal solution at a given moment, in a predetermined space and on a predetermined level, by a duly identified actor. It must be grasped in one movement. For one situation, several laws must sometimes be mobilised, alternatively, cumulatively, at the same time or at different moments, in or on one or more spaces or levels, by one actor or by multiple actors.

When approaching the question of how to operate the law in the national, international and European context, the lawyer may choose to place him or herself prior to the application of international law to try to develop legal constructs that may allow them to face the difficulties raised by global legal pluralism. Legitimate and admissible as it may be, this approach is not the one that underpins this article. Two principal reasons motivated this choice. The first reason is particular to the phenomenon studied. The treatment by the lawyer of the, ever more frequent, situations in which several laws formulated in a national, international (UN, WTO, WIPO, ILO, WHO, ICJ, PCA, ICSID, International Criminal Court) or European (EU, ECHR) environment may be applied together to a given case, has developed considerably over the last thirty years. Without being entirely novel, this phenomenon has incontestably attained previously unequalled amplitude. Have we, as lawyers, fully grasped the importance of this development? …

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