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HeinOnline -- 46 Harv. Int’l L.J. 459 2005
HeinOnline -- 46 Harv. Int’l L.J. 460 2005
HeinOnline -- 46 Harv. Int’l L.J. 461 2005
HeinOnline -- 46 Harv. Int’l L.J. 462 2005
HeinOnline -- 46 Harv. Int’l L.J. 463 2005
HeinOnline -- 46 Harv. Int’l L.J. 464 2005
HeinOnline -- 46 Harv. Int’l L.J. 465 2005
HeinOnline -- 46 Harv. Int’l L.J. 466 2005
HeinOnline -- 46 Harv. Int’l L.J. 467 2005
HeinOnline -- 46 Harv. Int’l L.J. 468 2005
HeinOnline -- 46 Harv. Int’l L.J. 469 2005
HeinOnline -- 46 Harv. Int’l L.J. 470 2005
... Consequently, the peoples of the Global South have found themselves subjected to this process of exclusion, being different from the European and, at the same time, compelled to become equals. This dynamic encompasses both the 'liberating promise' and the 'imperialist threat' of universalist claims (Pahuja 2005). ...
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The present work aims to analyse the capability approach, in the terms established by Amartya Sen and Martha Nussbaum, and its consequences in studying poverty. The theoretical assumptions articulated by these authors not only show the complexity of that multidimensional phenomenon but guide the contours of what should be considered essential for a dignified life. Thus, the capability approach presents itself as the basis of a global understanding of justice. However, such a generalising claim invariably ignores nuances and particularities not properly valued a priori. In this sense, it is necessary to reveal neglected structural aspects that are decisive for the perpetuation of poverty and inequalities in those places where they are more forceful. To this end, peripheral perspectives will be highlighted as an important tool in identifying the limits of the capability approach as the basis of a conception of global justice.
... Scholars have consistently pondered about the crisis and consequent future of the LIO, as other international stakeholders challenge the current hegemon (see Ikenberry 2018; Kochi 2020). 6 International Law, as a discipline and discourse of crisis (Charlesworth 2002;d'Aspremont 2022), is constantly under scrutiny for its role as an empire-serving, neocolonial-facilitating "cloak of legality" (Pahuja 2005) that continues to promote Western rule structure and reform in the colonies and the Global South before and after formal colonialism (Koskenniemi 2016). Furthermore, the moral rhetoric of liberal pragmatism masks deeper structural issues contained within the international legal framework as a distraction from the inadequacy of global liberal politics and law to address the root causes of global social conflict and widespread problems of social injustice and inequality (Kochi 2020 (2010) observes, although the American liberal hegemonic order is in crisis, it appears to be a crisis of the American governance of liberal order and not of liberal order itself. ...
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Throughout its existence, the International Criminal Court encountered numerous challenges, leading many to perceive it as in a state of perpetual crisis. This article explores the ICC’s recurring crises and its difficulty in responding to them. It questions how they reflect broader issues and argues that these challenges stem from the international legal system’s inherent features. The article has three sections: it first examines the ICC’s ‘crises’; then inquires the modern liberal international project’s implications for the ICC; and proposes a reading of the ICC’s situation as a dual crisis which is an inevitable result of international legal argumentation’s structure.
... This narrative of dispossession, discussed in the first paper, established systemic inequalities that persist in contemporary governance systems. Today, migration policies often reflect similar biases, portraying migrants as undeserving of full integration or citizenship while maintaining the dominance of the self in territorial governance (Pahuja, 2005) (Gümplová, 2021). ...
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upon the arguments introduced in Paper One: The Intersection of Environmental Justice and Traditional Land Tenure Systems: Shaping Belonging Beyond a Nation, this paper continues exploring land governance through principles of equity and sustainability. Paper One established how environmental justice (EJ) and traditional land tenure systems can redefine property rights, advocating for equitable access to land and resources for Afrodescendant, Indigenous, and migrant communities, whose rights have historically been marginalized under dominant property regimes. Expanding on these foundations, this paper examines the role of migration and displacement in reshaping territorial rights, belonging, and land governance. Migration has been a defining force throughout human history, reshaping economies, cultures, and territorial dynamics. From European colonization of the Americas, Africa, Asia, and Oceania during the colonial period to contemporary movements of people fleeing crises or seeking better opportunities, migration has persistently transformed societal landscapes. Despite its transformative impact, migration is often portrayed through polarized and racialized narratives. Historically, European migrations were celebrated as drivers of progress and development, while contemporary South-to-North migrations are frequently framed as crises. These narratives expose deep-seated geopolitical and racial biases that overshadow migrants' contributions and reinforce systemic inequities. This paper posits that integrating environmental and territorial justice principles into governance frameworks can address these inequities by transforming property systems to include migrant, native, and displaced communities. Indigenous perspectives and collective rights are central to this analysis, demonstrating how migration simultaneously disrupts and enriches territorial identities. This duality challenges exclusionary power structures and creates opportunities for shared governance and collaboration.
... MANTELLI e BADIN 2018, p. 15). 3 Dentre os representantes deste movimento, destaca-se Sundhya Pahuja. Em seu artigo "The Postcoloniality of International Law", Pahuja (2005) denuncia a universalização do direito internacional (ocidental em suas raízes) através do processo de descolonização, quando os Estados recém-independentes, ao passarem a fazer parte do sistema internacional, e por conseguinte de seu sistema normativo, vincularam-se a normas construídas por e para os Estados europeus. Ainda, Pahuja (2005, p. 463-464) expõe que o direito internacional serviu para estabelecer as condições jurídicas através das quais se daria o processo de descolonização: a única maneira atingir a independência seria através do exercício do direito à autodeterminação enquanto um Estado-Nação e respeitando a manutenção das fronteiras desenhadas pelos colonizadores sob o princípio do uti possidetis juris. ...
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As abordagens pós-coloniais e decoloniais provaram ser altamente pertinentes e valiosas na análise dos tribunais internacionais. Eles fornecem uma perspectiva crítica e um quadro teórico que enfatizam questões relacionadas ao poder, à dominação, à desigualdade e à justiça nas diferentes dinâmicas da prática jurídica internacional. Este artigo pretende fornecer uma avaliação sobre a forma como os princípios fundamentais das abordagens pós-coloniais e decoloniais podem ser aplicados na leitura dos tribunais internacionais, de modo a proporcionar uma compreensão mais profunda sobre as suas estruturas e práticas, identificando questões subjacentes de poder, desigualdade e dominação. Para isso, este artigo está estruturado em duas partes: a primeira explora os principais conceitos das teorias pós-coloniais e decoloniais e suas contribuições para a nossa compreensão do direito internacional; a segunda parte liga os argumentos destas teorias à prática dos tribunais internacionais, de modo a destacar os caminhos possíveis para analisar criticamente as relações coloniais incorporadas na prática dos tribunais internacionais.
... Drawing from what Professor Sundhya Pahuja calls 'defining exclusion' with regards to the paradox of international law, it is through the exclusion of 'foreigners' that the defining characteristics of the 'citizen' are retained. 53 The exclusion of the 'illegal immigrants' (claimed to be Bangladeshi Muslims), performed in the name of the NRC, works well with the current Government's idea of Akhand Bharat (undivided India) which includes territories of Pakistan and Bangladesh. 54 While they would be included territorially within undivided India, they would be expelled owing to their otherness (non-Hindu). ...
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This paper explores the ‘puzzle of the nomads’ in the Metaphysics of Morals : the apparent tension between Kant’s argument about the duty to leave the state of nature and his insistence that European colonizers cannot permissibly force nomads to enter a civil union. Arguing that the puzzle is twofold, I suggest that the answer lies in the relationship between the state and territory in Kant’s work. After showing the shortcomings of an approach which suggests that nomadic peoples cannot enter the civil state without settling, I defend an alternative interpretation, which conceives the territoriality of the state as contingent.
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This chapter introduces Third World Approaches to International Law (TWAIL) as a critical movement that rethinks the discipline of international law from a transformative perspective. Against mainstream approaches, TWAIL offers a theoretical, methodological and analytical framework that contributes to questioning the foundations of international law as well as the structural exclusions and inequalities underlying the discipline. Highlighting the diversity within this approach, the chapter introduces the reader to TWAIL’s background and origins, followed by a review of its distinctive characteristics, focus and goals, as well as some critiques and shortcomings. It also features two works exemplifying TWAIL’s analysis and concludes with some practical exercises that aim to help the reader apply TWAIL in their work.
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In the search for the existence of alternatives for how legal relations in International Law are established today, this text starts from the need to demystify International Law as a universal normative set (part I), so that it can thus look into the possibilities of resignifications of its norms from a critical stance, more specifically through the Third World Approaches to International Law – TWAIL (part II), as is already happening in the field of (International Law of) Human Rights since the Decolonial Theory , allowing not only to question the past, but also to obtain social justice for everyone, including the Third World, largely obstructed, hidden and excluded from international normative logic since the advent of modernity. In order to carry out this research of an applied nature, within the scope of international law, the hypothetical-deductive approach method will be used. As far as the objective is concerned, we will carry out an analysis from a descriptive-explanatory-critical point of view. Finally, the method of procedure adopted is mainly bibliographical, selected in a qualitative manner.
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Sustainable development is a critical concept used to enhance global welfare. In this context, peremptory norms recognized within international law are integrated as general, universal, essential, and fundamental principles for societal benefit. Therefore, this research aimed to investigate the role of sustainable development within international law and examine the contribution of norms to the formation of a modern legal state. The legal status of norms and capacity to embody universal values are clarified using descriptive analysis with a normative juridical approach and qualitative data. The results show that sustainable development has been developed as an indispensable paradigm, widely confirmed across legal frameworks. In addition, the integration as a universal norm within international law reflects the potential to influence legal systems globally. This depends on the balance of established sources such as treaties and customary practices. Moreover, this research contributes to legal scholarship by stating the role of international norms in advancing sustainable development.
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This article draws on the work of the Indian Subaltern Studies collective to explore the possibilities for imagining processes whereby non-dominant, non-elite, subaltern individuals and groupings might participate as subjects of international law. It suggests that the decolonization agenda of the UN Charter has repeated imperialism, albeit with a new legal and moral appearance, in the European production of the postcolonial nation-state. Parallels are drawn between the G77's strategy to counter European hegemony through the promotion of a New World Economic Order and the struggle of the Indian nationalists for independence. In both endeavours, European knowledge systems were uncritically embraced, and, as a result, subaltern experience incommensurable with the European imagination was silenced. It is suggested that the post-Cold War narratives of global democratization create new opportunities for contesting subaltern erasure, and some strategies for developing alternative practices, suggested by Subaltern Studies analyses, are canvassed.
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In the perennial debate over whether the dependence of international law on power is complete or whether international law maintains some independence for itself, the latter position is increasingly and at best marginal. Here that direction of the debate is reversed. The very dependence of international law on power is integral to a relation of mutual dependence between them. It is in this relation that power constituently depends on an international law which, in its turn, contains a primal efficacy. That efficacy is illustrated in its countering the claims of American empire.