The theoretical manifesto of Jura Gentium

[Theoretical research] [Intercultural dialogue] [Divulgation and didactic assistance]

1. Theoretical research

The main subject of theoretical reflection by the JURA GENTIUM centre is the transformation in the structure and functions of international law resulting from globalisation processes and information revolution, and from their impact on international arrangements. The key methodological assumption is a realist and pluralist approach to international law.

A realist approach opposes abstract normativism and any conception of domestic or international legal systems as 'pure'. For this reason analysis will cover the domain of 'global politics', including an investigation into the cultural, political, economic, and military mechanisms of the distribution of international power. Attention will focus on such issues as the political strategies of nation-states, especially major powers, the function of international organisations, peace and war, the international allocation of resources and wealth, the protection of environment, the phenomenon of global terrorism.

A pluralist approach opposes both the traditional ethnocentrism of Western legal science and so-called 'legal globalism'. Against these tendencies, attention will focus on the differences and particularities of normative traditions, starting with the assumption that in the legal domain, too, complexity and differentiation are evolutionary resources and a condition of political groups' identities and, ultimately, individual autonomy.

In particular, the JURA GENTIUM centre promotes scientific research on the following themes:

1.1. The shift from 'international' (Westphalian and Grotian) law to 'transnational' law: the impact of the crisis of nation-state sovereignty on the whole body of institutions, normative apparatuses and political values characterising the 'rule of law' and representative democracy. The possibility/impossibility of conceiving a transnational democracy and 'rule of law'.

1.2. The emerging, besides states, of new agents in the international arena: multinational corporations, quasi-institutional organisations such as OESC, G8, OECD, etc., regional Unions, NGOs, independent political and military alliances (NATO), global social movements, etc.

1.3. The appearing of new sources of international law: transnational law firms, especially in the fields of commercial, fiscal and financial law, the new forms of lex mercatoria, arbitration Courts, international criminal Courts. The European Court of Justice, the European Court for the protection of human rights, central bureaucracies, national constitutional courts as effective sources of (not merely procedural) law, within the process of European integration.

1.4. The tendency to the privatisation of international law: the decreasing regulating power of state legal systems - particularly in the fields of social, fiscal and economic, as well as foreign, policy - and the prevalence of the dynamic and innovative decision-making power of markets. The law as a composite, flexible and pragmatic tool for managing the risks related to international transactions dominated by uncertainty. The law as a body of general and abstract rules tends to pass away, while at both national and international level there is an increasing weight of the judiciary and the settlement of disputes by arbitration.

1.5. The processes of regional integration, in particular Europe. The increasing impact of integration processes on the political, economic and military arrangements of the world. The resulting political and legal framework of world order. The possible models of such framework: the cosmopolitan paradigm of the unification and hierarchisation of the planet (Western globalists), the model of federalist and polycentric governance (theorists of 'international regimes', neo-realists, theorists of the 'clash of civilisations'), the neo-liberal project of deregulation, ultimately attaching sovereignty to market forces only. The process of European regional integration as a phenomenon which is gradually reducing nation-states' sovereignty, but it is at the same time alien to the cosmopolitan logic of the supremacy of a highly centralised supranational government.

1.6. The political and functional crisis of the United Nations: this institution is caught in the tension among the traditional logic of intergovernmental diplomacy, recent universalist demands appealing to the protection of human rights (Kofi Annan, the United Nations Secretary general, defined individuals as the new holders of 'international sovereignty' in place of states) and the hegemonic strategy of big powers, with their tendency to the confinement or instrumental use of international institutions. The need for rethinking the role of the United Nations and the financial institution dating back to the Bretton Woods agreements: the International Monetary Fund, the World Bank, the World Trade Organisation (WTO). The declining functions of the UN Security Council after September 11 and the adoption, by the United States and other Western powers, of the 'preventive war' doctrine.

1.7. The national and international protection of human rights, cultural minorities and peoples. The problem of social and demographic unrest resulting from globalisation processes. The lack in international law of an adequate formulation of cultural minorities' rights as 'collective rights' rather than as resulting from minorities members' individual rights. The struggle against death penalty, torture, inhuman and degrading treatments against prisoners, genocide, ethnocide, the trade and exploitation of women and children, poverty. The issue of the foreign debt oppressing poorer countries. The tendency to the transformation of the 'welfare state' into a 'criminal state' seeing security as mostly a matter of public order and repressing deviance while at the same time tending to weaken state support of social solidarity.

1.8. International criminal tribunals: backed up by an international police (and acting upon a universal criminal code) they are supposed to be able in the future to make a decisive contribution to peacekeeping and the protection of human rights. From the experience of the international martial courts of Nuremberg and Tokyo and the Tribunals of The Hague and Arusha, to the entering into effect in July 2002 of the new International Criminal Court (whose statute, passed in Rome in June 1998, has been ratified by over seventy countries). Enthusiasm/scepticism regarding a possible universal criminal Code (criminal lex mundialis). The impact of the global expansion of judicial power on the present international institutions which are far from resembling the scheme of the 'rule of law' and the division of powers.

1.9. 'Humanitarian international law' and the doctrine of 'humanitarian intervention': the need to overcome the Westphalian principle imposing the respect of nation-states' territorial integrity and political independence. Does securing peace, justice and protection of human rights require military intervention by the international community, regardless of states' borders and sovereignty? Is the quest for peace and protection of human rights consistent with war and the use of mass destruction weapons?

2. Intercultural dialogue

Over the last century Italian and European legal philosophy has been substantially ethnocentric, only referring to state legal systems and approaching the social functions of law in a scarcely realistic way (with moralist, idealist and formalist streams largely prevailing). Moreover, during the last decades European legal philosophy has been dominated by hegemonic Anglo-American legal and political culture. In particular, it overlooked the theoretical reflection (and the sociological investigation) on international law and the dialogue with non-western cultural, ethical and legal traditions. The JURA GENTIUM centre will engage, together with theoretical reflection, in a direct dialogue, a critical interchange and a constructive co-operation with representatives of non-western cultures and normative universes, especially the Indian American, the Arab-Islamic and the Confucian-Chinese ones. This project is not based on a naïve transcultural eirenicon, but on an awareness that each speaker's or thinker's cultural - in our case, inescapably European - roots cannot be transcended and that perfect cross-cultural understanding is impossible. However, this very impossibility makes dialogue among different cultures necessary, informative and fruitful. The JURA GENTIUM centre sets itself the following goals:

2.1. Revisiting the historical-philosophical evolution of international law: ancient international legal systems, the notion of jus gentium, medieval doctrines of bellum justum, second Scholasticism, jus publicum europaeum, modern international law and institutions. A comparison of the institutions of the Western tradition with those of non-western political and legal cultures.

2.2. Drafting a legal-philosophical and legal-sociological map of non-western legal systems, going well beyond the disciplinary field of comparative positive law.

2.3. Addressing the question of the universality of the doctrine of human rights from a legal, ethical and philosophical standpoint (with the related issue of the so-called 'Asian values'). Discussing the broad issue whether the institutional models of the 'rule of law', representative democracy and, more generally, Western individualist values and life-styles, can be 'exported'.

2.4. Paying attention to the anthropological debate about the problem of cultural relativism and the question of 'cultural universals', together with the related theme of the 'westernisation of the world', a process favoured today by major mass media, mostly owned by West-based and Japan-based multinational corporations. The JURA GENTIUM centre also wants to emphasise the critique of Western legal formalism put forward by feminist reflection on law, which placed the very notion of 'human rights' under critical scrutiny.

2.5. An analysis of the causes and consequences of the migration phenomenon resulting from the processes of global integration. The mass migration from underdeveloped countries to industrialised countries and the ensuing phenomena of eradication, cultural impoverishment, chaotic urbanisation in the suburbs of great metropolitan areas, unemployment and criminal organisations. The definition of migrants' rights and their relation to native majorities' rights. Intolerance, xenophobia, racism. Cultural and language creolisation.

3. Divulgation and didactic assistance

The JURA GENTIUM centre will pay special attention to the demands of students, undergraduates, Ph.D. students and, generally, young scholars who are interested in the theoretical investigations proposed by the Centre. The Centre takes care of basic information and the selection of the conventional and IT tools required for starting and developing research. It sets up bibliographic apparatuses and the systematic reviewing of books; it organises a service for assisting the drafting of graduation and doctoral dissertations.

First draft: March 2001 (upon the foundation of the Jura Gentium centre). Last update: December 2002.