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Home Articles posted by Theodor Schilling

The Dust Has Not Yet Settled: The Italian Constitutional Court Disagrees with the International Court of Justice, Sort of

Published on November 12, 2014        Author: 

As Riccardo Pavone surmised last March, the ICJ judgment in Jurisdictional Immunities (here) has not been the last word in the matter of reparations for the forced labour of Italian prisoners of war in Germany. As reported by Christian Tams (here), the Italian Constitutional Court (here) has found the provisions adopted by Italy to implement the ICJ’s judgment contrary to the Italian Constitution, more precisely to the guarantee of access to a court. Those provisions had been meant to oblige Italian courts to follow the judgment of the ICJ, which required those courts to extend jurisdictional immunity to a foreign State (ie Germany) also for actions which constitute war crimes and crimes against humanity violating inviolable human rights.

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Fresh Brains, and a Very Old One

Published on April 28, 2014        Author: 

SchillingTheodor Schilling, Dr. jur. utr. (University of Würzburg), LL.M. (Edin.), is extra-ordinary professor of public law at Humboldt University Berlin.

Maria Aristodemou, in an article entitled “A Constant Craving for Fresh Brains and a Taste for Decaffeinated Neighbours” (EJIL 25 [2014] 35), hailed by JHH Weiler as the cutting edge of international law, tries to marry, on the Lacanian couch, international law to Lacan’s version of psychoanalysis. I must admit that I have no very good idea of psychoanalysis. My difficulty following an article which blithely assumes (among many other, for me, arcane points) that “[e]veryone knows that at the intersection between the imaginary, symbolic, and real registers we can find Lacan’s famous ‘little object a’” (p. 39) are therefore mostly a problem of my ignorance and cannot be attributed to the article or its author. Still, questions arise also for the uninitiated, and I should like to venture to answer some of them.

The article does not appear to problematise the anthropomorphism it chooses in treating “public international law as the neurotic patient hankering after ‘fresh brains’” (p. 37). This anthropomorphism is particularly strange as psychoanalysis appears to require a psyche to analyse. A psyche however is attributed generally to living beings only and not to abstractions (international law) and collectivities (the eponymous academic discipline) (it never becomes entirely clear which of the two is considered the patient). If there is a psychoanalytical answer to this apparent problem, it is not in the article. Rather, the anthropomorphism pervades the whole article as international law is said to have desires (eg p. 45) and to crave fresh brains to achieve its own completeness. In what sense can international law, or the eponymous discipline, be said to have desires? The claim that “the proscriptions of international law, like of all law, are precisely based on desire” (p. 49), because they are aimed at suppressing human desires, is entirely convincing. However, it does not follow that the law, or the discipline, themselves have desires.

On the other hand, the article contains an acknowledged paradox: why should international law look at psychoanalysis when the article’s whole argument is to stop looking for Others who will complete us? Can this paradox really be explained away, as the author seeks to do, by claiming that Lacanian psychoanalysis does not complete “us”, but shatter “us”? (p. 39) Or is the resort to psychoanalysis not just another case of a new “law and …”, driven by an academic craving (a very understandable craving of individual academics) for under-explored fields of research? To me, this is a more plausible explanation than the Lacanian one proposed by Aristodemou.

Another pervasive theme of the article is the death of God. This recurrent topos, while not exactly a cutting edge issue, is clearly Eurocentric and at least a bit suspect on that count. On the basis of circumstantial evidence readily available, it appears that in many (most) parts of the world God is very much alive and kicking, maybe especially kicking (cf eg, on the role of Islamic International Law in the history of international law, Nahed Samer). That said, Aristodemou quotes Kelsen as one voice showing that absent a transcendental legislator – God – some other ‘final’ limit for the system of international law has to be hypothesised or postulated (p. 47). That much, I think, is not in dispute. Less clear is her conclusion that this postulate is necessary to “efface the fact … that there is no such thing as ‘an international society’”. Read the rest of this entry…