A return to stability? Hegemonic and counter-hegemonic positions in the debate on universal jurisdiction in absentia

O'Sullivan, Aisling (2018) A return to stability? Hegemonic and counter-hegemonic positions in the debate on universal jurisdiction in absentia. In: Handmaker, Jeff and Arts, Karin (eds.) Mobilising international law for 'Global Justice'. Cambridge University Press, pp. 163-183. ISBN 9781108586665

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Abstract

In this chapter I primarily investigate the separate and dissenting opinions in the Arrest Warrant case on the question of universal jurisdiction in absentia in order to draw out the descending (more normative, less concrete) and ascending (more concrete, less normative) patterns of argument within each opinion and to identify the hegemonic and counter-hegemonic positions in the pre- and post-Arrest Warrant debate. I observe how Van den Wyngaert, Guillaume and the Joint Separate Opinion are archetypal of the competing moralist and formalist approaches and the move to the “middle ground” with recourse to reasonableness. It is evident that this debate on in absentia trials is caught within the tension between the moralist (fighting impunity) and formalist (avoiding abuse) approaches that underpin a broader debate on the principle’s justification and content. As will be observed, this struggle for hegemonic control illustrates how each legal outcome within the debate is not ‘natural’ and ‘inevitable’. Rather it is a series of strategic moves that are historically contingent and accord with structural bias.

Item Type: Book Section
Keywords: Universal Jurisdiction, Critical legal studies, Politics of International Law, Structuralism
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Crime Research Centre
Sussex Centre for Human Rights Research
Subjects: K Law > KZ Law of Nations > KZ7000 International criminal law and procedure > KZ7011 International criminal law
K Law > KZA Law of the Sea
Depositing User: Aisling O'Sullivan
Date Deposited: 13 Nov 2018 16:13
Last Modified: 01 May 2019 10:14
URI: http://sro.sussex.ac.uk/id/eprint/57162
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