Some Characteristics of Times of Transition in International Law: Shift from Marginality to Centrality (on the occasion of women’s day)

Posted on Actualizado enn

One of the most vivid characteristics of any moment of transition is that aspects that used to be in the margins, in the sense that they were merely tolerated but were not in the core of the system, become more and more important. Sometimes, these aspects were even disregarded because they did not fit the prevailing framework. When they were strong enough to be mentioned they were often presented as deviations, as “the exception that confirms the rule”. Most of the times, they were aspects not worth being regulated since they fell out of the agreed framework. The migration of these realities from the periphery to the nucleus of the conceptual/institutional prevailing framework is one sign of changing times.

Of course, in periods of transition, the prevailing features do not disappear and so the result is a quite unique mixture of characteristics of different models that often battle for achieving dominance. The process, however, is normally gradual, in the sense that we are not faced with a situation of a Kuhnian revolution  but merely of a series of accommodations of aspects that could be prevalent in several different models.  Along this process the weakening of the (classical) model becomes evident, since its internal coherence holds together with growing difficulty.

This shift from the margin to the center, is noticeable at various levels, from the most generic propositions to the most detailed regulations. The importance given today to areas of International Law such as human rights, seen as transversal to the whole international legal order, or to the protection of environment, seen as essential for survival, are examples, at a very broad encompassing level, of the preeminence of aspects considered  previously as exotic at best and as unnecessarily provocative, at worst.

At  a more detailed level, the shift from the margin to the core is blatant in many regulations of a specific nature. Within International Criminal Law, it is interesting, for instance, to notice the relevance given to the protection of women by the Statute of the International Criminal Court (ICC). Often characterized as an irrelevant phenomenon by the previous framework (the crime of rape was not expressly referred in the Nuremberg Statute and included in the Former Yugoslavia and Rwanda Tribunals Statutes only as a crime against humanity), it is considered expressly by the ICC Statute as a crime against humanity and a war crime, both in international and non-international conflicts, and, implicitly (see Elements of Crimes) a crime of genocide.

Also, for the first time, several other crimes were taken into consideration such as forced prostitution, sexual slavery and forced pregnancy. These situations were not previously internationally criminalized (no one was ever judged for the so-called “comfort women” taken by the Japanese army) and they passed from virtually non-existence in international legal terms to being in the center of many of the regulations and actual indictments.

Source: International Law Grrrls


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