Law or Politics? Hans Kelsen and the Post-War International Order
Constellations: An International Journal of Critical and Democratic Theory, Vol 18, p. 513, 2011
30 Pages Posted: 24 Feb 2012
Date Written: 2011
In the aftermath of the founding of the United Nations, Hans Kelsen, who had not been involved in the process of drafting the U.N. Charter, quickly produced a nearly 1000-page critique of the Charter. This essay describes Kelsen’s critique and the reception of that work, at least within the United States. The essay then proceeds to lay out the main elements of Kelsen’s plan for securing international peace in the post-war era, focusing on the elements that distinguish Kelsen’s plan for international organization from others. One especially surprising feature of Kelsen’s approach is his idea that the movement towards a mature international law must proceed through the establishment of an international court of compulsory jurisdiction. This essay supplements Kelsen’s reasoning by arguing that courts, because of their discursive advantages over political and legislative processes, should play a larger role in the development of a comprehensive international legal order.
Keywords: Hans Kelsen, U.N. Charter, international courts, democracy deficit
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