Kawai: Enabling Constraints in International Legal Discourse on the ICC’s Jurisdiction: The Case of the ‘Oslo Argument’ in the State of Palestine Situation

Keiichiro Kawai (Okayama Univ. - Law) has posted Enabling Constraints in International Legal Discourse on the ICC’s Jurisdiction: The Case of the ‘Oslo Argument’ in the State of Palestine Situation (International Criminal Law Review, forthcoming). Here's the abstract:

The ICC’s arrest warrants against Netanyahu/Gallant reignited debates over the nature of the Court’s jurisdiction with the focal point called the ‘Oslo Argument’, which contended that the Hague lacked jurisdiction over Israelis because Palestine lacked it under the Oslo Accords. The resulting submissions by amici curiae and parties before the Court, unprecedented in number, constitute a microcosm of contemporary international legal discourse over the ICC’s jurisdiction and therefore warrant close discourse analysis. The analysis offers an internal understanding of the argumentative structure therein and illuminates two systematized discursive regularities. One is the ‘delegation-based approach’, marked by assemblage of reifying and state-centric jurisdictional thinking with atomistic conceptions of the Court and the international order. Another is the ‘non-delegation-based approach’, grounded in a relational and autonomous conception of international jurisdiction with cosmopolitanism. Building on these findings, the concluding section explores possible strategies for lawyers, ranging from either/or choice to interstitial modes of argumentation.