Hans Kelsen: International Peace through International Law

Danilo Zolo¹

Full text available: PDF format ^*

The idea of law, in spite of everything, seems still
to be stronger than any ideology of power.
H. Kelsen

Abstract

This article focuses on Hans Kelsen's theory of international law and pacifism. Following an analytical reconstruction of Kelsen's theses, the author makes a number of critical observations. In particular, the article examines Kelsen's ideas on the primacy of international law, the necessary demise of the concept of sovranity and the assumption of the doctrine of justum bellum as the basis for the juridical character of international law. Special attention is given to Kelsen's idea of a `Permanent League for the Maintenance of Peace', inspired by a kind of `judicial cosmopolitanism', and developed in his Peace through Law. It is the author's opinion that Kelsen's internationalism and pacifism brought about an important turning-point in the theory of international law and anticipated by 50 years many of the issues that the international community are today discussing: in particular, individuals as subjects of international law (and not only states) and the use of international criminal tribunals for the punishment of those responsible for war crimes and crimes against humanity. Finally, the author argues that there is some doubt whether Kelsen's theoretical and political goals, inspired by the Kantian idea of the moral unity of humanity and by a normativist conception of law, may be fulfilled or even desirable.

^* The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems.

1 The author wishes to express his gratitude to Norberto Bobbio for his substantial written comment on this essay and to Antonio Cassese for his encouragement to write the piece. The author also thanks Luca Baccelli, Furio Cerutti, Letizia Gianformaggio, Maria Chiara Pievatolo, Emilio Santoro and Francesco Vertova for their useful critical comments as well as Agostino Carrino for his help in indicating several bibliographical sources.

© 1990-2004 European Journal of International Law
All comments and suggestions should be sent to webmaster
This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute.
This file was last modified: Wednesday, November 19, 2003 02:18AM