CYIL vol. 11 (2020)
YLLI DAUTAJ CYIL 11 (2020) to the Convention, some Western states had to set-aside the debate on immunity vis-á-vis human rights (e.g. on jus cogens ). This was to be dealt with at another time. The time is now ripe for that debate. 94 This author is of the firm opinion that liberal capitalist values are best supplemented by liberal democratic values. Only such values elevates individual rights and liberties to a pole position. Thus, the new world-order demands further liberalization and pragmatic practices with respect to, inter alia , transnational human rights litigation. 95
94 We should not lose sight of the post-World War II values that helped pave the way for a global spread of liberal capitalism and a liberal democratic political order. The restrictive theory of immunity has an ideological underpinning and prevails when and where liberal values are surging. See also Hafner & Köhler, (n 23) 5 (“After the end of the Second World War, the concept of restrictive immunity was increasingly accepted by states; they recognized a certain need in this respect since otherwise they were afraid to be rejected as partners of individual persons or private companies because of the absence of judicial enforcement of the transactions entered by them.”). 95 The New Haven School will prove instrumental in this task. See e.g. Suzuki, (n 79) (“That said, the New Haven School can be especially empowering for individuals not associated with the state, a class that classical international law all but disenfranchised. In the past, the international lawyer’s client was, for the most part, the Prince or, put in more prosaic terms, governments, however they were organized. That is no longer the case. Equipped with an appropriate jurisprudential frame, each and every person can now participate, whether directly or through the mediation of groups, in the processes of decision that affect their lives. To that extent, we all have the potential to function as the Prince or as Austin’s ‘political superior.’ The constant formation and reformation of interest groups on a planet in which economical, electronic simultaneity permits effective coordination without face-to-face contact means that the possibility of meaningful participation in key functions of international decision is within the reach of more and more people who are not affiliated with governments. But only if they know how.”). See also HONGJU KOH, Harold , ‘Is There a “New” New Haven School of International Law?’ (2007) 32 The Yale Journal Of International Law 559, 564 (“In the inaugural edition of the journal that became The Yale Journal of International Law, the editor-in-chief wrote, ‘The New Haven School does not [view legal processes] through a dichotomy of national and international law . . . [but rather] it describes them in terms of the interpenetration of multiple processes of authoritative decision of varying territorial compass.’ By so saying, he echoed the observation of Phillip Jessup in his 1956 Storrs Lectures at Yale Law School, which defined ‘transnational law’ as ‘all law which regulates actions or events that transcend national frontiers’ and including ‘[b]oth public and private international law . . . [plus] other rules which do not wholly fit into such standard categories.’).
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