Cosmopolitics, the concept of a world politics based on shared democratic values, is in an increasingly fragile state.

This paper defends several highly revisionary theses about human rights. §1 shows that the phrase “human rights” refers to two distinct types of moral claims. §§2-3 argue that several longstanding problems in human rights theory and practice can be solved if, and only if, the concept of a “human right” is replaced by two more exact concepts: (A) International human rights: moral claims sufficient to warrant coercive domestic and international social protection; and (B) Domestic human rights: moral claims sufficient to (...) warrant coercive domestic social protection but only non-coercive international action. §3 then argues that because coercion is central to both types of human right, and coercion is a matter of justice, the traditional view of human rights – that they are normative entitlements prior to and independent of substantive theories of justice – is incorrect. Human rights must instead be seen as emerging from substantive theories of domestic and international justice. Finally, §4 uses this reconceptualization to show that only a few very minimal claims about international human rights are presently warranted. Because international human rights are rights of international justice, but theorists of international justice disagree widely about the demands of international justice, much more research on international justice is needed – and much greater agreement about international justice should be reached – before anything more than a very minimal list of international human rights can be justified. (shrink)

This book offers an intelligent and thought-provoking analysis of the genealogy of Western capitalist 'development'. Jennifer Beard departs from the common position that development and underdevelopment are conceptual outcomes of the Imperialist Era and positions the genealogy of development within early Christian writings in which the western theological concepts of sin, salvation, and redemption are expounded. In doing so, she links the early Christian writings of theologians such as Augustine and , Anselm and Abelard to the processes of modern identity (...) formation of which the West, the First World, the Rule of Law and the individual subject and his or her freedoms are but a part. The concept of development is thus identified within western culture as a symptom of loss within the desire for completion; as the logic behind the economic restructuring of nations as underdeveloped is revealed as that ruthless imaginary by which First World nations maintain their ideal of themselves. Drawing upon anthropology, economics, historiography, philosophy of science, theology, feminism, cultural studies and development studies, this book contains the best of interdisciplinary work in international law. (shrink)

This paper responds to recent criticism from Alejandro Agafonow. In section I, I argue that the dilemma that Agafonow points to – while real – is in no way unique to liberal peacebuilding. Rather, it arises with respect to any foreign involvement in post-conflict reconstruction. I argue further that Agafonow’s proposal for handling this dilemma suffers from several shortcomings: first, it provides no sense of the magnitude and severity of the “oppressive practices” that peacebuilders should be willing to institutionalize. Second, (...) it provides no sense of a time frame within which we can hope that endogenous liberalization should emerge in the local political culture. Finally, it provides no suggestion for what the international community should do if the desired liberalization should fail to materialize within that time frame. In section II, I show that Agafonow’s argument resonates poorly with the concepts and ideas that he claims to adopt from Rawls’s Political Liberalism. Instead, his argument evokes the guiding ideas behind Rawls’s later work The Law of Peoples. I offer a critical perspective on these ideas, focusing specifically on Rawls’s treatment of women’s rights. Section III applies this critical perspective to Agafonow’s arguments, before closing with an example of a more constructive and empirically informed approach that critical studies of post-conflict reconstruction could take. (shrink)

The other contributions address philosophical problems arising in specific domains of international law, such as human rights law, international economic law, ...

This book articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples," human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, (...) a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "national interest." He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it. Justice, Legitimacy, and Self-Determination will find a broad readership in political science, international law, and political philosophy. (shrink)

Alexander James Dallas' An Exposition of the Causes and Character of the War was written as part of an effort by the then US government to explain and justify its declaration of war in 1812. However publication coincided with the ratification of the Treaty of Ghent, which ended the War. The Exposition is especially interesting for the insight it provides into the self-constraint of American foreign policy and of the conduct of a war. The focus is on the foreign policy (...) of the early republic and the related philosophy of law and war. A central idea is that international law should chiefly benefit those remaining at peace. -/- Dallas was a Philadelphian who settled there in 1783, the year of the Peace of Paris which ended the War of Independence, arriving from Jamaica after a British education. He wrote much on law, becoming the first recorder of cases before the U.S. Supreme Court. He later served as Secretary of the Commonwealth of Pennsylvania, and federal district attorney for Eastern Pennsylvania, appointed by President Jefferson. He was appointed Secretary of Treasury by President Madison. -/- In this edition the original text is presented with annotations to help identify persons and events of interest. The editor has also added an Introduction, a Bibliography, a short Chronology of Dallas' life and the events of the War, and an analytical Index. As such this annotated edition presents a key primary source in a manner helpful to research for students of the early Republic. (shrink)

This is my review of D.W. Howe's 2007 book, What Hath God Wrought, Transformation of America 1815-1848. The book is a volume in the new Oxford History of the U.S.(O.U.P. 2007)--exploring the transformation of the early American republic through the period of domination of the Jacksonian Democrats. This is also the period of the New England Renaissance and the early work of R.W. Emerson. Howe devotes a good deal of attention to Emerson and his influence and thereby provides needed historical (...) context for the understanding of American thought. (shrink)

In order responsibly to decide whether there ought to be an international legal right of secession, I believe we need an account of the morality of secession. I propose that territorial and political societies have a moral right to secede, and on that basis I propose a regime designed to give such groups an international legal right to secede. This regime would create a procedure that could be followed by groups desiring to secede or by states desiring to resolve the (...) issue of secession. It would give territorial political societies a legally recognized liberty to conduct a plebiscite on secession, and, assuming such a plebiscite is won by the secessionist side, a qualified right in international law to create a state without interference. Alan Buchanan has argued that proposals of this sort would create perverse incentives. I argue that there is no good reason to believe this. The point is to allow the legal regulation of secession in cases where there are active secessionist movements with legitimate moral claims, and to attempt to dampen the desire for secession in cases where secessionist sentiment is not well grounded in social and geographic reality. (shrink)

Dhall (2010) posited that quantum holism can provide an alternate justification for human rights. This article explores how such a foundation challenges aspects of international law and assertions of cultural relativism that have stymied the ongoing development of a universal human rights culture.

Many political philosophers believe that we owe moral obligations to our political communities simply because we are asked. We are, for example to pay taxes, or serve in the army whenever we are demanded to do so by the competent authorities or agencies. Can such moral obligations be created by European Union institutions? This essay discusses the natural duty of justice to support just or nearly just political institutions as defended by John Rawls and Jeremy Waldron. It suggests that European (...) Union institutions can be seen to create similar obligations, only if we adopt a cosmopolitan theory of political legitimacy for both domestic and international institutions. A key distinction proposed is that between a duty of jurisdiction, owed by everyone to every legitimate state, and a duty of civility, owed by citizens to their own states. (shrink)

How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. the (...) law where the case happens to arise. But this analysis does not capture international law. This is, or appears to be, a distinct legal order that is certainly not the law of a distinct nation or a people but aspires to cover the whole of the world and – perhaps surprisingly – does seem to meet many of the ordinary criteria of a legal order. This review essay discusses two recent attempts at accommodating international law, Regulating Jurisdictional Relations Between National and International Courts, by Yuval Shany and A Theory of Interpretation of the European Convention of Human Rights, by George Letsas. In their own ways both books outline a ‘substantive’ theory of international law, which is to be welcomed. (shrink)

This article is a comment and reflection on Joseph Weiler’s essay ‘The Political and Legal Culture of the European Union: an Exploratory Essay.’ The article responds to Weiler’s argument by sketching a philosophical framework within which we may understand the moral distinctness of the European Union. The argument is informed by the international political theories outlined by Kant and Rawls, according to which the domain of international institutions is distinct from that of domestic politics. If the European Union is an (...) international project for the achievement of international and cosmopolitan objectives, then the virtues that it ought to promote are not those of the state. Instead, the relevant virtues are outward looking in that they require respect to other nations and citizens as equal members of the society of peoples. (shrink)

The function of the state as a symbol of identity has become increasingly important as major powers of the pre-Cold War era have given way to self-determination. The conventional role of the state has, however, simultaneously been challenged by the process of globalization which transcends such national boundaries. In this book, Barbara Emadi-Coffin seeks to explain this contradiction through a radical new theory. Emadi-Coffin analyzes the increasing interaction of multinational corporations, international organizations and transnational interest groups, such as Greenpeace and (...) Amnesty International, in processess of the global political economy. (shrink)

A theory of customary international law -- Case studies -- A theory of international agreements -- Human rights -- International trade -- A theory of international rhetoric -- International law and moral obligation -- Liberal democracy and cosmopolitan duty.

An interesting fact about customary international law is that the only way you can propose an amendment to it is by breaking it. How can that be differentiated from plain law-breaking? What moral standards might apply to that sort of international conduct? I propose we use ones analogous to the ordinary standards for distinguishing civil disobedients from ordinary law-breakers: would-be law-makers, like civil disobedients, must break the law openly; they must accept the legal consequences of doing so; and they must (...) be prepared to have the same rules applied to them as everyone else. (shrink)

The best philosophical account of human rights regards them as protections of the values we attach to human agency. The international law of human rights is embodied in a large number of declarations, conventions, covenants, charters, and judicial decisions. There are many discrepancies between the lists of human rights that emerge from these two authoritative sources. This lecture explores the significance of these discrepancies.

The philosophy of Immanuel Kant is the watershed of modern thought, which irrevocably changed the landscape of the field and prepared the way for all the significant philosophical movements of the nineteenth and twentieth centuries. This volume, which complements The Cambridge Companion to Kant, covers every aspect of Kant's philosophy, with a particular focus on his moral and political philosophy. It also provides detailed coverage of Kant's historical context and of the enormous impact and influence that his work has had (...) on the subsequent history of philosophy. The bibliography also offers extensive and organized coverage of both classical and recent books on Kant. This volume thus provides the broadest and deepest introduction currently available on Kant and his place in modern philosophy, making accessible the philosophical enterprise of Kant to those coming to his work for the first time. (shrink)

In this note I examine a case of teleological reasoning in international law and find it to be the fallacy of affirming the consequent.I then show that and how the basis of this fallacy is a manipulation (or juxtaposition) of ?necessary? and ?sufficient? conditions.I conclude by giving reasons for thinking that this kind of reasoning is a regular feature of international law.

Drawing on work in International Relations, International Law and Global Governance, this book aims to provide a clear and wide-ranging introduction to the ...

This article reviews three books written by Larry May concerning the foundations of international criminal law: Crimes Against Humanity: A Normative Account (2005), War Crimes and Just War (2007), and Aggression and Crimes Against Peace (2008).

This article responds to Nir Eisikovits’ recent book Sympathizing with the Enemy: Reconciliation, Transitional Justice, Negotiation (Martinus Nijhoff Publishers, 2010).

Pauline Kleingeld, "What Do the Virtuous Hope For?: Re-reading Kant's Doctrine of the Highest Good." In Proceedings of the Eighth International Kant Congress, Memphis 1995, edited by Hoke Robinson, Vol. I.1, 91-112. Milwaukee: Marquette University Press, 1995.

Reprinting more than 80 essential papers published in the 20th century, this set is the most comprehensive collection to appear to date. The papers include "classics" in the field as well as ones placing International Relations in a wider context, from the late 1940s to the present day. An invaluable resource for all students of this field.

In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what (...) follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to ‘outsiders’ seeking to enter, but rather to current citizens. (shrink)

Legal debates about humanitarian intervention—military intervention by one or more states to curb gross human rights violations occurring in another state—tend to assume that its legitimacy is irrelevant to its legality. Debates among philosophers and political theorists often assume the inverse, that the legality of humanitarian intervention is irrelevant to its legitimacy. This paper defends an alternative account, one that sees the legality and legitimacy of humanitarian intervention as intertwined. This account emerges from a conception of international law as a (...) legal domain that structures global politics by treating sovereignty as a legal entitlement that it distributes among the multitude of legal actors that it recognizes as states. Drawing on a long standing debate among domestic legal theorists about the rule of law, it first identifies formal constraints on the UN Security Council's discretion to authorize the use of force to end human rights violations. Developing a distributive conception of international human rights, it then identifies substantive considerations that shed further light on the legality of intervention. It suggests that members of the Security Council must give reasons when exercising their discretion to authorize the use of force and that some reasons might divest a member's vote of legal validity. (shrink)

This contribution intends to examine the role of democracy in the evolution of international law, and equally the role of the latter in the advancement of democracy, or, one might say, in its 'reinvention'. Two aspects of this broad theme are addressed: the influence of processes of democratization at the level of the individual nation on the evolution of international law, and the extent of penetration of democracy and democratic mechanisms within the processes of creation and application of international law. (...) A rich record of examples drawn by international jurisprudence is used to illustrate these complementary processes. (shrink)

For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that (...) some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts. (shrink)

This volume examines the role and influence of multiculturalism in general theories of international law; in the composition and functioning of international ...

Discussions of the ethics of war commonly – and reasonably – assume that defensive wars are morally justified if any wars are. They also assume that explanations of why defensive warfare is morally justified must be based on principles that also explain the moral justifiability of individual self-defense. David Rodin has recently argued that the second of these assumptions is mistaken, and he has developed an alternative account of the morality of defensive warfare. The purpose of this paper is to (...) show that Rodin’s argument fails, and to explain how defensive warfare can indeed be justified in terms of principles that also apply to individual self-defense. (shrink)

International human rights law that protects freedom of the press provides a cross-culturally reliable foundation from which to launch a consideration of universal principles in journalism ethics. After examining certain assumptions made by the international law about individuals and about the kind of journalism the law intends to protect, in this article I propose that truthtelling, independence, and freedom with responsibility are universal ethical principles international law envisions for journalists. These principles would undoubtedly be applied differentially in different cultures, but (...) I conclude that the culturally specific ways journalists analyze ethical dilemmas can arise from a common concern for the 3 principles. (shrink)

Along with the exploding attention to globalization, issues of global justice have become central elements in political philosophy. After decades in which debates were dominated by a state-centric paradigm, current debates in political philosophy also address issues of global inequality, global poverty, and the moral foundations of international law. As recent events have demonstrated, these issues also play an important role in the practice of international law. In fields such as peace and security, economic integration, environmental law, and human rights, (...) international lawyers are constantly confronted with questions of global justice and international legitimacy. This special issue contains four papers which address an important element of this emerging debate on cosmopolitan global justice, with much relevance for international law: the principle of sovereign equality, global economic inequality, and environmental law. (shrink)

Is it possible and desirable to translate the basic principles underlying cosmopolitanism as a moral standard into eff ective global institutions? Will the ideals of inclusiveness and equal moral concern for all survive the marriage between cosmopolitanism and institutional power? What are the eff ects of such bureaucratization of cosmopolitan ideals? Th is book examines the strained relationship between cosmopolitanism as a moral standard and the legal institutions in which cosmopolitan norms and principles are to be implemented. Five areas of (...) global concern are analyzed: environmental protection; economic regulation; peace and security; the fight against international crimes; and migration. -/- . (shrink)

The article examines Hans Kelsen's and Carl Schmitt's lines of thought concerning the relationship between constitutional and international law, with the aim of ascertaining their respective ability to capture developments affecting that relationship, even those of a contradictory nature. It is significant that, while the rise of wars of humanitarian intervention in the post-Cold War era has evoked Schmitt's concept of the bellum iustum, the evolution in the direction of the “constitutionalisation of international law” has drawn attention to Kelsen's theoretical (...) approach. However, these assumptions rely heavily on the opposing objectives that the two authors claimed to pursue, such as, respectively, the search for the ultimate seat of political power and a pure theory of law. Things are more complicated, both because these objectives by no means exhaust Kelsen's and Schmitt's lines of thought, and because the conception of sovereignty as omnipotence, at the core of the Weimar controversy, is now behind us. (shrink)

With The Perils of Global Legalism, Eric A. Posner explains that such views demonstrate a dangerously naive tendency toward legalism—an idealistic belief that ...

International law and ethics share a common goal of helping us understand the norms and institutions needed to promote a just world order. Yet each of the two fields has approached this shared task with little regard for the insights of other, and interdisciplinary collaboration is now imperative. This essay shows the complementary nature of inquiries in political and moral philosophy, on the one hand, and international law, on the other, by examining the so-called New Haven School (or policy-oriented jurisprudence), (...) an international law method that explicitly considers values as both inputs and outputs of the process of making law. It finds that the School’s sociological orientation does not adequately integrate ethical inquiries essential to prescribing law, in particular questions about the scope of duties that individuals and states owe those abroad. Using the current legal debate over the extraterritorial application of human rights as an example, the paper shows how approaches from moral and political philosophy can help provide a rigorous and principled basis for the prescription of law, as well as link seemingly unrelated questions of international law to each other. (shrink)

This essay argues that a restatement of Thomistic natural law reasoning is increasingly necessary in jurisprudential debate about international law. Mindful of Pope John Paul II's call for a renewal of international law, the essay engages with the present-day tension between Morgenthau-type realism (Goldsmith and Posner) and neo-Kantian discourse-oriented cosmopolitanism (Habermas). The essay addresses whether the former is sufficiently realistic in our global 21st century context, and whether the latter is adequately cosmopolitan. Attention is drawn to Aquinas's understanding of the (...) relation between custom, consent and political authority in order to expose some of the limits of present-day statism, and to suggest that Thomistic natural law reasoning is, potentially at least, better able to cope with the intractable disagreement that characterises 21st century global relations than some forms of neo-Kantian jurisprudence. (shrink)

The specialised vocabularies of lawyers, ethicists, and political scientists obscure the roots of many real disagreements. In this book, the distinguished American international lawyer Alfred Rubin provides a penetrating account of where these roots lie, and argues powerfully that disagreements which have existed for 3,000 years are unlikely to be resolved soon. Current attempts to make 'war crimes' or 'terrorism' criminal under international law seem doomed to fail for the same reasons that attempts failed in the early nineteenth century to (...) make piracy, war crimes, and the international traffic in slaves criminal under the law of nations. And for the same reasons, Professor Rubin argues, it is unlikely that an international criminal court can be instituted today to enforce ethicists' versions of 'international law'. (shrink)

Building on an earlier argument that isolationism may well be America's natural state, Schlesinger explains how the apparent rejection of isolationism during the long standoff with the Soviet Union during the Cold War was nothing more than a reaction to what was perceived as a direct and urgent threat to the security of the United States. In the wake of the Cold War's end, the incompatibility between collective international action and conceptions of national interest has highlighted the difficulties of democracies (...) in sending their armies to war, especially those that do not directly threaten national security. While much more can and should be done to enhance the effectiveness of global organizations already in place, what is needed, Schlesinger argues, is both a reexamination of the Wilsonian doctrine of collective security and a greater concentration on preventive diplomacy. (shrink)

This article evaluates the legality of Operation Iraqi Freedom, the March 2003 attack on Iraq. The author rejects assertions that Security Council Resolution 1441 (2002), standing alone, contained a mandate to employ force; on the contrary, the Resolution was only adopted on the understanding that it did not. The law of self-defense, including its ?preemptive? variant, similarly provided no legal basis for the action because the degree of Iraqi support to terrorism was insufficient and the threat of use of weapons (...) of mass destruction was not imminent. With regard to humanitarian intervention, the suffering inflicted by the Saddam Hussein's regime did not rise to a level allowing intervention. Moreover, international law does not permit forceful regime change except when authorized by the Security Council. However, the author argues that material breach of the 1991 cease-fire in Security Council Resolution 687 released the US and UK from their obligation to refrain from hostilities, thereby reactivating the use of force authorization in Security Council Resolution 678 (1990). This latter justification was the sole official legal justification offered for Operation Iraqi Freedom. (shrink)

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in (...) the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking. At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off. This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn. Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify? I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts. a Footnotesa I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone. (shrink)