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)
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in (...) class='Hi'>international law is a contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)
Claims by minority groups to use their own languages in different social contexts are often presented as claims for “linguistic justice”, that is, justice as between speakers of different languages. This article considers how the language of international law can be used to advance such claims, by exploring how international law, as a discourse, approaches questions of language policy. This analysis reveals that international legal texts structure their engagement with “linguistic justice” around two key concepts: equality and (...) culture. Through a close examination of the way in which these concepts function within international legal discourse, the article suggests that this conceptual framework may sometimes constrain, as well as enlarge, the possibilities for justice for minority language speakers. Thus while international law may provide a language for challenging injustices in the linguistic sphere, limitations inherent in this discourse may also restrict its emancipatory potential. (shrink)
Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. (...) Nascent norms of international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)
The passage of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children in 2000 marked the first global effort to address human trafficking in 50 years. Since the passage of the UN Protocol international organizations, non-governmental organizations, and individual states have devoted significant resources to eliminating human trafficking. This article critically examines the impact of these efforts with reference to the trends, political, and empirical challenges in data collection and the limitations of (...) class='Hi'>international law. I argue that current international law disproportionately addresses the criminal prosecution of traffickers at the expense of trafficking victims’ human rights, and has therefore not yet reached its full potential in the fight against human sex trafficking. (shrink)
Why should sovereign states obey international law? What compels them to owe allegiance to a higher set of rules when each country is its own law of the land? What is the basis of their obligations to each other? Conventional wisdom suggests that countries are too different from one another culturally to follow laws out of mere loyalty to each other or a set of shared moral values. Surely, the prevailing view holds, countries act simply out of self-interest, and (...) they eventually consent to norms of international law to regulate matters of common interest.In this groundbreaking book, Fernando Tesón goes against this prevailing thought by arguing, in the Kantian tradition, that a shared respect for individual human rights underpins not just the obligation countries feel to follow international law but also international laws themselves and even the very legitimacy of nations in the eyes of the international community. Tesón, both a lawyer and a philosopher, proposes that an overlapping respect for human rights has created a moral common ground among the countries of the world; and moreover, that such an outlook is the only one that is rationally defensible. It is this common set of values rather than self-interest that ultimately provides legitimacy to international law. Using the tools of moral philosophy, Tesón analyzes the concepts of sovereignty, intervention, and national interest; the contributions of social contact theory, game theory, and feminist theory; and the puzzles of self-determination and group rights.More than simply outlining his theory, Tesón goes on to give detailed examples of international laws, international institutions, and their human rights foundations, putting his ideas to work and addressing legal reforms called for by the theory. He suggests that treaties, for example, should be considered binding if, and only if, the consent to the treaty was given by a genuinely representative government, one that acts out of interest for the human rights of its citizens. Although the theoretical achievement of this book is to challenge received wisdom on the foundation of international law, the practical ambition is a call to reform the international legal system for the post–Cold War era, to substitute for the old order one that gives primacy to human dignity and freedom over state power. (shrink)
How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral (...) obligation producing: if x (e.g., a person, institution, or law) has authority over an agent, then the directives of x produce a significant reason for the agent to comply with the terms of the directive. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate moral obligations for their subjects, i.e., for those who fall under their claimed jurisdiction. (shrink)
Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, (...) between 1993 and 1995 though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)
We provide a logical analysis of private international law, a rather esoteric, but increasingly important, domain of the law. Private international law addresses overlaps and conflicts between legal systems by distributing cases between the authorities of such systems (jurisdiction) and establishing what rules these authorities have to apply to each case (choice of law). A formal model of the resulting interactions between legal systems is proposed based on modular argumentation. It is argued that this model may also be (...) useful for governing the interactions between heterogeneous agents, belonging to different and differently regulated virtual societies, without recourse to a central regulatory agency. The model also provides for multiple interpretations concerning rules of private international law as well as substantive rules of the different legal systems. (shrink)
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)
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.
Whether we should respect international law is in dispute. In the United States, international law is dismissed by the left as merely promoting the interests of powerful states. It is attacked by the right as irrelevant and an interference with the interests and mission of the United States. And it follows from the arguments of many liberals that in the absence of world government the world is in a Hobbesian state of nature and international law inapplicable. This (...) article reviews the thinking of Kant, Locke, and Rawls, among others and shows how arguments against respect for international law can be answered. It questions arguments based on the analogy between states and individuals, and between international law as it has developed and law based on an ideal social contract between individuals. It then turns to the ethics of care, a recent addition to moral theory, and examines its major characteristics and recommendations. It considers how the ethics of care would view international law and the guidance this moral approach could provide for international relations. The article shows how the ethics of care is compatible with various current trends, and how thinking about globalization and greater international interdependence would benefit from greater attention to it. The article argues that the ethics of care would clearly support respect for international law as it has developed, but that it would even more strongly support addressing current problems in ways that would, in the longer term, make appeals to law and its enforcements ever less necessary. Keywords: international law; the ethics of care; moral theory; political theory; social contract; states; groups; Hobbes; Kant; Locke (Published: 16 September 2011) Citation: Ethics & Global Politics, Vol. 4 , No. 3, 2011, pp. 173-194. DOI: 10.3402/egp.v4i3.8405. (shrink)
International law has recently emerged as the subject-matter of an exciting new field of philosophical investigation. This volume is the ideal guide to the current debates, offering 29 specially commissioned essays by leading philosophers and international lawyers, addressing the central philosophical questions about international law.
This essay investigates the possibilities and limits of interdisciplinary research into terrorism. It is shown that approaches that combine philosophy and international law are necessary, and when such an approach needs to be adopted. However, it is also important not to underestimate how much of a challenge is posed by the absence of agreement concerning the definition of terrorism, and also by the structural differences in the way the two disciplines address the problem and formulate the issues. Not least, (...) the discussion enables us to reach conclusions as to how terrorism research that combines philosophy and international law in particular, and interdisciplinary research into terrorism in general, can be meaningfully implemented. The individual aspects are clarified on the basis of the discussion surrounding justified measures for combating terrorism and the justification of the targeted killing of terrorists. (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)
The study analyses the issues of protection of national minorities from the perspective of international law. The study consists of three parts. In the first part, the author reveals the understanding of a national minority on the basis of objective and subjective features. This part focuses on such problematic issues as national minorities and citizenship, non-dominant position of a national minority. The second part of the study concentrates on international minorities as subjects of international law. The author (...) analyses international legal subjectivity of national minorities. A question is raised whether the rights of national minorities are individual or collective rights. The third part of the study focuses on the analysis of normative basis for the protection of national minorities. The author notes that the monist system exists in the Republic of Lithuania regarding the relation of international and national law. Under this system, the international treaties ratified by the Lithuanian Parliament (Seimas) are seen as an indivisible part of the legal system of the Republic of Lithuania. Therefore, the Convention for the Protection of National Minorities is an international treaty that is directly applicable in the legal system of the Republic of Lithuania. The fourth part of the study focuses on the question whether Lithuania should become a party to the European Charter for Regional or Minority Languages. Although this issue is complex and includes the problems of political, economic, legal and other nature, the author focuses on the legal analysis of the problems related to the participation in the Charter. It is emphasised that the Charter is not the only document that ensures the linguistic rights of national minorities. Under the Law on International Treaties of the Republic of Lithuania, while considering participation in the Charter, the right of treaty initiative should be implemented, and the question of efficiency of the treaty must also be solved. (shrink)
The paper analyses the relevant issue of the relationship of international law and European Union law. Therefore, independent systems of law exist, which inevitably arise the issue of relationship and interaction of these systems. Legal literature analyses the question of the relationship of these two systems of law on the basis of various aspects. The author has chosen the following structure of the paper: first, the general problem of the relationship of international and European Union law is discussed. (...) While describing the problem, the nature of the European Union and international law, as well as the distinguishing features of these systems of law, is analysed. The paper also provides a discussion about the decisions of the Strasbourg court and the Court of Justice of the European Union, which provide the basis of solving the problem of the relationship of these systems of law. In the second part of this paper, the main theories are analysed: the monistic, dualistic and coordination theories, which can be used to answer the issue of interaction of the two systems of law – international law and European Union law. (shrink)
Along with the Strait of Malacca and the Singapore Straits, the Strait of Hormuz is arguably the most important bottleneck in international navigation because a large part of the global oil production needs to be shipped through this passage, which is only a few kilometers wide. In the context of the dispute about Iran’s nuclear program and new sanctions, Iran has threatened to close the Strait of Hormuz for international shipping, effectively cutting off many Western countries from important (...) oil imports. In this article, the legality of such action as well as the legality of the mere threat to close the Strait of Hormuz are investigated. In addition to the International Law of the Sea, general rules of international law and the international law of armed conflict are taken into consideration. Particular emphasis is put on the sovereignty of other states, which is infringed upon by such threats on the part of the Iranian leadership. First, the question has to be answered whether a passage through these waters would be transit passage through a Strait or normal passage through the coastal state’s territorial sea. The authors of the article conclude that the regime of transit passage applies qua lex specialis, as far as the part of the Strait of Hormuz, which is included in Iran’s territorial waters, is concerned. The next step is to ask the question whether preventing such a passage as well as threatening to prevent such a passage are permissible for Iran. In this context, the potential abuse of otherwise permitted traffic separation schemes is highlighted. Traffic separation schemes are of particular importance in narrow but highly frequented bodies of water, such as the Strait of Hormuz. In addition, the contemporary Iranian state practice has received some attention. One issue to be considered in more detail is the requirement that foreign warships receive authorization from the coastal state prior to entry into the territorial sea. This approach might be incompatible with the right to innocent passage under both the Law of the Sea Convention and customary international law, as there is no clear legal source, which provides for this requirement. Finally, the authors look at the question of the legality of the mere threat to close the Strait of Hormuz as opposed to actually closing the Strait. The sovereignty of other states may be affected to such an extent that such threats already amount to a violation of international law. In light of the historic precedents during the Iran-Iraq War, these threats should not be dismissed lightly. Iran would be well advised to refrain from such rhetoric. (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)
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)
Emergence of the modern science of international law is usually attributed to Grotius and other somewhat heroic ‘founders of international law.’ This book offers a more worldly explanation why it was developed mostly by German writers ...
Charles Covell examines the jurisprudential aspects of Kant's international thought, with particular reference to the argument of the treatise Perpetual Peace (1795). The book begins with a general outline of Kant's moral and political philosophy. In the discussion of Perpetual Peace that follows, it is explained how Kant saw law as providing the basis for peace among men and states in the international sphere, and how, in his exposition of the elements of the law of peace, Kant broke (...) with the secular natural law tradition of Grotius, Hobbes, Wolff and Vattel in the view he took of the foundations of the law to make peace in the international sphere. In the conclusion to the book, Kant and his law of peace are considered in relation to the condition of contemporary international society. (shrink)
In 2000, the United States Congress passed the Victims of Trafficking and Violence Protection Act requiring its State Department to issue annual Trafficking in Persons Reports (TIP Reports) describing “the nature and extent of severe forms of trafficking in persons” and assessing governmental efforts across the world to combat such trafficking against criteria established by US law. This article examines the opportunities and risks presented by the TIP Reports, tracing their evolution over the past decade and considering their impact on (...) the behavior of states. In looking to the future, the article focuses on how this influential unilateral compliance mechanism could improve its legitimacy, respond to negative impacts, and better contribute to the international legal regime around trafficking. (shrink)
Antony Duff argues that the criminal law’s characteristic function is to hold people responsible. It only has the authority to do this when the person who is called to account, and those who call her to account, share some prior relationship. In systems of domestic criminal law, this relationship is co-citizenship. The polity is the relevant community. In international criminal law, the relevant community is simply the moral community of humanity. I am sympathetic to his community-based analysis, but argue (...) that the moral community must play a greater role in the domestic case and that the collection of individual political communities must play a greater role in the international case. (shrink)
Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be (...) defined as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. (shrink)
This paper examines the tension between the mainstream belief in international law as a source of objectivity distinct from politics and its new stream critics that question the validity of such a distinction. It is argued that, as a type of language, international law is not distinct from politics as a function of objectivity, but rather by the fact that it serves the international community’s thymos. The phenomena of global administrative law and NATO’s use of force in (...) Kosovo are analyzed as examples of how the thymos drives international law. Building on feminist theories of international law, the article sets forth a vision of international law as the primary communicative device for the international community’s thymos. (shrink)
This book addresses conflicts involving how law relates normative orders. The assumption behind the book is that law no longer automatically claims supremacy, but that actors can pick and choose which code to follow.
In this paper, I suggest that for some proposed solutions to global justice problems, incompatibility with the necessary features of international law is a reason to reject them. I illustrate this by discussing the problem raised by the case of unjust combatants, that is, combatants lacking a just cause for war. I argue that the principle of inequality of combatants, which suggests that we ought to prohibit those without a just cause for war from fighting, is not only a (...) bad international legal principle, but also a bad principle of global justice. (shrink)
The Grammar of Criminal Law is a 3-volume work that addresses the field of international and comparative criminal law, with its primary focus on the issues of international concern, ranging from genocide, to domestic efforts to combat terrorism, to torture, and to other international crimes. The first volume is devoted to foundational issues. The Grammar of Criminal Law is unique in its systematic emphasis on the relationship between language and legal theory; there is no comparable comparative study (...) of legal language. Written in the spirit of Fletcher's classic Rethinking Criminal Law, this work is essential reading in the field of international and comparative law. (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)
Davidovic asks what gives the international community the authority to punish some crimes? On one prominent view some crimes (genome, torture) are so heinous that the international community, so long as its procedures are fair, is justified in prosecuting them. Another view contends that heinousness alone is not enough to justify international prosecution: what is needed is an account of why the international community, in particular, has standing to hold the perpetrators to account. Davidovic raises concerns (...) about both of these views and then defends her own account. On her view, the heinousness of the crimes is relevant, but what makes these crimes the business of the international community is that the community in fact recognizes certain norms against especially heinous crimes. If the international community fails to prosecute and punish those who perpetrate these crimes, this impunity undermines the rule of law, and thereby hinders the maintenance of peace the the protection of human rights. (shrink)