We provide a retrospective of 25 years of the International Conference on AI and Law, which was first held in 1987. Fifty papers have been selected from the thirteen conferences and each of them is described in a short subsection individually written by one of the 24 authors. These subsections attempt to place the paper discussed in the context of the development of AI and Law, while often offering some personal reactions and reflections. As a whole, the subsections build (...) into a history of the last quarter century of the field, and provide some insights into where it has come from, where it is now, and where it might go. (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 ...
The use of private military force by states has been a long-standing phenomena in the history of warfare. Armies of mercenaries, privateering and recruitment of foreign nationals into armed forces have been common during the Middle Ages and later on. However, with the invention of effective firearms and artillery, standing regular armies, conscription and other developments that resulted in the essential rise of costs of war, the role of private military entrepreneurs diminished. By the end of XIXth century the (...) state became almost the only subject that was able to wage a full-scale war. Nevertheless, already in the middle of the XXth century mercenarism has been reborn in Africa’s colonial and post-colonial wars. The end of the XXth century and the beginning of the XXI century witnesses an enormous rise of private security and military companies (PSMC) that are hired to perform different functions related to use of force not only by states, but also by other clients such as international organisations, transnational corporations, etc. A PSMC may be defined as a profit-seeking private enterprise, which is established according to the national law of the state and which is providing, on the basis of a contract, services directly or indirectly connected with the use of military force or its institutions whether in time of armed conflict or peace, notwithstanding how such company describes itself. International humanitarian law has no specific regulation of PSMC. Nevertheless, it would be erroneous to state that the activity of PSMC is not regulated, because international humanitarian law in any case, in one or another way, is applicable to the personnel of PSMC if it is engaged in armed conflict of either international or non-international character. (shrink)
The paper explores how language underscores our appreciation forinternational activism. An account of the tension between activismand international activism, especially in the context of thedeclarative and ``true'' character of the terms is offered. Thisis achieved through examining ``word games'' pertaining to theBalkan crisis with such expressions as ``democratic revolution'',``Serbian nationalism'', ``revenge killing'', and ``reverse ethniccleansing.'' The analysis points to a non-descriptive attitudinalcharacter of such phrases. Consequently, two defensive strategiesare suggested for international activists. First, they should getinformed on the (...)history of the region as much as possible, becomingavid students of recent and more historically removed events ofimportance. And second, they must make sure they do not fall preyto the on-going word games that can obscure their overall goal andpurpose. Hence, the need to develop a proper ethics of internationalactivism, which we would be unable to do if we were to ignoremassive opportunity for manipulation residing in the attitude thathumanitarian workers are modern day saints. International law,whatever its final shape, must also take into account findingsdetailed here. All of this is linked to (international) activismand the double-edged sword it embodies: peace initiatives yetforeign invasions. (shrink)
Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, (...) then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters. The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments. If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle. (shrink)
Introduction -- Saint Thomas : putting nature into natural law -- Maritain and the love for the natural law -- The new natural law and evolutionary natural law -- International human rights, natural law, and Locke -- Conclusion : evil and the limits of the natural law.
Institutional and political developments since the end of the Cold War have led to a revival of public interest in, and anxiety about, international law. Liberal international law is appealed to as offering a means of constraining power and as representing universal values. This book brings together scholars who draw on jurisprudence, philosophy, legal history and political theory to analyse the stakes of this turn towards international law. Contributors explore the history of relations between (...) class='Hi'>international law and those it defines as other - other traditions, other logics, other forces, and other groups. They explore the archive of international law as a record of attempts by scholars, bureaucrats, decision-makers and legal professionals to think about what happens to law at the limits of modern political organisation. The result is a rich array of responses to the question of what it means to speak and write about international law in our time. (shrink)
Drawing on philosophy, history, and critical theory, Unconditional Life introduces a new perspective on the significance of post-war international law developments. The book examines the public discourse regarding technological risk in World War II texts of unconditional surrender, in the World Trade Organisation's EC-Biotech dispute, and in the International Court of Justices' Nuclear Weapons Advisory Opinion. The volume describes international law in terms of its management of, and relation to, the risks associated with technological innovation in (...) war and in trade. It proposes that international law, too, is itself a kind of technology: one intended to manage the material and existential risks inherent in the creation of a new international, postcolonial, political community emerging out of the Second World War. Members of this community are imagined to possess a universal quality: humanness, which itself is underscored by a power of invention. Yoriko Otomo demonstrates how international lawyers' inability to adjudicate questions of large-scale technological risk is due to the competing and intractable claims of international law.Offering a feminist analysis of the political economy that has created this crisis of governance, the book provides a way of understanding the structural inequities that will need to be addressed if international law is to remain a relevant forum for the adjudication of war and trade into the 21st century. (shrink)
For decades, Martti Koskenniemi has not just been an influential writer in international law; his work has caused a significant shift in the direction of the field. This book engages with some of the core questions that have animated Koskenniemi's scholarship so far. Its chapters attest to the breadth and depth of Koskenniemi's oeuvre and the different ways in which he has explored these questions. Koskenniemi's work is applied to a wide range of functional areas in international law (...) and discussed in relation to an even broader range of theoretical perspectives, including history, political theory, sociology and international relations theory. These invaluable insights have been expertly brought together by the volume editors, who identify the key and common themes of many of the book's contributions. This volume demonstrates the importance of critical legal scholarship in the ways international law is enacted, shaped and reshaped over time. (shrink)
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)
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.
By presenting original research into British legal history, this volume emphasises the historical shaping of the law by ideas of authority. The essays offer perspectives upon the way that ideas of authority underpinned the conceptualisation and interpretation of legal sources over time and became embedded in legal institutions. The contributors explore the basis of the authority of particular sources of law, such as legislation or court judgments, and highlight how this was affected by shifting ideas relating to concepts of (...) sovereignty, religion, political legitimacy, the nature of law, equity and judicial interpretation. The analysis also encompasses ideas of authority which influenced the development of courts, remedies and jurisdictions, international aspects of legal authority when questions of foreign law or jurisdiction arose in British courts, the wider authority of systems of legal ideas such as natural law, the authority of legal treatises, and the relationship between history, law and legal thought. (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)
The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance (...) of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order and the political order. The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts “permitted” and “prohibited,” “threat of use” and “possession of the weapon,” and “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of 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)
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)
In Eichmann in Jerusalem , Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the (...) question of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity. (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)
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)
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.
Vattel's Law of Nations claimed that a system of independent states could maintain the liberty of each without undermining the ideal of an international society. The chief institution serving this purpose was the balance of power. In Vattel's account, the balance of power could be stabilized if it operated primarily through a process of commercial preferences and restrictions. These limits on how states ought to defend themselves were grounded in Vattel's thoroughly forgotten writings on the mid-eighteenth-century luxury debates, which (...) addressed the political economy of reforming the state and pacifying the international order. An examination of Vattel's Law of Nations in this context shows that his approach to the law of nations should not be dismissed as a capitulation to the harsh reality of international politics. (shrink)
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)