La moralidad interna del derecho internacional

Abstract

In this essay we build on public fiduciary theory and Lon Fuller’s notion of the internal morality of law. We posit two criteria necessary to establish the internal morality of international law. We argue that the internal morality of international law is derived from the synthesis of a fiduciary criterion of legitimacy and the prohibition of unilateralism. The former refers to the idea that any public action which cannot be reasonably said to be made in the name of, or on behalf of, those subject to it is illegitimate. The latter refers to the prohibition of one state imposing its will on another. We argue that the fiduciary criterion and the prohibition of unilateralism are complementary, and their synthesis provides a compelling explanation of international law’s authority. This is evident from the character and legal effects of jus cogens or peremptory norms. Finally, we address numerous challenges that could be raised against this conception of international law, and its implications for the rule of law in the international realm.