Abstract
This article discusses the concept and the principle of solidarity in international law. It is often argued that solidarity is a(n) (emerging) principle of international law, yet its normative function in international law is not clear or well defined. I trace the development of the idea of solidarity and show how its image gradually shifted from reflecting the factual societal bonds to being mainly normative and thus functioning as a reason for action. In international legal scholarship, solidarity is often portrayed as a principle of international law, but there is a great deal of variety in which normative ideas we label as ‘principles’. There are several groups of ‘principles of international law’ that are very different in the type of the normative function they perform in or for international law. I investigate to which of these groups solidarity belongs and what can it tell us about its role in international law. I suggest that solidarity is a kind of normative principle, which, though essential for the legitimation of international law, is not legally normative by the function it performs. I draw a line between having a normative function within and outside the law, and use the concept of pre-emptive reasons to show why solidarity is not and should not be considered as a principle of international law in order to perform the normative function that it has. I argue that the authority of international law requires that normative ideals such as solidarity are pre-empted, and therefore replaced in practical reasoning, by legal rules.
Highlights
Solidarity is often portrayed as a principle of international law, but there is a great deal of variety in which normative ideas we label as ‘principles’
What does acting on the basis of solidarity imply? What kind of practical considerations are involved when some actor claims that she acts in a certain way out of solidarity? More importantly, what does it mean when we say that law is grounded on, or structured by, the principle of solidarity? These questions are central to any attempt to justify a specific normative content of international law in the domains of environmental protection, climate change, international trade and development, etc
It is much easier to explain what solidarity means by elaborating on its particular manifestations, be that an emotional sense of the unity of social groups and classes, a moral obligation to provide mutual assistance, or a one-sided duty to help those in need
Summary
What does acting on the basis of solidarity imply? What kind of practical considerations are involved when some actor (be that a person, a social group, or a political entity such as a state) claims that she acts in a certain way out of solidarity? More importantly, what does it mean when we say that (international) law is grounded on, or structured by, the principle of solidarity? These questions are central to any attempt to justify a specific normative content of international law in the domains of environmental protection, climate change, international trade and development, etc. It is much easier to explain what solidarity means by elaborating on its particular manifestations, be that an emotional sense of the unity of social groups and classes (e.g., when solidarity is discussed in the context of revolutions and social movements), a moral obligation to provide mutual assistance (e.g. solidarity as social co-dependence and cooperation), or a one-sided duty to help those in need (e.g., solidarity with refugees or victims of social injustice) This makes solidarity a very nebulous concept, with risks that one instance of its use may not at all fit another. States and peoples are becoming increasingly interdependent, which shapes the relations between them so that there is more and more value in cooperation than there used to be This makes the idea of solidarity even somewhat more mysterious; is there something more normatively robust behind it than the political and moral pathos that are used to legitimise international law? My ultimate aim is to show that solidarity is not and should not be considered a principle of international law in order to perform the normative function that it has
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