Philosophy Of International Law Research Articles

Axiology of human rights on the premises and determinants of contemporary discourse in the philosophy of international law

Considering the pluralism of the axiological sources of human rights, we claim that it is necessary to realize that we are facing at the moment an analytic extension of both the “number” of human rights (appearance of new generations of human rights), as well as the “quantitative quality” of human rights due to newly uncovered axiological sources such as the appearance of new values or a redefinition of existing ones. In the presented context of the axiology of human rights and the axiology of their protection, it is easy to observe the axiological pluralism of the two spheres as well as numerous attempts to make the exegesis and interpretation both relative and instrumental1 in a domestic, European, and international sphere. Attempts to limit human rights in a camouflaged manner in the jurisdiction practice of particular states are quite abundant and an axiological justification of legal solutions that would make the implementation and protection of those rights (in particular those of the third, fourth and fifth generations) ineffectual—de facto (not de iure, since from a formal and legal point of view they correspond to declared rights and, without exception, the protected ones) is the guarantee of community security and, paradoxically, the protection of other people (i.e., the protection of religious sentiments, family, public morality based usually on the rules of the dominant religion). When transposing these problematics from the state perspective to the intra- and trans-state level, we need to demonstrate that in the international law of protection of human rights, limitation of these rights may also take place as a result of extra-normative factors due to so-called “instrumental relativism”, applied in the function of current political interests for which intrinsic human dignity happens to be infringed. We also claim that the active factor of that critical crossing point is not faults in the law or its interpretation, nor is it faults of ethics, but rather the faults of what is going on within so-called Realpolitik.

Revisiting Dworkin’s Philosophy of International Law: Could the Hedgehog Have Done It Any Other Way?

This paper replies to the criticisms raised by Eric Scarffe and Thomas Christiano against Dworkin’s philosophy of international law. While the former argues that Dworkin’s philosophy of international law boils down into some form of political realism, the latter upholds that Dworkin’s attempt to ground the legitimacy of international law on the states’ duty to improve their own legitimacy is insufficient to establish a solid foundation for international obligations. In my response to these critics, I hold that they are based on an uncharitable and implausible reading of Dworkin’s theory of international law, since Dworkin’s theses about the law, whether we are considering “municipal” or “international” law, only make sense if they are understood in an interpretive way. This is, I submit, the only way to avoid turning Dworkin’s assumption of the “unity of value” into an implausible metaphysical theory of natural law. Once we adopt Dworkin’s interpretive attitude, it becomes clear that the route taken by Dworkin in “A New Philosophy for International Law” was the only route that remained available for his interpretive account of political legitimacy and the foundations of law.

Remarks on the Normativity of International Legal Rules and Global Constitutionalism

AbstractThe article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.

Cosmopolitan jurisprudence for economic governance

PurposeThe paper aims to extend deliberation on legal and political aspects of debate over globalisation versus cosmopolitanism into the field of jurisprudence – philosophy of law. It gives particular attention to questions of the legitimacy of international law and emerging forms of economic governance for business enterprises, soft law, rule of law, accountability and human rights.Design/methodology/approachIn terms of research method, the paper proceeds from normative, as opposed to empirical studies. The paper develops arguments connected with cosmopolitan jurisprudence, a value-based frame of reference for corporate social responsibility. In legal and moral philosophy, normative statements derive from arguments concerning what states of affairs ought to be, how they are to be valued, which things and actions are good or bad. Normative claims contrast with positive (descriptive or explanatory) claims with respect to types of theories, beliefs or propositions. Value is both independent of fact and, at the same time, of an objective nature.FindingsA cosmopolitan jurisprudence frame of reference for economic governance treats human communities as interdependent and takes seriously the human rights obligations and ethical and legal responsibilities of international business enterprises presupposed by international rule of law. In contrast to globalisation jurisprudence, the cosmopolitan philosophy of international law seeks justificatory ground, not only exclusively for traditional forms of centralised governmental authority but also for decentralised, polycentric, private and hybrid public–private forms of authority.Research limitations/implicationsThe paper demonstrates the insufficiency of just describing, as political science and economics does, the emergence of new arrangements for global economic governance. As well, it is insufficient for management theory to propose instrumental strategies for managing various stakeholder interests at play in emerging forms of governance. Efforts of empirical researchers in documenting, classifying and providing empirical analysis of power shifts do not provide moral justifications or groundings of legitimacy from human rights and rule of law. The paper shows how a cosmopolitan jurisprudence standpoint is a fertile theoretical source for addressing such justificatory issues.Practical implicationsIn the context of a rapidly globalising economy, the justification of responsible business conduct across borders and cultures is more and more becoming a pressing practical concern. Increasingly, private actors are operating in authoritative positions, fulfilling governing functions once perceived to be the exclusive domain of nation-states.Social implicationsThe paper suggests that more important than focusing exclusively on descriptive, coercive and instrumental features of law, and seeking some overarching sanctions system that would necessitate pledging allegiance to a global super-sovereign, is cultivating social awareness of the importance of non-instrumental internal dispositions of actors to respect the normative obligatory nature of norms. The intrinsic value of rule of law and human rights provides a vital intellectual pathway for surmounting legitimacy gaps in global economic governance.Originality/valueThe paper breaks new ground by developing a cosmopolitan jurisprudence as an alternative to globalisation jurisprudence. This new articulation of cosmopolitan jurisprudence serves to provide analysis of philosophical justifications for emerging soft law syndicates that purport to establish obligations for business enterprises and other participants towards soft law regimes touching upon sustainability and human rights responsibilities.

Ratner, Steven R. The Thin Justice of International Law: A Moral Reckoning of the Law of Nations.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

O realismo de Danilo Zolo

O artigo se propoe a fazer uma analise de aspectos centrais do pensamento do jusfilosofo Danilo Zolo, que completou 80 anos em janeiro de 2016. Inicialmente, examina os fundamentos epistemologicos do realismo juridico proposto por Zolo. Em seguida, aborda a significância desse realismo para uma possivel teoria da democracia. Por fim, analisa as contribuicoes do referido autor para a filosofia do direito internacional, as quais o colocam como um dos mais destacados pensadores desta area nas ultimas decadas.Palavras-chave: filosofia do direito, filosofia politica, realismo juridico.

International law is different in different places: Russian interpretations and outlooks

Following the end of the Cold War, it became a widely held belief that, after more than 70 years in exile, Russia would finally “return” to Europe—a sphere to which it had belonged since the time of Peter the Great—politically as well as normatively. Quite early on, however, it became clear that the country was choosing its own way, in ideological terms but also, by extension, in its understanding of international law—what the law of nations is for and what it is about. Lauri Mälksoo’s, Russian Approaches, is, particularly considering its heuristic value, the most informative, interesting and innovative book written to date regarding (i) what the philosophy of international law in Russia is and how it has evolved over time, and (ii) how international law has been reflected in post-Soviet Russian state practice. The essay presents some of the weaknesses in Mälksoo’s answers to these questions, including the disproportionate weight given to some explanatory factors and, by extension, the omission of others. It also argues, inspired by Martti Koskenniemi, for the importance of acknowledging “international law as a political project” in order to enable it to function both as an instrument for advancing various claims and as a relatively autonomous formal technique.

The philosophy of international law in contemporary scholarship: overcoming negligence through the global expansion of human rights

The paper aims to analyze the relative neglect often given to international law under philosophy of law studies. Within this context, the relationship between law an reasoning in the light of the international realm is taken in a broader level to understand the role played by this field of knowledge in H.L.A. Hart’s The Concept of Law, among other works of reference. With the consolidation of normative and jurisprudential work of several international fora, such as the United Nations, its affiliate agencies, and many international courts other than the International Court of Justice, international law has given rise to several legal phenomena worth understanding through a philosophical perspective. Regardless of the field of study, whether humanitarian law, international economic law, or transnational justice, the social and political role international law plays nowadays has been growing exponentially. Notwithstanding its importance, there is a current negligence to the philosophy of international law among authors from all over the world. Despite researching fields such as distributive justice, group justice and transnational justice, not enough though is put into understanding current legal theories behind international law, neither into the possibility of conceiving a moral theory in the context of legal pluralism. In view of these main issues, the article aims not only to examine international law as a viable field of study for the philosophy of law in the context of legal pluralism, but also to further understand its developmental consequences for the international order.

Dworkin on International Law: Not Much of a Legacy?

Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.

Vedanta and the philosophy of international law: From human sociality to ahuman reality

Conventionally, sociality is deemed the true human condition; it is the reality cast before humanity by the collective social self-consciousness of its members. International law is a legal consciousness, a vital constituent of sociality. In a challenge to this position, this article, drawing on the Vedic philosophy of ancient India, particularly its Vedanta part, argues that the true human condition is not sociality but a transcendental super-consciousness, upon which a social consciousness is superimposed. The super-consciousness is an intellectual fullness of mind, a transcendental state into which all constructs created by consciousness collapse. This collapse also brings about the collapse of sociality and international law. The article then envisages a transcendental foundation of law that embodies the deeper logic and higher level of reasoning distinctive of the super-consciousness. What is international law in sociality becomes a profound intellectual discursivity in the transcendental scheme.

Samantha Besson and John Tasioulas (eds), The Philosophy of International Law

Despite its important tradition in international law, international legal philosophy has, for the most part, been left aside by scholars during the past decades. While there has been a revival in legal philosophy in most fields starting with Hart and Rawls in the 1960s, international law has been conspicuously left out of this move. The founders of the discipline at the beginning of legal modernity (Grotius, Pufendorf, Vattel), as well as the pioneers of current ways of thinking about law and politics in the international sphere (Kelsen, Lauterpacht, Morgenthau), are, of course, all acknowledged � but not so much reread, rediscovered, or even overturned by contemporary research. Is it time to catch up? Samantha Besson and John Tasioulas, the editors of a comprehensive volume on The Philosophy of International Law, explain the disregard of the past decades towards international legal philosophy by the lower state of the development of international law compared with other fields of law. For a long time, international law and international lawyers have found themselves on the defensive. With international law being a law with little coercive means, always at the mercy of states and their representatives, the discipline was busy enough proving that international law is, indeed, law. In this situation, scholarship presented international law as a means to further progress and peace in order to counter doubts, questions, and critique forcefully raised by others. Such a constellation is not prone to fundamental questioning. While legal philosophy can be affirmative towards its object, it depends on a basic openness to critique. The recent revival of international legal philosophy can thus be interpreted as a sign of the development and the increasing maturity of international law: international law has widened in scope and intensified in depth; international financial, economic and environmental relations have been put on �

Sir Hersch Lauterpacht, The Function of Law in the International Community

Almost eight decades after its publication in 1933, Oxford University Press recently republished Hersch Lauterpacht's book, The Function of Law in the International Community, with a new preface by Martti Koskenniemi that situates the work within the German legal tradition.1 The Function of Law is a significant work for several reasons and its renewed accessibility therefore very much welcomed. First, the work is an impressive piece of scholarship, regarding the stringency of argumentation and depth of analysis. In his attempt to dispel arguments for the non-justiciability of certain international disputes, in particular due to their allegedly political nature, and in making the case for compulsory adjudication, Lauterpacht not only surveyed the existing provisions on third-party dispute settlement in numerous arbitration treaties, the Covenant of the League of Nations, and the Statute of the Permanent Court of International Justice; he also analysed a vast amount of state practice and case law, as well as doctrines of municipal private law, such as �abuse of rights� or �rebus sic stantibus� � always informed by the existing international law literature and works on Roman, Italian, German, French, and English law. Last but not least, Lauterpacht tackled the fundamental question of the philosophy of international law, the question as to the concept of international law, the origin of international law's normativity. Criticizing the doctrine of co-ordination as exposed by Georg Jellinek and Erich Kaufmann, as well as Heinrich Triepel's doctrine of international legal obligation as based on law-making agreements between states, he agreed with Hans Kelsen that the binding force of law could not be derived from either the individual or common will of states, but instead originated in an �

Law and the Practice of Diplomacy

At the boundary where states meet the outside world, we find public diplomacy. Distinct from private negotiation and covert action, diplomacy involves the presentation of the interests and actions of the state to an international audience. It includes a wide variety of activities, including formal interactions with other states over treaties and agreements, public statements by spokespeople to explain the state's actions, and positions taken in international settings such as the United Nations general assembly, among many other manifestations. These activities share two features in common: first, they are all at some level official products or byproducts of state behaviour, meaning that diplomacy is essentially connected to the business of the state; and second, they all involve situating state behaviour within the framework provided by international law. This article defends the claim that these two features make up the essential core of international diplomacy and examines implications for the practice and theory of international politics.Seeing diplomacy in terms of international legal justification provides a novel perspective on the behaviour of states and on their interaction with international law. This has three elements. First, it emphasizes the use of law by states, suggesting that international law is a set of resources with which states construct the explanations for their behaviour. This view is an alternative to conventional philosophical positions on international law from the Hobbesian, positivist, and Kantian traditions. Second, it suggests that controversy over distinguishing compliance from noncompliance is inherent in the concept of international law, so that diplomacy is by nature a contest among competing claims about rule-following. This contradicts some common approaches to diplomacy and law that suggest that deliberation, argumentation, and diplomacy lead to greater consensus over the meaning of particular laws. Instead, I suggest that diplomacy complicates rather than simplifies the notion of compliance. Finally, it presents diplomacy as the medium of exchange between agents and structures in international relations. Studying the practice of diplomacy therefore provides an example of how the interactive process between agents and structures can be modelled for international relations theory.This article seeks to substantiate two points: first, that diplomacy is a practice of states; and second, that this practice consists of reconciling state behaviour to international law. The first section of the article explains what is entailed in seeing diplomacy as a practice, including the dynamic between state officials and new actors in diplomacy. The second examines diplomacy's connection to compliance, contestation, and the rule of law. It suggests that compliance with international law is an intrinsic quality in the self-understanding of state action: states naturally see their behaviour as rulecompliant and the function of diplomacy is to substantiate that connection. As a result, competing claims about compliance cannot be resolved within the terms of diplomacy; they are political rather than legal artefacts. In conclusion, I explore the implications for the philosophy of international law, the concepts of compliance and noncompliance, and the agent-structure debate in international theory.DIPLOMACY AS A PRACTICEThe interaction among sovereign states inevitably produces dialogues of diplomacy - states talking to states about the business of states. This is the infrastructure of world politics.1 Public diplomacy is a subset of these dialogues, where the broader set also includes private negotiations and secret interactions.2 Among these, I am interested in the pattern of public justification of state policy or action, undertaken by leaders, diplomats, and other government officials as well as by the professional staffs of foreign offices and other bureaus.Public diplomacy is a social practice. …

The Philosophy of International Law – Edited by Samantha Besson and John Tasioulas

The Philosophy of International Law – Edited by Samantha Besson and John Tasioulas

Are Institutions and Empiricism Enough?

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan's new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to Buchanan's argument that the philosophy of international law must be more empirically informed than it has been so far, and also to his claim that greater emphasis must be placed on the role of institutions. While these are important claims, I show that Buchanan often does not take the first far enough, and that appealing to institutions cannot do as much as Buchanan hopes or needs if his substantive conclusions are to be correct.

The Philosophy of international law

This volume is the most up-to-date and comprehensive treatment of the philosophy of international law in existence.

International Soft Law, Hard Law, and Coherence

A rule of law is a norm coupled with coercive power. International soft law is only the norm. There is a vast number of such non-coercive norms, and many recent papers have been preoccupied with their apparent normative tilt toward respect for human rights and democracy. In criticizing the entire soft-law enterprise, I feel like the Grinch who stole Christmas. But I do try to put in a good word or two for the time-honored sources of the 4000 year-old public international law. This paper will be a chapter in the forthcoming The Philosophy of International Law, to be published by Oxford University Press.

On the Relational Aesthetics of International Law: Philosophy of International Law, Anthony Carty

According to a survey published in 2001, and things will have declined since then, lawyers formed only 16 per cent of the top 100 public intellectuals in the United States.2 Of the 16, one is dead, one is a Supreme Court Justice, one is a judge and author of the survey, two are converts to law from other disciplines, and so there only remains 11, a cricket team, of well known if not necessarily reputable legal academics. Worse, however, is to come. None of the 11 public intellectual legal scholars is an international lawyer. Let’s put this directly. Th e legal discipline that is most obviously concerned with aff airs of state, with highly visible international incidents, with the

Justice Without Borders: A Reply to Nagel

The philosophy of international law embraces a variety of conceptual and normative tasks. Few of these tasks are as theoretically interesting or as morally important as the analysis and justification of principles of distributive justice extending between nations, either directly or by way of international institutions. This Essay approaches the question of global justice through a discussion of a recent article by Thomas Nagel, who takes the radical position that duties of distributive justice extend only within and not between rich and poor countries, and that shared membership in international institutions does not give rise to any additional obligations to eliminate arbitrary inequalities across borders. Nagel's philosophical argument turns repeatedly on legal concepts - such as responsibility and standing - and legal contexts - such as the creation and replacement of sovereign states - whose philosophical import remains obscured for want of legal analysis. Engagement with Nagel's views provides a window onto a new approach that avoids the excesses of the radical position while acknowledging the concerns that provide its motivation. The new approach fuses elements of liberal egalitarianism and republicanism, responding to conflicting impulses toward equality and partiality and to the relevance of international institutions in mediating duties of global justice.

The Kantian Project in Modern International Legal Theory

Developments over the last 50 years in the institutional nature of international law and the political situation it regulates have led to a revival of Kant’s approach to international legal theory. Kant’s argument requires, first, that a distinction is made between just and unjust states for the purposes of regulation by international law and, secondly, that international law must be institutionally designed to ensure the peaceful settlement of disputes. Fernando Teson’s A Philosophy of International Law — which is the subject of this review — represents the fullest defence of Kant’s international legal theory yet. It is argued in this review that Teson’s work contains two problems. First, Teson does not defend the methodological and justificatory basis of Kantian theory which is, on most accounts, the categorical imperative, and his allusion to an empirical methodology is problematic. Secondly, Teson does not sufficiently develop the second of Kant’s major theses, which concerns the maintenance of peace by international legal institutions. In fact, Teson’s argument can be best understood as an account of a Kantian approach to a moral foreign policy rather than a Kantian conception of international law.