Justice and Recognizing the Rights of States

2014 ◽  
Vol 14 (4-5) ◽  
pp. 874-900
Author(s):  
Steve Viner
Keyword(s):  
International Law ◽  
International Institutions ◽  
International Community ◽  
Legal Rights ◽  
International Laws ◽  
State Rights

In this article, I reject Allen Buchanan's justice-based account of recognizing states as legitimate states in an international community of states. I argue that his account can fail to implement justice and that it does not properly consider the nature or importance of international law. After rejecting Buchanan's approach, I offer my account. My account calls for the unbundling of state rights, and it allows each state right to be subject to moral and legal scrutiny. My unbundling account subjects the rights of states to morally justified international laws, and it supports the conclusion that sovereignty and legitimacy should be seen in degrees. It also provides a framework for thinking about how, why and when, morally speaking, international institutions should have the power to grant or withhold legal rights from states.

Sources and the Legitimate Authority of International Law

2018 ◽  
Author(s):  
José Luis Martí
Keyword(s):  
Political Philosophy ◽  
International Law ◽  
International Institutions ◽  
Current System ◽  
Democratic Legitimacy ◽  
Legitimate Authority ◽  
Basic Principles ◽  
Democratic Equality ◽  
International Laws ◽  
The Right

This chapter considers that political philosophers in recent years are paying growing attention to the legitimacy of international law and international institutions and are asking who has the right to rule and adequate standing to create international laws, and how. It attempts to contribute to this debate in normative political philosophy through the more specific lens of democratic legitimacy. After presenting certain conceptual clarifications, the chapter identifies three basic principles of democratic legitimacy: the principle of ultimate popular control, the principle of democratic equality, and the principle of deliberative contestability, which can be instantiated in six more concrete requirements. The chapter continues by exploring the limitations of two influential views on the democratic legitimacy of international law. Finally, the chapter concludes by expressing some scepticism about the degree to which the current system of sources of international law is democratically legitimate.

The Hague Conferences and ‘international community’: a politics of conceptual innovation

2016 ◽  
Vol 43 (1) ◽  
pp. 177-198 ◽  
Author(s):  
Evgeny Roshchin
Keyword(s):  
International Law ◽  
Speech Acts ◽  
International Institutions ◽  
International Community ◽  
Epistemic Community ◽  
Conceptual Innovation ◽  
Conceptual Changes ◽  
Shared Language ◽  
The Hague ◽  
Signal Changes

AbstractThis article asks when, how, and why states started to use the concept of international community in the shared language of diplomacy and international law. It argues that the concept was accepted to the interstate language as a result of debates over international institutions, which were to acquire a universal character, at the Hague Conferences of 1899 and 1907. The article suggests that conceptual changes in interstate language should be understood as products of rhetorical power struggles, in which some arguments lose the battle while others prevail, some concepts are discarded while others modified. The article suggests a model of conceptual change that explains an innovation in interstate language. First, it draws attention to collective assertive speech acts at diplomatic events that signal changes in international politics. Second, it examines whether such acts implicate conceptual innovations. Third, it posits that the composition of epistemic community assembled at the Hague determines the nature of conceptual innovation. Fourth, it demonstrates how rhetorical interventions into debates at the conference introduce and mould relevant concepts. Fifth, it illuminates how contextualisation of the conference interventions in professional debates helps us understand the polemical nature of arguments and the scope of conceptual innovation.

Identifying Community Interests in International Law

2018 ◽  
Author(s):  
Rüdiger Wolfrum
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Community ◽  
Available P ◽  
General Question ◽  
Global Commons ◽  
Settlement Systems ◽  
Community Interest ◽  
National Jurisdiction ◽  
Advisory Opinions

This chapter explores the general question of how to establish that the regulation of a certain matter constitutes a matter of community-wide concern, which is the necessary step for the recognition of community obligation. The hypothesis is that such a qualification must, first, be well founded factually and, secondly, accepted as such in a legal or political legitimizing process. On this basis, the chapter suggests that the governance of spaces beyond national jurisdiction constitutes a community interest and has to be guided by the interests of the international community. Exploring this question with respect to key common spaces and particular issues, the chapter notes the difficulty of most of the dispute settlement systems, which, being bilateral, are not fully adequate to address questions related to the management of global commons as well as for the protection of the environment. To avoid this difficulty, the chapter suggests greater reliance on advisory opinions where available.

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

Feminist Dialogues on International Law

2019 ◽  
Author(s):  
Gina Heathcote
Keyword(s):  
International Law ◽  
Global Governance ◽  
International Institutions ◽  
Law Reform ◽  
Black British ◽  
The Uk ◽  
The Impact

Reflecting on recent gender law reform within international law, this book examines the nature of feminist interventions to consider what the next phase of feminist approaches to international law might include. To undertake analysis of existing gender law reform and future gender law reform, the book engages critical legal inquiries on international law on the foundations of international law. At the same time, the text looks beyond mainstream feminist accounts to consider the contributions, and tensions, across a broader range of feminist methodologies than has been adapted and incorporated into gender law reform including transnational and postcolonial feminisms. The text therefore develops dialogues across feminist approaches, beyond dominant Western liberal, radical, and cultural feminisms, to analyse the rise of expertise and the impact of fragmentation on global governance, to study sovereignty and international institutions, and to reflect on the construction of authority within international law. The book concludes that through feminist dialogues that incorporate intersectionality, and thus feminist dialogues with queer, crip, and race theories, that reflect on the politics of listening and which are actively attentive to the conditions of privilege from which dominant feminist approaches are articulated, opportunity for feminist dialogues to shape feminist futures on international law emerge. The book begins this process through analysis of the conditions in which the author speaks and the role histories of colonialism play out to define her own privilege, thus requiring attention to indigenous feminisms and, in the UK, the important interventions of Black British feminisms.

State Engagement with Treaties

2019 ◽  
pp. 430-446
Author(s):  
Hannah Woolaver
Keyword(s):  
International Law ◽  
Foreign Relations ◽  
International Institutions ◽  
Separation Of Powers ◽  
State Engagement ◽  
The Relationship ◽  
Two Bodies ◽  
Significant Question

This chapter explores the interaction between domestic and international law in relation to the state’s engagement with treaties. Treaty engagements are important mechanisms through which states conduct their foreign relations. The domestic allocation of responsibility for the making and unmaking of treaties is therefore a significant question of the constitutional separation of powers in the realm of foreign relations law. Treaties are also international legal instruments, facilitating the development of international law and international institutions. The domestic and international law of treaties therefore both concurrently regulate the state’s power to join and leave treaties. This chapter examines the relationship between these two bodies of law in this regard, setting out developments in domestic jurisdictions establishing constitutional limits on the executive’s power to enter and exit treaties, and addresses the possible impact of these constitutional developments in the international law of treaties.

Advances and progress in the obligation to return the remains of missing and forcibly disappeared persons

2017 ◽  
Vol 99 (905) ◽  
pp. 709-733
Author(s):  
Grażyna Baranowska
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Community ◽  
International Courts ◽  
Missing Persons

AbstractThis article analyzes the evolution in international law of the obligation to search for and return the remains of forcibly disappeared and missing persons. Receiving the remains of forcibly disappeared and missing persons is one of the primary needs of their families, who bring the issue to international courts and non-judicial mechanisms. This obligation has been incrementally recognized and developed by different human rights courts, which have included the obligation to search for and return the remains of disappeared persons in their remedies. In parallel to the development of the obligation by international courts, the international community has begun to become more involved in assisting in return of the remains of forcibly disappeared and missing persons to their families.

scholarly journals Kurdish Regional Self-rule Administration in Syria: A new Model of Statehood and its Status in International Law Compared to the Kurdistan Regional Government (KRG) in Iraq

2016 ◽  
Vol 17 (3) ◽  
pp. 468-488 ◽  
Author(s):  
LOQMAN RADPEY
Keyword(s):  
Civil War ◽  
International Law ◽  
International Community ◽  
Regional Government ◽  
Autonomous Region ◽  
New Model ◽  
Northern Iraq ◽  
Syrian Population ◽  
The Creation ◽  
Self Rule

AbstractHaving been supressed and denied their rights by successive Syrian governments over the years, Syrian Kurds are now asserting ade factoautonomy. Since the withdrawal of the Syrian President's forces from the ethnically Kurdish areas in the early months of the current civil war, the inhabitants have declared a self-rule government along the lines of the Kurdistan regional government in northern Iraq. For Syrian Kurds, the creation of a small autonomous region is a dream fulfilled, albeit one unrecognized by the international community. Some 15% to 17% of the Syrian population is Kurdish. Whether they can achieve statehood will depend on a reading of international law and on how the international community reacts. There are certain aspects which differentiate Kurdish self-rule in Syria from its counterpart in Iraq.

The Decay of Consent: International Law in an Age of Global Public Goods

2014 ◽  
Vol 108 (1) ◽  
pp. 1-40 ◽  
Author(s):  
Nico Krisch
Keyword(s):  
Human Rights ◽  
Public Goods ◽  
International Law ◽  
International Community ◽  
Global Public Goods ◽  
Community Values ◽  
International Legal Order ◽  
The Face ◽  
Common Policies ◽  
The Cost

The consensual structure of the international legal order, with its strong emphasis on the sovereign equality of states, has always been somewhat precarious. In different waves over the centuries, it has been attacked for its incongruence with the realities of inequality in international politics, for its tension with ideals of democracy and human rights, and for standing in the way of more effective problem solving in the international community. While surprisingly resilient in the face of such challenges, the consensual structure has seen renewed attacks in recent years. In the 1990s, those attacks were mainly “moral” in character. They were related to the liberal turn in international law, and some of them, under the banner of human rights, aimed at weakening principles of nonintervention and immunity. Others, starting from the idea of an emerging “international community,” questioned the prevailing contractual models of international law and emphasized the rise of norms and processes reflecting community values rather than individual state interests. Since the beginning of the new millennium, the focus has shifted, and attacks are more often framed in terms of effectiveness or global public goods. Classical international law is regarded as increasingly incapable of providing much-needed solutions for the challenges of a globalized world; as countries become ever more interdependent and vulnerable to global challenges, an order that safeguards states’ freedoms at the cost of common policies is often seen as anachronistic. According to this view, what is needed—and what we are likely to see—is a turn to nonconsensual lawmaking mechanisms, especially through powerful international institutions with majoritarian voting rules.

THE LAW-MAKING EFFECTS OF THE FAO DEEP-SEA FISHERIES GUIDELINES

2018 ◽  
Vol 67 (4) ◽  
pp. 801-832
Author(s):  
Lene Korseberg
Keyword(s):  
Twentieth Century ◽  
South China Sea ◽  
International Law ◽  
Fisheries Management ◽  
South China ◽  
Deep Sea ◽  
International Community ◽  
Legal Regime ◽  
Substantive Content ◽  
Law Making

AbstractThe second half of the twentieth century saw major improvements in the legal regime for fisheries management. This notwithstanding, the deep seas remain largely unregulated under international law, until recently only being covered by the general environmental and management provisions found in UNCLOS. In light of this regulatory gap, this article evaluates the potential law-making effects, if any, of the FAO Deep-Sea Fisheries Guidelines, a voluntary instrument designed to provide States with a regulatory framework for the management of their deep-sea fisheries. It considers how the Guidelines may inform, interpret and influence the content of the general high-sea obligations in UNCLOS. Despite the vagueness and generality of those provisions, some indication of their substantive content has been given in recent decisions, particularly the South China Sea Arbitration. By assessing their compatibility, and their level of acceptance by the international community, this article argues that the FAO Deep-Sea Guidelines are beginning to have a law-making effect by providing an authoritative interpretation of the general high-sea obligations found in UNCLOS relating to deep-sea fisheries.

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