Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.001.0001
- Subject:
- Political Science, International Relations and Politics
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret ...
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This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.Less
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.
Rachel Kerr
- Published in print:
- 2004
- Published Online:
- August 2004
- ISBN:
- 9780199263059
- eISBN:
- 9780191601422
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199263051.001.0001
- Subject:
- Political Science, International Relations and Politics
This book examines the establishment, functions and significance of the International Criminal Tribunal for the Former Yugoslavia. It sought an answer to whether the Tribunal could carry out its ...
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This book examines the establishment, functions and significance of the International Criminal Tribunal for the Former Yugoslavia. It sought an answer to whether the Tribunal could carry out its duties as an impartial judicial body, given that it was established for political purposes. It is argued that the external political function did not undermine the Tribunal’s status as an impartial judicial body, but rather enhanced its effectiveness.Less
This book examines the establishment, functions and significance of the International Criminal Tribunal for the Former Yugoslavia. It sought an answer to whether the Tribunal could carry out its duties as an impartial judicial body, given that it was established for political purposes. It is argued that the external political function did not undermine the Tribunal’s status as an impartial judicial body, but rather enhanced its effectiveness.
David Armstrong
- Published in print:
- 1993
- Published Online:
- November 2003
- ISBN:
- 9780198275282
- eISBN:
- 9780191598739
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198275285.001.0001
- Subject:
- Political Science, International Relations and Politics
This study examines the impact of revolutionary states upon international society. These states have always posed major problems for the achievement of world order: revolution is often accompanied by ...
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This study examines the impact of revolutionary states upon international society. These states have always posed major problems for the achievement of world order: revolution is often accompanied by international as well as civil conflict, while revolutionary doctrines have proven to be highly disruptive of the existing structure of international politics. Conversely, the prevailing international order presents fundamental difficulties for some revolutionary states. The belief system on which its revolution was founded and which legitimized the assumption of state power by the revolutionary elite is certain to run counter to the prevailing political doctrines of many other states. David Armstrong asks whether revolutionary states are ‘socialized’ into adopting acceptable patterns of international behaviour, or whether it is the international society that is forced to change when these new states appear. He looks in detail at the French, American, and Russian revolutions and at several post‐1945 revolutionary states. He also examines the relationship between revolutionary states and the principal ordering devices of an international society: international law, diplomacy, and the balance of power. His book is a significant contribution to the ‘English School’ literature, whose central concept is that of an international society. It shows how the interaction between revolutionary states and the established norms, rules, and institutions of international society works to produce change in both the revolutionary state and international society itself. As such it elucidates the dynamic aspects of international society.Less
This study examines the impact of revolutionary states upon international society. These states have always posed major problems for the achievement of world order: revolution is often accompanied by international as well as civil conflict, while revolutionary doctrines have proven to be highly disruptive of the existing structure of international politics. Conversely, the prevailing international order presents fundamental difficulties for some revolutionary states. The belief system on which its revolution was founded and which legitimized the assumption of state power by the revolutionary elite is certain to run counter to the prevailing political doctrines of many other states. David Armstrong asks whether revolutionary states are ‘socialized’ into adopting acceptable patterns of international behaviour, or whether it is the international society that is forced to change when these new states appear. He looks in detail at the French, American, and Russian revolutions and at several post‐1945 revolutionary states. He also examines the relationship between revolutionary states and the principal ordering devices of an international society: international law, diplomacy, and the balance of power. His book is a significant contribution to the ‘English School’ literature, whose central concept is that of an international society. It shows how the interaction between revolutionary states and the established norms, rules, and institutions of international society works to produce change in both the revolutionary state and international society itself. As such it elucidates the dynamic aspects of international society.
Richard Falk
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0014
- Subject:
- Political Science, International Relations and Politics
This paper assesses recent trends in international law regarding the availability and character of reparations. Presently, reparations issues have arisen particularly in domestic societies searching ...
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This paper assesses recent trends in international law regarding the availability and character of reparations. Presently, reparations issues have arisen particularly in domestic societies searching for transitional justice in the aftermath of authoritarian rule. These issues are shaped by national legal systems, but are also influenced by international practice. In these transitional settings, the search for justice is affected by political preoccupations such as the persistent influence of displaced prior authoritarian leadership as well as by real and alleged limitations on the financial capabilities of transitional states. No general approach can address the interplay between national and international law at this stage. Reliance must be placed on a case by case approach, considering matters of context such as the degree of suffering and disability inflicted on particular categories of claimants, the balance of claims versus the State’s demands for resources to fund sustainable and equitable development. Remoteness in time bears on the credibility of the claimants as present victims tend to be given priority over victims in the distant past when assessing relative merits. Scale and selectivity suggests that if the total of claims overwhelms the administrative capacity of the state, there will be a tendency to substitute apology and symbolic gestures for material ones, and award reparations based on individual need associated with the prior deprivation. International law informs background moral and political thinking about reparations, but practical considerations of capability and prudence are decisive in most instances, making the influence of international law indirect and sometimes marginal.Less
This paper assesses recent trends in international law regarding the availability and character of reparations. Presently, reparations issues have arisen particularly in domestic societies searching for transitional justice in the aftermath of authoritarian rule. These issues are shaped by national legal systems, but are also influenced by international practice. In these transitional settings, the search for justice is affected by political preoccupations such as the persistent influence of displaced prior authoritarian leadership as well as by real and alleged limitations on the financial capabilities of transitional states. No general approach can address the interplay between national and international law at this stage. Reliance must be placed on a case by case approach, considering matters of context such as the degree of suffering and disability inflicted on particular categories of claimants, the balance of claims versus the State’s demands for resources to fund sustainable and equitable development. Remoteness in time bears on the credibility of the claimants as present victims tend to be given priority over victims in the distant past when assessing relative merits. Scale and selectivity suggests that if the total of claims overwhelms the administrative capacity of the state, there will be a tendency to substitute apology and symbolic gestures for material ones, and award reparations based on individual need associated with the prior deprivation. International law informs background moral and political thinking about reparations, but practical considerations of capability and prudence are decisive in most instances, making the influence of international law indirect and sometimes marginal.
Independent International Commission on Kosovo
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780199243099
- eISBN:
- 9780191599538
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199243093.001.0001
- Subject:
- Political Science, International Relations and Politics
The Kosovo Report is a final product of the work by the Independent International Commission on Kosovo, established to examine key developments prior to, during, and after the Kosovo war, including ...
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The Kosovo Report is a final product of the work by the Independent International Commission on Kosovo, established to examine key developments prior to, during, and after the Kosovo war, including systematic violations of human rights in the region. The report assesses effectiveness of diplomatic efforts to prevent the war, legality of the NATO bombing campaign against Yugoslavia, and the progress of the United Nations in post‐conflict reconstruction. The Report makes a recommendation for the future status of Kosovo and proposes a new general framework for humanitarian intervention based on principles of legitimacy. It argues that the intervention by the international community in the Kosovo conflict did not so much create a precedent for intervention elsewhere as raise vital question about the legitimacy and practicability of the use of military force to defend human rights. The intervention, the Report concludes, exposed the limitations of the current international law on the balance between the rights of citizens and the rights of states; it demonstrated the difficulties that ensue when even the most sophisticated and professional military forces are deployed to achieve humanitarian goals; and it showed the immense obstacles that lie in the path of creating multi‐ethnic cooperation in societies torn apart by ethnic war.Less
The Kosovo Report is a final product of the work by the Independent International Commission on Kosovo, established to examine key developments prior to, during, and after the Kosovo war, including systematic violations of human rights in the region. The report assesses effectiveness of diplomatic efforts to prevent the war, legality of the NATO bombing campaign against Yugoslavia, and the progress of the United Nations in post‐conflict reconstruction. The Report makes a recommendation for the future status of Kosovo and proposes a new general framework for humanitarian intervention based on principles of legitimacy. It argues that the intervention by the international community in the Kosovo conflict did not so much create a precedent for intervention elsewhere as raise vital question about the legitimacy and practicability of the use of military force to defend human rights. The intervention, the Report concludes, exposed the limitations of the current international law on the balance between the rights of citizens and the rights of states; it demonstrated the difficulties that ensue when even the most sophisticated and professional military forces are deployed to achieve humanitarian goals; and it showed the immense obstacles that lie in the path of creating multi‐ethnic cooperation in societies torn apart by ethnic war.
Alexis Keller
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199275359
- eISBN:
- 9780191603686
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199275351.003.0003
- Subject:
- Political Science, International Relations and Politics
According to Keller, we have no hope of explaining what is or is not a Just Peace in global relations unless we pay more attention to the intellectual context in which international law was formed. ...
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According to Keller, we have no hope of explaining what is or is not a Just Peace in global relations unless we pay more attention to the intellectual context in which international law was formed. From its birth in the 16th century, there was a progressive retreat by Europeans from conceding sovereign rights to specific non-European peoples, to then only recognizing a conditional sovereignty, and eventually to denying any right to self-determination of non-white peoples. However, there was a tradition of thought that recognized and accommodated cultural diversity that can be found in the writings of Montesquieu and Rousseau, among others. This chapter argues that these writers proposed one of the cornerstones of the concept of a Just Peace, the principle of recognition. This notion was developed from an effort to understand another’s point of view and an appreciation of otherness.Less
According to Keller, we have no hope of explaining what is or is not a Just Peace in global relations unless we pay more attention to the intellectual context in which international law was formed. From its birth in the 16th century, there was a progressive retreat by Europeans from conceding sovereign rights to specific non-European peoples, to then only recognizing a conditional sovereignty, and eventually to denying any right to self-determination of non-white peoples. However, there was a tradition of thought that recognized and accommodated cultural diversity that can be found in the writings of Montesquieu and Rousseau, among others. This chapter argues that these writers proposed one of the cornerstones of the concept of a Just Peace, the principle of recognition. This notion was developed from an effort to understand another’s point of view and an appreciation of otherness.
Arturo J. Carrillo
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199291922
- eISBN:
- 9780191603716
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199291926.003.0015
- Subject:
- Political Science, International Relations and Politics
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The ...
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This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.Less
This paper examines how international law contributes to contemporary understandings of transitional justice with respect to reparations for victims of gross and systematic human rights abuses. The author surveys the jurisprudence of the Inter-American Court of Human Rights through 2003 to determine how the Court’s practice can be used to guide the formulation of reparatory policies during political transition. Recognizing that the direct application of Inter-American case law to situations of mass atrocity is not always viable in practice, the author analyzes regional human rights jurisprudence, particularly that relating to compensation, to determine what role the Court’s rules can and cannot play as a reference for policymakers and societies faced with the challenge of designing a reparations program. He concludes that while landmark Court decisions like Velásquez Rodríguez provide general normative guidance, there are significant obstacles to extending to the transitional justice context many of the measures, amounts, and formulas relied upon by the Court in awarding compensation. The fairness of compensation outside the courtroom cannot be determined with reference to predetermined rules, but depends on the factual context in which the measures are adopted including the number of victims involved. A better source of comparative inspiration is found in the Court’s growing practice of adopting non-monetary reparations measures to deal with moral harm.
David Gerber
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199228225
- eISBN:
- 9780191711350
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228225.001.0001
- Subject:
- Law, Competition Law
This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important ...
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This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important relationships between those two domains and the way the resulting system shapes economic activity in all parts of the world. The laws, institutions, and principles of the international domain increasingly influence national competition law development, and national competition law experience provides both the lenses through which decision makers view transnational competition issues and the incentive structures that generate their competition law decisions. The analysis examines the ideas, institutions, and people that provide the legal framework for global competition; how they evolved, how they operate today, and the forces that are likely to influence their future development. US anti-trust experience has long been at the center of this global governance picture, but European competition law experience is also rich, varied, and potentially of great value for future competition law development. China, Japan, Korea, and newer players in Latin America and Africa will also play a key role in this future, and the analysis pays close attention to them as well. On the basis of this analysis, the book analyzes current global competition law proposals and outlines a strategy that utilizes these discussions, but more specifically addresses global economic development needs. This strategy may be developed within the institutional framework of the WTO, but it may also be pursued independently.Less
This book examines the relationship between law and economic globalization. It focuses on national and international efforts to protect the competitive process, exploring the critically important relationships between those two domains and the way the resulting system shapes economic activity in all parts of the world. The laws, institutions, and principles of the international domain increasingly influence national competition law development, and national competition law experience provides both the lenses through which decision makers view transnational competition issues and the incentive structures that generate their competition law decisions. The analysis examines the ideas, institutions, and people that provide the legal framework for global competition; how they evolved, how they operate today, and the forces that are likely to influence their future development. US anti-trust experience has long been at the center of this global governance picture, but European competition law experience is also rich, varied, and potentially of great value for future competition law development. China, Japan, Korea, and newer players in Latin America and Africa will also play a key role in this future, and the analysis pays close attention to them as well. On the basis of this analysis, the book analyzes current global competition law proposals and outlines a strategy that utilizes these discussions, but more specifically addresses global economic development needs. This strategy may be developed within the institutional framework of the WTO, but it may also be pursued independently.
Sarah Percy
- Published in print:
- 2007
- Published Online:
- May 2008
- ISBN:
- 9780199214334
- eISBN:
- 9780191706608
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214334.001.0001
- Subject:
- Political Science, International Relations and Politics
The main aim of this book is to argue that the use of private force by states has been restricted by a norm against mercenary use. It traces the evolution of this norm, from mercenaries in medieval ...
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The main aim of this book is to argue that the use of private force by states has been restricted by a norm against mercenary use. It traces the evolution of this norm, from mercenaries in medieval Europe through to private security companies in modern day Iraq, telling a story about how the mercenaries of yesterday have evolved into those of today in the process. The norm against mercenaries has two components. First, mercenaries are considered to be immoral because they use force outside legitimate, authoritative control. Second, mercenaries are considered to be morally problematic because they fight wars for selfish, financial reasons as opposed to fighting for some kind of larger conception of the common good. The book examines four puzzles about mercenary use, and argues that they can only be explained by understanding the norm against mercenaries. First, the book argues that moral disapproval of mercenaries led to the disappearance of independent mercenaries from medieval Europe. Second, the transition from armies composed of mercenaries to citizen armies in the 19th century can only be understood with attention to the norm against mercenaries. Third, it is impossible to understand why international law regarding mercenaries, created in the 1970s and 1980s, is so ineffective without understanding the norm. Finally, the disappearance of companies like Executive Outcomes and Sandline and the development of today's private security industry cannot be understood without the norm.Less
The main aim of this book is to argue that the use of private force by states has been restricted by a norm against mercenary use. It traces the evolution of this norm, from mercenaries in medieval Europe through to private security companies in modern day Iraq, telling a story about how the mercenaries of yesterday have evolved into those of today in the process. The norm against mercenaries has two components. First, mercenaries are considered to be immoral because they use force outside legitimate, authoritative control. Second, mercenaries are considered to be morally problematic because they fight wars for selfish, financial reasons as opposed to fighting for some kind of larger conception of the common good. The book examines four puzzles about mercenary use, and argues that they can only be explained by understanding the norm against mercenaries. First, the book argues that moral disapproval of mercenaries led to the disappearance of independent mercenaries from medieval Europe. Second, the transition from armies composed of mercenaries to citizen armies in the 19th century can only be understood with attention to the norm against mercenaries. Third, it is impossible to understand why international law regarding mercenaries, created in the 1970s and 1980s, is so ineffective without understanding the norm. Finally, the disappearance of companies like Executive Outcomes and Sandline and the development of today's private security industry cannot be understood without the norm.
André Nollkaemper
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199644735
- eISBN:
- 9780191740695
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199644735.003.0006
- Subject:
- Law, EU Law, Public International Law
This chapter assesses how national courts can induce compliance with international and European law, and compares the relative strengths of national courts in this regard under, respectively, ...
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This chapter assesses how national courts can induce compliance with international and European law, and compares the relative strengths of national courts in this regard under, respectively, international and European law. It is based on the assumption that while national courts are obviously not the primary or only cause of compliance, they can, in particular circumstances and under particular conditions, ensure that states comply with their obligations under international and/or European law, both in individual cases and at a more structural level. The chapter is organized as follows. Sections 2 and 3 discuss the relative role of courts as agents of compliance and the key condition of independence of courts, respectively. Section 4 examines four key principles that govern the practice of national courts in terms of their compliance-effects: supremacy, direct effect, consistent interpretation, and liability. Section 5 explores the interaction between international and European law in so far as they relate to the practice of national courts. Finally, Section 6 draws some conclusions.Less
This chapter assesses how national courts can induce compliance with international and European law, and compares the relative strengths of national courts in this regard under, respectively, international and European law. It is based on the assumption that while national courts are obviously not the primary or only cause of compliance, they can, in particular circumstances and under particular conditions, ensure that states comply with their obligations under international and/or European law, both in individual cases and at a more structural level. The chapter is organized as follows. Sections 2 and 3 discuss the relative role of courts as agents of compliance and the key condition of independence of courts, respectively. Section 4 examines four key principles that govern the practice of national courts in terms of their compliance-effects: supremacy, direct effect, consistent interpretation, and liability. Section 5 explores the interaction between international and European law in so far as they relate to the practice of national courts. Finally, Section 6 draws some conclusions.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.001.0001
- Subject:
- Political Science, Political Theory, International Relations and Politics
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal ...
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This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.Less
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0002
- Subject:
- Political Science, International Relations and Politics
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This ...
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This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.Less
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.
Emily Crawford
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578962
- eISBN:
- 9780191722608
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578962.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed ...
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Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrenderLess
Currently, International Humanitarian Law (IHL) also known as the law of armed conflict, makes the distinction between international and non-international armed conflicts. International armed conflicts are regulated by more treaties than their non-international counterparts. Furthermore, the regulation of international armed conflicts is also considerably more comprehensive than that offered for participants in and victims of non-international armed conflicts. This book asks whether the legal distinction between international and non-international armed conflicts remains viable or whether international law should move to maintain its consonance with the situations it seeks to regulate by developing a unified legal regime applicable in all armed conflicts. There is considerable precedent to support moves towards the elimination of the legal distinction between international and non-international armed conflicts. This book argues that IHL, a law which has, as one of its primary aims, the protection of the person in times of armed conflict, should not distinguish between types of armed conflict, specifically in how the law treats the vulnerable in times of armed conflict – those hors de combat due to illness and injury, and those deprived of their liberty through capture or surrender
Sarah Percy
- Published in print:
- 2007
- Published Online:
- May 2008
- ISBN:
- 9780199214334
- eISBN:
- 9780191706608
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214334.003.0009
- Subject:
- Political Science, International Relations and Politics
This chapter presents a synthesis of the discussions in the preceding chapters. It shows that the norm against mercenary use has explained four different puzzles in international history. First, ...
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This chapter presents a synthesis of the discussions in the preceding chapters. It shows that the norm against mercenary use has explained four different puzzles in international history. First, anti-mercenary feeling can help illustrate why states gained control over the independent mercenary and established a controlled international trade in mercenaries. Second, it can help explain why, even though the controlled trade in private fighters was effective, it was abandoned in favour of citizen armies across Europe in the 19th century. Third, it is impossible to understand why international law on mercenaries is so flawed without understanding that states were attempting to adhere to a very strong norm against mercenary use which was difficult to translate into law, and was simultaneously supported by the norms of national self-determination and undermined by the norms of state responsibility and freedom of movement. Fourth, the growth of PMCs, their disappearance, and the rise of PSCs cannot be understood without understanding the normative obstacles modern-day mercenaries face, and the international community's response to the emergence of PMCs is likewise impossible to understand without attention to widespread normative discomfort with the use of private force.Less
This chapter presents a synthesis of the discussions in the preceding chapters. It shows that the norm against mercenary use has explained four different puzzles in international history. First, anti-mercenary feeling can help illustrate why states gained control over the independent mercenary and established a controlled international trade in mercenaries. Second, it can help explain why, even though the controlled trade in private fighters was effective, it was abandoned in favour of citizen armies across Europe in the 19th century. Third, it is impossible to understand why international law on mercenaries is so flawed without understanding that states were attempting to adhere to a very strong norm against mercenary use which was difficult to translate into law, and was simultaneously supported by the norms of national self-determination and undermined by the norms of state responsibility and freedom of movement. Fourth, the growth of PMCs, their disappearance, and the rise of PSCs cannot be understood without understanding the normative obstacles modern-day mercenaries face, and the international community's response to the emergence of PMCs is likewise impossible to understand without attention to widespread normative discomfort with the use of private force.
Ian Clark
- Published in print:
- 2007
- Published Online:
- May 2007
- ISBN:
- 9780199297009
- eISBN:
- 9780191711428
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199297009.003.0008
- Subject:
- Political Science, International Relations and Politics
As part of the ending of the Cold War, a summit of the Conference on Security and Cooperation in Europe agreed the Charter of Paris in 1990. Amongst other things, it expressed a commitment to ...
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As part of the ending of the Cold War, a summit of the Conference on Security and Cooperation in Europe agreed the Charter of Paris in 1990. Amongst other things, it expressed a commitment to democracy ‘as the only system of government of our nations’. If international society is considered to be pluralistic, this was a puzzling development: it was making an international principle of legitimacy out of a form of internal government. The chapter attempts to explain this development in terms of the role of world society, in the context of the dramatic events of the end of the Cold War. It shows that the commitment to democracy served obvious state purposes, but also responded to a wider social constituency of expectations. This case was pressed by a transnational network acting in support of democratic principles, and which organized parallel summits to shadow the CSCE process. This also responded to developments in international law where some theorists, such as Thomas Franck, claimed to have identified an emerging democratic entitlement.Less
As part of the ending of the Cold War, a summit of the Conference on Security and Cooperation in Europe agreed the Charter of Paris in 1990. Amongst other things, it expressed a commitment to democracy ‘as the only system of government of our nations’. If international society is considered to be pluralistic, this was a puzzling development: it was making an international principle of legitimacy out of a form of internal government. The chapter attempts to explain this development in terms of the role of world society, in the context of the dramatic events of the end of the Cold War. It shows that the commitment to democracy served obvious state purposes, but also responded to a wider social constituency of expectations. This case was pressed by a transnational network acting in support of democratic principles, and which organized parallel summits to shadow the CSCE process. This also responded to developments in international law where some theorists, such as Thomas Franck, claimed to have identified an emerging democratic entitlement.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0001
- Subject:
- Political Science, Political Theory
Explains why a moral theory of international law is needed, refutes several prominent views that purport to rule out the possibility of such a theory, sets out the criteria that the needed theory ...
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Explains why a moral theory of international law is needed, refutes several prominent views that purport to rule out the possibility of such a theory, sets out the criteria that the needed theory should satisfy, previews the main outlines of the theory developed in the remainder of the book, and explains and supports the thesis that institutional moral reasoning is needed to develop such a theory. There are nine sections: I. The Need for a Theory; II. Curious Neglect—the neglect of international relations in contemporary moral philosophy; III. Institutional Moral Reasoning; IV. The Realist Challenge; V. The Moral Minimalist Challenge; VI. Legal Nihilism; VII. The Moral Legitimacy of the State System; VIII. The Nature and Scope of a Moral Theory of International Law; and IX. An Overview of a Proto‐theory—a summary of the moral theory of international law presented in the book, pointing out its limitations and theoretical essentials.Less
Explains why a moral theory of international law is needed, refutes several prominent views that purport to rule out the possibility of such a theory, sets out the criteria that the needed theory should satisfy, previews the main outlines of the theory developed in the remainder of the book, and explains and supports the thesis that institutional moral reasoning is needed to develop such a theory. There are nine sections: I. The Need for a Theory; II. Curious Neglect—the neglect of international relations in contemporary moral philosophy; III. Institutional Moral Reasoning; IV. The Realist Challenge; V. The Moral Minimalist Challenge; VI. Legal Nihilism; VII. The Moral Legitimacy of the State System; VIII. The Nature and Scope of a Moral Theory of International Law; and IX. An Overview of a Proto‐theory—a summary of the moral theory of international law presented in the book, pointing out its limitations and theoretical essentials.
Keith Culver and Michael Giudice
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195370751
- eISBN:
- 9780199775903
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195370751.001.0001
- Subject:
- Law, Philosophy of Law
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new ...
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Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.Less
Analytical legal theories are increasingly sophisticated, yet their development is uneven. While admirably adapted to explaining the unitary law-state, they are poorly suited to characterizing new law-like phenomena. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches that presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality is characterized in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union.
David Armstrong
- Published in print:
- 1993
- Published Online:
- November 2003
- ISBN:
- 9780198275282
- eISBN:
- 9780191598739
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198275285.003.0007
- Subject:
- Political Science, International Relations and Politics
Revolutionary states have challenged international law in several ways. They tend to reject the underlying notion of international law that there is a society of states as well as the emphasis on ...
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Revolutionary states have challenged international law in several ways. They tend to reject the underlying notion of international law that there is a society of states as well as the emphasis on maintaining order. They also see themselves as serving a higher and more permanent law—whether they define it in terms of god, nature, or history—than any transient, man‐made substitute. The French, American, Soviet, Chinese, and Iranian responses to international law are considered in detail. International law seems to grow in significance whenever it is placed under greatest pressure, and it may give intellectual coherence as well as authority to the established powers’ response to revolutionary states.Less
Revolutionary states have challenged international law in several ways. They tend to reject the underlying notion of international law that there is a society of states as well as the emphasis on maintaining order. They also see themselves as serving a higher and more permanent law—whether they define it in terms of god, nature, or history—than any transient, man‐made substitute. The French, American, Soviet, Chinese, and Iranian responses to international law are considered in detail. International law seems to grow in significance whenever it is placed under greatest pressure, and it may give intellectual coherence as well as authority to the established powers’ response to revolutionary states.
Wayne Norman
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780198293354
- eISBN:
- 9780191604126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293356.003.0006
- Subject:
- Political Science, Political Theory
Preventing secession is the central design challenge in a multinational federation. This chapter considers how a well-designed legal secession procedure in a federal constitution could be attractive ...
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Preventing secession is the central design challenge in a multinational federation. This chapter considers how a well-designed legal secession procedure in a federal constitution could be attractive to both majority and minority nationalists. Legalizing (or ‘domesticating’) secession the right way could, paradoxically, make secession less likely by taking away some incentives for secessionist politics. It could also provide a powerful form of symbolic recognition for a national minority. The background context of secession in international law, as well as some lessons from the history of secessionist politics and the recent ‘legalization’ of secession in Canada and Quebec are discussed.Less
Preventing secession is the central design challenge in a multinational federation. This chapter considers how a well-designed legal secession procedure in a federal constitution could be attractive to both majority and minority nationalists. Legalizing (or ‘domesticating’) secession the right way could, paradoxically, make secession less likely by taking away some incentives for secessionist politics. It could also provide a powerful form of symbolic recognition for a national minority. The background context of secession in international law, as well as some lessons from the history of secessionist politics and the recent ‘legalization’ of secession in Canada and Quebec are discussed.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0011
- Subject:
- Political Science, Political Theory
Ch. 10 summarized the main proposals for reform that have been argued in this book, briefly restating the moral framework linking justice, legitimacy, and self‐determination that grounds them, and ...
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Ch. 10 summarized the main proposals for reform that have been argued in this book, briefly restating the moral framework linking justice, legitimacy, and self‐determination that grounds them, and noting that implementing the proposed reforms probably would require significant changes in international law regarding armed intervention. The aims of this chapter are (1) to explain more fully why a new legal framework for armed intervention is needed for successful legal reform, (2) to examine the advantages and disadvantages of the major types of strategies for achieving the needed reform in the law of armed intervention, from the perspective of both feasibility and morality, and (3) to show that the most promising strategy for reform may be the creation of a treaty‐based, rule‐governed liberal‐democratic regime for armed intervention that bypasses the current UN Charter‐based requirement of Security Council authorization and that does not depend upon the US to act as the world's policeman. In addition, it is argued that although the most promising strategy for reform may require violating existing international law, it is nonetheless morally justifiable. The more general point made is that under certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law, but even required by it. The six sections of the chapter are: I. The Need for Reform regarding the Law of Intervention; II. Three Types of Strategies for Legal Reform; III. The Morality of Illegal Legal Reform; IV. The Commitment to the Rule of Law; V. Moral Authority; and VI. Conclusions.Less
Ch. 10 summarized the main proposals for reform that have been argued in this book, briefly restating the moral framework linking justice, legitimacy, and self‐determination that grounds them, and noting that implementing the proposed reforms probably would require significant changes in international law regarding armed intervention. The aims of this chapter are (1) to explain more fully why a new legal framework for armed intervention is needed for successful legal reform, (2) to examine the advantages and disadvantages of the major types of strategies for achieving the needed reform in the law of armed intervention, from the perspective of both feasibility and morality, and (3) to show that the most promising strategy for reform may be the creation of a treaty‐based, rule‐governed liberal‐democratic regime for armed intervention that bypasses the current UN Charter‐based requirement of Security Council authorization and that does not depend upon the US to act as the world's policeman. In addition, it is argued that although the most promising strategy for reform may require violating existing international law, it is nonetheless morally justifiable. The more general point made is that under certain conditions a willingness to violate existing international law for the sake of reforming it can be not only consistent with a sincere commitment to the rule of law, but even required by it. The six sections of the chapter are: I. The Need for Reform regarding the Law of Intervention; II. Three Types of Strategies for Legal Reform; III. The Morality of Illegal Legal Reform; IV. The Commitment to the Rule of Law; V. Moral Authority; and VI. Conclusions.
