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Completes the second part of the book, and relies on the conception of political legitimacy delineated in Ch. 5 to advance a justice‐based, rather than a consent‐based, account of system legitimacy: a set of criteria that the international legal system would have to meet in order to be legitimate. Building on groundwork already laid in Chs 1 and 5, it is shown why, contrary to the dominant view among international lawyers, the consent of states cannot confer legitimacy on the international legal system. In addition, it is argued that it is a mistake to assume that political equality among states is a necessary condition for system legitimacy, and that the international legal system, like any system for the exercise of political power, ought to be democratic. It is also shown that the idea of democratizing the international legal system is an ambiguous one and should not be equated with increasing state majoritarianism in the workings of the system; the charge that the international legal system has a “democratic deficit” is valid, but it is a mistake to assume that the remedy is to make the system conform more closely to the ideal of democracy as state majoritarianism. The eight sections of the chapter are: I. The Question of System Legitimacy; II. The Case for Having an International Legal System; III. A Justice‐Based Conception of System Legitimacy; IV. The Consent Theory of System Legitimacy; I. Moral Minimalism and the Consent Theory of System Legitimacy. VI. The Instrumental Argument for State Consent as a Necessary Condition for System Legitimacy; VII. Is Democracy a Necessary Condition of System Legitimacy?; and VIII. The Pursuit of Justice in an Imperfect System.

Begins the task of laying the foundations for a justice‐based theory of international law, and presents three main arguments. The first argument is that justice should be a primary moral goal of the international legal system; in making the case that justice should be a primary goal, the charge that peace is the only proper goal for the international legal system is rebutted and it is argued that the pursuit of justice in and through international law need not be inimical to peace. The second argument is that justice is not only a permissible goal for the international legal system, but a morally obligatory one; to accomplish this step in the overall argument, the concept of the “Natural Duty of Justice” is explained—i.e. the principle that each person has a limited moral obligation to help ensure that all persons have access to institutions, including legal institutions, that protect their basic human rights. The third argument shows that taking seriously the idea that justice is a primary, morally obligatory goal of the international legal system requires a particular conception of the state, in which it is to serve in part as an instrument of justice, not as a discretionary association whose sole function is to serve the mutual benefit of its members; this is a direct attack on the dominant international relations view that states should support international law only so far as it serves their “national interests”. The six parts of the chapter are: I. Introduction; II. Justice as a Primary Goal of International Law—an introduction to the “Natural Duty of Justice” argument; III. Two Conceptions of the State and its Relations with Those beyond its Borders; IV, The Plurality of Ways of Acting on the Natural Duty of Justice; V. Abandoning the National Interest Theses; and VI. Conclusions.

Briefly restates the central argument of the book and then summarizes the main proposals for reforming the international legal system that the preceding chapters have developed on its basis. It sets the stage for Ch. 11, which explores morally accessible ways of undertaking the proposed reforms. The four sections of the chapter are: I. A Justice‐Based Approach; II. An International Legal Order Grounded in Obligation, not Mere Permissibility; III. Linking Justice, Legitimacy, and Self‐Determination; and IV. Needed Reforms.

This chapter examines the two main conceptual structures which underlie the opposition to regulating the jurisdictional relations between national and international courts: dualism and hierarchy. According to dualism, national and international courts employ norms deriving from different legal systems and their jurisdictions can never overlap. Moreover, national and international courts often view their respective legal system as normatively superior to the competing legal system, rendering irrelevant any existing overlap. The chapter explains the tension between these traditional explanations of the relations between national and international courts and the growing intertwining of their functions, and introduces a number of theories that offer a more integrative or, at least, nuanced vision of the relationship: monism, dédoublement fonctionnel, the American school of informal socialization, and pluralism. Given the irreconcilably different institutional visions offered by these different theories, the author offers normative systemization as a possible conceptual framework for discussion.

This chapter begins by discussing the conceptions of the International Legal System and its Interaction with the Social Environment. It explains the concept of International Public Policy. It also talks about the concept of sanctions and its evolution. It discusses a number of security council resolutions as well as the responsibility of states. It explains the security council actions and individual criminal responsibility. It examines the legal constraints to political action and the question of accountability.

This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the question of which specific norms ought to be included in it. With respect to the former question of justification, the chapter sets out three distinct justificatory arguments. The first identifies seven important benefits a system of international legal human rights similar to the existing one can provide for a wide range of actors, including states. The second argument shows that having such a system is morally obligatory, given the risks that the existing international order imposes on individuals by conferring eminently abusable powers and privileges on states. The third argument shows that states and the governments that act in their name have a special obligation to support such a system, because they are the chief benefiaries of the flaws of the international order that the system helps ameliorate. The latter part of the chapter provides fairly detailed sketches of justifications for representative rights from each of the major categories of human rights: civil and political rights, economic rights and economic liberty rights, the right to democratic government, and rights of physical security.

The subject of this book is the moral assessment of the system of international legal human rights. This legal system is the heart, or core of modern human rights practice. International legal human rights—not some philosopher’s theory of moral human rights nor a “folk” conception of human rights—provide the moral lingua franca of modern human rights practice. The practical effect of international legal human rights exceeds their legal reach: Various actors are sometimes able to hold states accountable for violations of international legal human rights even in the absence of clear legal duties on the part of the states in question. Given the pivotal role of international legal human rights in modern human rights practice, a moral assessment of the practice must begin with a moral assessment of the system of international legal human rights. The key question is whether it is morally justifiable to have a system of this sort, given the functions it is designed to serve and the claims of authority made on its behalf.

This chapter presents two essays on the current challenges to the global system and what they may mean for the future of international law. The first essay discusses the differences between interdependence and globalization in economic activities and the impact of economic globalization on state sovereignty and the international legal order. The second essay expands the discussion and looks at the globalization of other issue areas and the role of non-binding norms in the light of current trends.

The concept of international public policy is undoubtedly vague, with a content to be determined by the practice of States and the international community. This chapter illustrates its emergence by pointing to the way in which human rights have gained central stage and infiltrated into such areas as international humanitarian law and collective security — but this is also evidenced by their penetration into other functional regimes such as international criminal law and even investment law. There are of course other areas such as that of the environment which have produced fundamental norms which international organizations have found difficult to ignore. Of course, this process has raised its own challenges and calls for a healthy dose of scepticism, such as awareness of the pitfalls of ‘droit de l'hommisme’ (Alain Pellet) and the ‘darker sides of virtue’ (David Kennedy). Nevertheless, the interactions between functional regimes should be examined within a new conceptual legal framework which has seen the juxtaposition of community interests alongside inter-State interests.

This introductory chapter sets forth a framework for the present study, beginning with a discussion of the traditional characteristics of international law. It then looks at recent changes in the international system and the difficulties they pose for resolving problems through traditional international law-making, leading to a discussion of the role of law and the rule of law generally, including the importance of compliance. It suggests several hypotheses about the reasons states have recourse to non-binding norms and what may be expected from a study of compliance with them.

This chapter recaps the central methodological themes of the book, lists ten major conclusions, and then identifies several key challenges to the system of international legal human rights. It argues that the chief limitations or deficiencies of the system stem from the fact that it is primarily designed to cope with problems resulting from the behavior of states toward those under their jurisdiction. Such a system, unless altered significantly, is not well-suited to deal with the effects of an unjust global basic structure of institutions, emergent cumulative harms such as those produced by global climate change, and injustices resulting from the extreme inequality of power among states.

This chapter develops a justificatory theory of international law, tempered by realistic expectations about what is achievable and appropriate in a world without a fully effective centralized authority. The second part of the chapter discusses the choices that underlie the account of the international legal system in the book. The third part proposes that in the central case of the international legal system, decision makers make, interpret, and apply prescriptions according to procedures commonly accepted by other relevant decision makers. The last part explores the idea that there is a moral obligation to promote the legalist central case, because it maintains the minimum global order that supports the common good necessary for every person worldwide to reasonably pursue his preferred values. Where legalism permits various outcomes, decision makers should exercise their judgment in selecting the outcome that best balances the interests of their constituencies with basic goods for other communities.

This chapter assesses the bottlenecks and pitfalls identifiable in the counterterrorism system of the UN, as well as in the international legal system. The success rate of any possible suggestions for improving these measures will depend on evolution geopolitics and the power structures as we know them today. Thus, before anything else, the scenarios of different developments in geopolitics are discussed. Finally, some proposals for improving the current system are made, thereby taking into account the circumstances necessary to make that happen.

This chapter discusses the history of diplomatic protection. Topics covered include the early beginnings of international law that sought to give protection to aliens; the development of a body of law governing the treatment of aliens during the 19th and early 20th centuries; and the acceptance of the institution of diplomatic protection as part of the international legal system in the 20th century.

This chapter, among other things, sets out certain lessons that can be learned from the observation of the birth and growth of air and space law in the 20th century — lessons which may well assist us in our understanding of the nature, and the conditions for the future development, of the international legal system as a whole. Topics discussed include the sources of international law, the role of the dominant section in the making of rules of general international law, and conditions governing international rule-making.