Ethics and Authority in International Law
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Because there is no standing UN military, the forces involved must be assembled from member states on an ad hoc basis. International law is a distinctive part of the general structure of international relations. In contemplating responses to a particular international situation, states usually consider relevant international laws. Although considerable attention is invariably focused on violations of international law, states generally are careful to ensure that their actions conform to the rules and principles of international law, because acting otherwise would be regarded negatively by the international community.
The rules of international law are rarely enforced by military means or even by the use of economic sanctions.
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Instead, the system is sustained by reciprocity or a sense of enlightened self-interest. States that breach international rules suffer a decline in credibility that may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its advantage may induce other states to breach other treaties and thereby cause harm to the original violator. Furthermore, it is generally realized that consistent rule violations would jeopardize the value that the system brings to the community of states, international organizations, and other actors. This value consists in the certainty, predictability, and sense of common purpose in international affairs that derives from the existence of a set of rules accepted by all international actors.
International law also provides a framework and a set of procedures for international interaction, as well as a common set of concepts for understanding it. International law. Article Media. Info Print Print. Table Of Contents.
Submit Feedback. Thank you for your feedback. Introduction The nature and development of international law Definition and scope Historical development International law and municipal law Sources of international law Treaties Custom General principles of law Other sources Hierarchies of sources and norms States in international law Statehood Creation of states Recognition The responsibility of states Spatial definition of states Territory Maritime spaces and boundaries Jurisdiction Disputes between states Peaceful settlement Use of force International cooperation High seas and seabed Outer space Antarctica Protection of the environment Nonstate actors in international law Individuals International organizations Current trends.
Written By: Malcolm Shaw. See Article History. Call this the natural reason thesis. Some philosophers have challenged the universality thesis, according to which the Universal Declaration is best understood as aspiring to give effect to universal moral rights, on the grounds that there is no plausible way of interpreting all of the items in that instrument as applying to all human beings throughout human history.
In what meaningful sense, these critics ask, did Stone Age cavemen have a right to a fair trial, or political participation, or a nationality? Surely, the argument goes, human rights have counterpart obligations, and historical variations in resources and technological and institutional capabilities prevent us from attributing such rights to all people throughout human history. Instead, in talking about human rights, we need not be purporting to operate ahistorically; we can instead refer to the human rights possessed by all human beings within a specified socio-historical context, such as that of modernity.
These rights will be possessed simply in virtue of our humanity because their existence does not depend on any particular status or achievement on our part nor on any actual institutional or social recognition. Another way of putting this, as the distinguished historian of natural rights, Brian Tierney, has stressed, is that human or natural rights are not restricted to those that may be possessed and meaningfully exercised even in a pre-political state of nature.
This idea is just one strand, but not even the dominant strand, in the natural rights tradition. Now, a radical development in recent political philosophy has been the calling into question of the natural reason thesis by John Rawls and members of his school. Natural reason is standardly truth-oriented and comprehensive in scope, not confined to some specifically political subject-matter. Therefore, especially when it comes to rights applicable across heterogeneous cultures, it is imperative to justify them in a way that transcends these interminable controversies.
The Law of Peoples does not say, for example, that human beings are moral persons and have equal worth in the eyes of God; or that they have certain moral and intellectual powers that entitle them to those rights. To argue in these ways would involve religious or philosophical doctrines that many decent hierarchical peoples might reject as liberal or democratic, or as in some way distinctive of Western political tradition and prejudicial to other cultures.
Still, the Law of Peoples does not deny these doctrines. We could, in the face of this failure, seek more elaborate and sophisticated ways of giving the notion of public reason content that is suitably non-parochial, for example, by appealing to a form of global public reason that draws on standards shared across a range of traditions.
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But the prospects of such a project look dim, because the core problem with the idea of public reason is the attempt to prescind from the idea that judgments and principles of political morality are to be vindicated at the bar of ordinary truth or natural reason, replacing this with a focus on standards of assessment that are actually shared. We do better to hold to the traditional way of responding to the charge of parochialism, at least at the most fundamental level.
This involves defending human rights standards, insofar as we are prepared to defend them, as objectively true propositions of morality. How we should properly act on these truths in relation to societies that contravene them is itself a further question, one which itself turns on further truths about topics such as the demands of respect for the self-determination of political communities or the likely geo-political impact of any proposed plan of intervention. This is the fixation of contemporary moral philosophy on a division between deontological and consequentialist doctrines, with the accompanying idea that any grounding of human rights in the moral truth must consist in their incorporation within either a deontological or consequentialist general theory of morality.
The paradigmatic consequentialist theory, of course, is utilitarianism. As a consequentialist view, it holds that the rightness of an action is exclusively a matter of the states of affairs that are its consequences. It assesses these states of affairs in terms of the aggregate amount of well-being or interest-fulfillment they contain, and it instructs us to perform those acts which will maximize well-being overall.
As critics of utilitarianism have repeatedly observed, however, this theory confronts tremendous obstacles in making sense of the idea of individual rights; hence, the uneasy place occupied by natural or moral rights in the history of utilitarian thought: from outright rejection, in the case of Jeremy Bentham, to a cautious embrace, after being suitably re-interpreted, in the case of John Stuart Mill.
The insuperable difficulty utilitarianism has with individual rights is that they are elements of our moral scheme that break its consequentialist and maximizing template for moral rightness. It is a feature of human rights that they are relatively immune to trade-offs, including trade-offs within the category of human rights itself. Deontologist critics of consequentialism, such as Thomas Nagel, have diagnosed the problem as stemming from the assumption that the existence of rights depends on the way they serve the interests of their holders.
It follows that the special moral significance of rights can only be captured if they are grounded independently of the interests of the people whose rights they are. This grounding, these deontologists insist, will consist in an appeal to their status as moral agents or members of the moral community, a status we can make sense of, and which can generate rights, independently of any appeal to the quality of life of those who possess this status.
Yet deontological attempts to ground human rights in some notion of status, mobilized without any appeal to the elements of a good human life, tend to suffer from a variety of debilitating defects. Insofar as the notion of human status is not left mysterious, it is doubtful that if offers us enough in the way of justificatory materials to ground anything like the full complement of human rights in the Universal Declaration. The alternative, grasped by Nagel, is to characterize the notion of status in terms of a set of human rights.
But this fundamentalist move, which makes human rights basic and underived elements of morality, is hard to distinguish from a question-begging appeal to certain parochial value judgments. And, in any case, we are still left with the puzzling fact—surely not readily dismissed as a coincidence—that paradigmatic human rights systematically protect important human interests.
Fortunately, die-hard fundamentalism about human rights is not the only way to preserve them from distortion at the hands of the consequentialist. The beginning of wisdom here is the realization that the consequentialist-deontological dialectic involves a shared, but eminently questionable premise: the assumption that the significance of interests is exhausted by the role they play in an aggregative calculus.
To believe that, you have to believe that the injunction to maximize the fulfillment of interests is at least part of the truth about morality. But, as John Finnis, Philippa Foot, David Wiggins, and others have powerfully argued, there is no compelling reason to accede to this view. On the contrary, I believe that the two notions operate in intimate union in justifying standard human rights.
So, on the one hand, there is no reasonable prospect of grounding human rights independently of how they serve the objective interests of their holders: interests such as those in knowledge, friendship, autonomy, enjoyment, accomplishment, play, and so on. Instead, each human being enjoys a valuable status in virtue of their membership of a species characterized by a series of distinctive capacities, including capacities for thought, deliberation and action. Since all human beings are, in this sense, equally human, this valuable status is possessed by each in equal measure.
The recognition of this status, which is the most promising way of understanding the notion of human dignity, is incompatible with the impersonal maximization of interests that utilitarians place at the centre of our ethical thought. Of course, I have only gestured towards the kind of pluralist justification of human rights I find most persuasive.
It is pluralist at two levels. First, it appeals to both human status and the elements of the human good in generating human rights. Second, it treats the elements of human good, insofar as they have a bearing on the existence of human rights, as themselves irreducibly plural. And I have not here broached the hard question of how one gets from dignity and interests, in any given case, to the warranted conclusion that they underwrite a human right.
For if historians like Tierney and others are to be believed, the idea of natural rights was born as early as the twelfth century, many centuries before consequentialist and deontological modes of thought imposed their respective straight-jackets on moral philosophical inquiry. To those early natural rights thinkers, primarily canon lawyers who sought to harmonize Roman law and canon law, the idea that natural rights had no grounding in the human good would have been just as outlandish as the idea that moral rightness consists in the impersonal maximization of the good across persons.
The more general moral to be drawn is that reflection on human rights highlights the shortcomings of much contemporary moral-philosophical debate, in particular, its impoverished understanding of the way in which a concern with the human good can bear on the existence of recognizably moral demands. A salutary consequence of the characterization of human rights as natural rights is the preservation of a conceptual link with a mode of thinking about morality and the human good that is free of this modernist distortion.
I previously mentioned one source of resistance to the idea that human rights are essentially natural rights. This comes from those who want to elaborate a notion of human rights that is a good fit for the contemporary human rights movement, including the provisions of the Universal Declaration of Human Rights. Their objection is that the concept of a human right, interpreted as a natural right, is massively under-inclusive with respect to a list of rights of the sort found in the Universal Declaration. This is because natural rights must be attributable to all human beings throughout human history, whereas this is not plausible of many items in the Universal Declaration.
The answer to this objection, I suggested, is to abandon the idea that human rights are necessarily timeless: we can meaningfully talk about rights possessed by all human beings, simply in virtue of their humanity, within a restricted temporal framework, like modernity. But now a critic, motivated by the same concern with fidelity to contemporary human rights practice, might advance the opposite objection: that the resultant concept of human rights as universal moral rights is over-inclusive. This is because in contemporary conditions universal moral rights likely include rights—such as the right not to be pinched, insulted or personally betrayed—which not only do not historically figure in standard human rights documents, but which would be out of place there.
Thoughts such as these have prompted a number of philosophers to reject the natural rights interpretation of the concept of human rights in favor of an explicitly political interpretation. Human rights, on this view, are not simply universal moral rights, not even indexed to some specific historical context, but rights that perform a distinctive political function or complex of functions.
This political role marks them out as distinctive within the general class of moral rights. And there is the added bonus on this analysis that, as a sub-set of universal moral rights, human rights represent more minimal standards, and so are more readily insulated from the charge of a wholesale projection globally of Western moral and political standards.
Advocates of the political view of human rights differ as to the political function, or set of functions, that distinguishes human rights. For some, it is that the primary obligations associated with human rights exclusively bind states or coercive political institutions. For others, it is that they set a benchmark that any state must satisfy if its laws are to be legitimate, i. For yet others, human rights are triggers for international intervention or concern in the case of sufficiently grave and extensive violations.
And, of course, some proponents of the political view combine a number of functions in their conceptualization of human rights—this is famously the case with Rawls, the most influential advocate of a political view of human rights, who regards them as both benchmarks of legitimacy and triggers of coercive intervention. In what follows, I will concentrate only on the thesis that human rights are rights that have a special role in judgments of political legitimacy, so that an adequate grasp of the concept of a human right must make reference to this role.
But before discussing this thesis, it is worth registering a general objection to all essentially political interpretations of human rights. One indication of this is that it makes perfect sense to deploy the language of human rights even if, as an anarchist, one denies the moral acceptability of the state, or, as an advocate of cosmopolitan, one-world government, one rejects the ultimate moral desirability of a system of states.
Of course, the concept of human rights may implicate the idea of a state, or a system of states, without those who deploy that concept being committed to endorsing either of those ideas. Nonetheless, it does seem decidedly odd, if not strictly incoherent, to think that the cosmopolitan theorist, who argues for the abolition of the state system precisely on human rights grounds, is deploying a concept that itself can only be understood in terms of the very system he is using that concept to decry.
That, of course, is a very general objection to any attempt to render the concept of a human right parasitic on the concept of a particular kind of institutional structure or geopolitical configuration.
SAGE Reference - Ethics and Norms in International Relations
But let me proceed now to one broad manifestation of the political view of human rights, that according to which human rights are essentially benchmarks of political legitimacy. By the legitimacy of a political institution, I mean the right of a political institution, such as the state, to rule over its purported subjects.
And by ruling, I mean the issuing of directives that purport to be morally binding—that purport to impose obligations of obedience—on those subjects. It follows from this that a law may be morally binding, because enacted by a body that enjoys legitimacy, while being in some sense unjust in terms of its content or the process whereby it was enacted. In a strikingly similar vein, Bernard Williams argues that the violation of human rights, or at least the most basic among them, approximates to a relationship of unmediated coercive power between ruler and ruled, one of might rather than right.
Although I cannot undertake a detailed examination of these three views, 22 let me indicate broadly why I believe any variant of the general thesis that human rights bear a constitutive relationship to political legitimacy faces a powerful dilemma in meeting the desideratum of fidelity to the post-Universal Declaration culture of human rights. If compliance with human rights it taken to approach anything like a sufficient condition of legitimacy, a problem will arise in capturing a central feature of human rights thought.
This is the idea that the self-same set of human rights, including broadly identical normative content in the duties associated with those rights, is attributable to all human beings throughout the globe. The uniformity of content of human rights, so understood, is in tension with the relational character of assessments of legitimacy. By the latter, I refer to the fact that whether or not any particular state is legitimate depends upon the obtaining of a certain kind of relationship between the state in question and its putative subjects.
This relational character means that the selfsame law, or laws with identical content, can be legitimate with respect to some putative subjects and not others. In a rich country, good faith about human dignity may require the provision of IVF treatment or even some forms of cosmetic surgery, whereas inhabitants of poorer countries would only be entitled to the most rudimentary levels of health care, or perhaps would have no positive entitlement to health care services at all.
On this sort of view, the idea that the human right to health confers the same entitlement to all human beings has been effectively eviscerated. One response to this first problem is to accept that human rights are standards whose substantive content is uniform across societies, but to insist that they constitute only necessary conditions of legitimacy. This is the second horn of the dilemma confronting the benchmark of legitimacy approach: insofar as human rights are taken to be only necessary conditions of legitimacy, it is unlikely that fidelity to the non-minimalist character of the contemporary human rights culture can be secured.
This may well be true of violations of the most basic human rights, such as the rights not to be tortured, enslaved or arbitrarily killed. But these rights constitute only a small sub-set of all plausible candidates for human rights status or, perhaps more accurately, it is only a sub-set of the violations of this sub-set of rights that has legitimacy-depriving effect in all cases. So if, as I suggested at the outset, the rejection of the natural rights conception is motivated by the desideratum of fidelity to the Universal Declaration-centered practice of human rights, including its notable non-minimalism, then moving in a Rawlsian direction is self-defeating.
The conclusion I draw is that although human rights undoubtedly have significant implications for assessing the legitimacy of political institutions, alongside a series of other moral standards, their very nature is not to be explicated in terms of their role in such assessments. What it is to be a human right is not, in part, to be explicated by any informative relation to the standard of political legitimacy, no more than what it is to be a nuclear weapon is to be understood in terms of the deterrence role they play in geopolitics. But that problem can be addressed by less drastic measures than jettisoning orthodoxy in favor of a political concept of human rights.
These alternative measures include the following two: 1 distinguishing between core and derivative specifications of human rights, so that some of the universal moral rights that do not figure in standard human rights documents are interpreted as deriving from more abstract rights that do so figure e. I turn now to some reflections on the legitimacy of international law, with a particular focus on the legitimacy of that part of international law that characteristically seeks to give expression to the underlying morality of human rights. The obligation to obey is the fundamental claim made by an institution that asserts the right to rule.
The question of the legitimacy of particular enforcement mechanisms can then be addressed as a matter of the content of particular bodies of law that claim legitimacy, rather than as integral to the very notion of legitimate authority itself. Proceeding in this way is especially illuminating in relation to international law, a legal system which seldom claims to deploy coercion against its subjects, and so would turn out not to make a systematic claim of legitimacy on the view under consideration, and perhaps in consequence not to enjoy the status of fully-fledged law. It is not at all clear what bearing such speculations have on the claims to obedience made by international legal institutions here and now.
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Still, there are at least two respects in which international law cannot be neatly subsumed under the traditional understanding of legitimate authority as the right to rule. First, there is no unified legislative body asserting a right to rule by means of international law comparable to those prevalent within domestic legal systems. Second, the two main traditional sources of international law are treaties and custom, and the former, being essentially promise-based in nature, is not as such a matter of obligation grounded in the right to rule. However, multilateral treaties, in particular, often play an important role in the formation of customary international law, so that obligations whose content is originally specified in treaties come to bind non-states parties as well.
In light of these points, my primary focus will be on the legitimacy of customary international law, especially as it purports to embody and implement human rights morality. Philosophical controversy persists as to the conditions, if any, under which that claim is justified—as to the standard of legitimacy, as I will call it. Consent and, much more recently, democracy, have been advanced as standards for determining the legitimacy of international law. Here, I follow the view of Joseph Raz, himself following in the footsteps of thinkers such as Plato, Aristotle, and Aquinas, according to which the satisfaction of what Raz calls the Normal Justification Condition NJC is typically a sufficient condition for legitimate authority, both domestically and internationally.
The first is the potential diversity of the reasons relevant to making judgments of legitimacy under the NJC. These include not only reasons of self-interest but, crucially also, moral reasons. One implication of this is that a state with an excellent record of compliance with human rights might, nonetheless, be bound by international human rights law, provided its being so bound sufficiently enhances the likelihood of other states complying with human rights morality.
Indeed, it may be so bound even if the upshot of subjection to the international regime is that it has to accept inferior human rights decisions within its own borders as compared with those that would have been reached had it relied exclusively on domestic legal institutions. The second observation about the NJC is that its application is not all-or-nothing, but potentially fragmentary, and this along two dimensions. Alongside this domain fragmentation, the service conception also makes room for the possibility of subject fragmentation , according to which the relevant area of law or legal institution binds only some, but not all, of the subjects it claims to bind.
It asks, for each putative subject of authority at some given time, whether or not they would better conform to the reasons that apply to them by taking the directive as binding. The answer to this question may vary from one subject to another, given cognitive, volitional and other differences among them. I shall come back to subject fragmentation when I discuss the topic exceptionalism. The possibility of domain and subject fragmentation highlights some ways in which the NJC is a modest standard: it does not set itself to show that, when laws or legal institutions are legitimate, they bind all those they claim to bind regarding all the subject-matters they address.
But there is a deeper way in which the NJC is modest, and dwelling on this may help forestall some frequent misconceptions. But it is not an exhaustive account of legitimate authority. Compatibly with accepting the NJC, one may hold that there are other, supplementary ways of grounding the claim to legitimate authority, some of which may presuppose the satisfaction of the NJC, while others may be stand-alone justifications.
Moreover, there are cases in which the NJC is satisfied without establishing a right to rule, so that it is not even a sufficient condition for legitimacy. This emerges most clearly if we focus on the fact that the right to rule entails a content-independent moral obligation of obedience. Let us suppose that my reasons to avoid the pain outweigh the consideration in favor of deciding for myself how to perform the menial task. But even if so, it is a little far-fetched to conclude that I have a moral obligation to obey his instructions, such that failure to do so is a ground for guilt on my part or blame on the part of others.
This is because the relevant background reasons in this case, which focus entirely on my personal comfort, are not such as to plausibly generate a moral obligation. So, the application of the NJC cannot be anything like mechanical. It is a general guideline that requires supplementation by case-sensitive judgment as to whether compliance with the directive satisfies the NJC in such a way as to issue in a content-independent and exclusionary reason to obey that is a moral obligation. To this extent, the NJC is more like a template for assessments of legitimacy than an algorithm.
Can we establish the authority of existing international law, or some component of it, under the NJC? In important recent work, Allen Buchanan has defended the legitimacy of international human rights law primarily on the basis of the cognitive advantages it secures. Among the ways they can do so are the following: a assessing and utilizing reliable factual information crucial to the justification or specification of human rights norms; b achieving a more inclusive representation of interests and viewpoints than is available at the domestic level, thereby mitigating the risk that our judgments about the content of human rights norms and the best way of implementing them are skewed by cultural biases; and c providing authoritative specifications of human rights when there is a range of reasonable alternative specifications.
But, even if they do satisfy it, the crucial consideration here is that the sorts of epistemic advantages described by Buchanan, important thought they are, could not by themselves be a sufficient basis for legitimacy. They will not show that they are a practical authority, someone whose say-so generates content-independent moral obligations to obey them. So, for example, one fundamental source of the legitimacy of most states is the power to resolve problems of collective action by laying down standards that its subjects have reason to comply with because, among other things, those standards are likely to be obeyed by others in the community.
Notice, however, that international law can only reliably generate authoritative co-ordination points if there is a tendency for its putative subjects to conform to it. Primary among these capacities is that of sheer efficacy or de facto authority. The same argument applies a fortiori to the more purely epistemic functions a and b. And a vexed question it remains. International law, unlike standard domestic legal systems, generally lacks the capacity to deploy effective sanctions against non-compliance. And international human rights law, in particular, faces special efficacy-undermining burdens.
Compared to many other forms of international law, it derives limited benefits from the logic of reciprocity. Fortunately, as a philosopher, the efficacy of international law is a question I am neither equipped nor expected to tackle. Subsequent shortfalls in state behavior trigger political demands for compliance, mainly from domestic constituencies, but also internationally.