International Law

In this paper, I present and make a critical analysis of the thoughts of the Sierra Leonean philosopher George M. Carew, who is the author of one of the broadest contemporary visions of the political future of Africa. Carew is disappointed with the decades of authoritarian rule in African countries, which have brought about neither development nor prosperity. He believes that the only political system able to change this situation is democracy. In the opinion of this thinker, the prerequisite for (...) building and consolidating democracy in the African state is democratization of the mechanisms governing the current global political and economic order. The hierarchization and unfair, in Carew's opinion, principles governing the provision of assistance to poor countries are a substantial hindrance to the development of democracy there. Carew also enumerates several arguments supporting this thesis. The philosopher subjects various elements of the world order to a tough evaluation and is particularly critical of the mechanisms governing the decision-making processes. As a result, he is a proponent of far-reaching democratization of international economic and political relations. The significance of Carew's views consists mainly in the fact that he points out the importance of the concept of deliberative democracy for the African countries looking after their interests, as now they do not have any effective instruments of acting in the global environment. In Carew's opinion, the democratization of the world order should consist in the order being reformed in accordance with three principles which he considers the fundamental ideals of deliberative democracy: rational deliberation, participatory politics, and civic governance. Published in the book: Re-Visions and Re-Orientations: Non-European Thought in International Relations Studies, ed. by J. Zajączkowski, M.F. Gawrycki and A. Bógdał Brzezińska, Bloomsbury, London - New Delhi 2014, pp. 112-129. (shrink)

This paper examines the tensions at play in three important documents involved in the ‘war on terror’: the “Application of Treaties” White House Legal Counsel Memo of 2001, the “National Security Strategy” document of 2002, and the 2004 Supreme Court decision Hamdi v. Rumsfeld. Reading these documents, it becomes clear that there is an overarching misunderstanding and confusion of the traditionally separate concepts of ‘criminal’ and ‘enemy’ in the struggle against globalized terrorism.

The principle of self-determination, like Janus, has two faces: negative and positive. Often understood as enabling the fracture of states into national components, the principle is better seen as facilitating the creation of multinational frameworks that foster toleration and human rights.

During long-term refugee displacements, it is common for the refugees’ country of origin to be called on to recognize a right of return. A long-standing tradition of philosophical theorizing is sceptical of such a right. Howard Adelman and Elazar Barkan are contemporary proponents of this view. They argue that, in many cases, it is not feasible for entire refugee populations to return home, and so the notion of a right of return is no right at all. We can call Adelman (...) and Barkan’s view the feasibility objection. Many defenders of rights will deny that empirical facts such as the kind to which Adelman and Barkan appeal are relevant to determining whether a moral entitlement amounts to a right. In contrast, I offer a response to the feasibility objection that does admit the relevance of facts. In my view, considerations of feasibility do matter when determining what rights human beings possess. Nevertheless, the feasibility objection is undone by its failure to acknowledge a distinction between two different kinds of feasibility constraints. ‘Hard’ constraints include logical, nomological and biological considerations. ‘Soft’ constraints include political, cultural and institutional factors. A necessary condition of a moral entitlement achieving the status of a right, I argue, is that it be feasible in the hard sense. Crucially, however, a right need not always be feasible in the soft sense. Refugees can have rights that it is not currently possible to implement politically. (shrink)

A draft White Paper associated with Fulbright Specialist Program lectures at the University of Ljubljana, Ljubljana, Slovenia, in March-April 2015, concerning neo-liberal capitalist exploitation of academic research and publications.

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show than an implication of this view (...) is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (shrink)

Although military mores have relied primarily on just war theory, the ethic of cooperation in warfare (ECW)—between enemies even as they are trying to kill each other—is as central to the practice of warfare and to conceptualization of its morality. Neither game theory nor unilateral moral duties (God-given or otherwise) can explain the explicit language of cooperation in developing and enforcing principles of military ethics and the law of armed conflict. -/- The ethic of cooperation is borne of various motivations: (...) reciprocity, self-preservation, and efficiency, to be sure, but also a sense of warrior honor and concern with human rights. This shared morality can persist despite making it more difficult for one side or the other to win and, unfortunately, its well-meaning motivations often lead to unintended tragic consequences. -/- This book explores three manifestations of this significant yet overlooked ethic of cooperation in warfare: (1) for a “fair fight,” (2) to protect classes of individuals (e.g., non-combatants or prisoners of war), and (3) to end the war quickly. Such cooperation can take unexpected forms, from ad hoc decisions on the battlefield to institutionalization in international law, and is the source of some critical tensions in one of the most significant developments in warfare in recent years: namely, how to handle terrorism or other forms of warfare that lie outside the purview of international law. -/- Each type of ECW raises questions internal to that ethic, such as inconsistencies in the concept of “parity” across different weapons bans, contradictions within the warrior ethic that heavily influence—and therefore confuse—notions of the “fair fight,” the disconnect between what protections a person receives and his responsibility for the war (e.g., political leaders), or the limited decisiveness of outcomes generated by very short wars. -/- Their simultaneous application also generates significant tensions and raises questions about the proper relationship of ECW to the immediate goal of war itself, which is to win, and thus yield either a political settlement or a justicial decision. For example, the ECWs for a “fair fight” and to protect classes of individuals can make it harder to win the war, but even more concerning is that they can also kill more people, which in the latter case contravenes its very purpose. -/- Human history is in some ways the story of trying to concurrently wage and tame war, and the architecture of warfare itself is informed by the ECW, in particular: (a) the political nature of war, (b) the abdication from jus ad bellum judgments in order to concentrate on justice within war (jus in bello), and (c) the ways in which modern nation-states collude to define “legitimacy” in war. -/- The combination of these three features leave questions of justicial right and responsibility for war disturbingly unresolved, it also generates new challenges in a geopolitical context in which cooperative and non-cooperative (e.g. contemporary terrorism) forms of warfare clash. (shrink)

Lo primero que debemos tener en cuenta es que cuando decimos que China dice esto o China hace eso, no estamos hablando del pueblo chino, sino de los sociópatas que controlan el PCC -- Partido Comunista Chino, es decir, los Siete Asesinos En Serie Seniláticos (SSSSK) de th e Comité Permanente del PCC o de los 25 miembros del Politburó, etc. -/- Los planes del PCC para la Tercera Guerra Mundial y la dominación total están muy claro en las publicaciones (...) y discursos del gobierno chino y este es el "sueño de China" de Xi Jinping. Es un sueño sólo para la pequeña minoría (tal vez unas pocas docenas a unos pocos cientos) que gobiernan China y una pesadilla para todos los demás (incluyendo 1.400 millones de chinos). Los 10 mil millones de dólares anuales les permiten a ellos o a sus marionetas poseer o controlar periódicos, revistas, canales de televisión y radio y colocar noticias falsas en la mayoría de los principales medios de comunicación de todo el día. Además, tienen un ejército (tal vez millones de personas) que troll todos los medios de comunicación colocando más propaganda y ahogando comentarios legítimos (el ejército de 50 centavos). -/- Además de despojar al tercer mundo de recursos, un gran impulso de la Iniciativa de Cinturón y Carretera sin peaje es la construcción de bases militares en todo el mundo. Están forzando al mundo libre a una carrera armamentista masiva de alta tecnología que hace que la guerra fría con la Unión Soviética parezca un picnic. -/- Aunque el SSSSK, y el resto de los militares del mundo, están gastando enormes sumas en hardware avanzado, es muy probable que WW3 (o los compromisos más pequeños que conducen a él) esté dominado por software. No está fuera de cuestión que el SSSSK, con probablemente más hackers (codificadores) trabajando para ellos entonces todo el resto del mundo combinado, ganará futuras guerras con un conflicto físico mínimo, sólo por paralizar a sus enemigos a través de la red. Sin satélites, sin teléfonos, sin comunicaciones, sin transacciones financieras, sin red eléctrica, sin internet, sin armas avanzadas, sin vehículos, trenes, barcos o aviones. -/- Sólo hay dos caminos principales para eliminar el PCC, liberar a 1.400 millones de prisioneros chinos y poner fin a la marcha lunática a la Segunda Guerra Mundial. La pacífica es lanzar una guerra comercial total para devastar la economía china hasta que los militares se cansen y arranquen el PCC. -/- Una alternativa al cierre de la economía de China es una guerra limitada, como una huelga dirigida por decir 50 drones termobáricos en el 20o Congreso del PCC, cuando todos los miembros principales están en un solo lugar, pero eso no tendrá lugar hasta 2022 por lo que uno podría ir a la sesión plenaria anual. Se informaría a los chinos, como ocurrió el ataque, de que debían deponer las armas y prepararse para celebrar una elección democrática o ser arrojados a la edad de piedra. La otra alternativa es un ataque nuclear total. La confrontación militar es inevitable dado el curso actual del PCC. Es probable que suceda sobre las islas en el Mar de China Meridional o Taiwán dentro de unas pocas décadas, pero a medida que establecen bases militares en todo el mundo podría suceder en cualquier lugar (ver Tigre Agachado, etc.). Los conflictos futuros tendrán aspectos difíciles y blandos con los objetivos declarados del PCC para enfatizar la ciberguerra mediante la piratería y paralización de los sistemas de control de todas las comunicaciones militares e industriales, equipos, centrales eléctricas, satélites, Internet, bancos, y cualquier dispositivo o vehículo conectado a la red. Las SS están lanzando lentamente una gama mundial de submarinos de superficie y submarinas tripulados y autónomos o drones capaces de lanzar armas convencionales o nucleares que pueden estar latentes a la espera de una señal de China o incluso buscando la firma de buques o aviones estadounidenses. Mientras destruyen nuestros satélites, eliminando así la comunicación entre los EE.UU. y nuestras fuerzas en todo el mundo, utilizarán los suyos, junto con los drones para atacar y destruir nuestras fuerzas navales actualmente superiores. Por supuesto, todo esto se hace cada vez más automáticamente por la IA. -/- Con mucho, el mayor aliado del PCC es el Partido Demócrata de los Estados Unidos. La opción es detener al PCC ahora o observar cómo extienden la prisión china por todo el mundo. -/- Por supuesto, la vigilancia universal y la digitalización de nuestras vidas es inevitable en todas partes. Cualquiera que no lo crea está profundamente fuera de contacto. -/- Por supuesto, son los optomistas los que esperan que los sociópatas chinos gobiernen el mundo, mientras que los pesimistas (que se ven a sí mismos como realistas) esperan que la sociopatía de IA (o como yo la llamo, es decir, la estupidez artificial o la sociósima artificial) tomen el control, tal vez para 2030 Los interesados en más detalles sobre el camino lunático de la sociedad moderna pueden consultar mis otras obras como Suicidio por democracia y obituario para América y el mundo 2019 y Delirios Utópicos Suicidas en el Siglo 21 -La filosofía, la naturaleza humana y el colapso de la civilización : Artículos y reseñas 2006-2019 5ª edicion (2019) -/- . (shrink)

International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards for international institutions are predominantly either minimal or democratic and cannot capture the large variety of international institutions. This article develops an autonomy-based conception of legitimacy based on the justification of political power that is applicable to both international and domestic institutions. Political power as rule-setting is a particular normative threat to the personal and political (...) autonomy of its subjects. The more political power an institution exercises, the more demanding the legitimacy standards it needs to fulfil in order to be legitimate. The article argues that an increase in the four dimensions of political power (scope, domain sensitivity, applicability and impact) raises the legitimacy burden for the institution. Finally, graded legitimacy standards are proposed. These are sensitive to the differences between international institutions in respect of their levels of political power, i.e. level of competences. In contrast to minimal or democratic legitimacy standards, the article suggests that different standards of accountability, participation and human rights have to be fulfilled according to the institution’s level of political power. (shrink)

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full (...) range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood as involving a right of unilateral secession, it cannot be attributed to national groups across the board. It arises only in specific historical circumstances, usually involving oppression or other forms of grave injustice. (shrink)

It is commonly assumed that Indigenous nations had neither sovereignty in international law nor title to their territories when Europeans first arrived in North America. Thus the continent was legally vacant and European powers could gain title to it simply by such acts as discovery, symbolic acts, or occupation, or by concluding treaties among themselves. This paper argues that this viewpoint is misguided and cannot be justified either by reference to positive international law or to basic principles of justice. To (...) the contrary, Indigenous American nations were sovereign entities holding exclusive title to their territories at the time of European contact, and they participated actively in the formation of Canada and the United States. This fact requires us to rewrite our constitutional histories and reconsider the current status of Indigenous nations. (shrink)

Domination consists in subjection to the will of others and manifests itself both as a personal relation and a structural phenomenon serving as the context for relations of power. Domination has again become a central political concern through the revival of the republican tradition of political thought . However, normative debates about domination have mostly remained limited to the context of domestic politics. Also, the republican debate has not taken into account alternative ways of conceptualizing domination. Critical theorists, liberals, feminists, (...) critical race theorists, and postcolonial writers have discussed domination in different ways, focusing on such problems as imperialism, racism, and the subjection of indigenous peoples. This volume extends debates about domination to the global level and considers how other streams in political theory and nearby disciplines enrich, expand upon, and critique the republican tradition’s contributions to the debate. This volume brings together, for the first time, mostly original pieces on domination and global political justice by some of this generation’s most prominent scholars, including Philip Pettit, James Bohman, Rainer Forst, Amy Allen, John McCormick, Thomas McCarthy, Charles Mills, Duncan Ivison, John Maynor, Terry Macdonald, Stefan Gosepath, and Hauke Brunkhorst. -/- Front matter and First chapter available for download. (shrink)

Some progress has been made in recent decades to articulate corporate social responsibility (CSR) and, more recently, to associate CSR with international enforcement of human rights. This progress continues to be hampered, however, by the ability of a multinational corporation (MNC) that violates human rights not only to shift liability from itself to a nation-state but even to win compensation from that nation-state for loss of profits due to restrictions on its business activities. In the process, the nation-state’s sovereignty is (...) diminishing; and, in effect, though still attributed to nation-states, it is being transferred to the MNC. The main aim of this article is (1) to draw on normative considerations to claim that this MNC proto-sovereignty should be modified and (2) to contend that this can eventually be accomplished by adding to corporate adoption of CSR guidelines a regimen of global human rights enforcement. I base this contention on expectations about the internationalization of corporate criminal law and the globalization of civil society in general and of NGOs in particular. I consider various jurisdictions but I focus on US jurisprudence. (shrink)

Business ethicists should examine ethical issues that impinge on the perimeters of their specialized studies (Byrne 2011 ). This article addresses one peripheral issue that cries out for such consideration: the international resource privilege (IRP). After explaining briefly what the IRP involves I argue that it is unethical and should not be supported in international law. My argument is based on others’ findings as to the consequences of current IRP transactions and of their ethically indefensible historical precedents. In particular I (...) examine arguments from political philosophy for more equitable distribution of resources and appeals to property rights as a means of achieving this; business ethicists’ critiques of contemporary resource appropriations; and legal historians’ accounts of despoliation of aboriginal peoples, especially in what is now the United States, involving acquisition via conquest, asserted jurisdiction, and religious and racial preeminence. I also consider relevant human rights’ standards; supportive views of some theorists, especially early modern realists and current supporters of group rights and multidimensional rectification; some de facto incidences of substantive restitution; and proposals for effecting further rectification. (shrink)

Global law settings are characterized by a structural pre-eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply (...) chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabiliz- ing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents. (shrink)

Conservadurismo y dogmática constitucional en Japón. Conservatism and the dogmatic part of constitution in Japan.

International human rights law is profoundly oxymoronic. Certain well-known international treaties claim a universal character for human rights, but international tribunals often interpret and enforce these either narrowly or, if widely, they rely upon sovereign states to enforce the rights against themselves. International lawyers and diplomats have usually tried to resolve the apparent contradiction by pressing for more general rules in the form of treaties, legal doctrines, and institutional procedures. Despite such efforts, aliens remain who are neither legal nor illegal (...) and who thereby slip through a discourse that claims universality. I ask, why does international legal discourse claim a universality of human rights enforceable by impartial, politically neutral tribunals when it also recognises that a state may refuse to recognise some groups as “persons”? I turn to the works of Bernhard Waldenfels for an explanation. To that end, I briefly outline two examples of state-centered human rights treaties. I then reconstruct Waldenfels’ explanation as to how a territorial sense of space needs an alien exterior to the space. The territorial structure assumes time is frozen as of the date of the foundation of the structure. The body of the alien is taken as a biological body. The personality, motives, and actions of the alien are the consequence of the imagination of people inside the territorial boundary. The dominant international legal discourse reinforces and institutionalises such a territorial sense of space and frozen time because the territorial state is considered the primary legal subject of international law. I also retrieve, however, an experiential but concealed sense of space and time. To retrieve this sense of space and time requires that lawyers see the world through the twilight of legality heretofore ignored as pre-legal. (shrink)

The paper considers the proper method for theorizing about criminal jurisdiction. It challenges a received understanding of how to substantiate the right to punish, and articulates an alternative account of how that theoretical task is properly conducted. The received view says that a special relationship is the ground of a tribunal’s authority to prosecute and, hence, that a normative theory of that authority is faced with identifying a distinctive relation. The alternative account locates prosecutorial standing on an institution’s capacity to (...) address the basic reasons generating criminal liability. This reframes the normative issues at stake, and has the result that various, perhaps quite heterogeneous, considerations can substantiate penal authority. It also eliminates the existence of a special relation as a necessary condition for legitimate criminal accountability. The argument proceeds by offering an analysis and account of universal jurisdiction. Not only does the alternative elegantly perform where the received view struggles, it can accommodate much of what motivates the pursuit of relational ties in existing efforts to vindicate jurisdictional conclusions. (shrink)

Several European and North American states encourage or even require, via good Samaritan and duty to rescue laws, that persons assist others in distress. This paper offers a utilitarian and contractualist defense of this view as applied to corporations. It is argued that just as we should sometimes frown on bad Samaritans who fail to aid persons in distress, we should also frown on bad corporate Samaritans who neglect to use their considerable multinational power to undertake disaster relief or to (...) confront widespread social ills such as those currently befalling public health (obesity) and the environment (climate change). As such, the corporate duty to assist approach provides a novel justification for sustainable business practices in such cases. The paper concludes by arguing that traditional stakeholder approaches have not articulated this duty of assistance obligation, though a new utilitarian stakeholder theory by Thomas Jones and Will Felps may be coextensive. (shrink)

In recent decades, environmental rights have been increasingly developed at both the national and international level, along with increased adjudication of such rights in both national (constitutional) courts and international human rights courts. This raises a question as to whether it is better to develop and adjudicate environmental rights at the national or international level. This article considers the case made by James May and Erin Daly in favor of developing environmental rights at the national constitutional level and adjudicating such (...) rights in domestic courts. I consider the limitations of this case by showing that international environmental human rights can play a role that systematically benefits environmental protection, with adjudication in international human rights courts a key part of that process. This involves drawing on an argument offered by Allen Buchanan to justify a system of international legal human rights, which appeals to a number of benefits that such a system can provide. The argument is developed and applied to adjudication of environmental human rights in international human rights courts. First, it is shown how these benefits are realized in the area of environmental human rights. Second, it is shown how adjudication can enhance the benefits, both by providing a mechanism for their realization and by facilitating a mutually supportive relationship among them. On the basis of these enhanced benefits, and the value that they add, it is concluded that there is strong justification for developing and adjudicating environmental human rights at the international level. (shrink)

The discursive character of human rights prevents a precise summary of historical origin, rationale, or definition outside of the various codifications in religious texts, secular philosophies, founding national documents, and international treaties, charters, conventions, covenants, declarations, and protocols. Regarding the objects of human rights, we can speak of a “foundational five” 1) Personal security 2) Material subsistence 3) Elemental equality 4) Personal Freedom and 5) Recognition as a member of the human community. Despite, or perhaps because of its multivalence, the (...) concept of human rights has been criticized as “foundationalist,” “essentialist,” or “ethnocentric”—its universalism being used as a weapon against itself by critics of cultural imperialism. Even the tolerance discourses so popular in critical theory, however, gain their normative force from the same basic notion of individual or group rights. Notwithstanding these rhetorical abuses, the concept of human rights has proved robust as a doctrine of equality owing to its openness to a pluralism of justifications grounding the basic “goods” agreed as necessary for human development. (shrink)

Some objections to the idea that disputed territories should be auctioned.

l volume di Gustavo Gozzi "Diritti e civiltà. Storia e filosofia del diritto internazionale (Bologna, il Mulino, 2010) ha a nostro avviso colmato una lacuna importante nel panorama filosofico-giuridico italiano. Si tratta infatti della prima pubblicazione in lingua italiana che, da un punto di vista insieme storico e filosofico, affronta in modo sistematico lo sviluppo del diritto internazionale dall’età moderna ai giorni nostri. Questo primato è già un eccellente motivo per discutere Diritti e civiltà. Ma c’è di più. Una parte (...) consistente del saggio è dedicata alla ricostruzione e discussione di contributi non-occidentali al dibattito contemporaneo sulla natura e il ruolo del diritto internazionale. Si può anzi dire che Gozzi fa proprio il punto di vista di questi autori: il volume si distingue infatti per un approccio critico nei confronti della pretesa universalità delle dottrine occidentali del diritto internazionale. Questo scetticismo si fonda sulla tesi fondamentale del volume, secondo la quale il diritto internazionale è caratterizzato dalla “continuità del discorso dell’egemonia occidentale dalla prima età moderna fino alla realtà contemporanea” (p. 11). Prendendo avvio dall’approccio sistematico e insieme critico del volume e dai temi in esso trattati, questo forum intende (ri)discutere temi chiave della storia e filosofia del diritto internazionale e metterne a fuoco un programma di ricerca. (shrink)

Lo sviluppo del diritto internazionale penale è stato accolto con entusiasmo da attivisti per i diritti umani, giuristi e studiosi di questioni internazionali. La punizione dei crimini internazionali più gravi, come i crimini di guerra, quelli contro l’umanità e il genocidio è considerata un importante passo avanti verso l’effettiva protezione dei diritti umani e l’affermazione della pace. Questo entusiasmo sembra però aver lasciato sullo sfondo alcune domande fondamentali: come si giustifica l’esercizio del potere punitivo internazionale? Chi ne è il titolare (...) e in virtù di cosa? Il tribunale del mondo prova a rispondere a queste domande, indagando da una prospettiva filosofico-politico-giuridica la giustificazione del diritto internazionale penale e assumendo come punto di partenza le specificità del contesto internazionale. L’autrice auspica il superamento del diritto internazionale penale a favore di un sistema plurale di risposta alle gravi violazioni dei diritti elementari: un sistema che comprenda anche soluzioni non penali e che in alternativa all’universalismo del diritto penale internazionale offra meccanismi orientati alle esigenze delle comunità coinvolte. (shrink)

In this article we address the question of individual identity and its place – or rather omission – in contemporary discussions about the cosmopolitan extension of liberalism as the dominant political theory. The article is divided into two parts. In the first part we show that if we consistently emphasise the complementarity of the “inner” and “outer” identity of a person, which is essential to liberalism from its very beginnings, then a fundamental flaw in the liberal cosmopolitan project becomes apparent. (...) This is the underestimation of the indispensability of an unambiguously determined public framework which will fix and enforce liberal principles and values in a comprehensible way. Such a framework for liberalism was always the political community and then, above all, the modern state, in which the liberal identity could then be realised. The discussion in this part of the article prepares the ground for an examination, in the second part, of a dilemma which cosmopolitan liberalism must face. In the second part we argue that the attempt to tackle the given problem presents liberals with the following dilemma: either it is necessary to plead for the institution of a global political authority (a “world state”), or to give up the belief that fundamental liberal principles and values can be realised to a global extent. We show, at the same time, that because of the character and ambitions of the cosmopolitan project, the promise of plural identities and multi­centred law cannot be relied upon. By way of conclusion we then ask what is the price of the realisation of cosmopolitan liberal ideals. -/- NOTE: This is a two-part article (in Czech). For download here is the first part; please see the link below for the second part as well. (shrink)

The article represents a contribution to the discussions about the basis, motives, and goals of European integration, which were stimulated by the recent “normative turn” in EU studies. My aim in this the article is threefold: By addressing the issue of internal legitimacy of EU decision-making, I wish to show that the European Union is in need of a public “story” of European integration; however, a closer analysis suggests that there is much normative disagreement on values and principles that are (...) supposed to define such “Europeanness”. This is also relevant for the role of Europe on the scene of international or global politics, where the EU aspires to become a leading actor, or is supposed to do so by cosmopolitan-minded authors. Lastly, the text defends the usefulness of the traditional conceptual apparatus of political theory, which which has – in relation to the European integration – in recent times come under attack. (shrink)

This article provides a brief introduction to some contemporary challenges found in the intersection of bioethics and international criminal law involving genetic privacy, organ trafficking, genetic engineering, and cloning. These challenges push us to re-evaluate the question of whether the international criminal law should hold corporations criminally liable. I argue that a minimalist and Strawsonian conception of corporate responsibility could be useful for deterring the wrongs outlined in first few sections and in answering compelling objections to corporate criminal liability.

Political legitimacy is best understood as one type of a broader notion, which I call institutional legitimacy. An institution is legitimate in my sense when it has the right to function. The right to function correlates to a duty of non-interference. Understanding legitimacy in this way favorably contrasts with legitimacy understood in the traditional way, as the right to rule correlating to a duty of obedience. It helps unify our discourses of legitimacy across a wider range of practices, especially including (...) the many evaluations we increasingly make of international institutions of various sorts, but also including domestic institutions. (shrink)

In the progress of globalisation, the human being is exposed to effects of cultural dominance. For the individual, this exposure can be the stronger, the more autonomous his or her culture of origin used to be before the confrontation. Global consent with regard to behaviour patterns and cogni¬tive styles leads to the obliteration of traditional knowledge and behaviour upon which identity has been defined. The loss of identity in favour of belonging to the global society brings about a number of (...) problems, which can be demonstrated in functional models. These models, in turn, may sup¬port the planning of interventional strategies and rescue work. (shrink)

This paper examines the extent to which dispute resolvers in customary law systems provide widely understandable justifications for their decisions. The paper first examines the liberal-democratic reasons for the importance of publicity, understood to be wide accessibility of legal justification, by reviewing the uses of publicity in Habermas’ and Rawls’ accounts of the rule of law. Taking examples from Sierra Leone, the paper then argues that customary law systems would benefit from making local dispute resolution practices, such as “begging” from (...) elders, witchcraft, and customary law judgments, more widely accessible. The paper concludes that while legal pluralism is usually taken to be an analytical concept, it may have a normative thrust as well, and that publicity standards would also apply to formal courts in developing countries, which are also typically “defective” along this dimension. (shrink)

This paper examines the role of the consensual model in law and argues that if substantive justice is to be the goal of law, the use of individual choice as a legal criterion for distributive and retributive purposes must be curtailed and made subject to substantive considerations. Substantive justice arguably requires that human rights to life, well-being, and the commodities essential to life and well-being, be given priority whenever a societal decision is made. If substantive justice is a collective societal (...) responsibility, the individual cannot be justly rewarded or punished for his or her choices with respect to life, well-being and essential commodities insofar as these choices are justified or excused by standards of substantive justice. Societal conditions and institutional arrangements should be recognized as grounds for justification and excuse because they may impose limits and constraints on the choices available to an individual that are as unavoidable and compelling as those imposed by chance or by another human being. (shrink)

What It’s Like to Chill Out With Whom the Rest of the World Considers As The Most Ruthless Men: Ratko Mladic, Goran Hadzic and Radovan Karadzic (+) Confessions of a Female War Crimes Investigator By Jill Louise Starr NJ USA -/- Read My Entire Book Here (True Story) http://sites.google.com/site/thelawprojectscenternycoffices/what-it-s-like-to-chill-out-with-whom-th e-rest-of-the-world-considers-as-the-most-ruthless-men-ratko-mladic-goran-hadzic-and-radovan-karadzi c-confessions-of-a-female-war-crimes-investigator -/- Retrospectively, it was all so simple, natural and matter of fact being on a boat restaurant in Belgrade, sitting with, laughing, drinking a two hundred bottle of wine and chatting about (...) war and peace while Ratko Mladic held my hand. Mladic, a man considered the world’s most ruthless war criminal since Adolf Hitler, still at large and currently having a five million dollar bounty on his head for genocide by the international community. Yet there I was with my two best friends at the time, a former Serbian diplomat, his wife, and Ratko Mladic just chilling. There was no security, nothing you’d ordinarily expect in such circumstances. Referring to himself merely as, Sharko; this is the story of it all came about. Diplomatic / International Relations Consultant & War Crimes Investigator - War - Peace - Preventive Diplomatic Strategies - International Law - Charitable Causes - International Business - International Political Economy - Human Rights - Politics - War Crimes Investigations - Anti-Terrorism - Law Projects Center Funded Projects (YCICC) Internationally LPCYU Home Website -/- Irrefutable Proof ICTY Is Corrupt Court/Irrefutable Proof the Hague Court Cannot Legitimately Prosecute Karadzic Case By Jill Starr I want to stress, in this particular meeting , there was no observer status at the ICC Preparatory Meetings at the United Nations in New York City in 2001. What I did, made a historical precedent. I was asked by, Darko Trifunovic 1st Secretary of the Bosnian MIssion, to take his place, in a CLOSED DOOR UNITED NATIONS MEETING. This means, ONLY HEADS OF AMBASSADORIAL MISSIONS WERE ALLOWED IN THE MEETING. There was no "Observer Status for say NGO's such as Amnesty International." I represented a Country as an American Citizen that day; the Repuklika Srpska. This never occurred before to my knowledge ever. It was an error. My former professor, Arnold Stark, walked me in, A former State Dept. man chosen to be the former Ambassador from the USA to Bonn/Germany (and he declined years back because of his wife at the time). He knew it was illegal. It said on these paper I picked up in the meeting, Anyone, Richard Holbrooke, sat across from me, discussing this meeting outside the meeting itself thereafter , "would be prosecuted to the fullest extent of int'l law." I heard the Ambassadors of the world ALL DISCUS TRADING MONEY FOR ICC AND ICTY COURT VERDICT AS WELL AS FUTURE JUDICIAL APPOINTMENTS -/- http://sites.google.com/site/thelawprojectscenternycoffices/home/irrefutable-proof-icty-is-corrupt-c ourt-irrefutable-proof-the-hague-court-cannot-legitimately-prosecute-karadzic-case -/- http://picasaweb.google.com/lpcyusa/IrrefutableProofICTYIsCorruptCourtIrrefutabl# (The Documentary Secret United Nations ICC Meeting Papers Scanned Images) OR http://community.jigsaw.com/t5/media/gallerypage/user-id/903610# -/- Rea dMore Here _> Read the entire story here My testimonial video on Youtube _> http://www.youtube.com/watch?v=dKe-5LORsGs -/- http://www.youtube.com/watch?v=dKe-5LORsGs (My YouTube VIDEO) -/- This legal technicality indicates the Hague must dismiss charges against Dr Karadzic and others awaiting trials in the Hague jail; like it or not. -/- Unfortunately for the Signatures Of the Rome Statute United Nations member states instituting the ICC & ICTY housed at the Hague, insofar as the, Radovan Karadzic, as with the other Hague cases awaiting trial there, I personally witnessed these United Nations member states having a substantial conversations, and, openly speaking about trading judicial appointments and verdicts for financial funding when I attended the 2001 ICC Preparatory Meetings at the UN in Manhattan making the iCTY and ICC morally incapable trying Radovan Karazdic and others. -/- I witnessed with my own eyes and ears when attending the 2001 Preparatory Meetings to establish an newly emergent International Criminal Court, the exact caliber of criminal corruption running so very deeply at the Hague, that it was a perfectly viable topic of legitimate conversation in those meetings I attended to debate trading verdicts AND judicial appointments, for monetary funding. -/- Jilly wrote:*The rep from Spain became distraught and when her country’s proposal was not taken to well by the chair of the meeting , then Spain argued in a particularly loud and noticably strongly vocal manner, “Spain (my country) strongly believes if we contribute most financial support to the Hague’s highest court, that ought to give us and other countries feeding it financially MORE direct power over its decisions.” -/- ((((((((((((((((((((((((( ((((((((((((((((((((((((( Instead of censoring the country representative from Spain for even bringing up this unjust, illegal and unfair judicial idea of bribery for international judicial verdicts and judicial appointments, all country representatives present in the meeting that day all treated the Spain proposition as a ”totally legitimate topic” discussed and debated it between each other for some time. I was quite shocked! The idea was “let’s discuss it.” "It’s a great topic to discuss." -/- Some countries agreed with Spain’s propositions while others did not. The point here is, bribery for judicial verdicts and judicial appointments was treated as a totally legitimate topic instead of an illegitimate topic which it is in the meeting that I attended in 2001 that day to establish the ground work for a newly emergent international criminal court.)))))))))))))))))))))))))))) -/- In particular., since “Spain” was so overtly unafraid in bringing up this topic of trading financial funding the ICC for influence over its future judicial appointments and verdicts in front of every other UN member state present that day at the UN, “Spain” must have already known by previous experience the topic of bribery was “socially acceptable” for conversation that day. They must have previously spoke about bribing the ICTY and ICC before in meetings; this is my take an international sociological honor student. -/- SPAIN’s diplomatic gesture of international justice insofar as, Serbia, in all of this is, disgusting morally!SPAIN HAS TAUGHT THE WORLD THE TRUE DEFINITION OF AN “INTERNATIONAL CRIMINAL COURT.” -/- I represented the state interests’ of the Former Yugoslavia, in Diplomat Darko Trifunovic’s absence in those meetings and I am proud to undertake this effort on Serbia’s behalf. http://picasaweb.google.com/lpcyusa (My Political Satire Blog) Diplomatic / International Relations Consultant & War Crimes Investigator - War - Peace - Preventive Diplomatic Strategies - International Law - Charitable Causes - International Business - International Political Economy - Human Rights - Politics - War Crimes Investigations - Anti-Terrorism - Law Projects Center Funded Projects (YCICC) Internationally http://sites.google.com/site/jillstarrsite -/- -/- . 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Driven by a sharp increase in claims for reparations, reparative justice has become a topic of academic debate. To some extent this debate has been marred by a failure to realize the complexity of reparative justice. In this essay we try to amend this shortcoming. We do this by developing a taxonomy of different kinds of wrongs that can underwrite claims to reparations. We identify four kinds of wrongs: entitlement violations, unjust exclusions from an otherwise acceptable system of entitlements, and (...) two kinds where a social practice systematically fails to embody an acceptable system of entitlements. In deliberation about what is required to repair a historical injustice the weight of backward- and forward-looking considerations is a function of the distinctive features of the injustice in question. Hence, the first step in adjudicating claims for reparation is to identify what kind of wrong the claim arises from. From the taxonomy of wrongs we are thus able to construct what we call the Field of Reparative Justice, which illustrates how the structure of deliberation for reparative justice tracks the distinctive features of different kinds of wrongs. (shrink)

In this article, I discuss prospects for democracy in the Middle East. I argue, first, that some democratic experiments—for instance, Egypt under Mohammed Morsi—are not in keeping with etymological and historical meanings of democracy; and second, that efforts to promote democracy, especially as exemplified in U.N. documents emphasizing universal rights grounded in Western traditions, are possibly totalitarian and also colonialist and hence counter to democratic ideals insofar as they impart one set of values as the only morally acceptable ones. A (...) respectful dialogue in which people from both regions strive to understand conditions giving rise to certain social practices would be more productive than morally superior attitudes, and help all to see areas where their respective cultures could be improved. I conclude by discussing concepts of democratic and pragmatic faith articulated by John Dewey and William James, arguing that democracy will continue to flounder in the Middle East so long as the basic trust implied in these concepts is lacking; and how Westerners might consider this a cautionary tale regarding social attitudes and public policies contrary to democratic life in their own countries. (shrink)

Raymond Geuss asserts that there are fragmented views on what human rights are and that there is no unifying principle underlying such notion. I think that this view has its merits. It conveys the particularity of our perspectives, attitudes, desires and self-understandings. It rejects abstractness and is committed to a thick, perspectivist, historical understanding of personhood. To understand who we are, is to understand how we arrive at being who we are. By contrast, the notion of human rights deploys abstractness, (...) unification of agency, necessity and a thin view of personhood. In this paper, I attempt to bring into focus these two aspects of the notion of human rights. I will first analyse the genealogical method advocated by Geuss and argue that it has the merit of elucidating our historical contingencies; however, it is argued that any view in favour of the genealogical method relies on the idea that evaluative or normative concepts cannot be defined in terms of a common denominator. We reconstruct the Aristotelian idea of 'focal meaning' as core-resemblance and show that there is a unifying concept of human rights. We conclude that the perspectivist spirit of genealogy is not far from the Aristotelian tradition. Aristotle's inquiry into a concept that could grasp different perspectives and contingencies as opposed to a Platonic understanding of abstract and universal forms shows that genealogical worries are germane to the tradition. (shrink)

Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. Realisation (...) of the primary aim of this paper is linked to the problem of different meanings of the notion of universality, used in the context of the universal system of the protection of human rights. First, descriptive and normative meanings have to be distinguished. In the case of normative sense, there are moral and legal meanings of “universality”. An axiological justification of the universality of human rights in the legal sense leads to the legitimisation of the universal system. It is shown that modifications of – broadly accepted in the Polish theory of law – definitions of an axiological justification of legal norms are needed. These definitions base such a justification on the valuations made by particular groups of subjects. It is argued that it is much more convenient to refer to valuations understood as meanings of sentences of certain kind. -/- Streszczenie W artykule zmierza się do uzasadnienia tezy, że legitymizacja uniwersalnego systemu ochrony praw człowieka jest oparta nie tyle na treści wartości uznawanych w tym systemie, ale na uznanych w nich rozstrzygnięciach metaaksjologicznych, dotyczących tego, jak istnieją wartości podstawowe dla tego systemu i czy są one poznawalne. Walor legitymizacyjny posiada przede wszystkim uznanie obiektywnego charakteru tych wartości i ich poznawalności. Realizacja zasadniczego celu zakłada uporządkowanie podstawowych pojęć dotyczących problematyki powszechności praw człowieka – termin „powszechność” stosowany w odniesieniu do praw człowieka w kontekście uniwersalnego systemu ochrony ma wiele znaczeń. Przede wszystkim odróżnić trzeba powszechność w aspekcie opisowym i w aspekcie normatywnym. W przypadku powszechności w aspekcie normatywnym w grę może wchodzić powszechność w sensie ideowym i powszechność w sensie pozytywnoprawnym. Uzasadnienie tej ostatniej jest też uzasadnieniem poszukiwanej tu legitymizacji uniwersalnego systemu ochrony praw człowieka. Prowadzone analizy prowadza także do sformułowania postulatów dotyczących sposobu definiowania uzasadnienia aksjologicznego norm prawnych. Modyfikacji wymagają powszechnie przyjmowane w polskiej teorii prawa definicje relatywizujące takie uzasadnienie do ocen przyjmowanych przez konkretne podmioty oceniające lub ich grupy. (shrink)

Problem of Axiological Legitimization of the Universal System of the Protection of Human Rights Summary In this paper it is argued that legitimization of the universal system (UN-system) of the protection of human rights depends primary not from the content of values recognised as fundamental but rather from metaaxiological solutions related to the way of existence and to the possibility of cognition of these values. Legitimisation is based on the recognition of an objective nature and of cognoscibility of basic values. (...) Realisation of the primary aim of this paper is linked to the problem of different meanings of the notion of universality, used in the context of the universal system of the protection of human rights. First, descriptive and normative (prescriptive) meanings have to be distinguished. In the case of normative sense, there are moral and legal meanings of “universality”. An axiological justification of the universality of human rights in the legal sense leads to the legitimisation of the universal system. It is shown that modifications of – broadly accepted in the Polish theory of law – definitions of an axiological justification of legal norms are needed. These definitions base such a justification on the valuations made by particular groups of subjects. It is argued that it is much more convenient to refer to valuations understood as meanings of sentences of certain kind. -/- Streszczenie W artykule zmierza się do uzasadnienia tezy, że legitymizacja uniwersalnego systemu ochrony praw człowieka jest oparta nie tyle na treści wartości uznawanych w tym systemie, ale na uznanych w nich rozstrzygnięciach metaaksjologicznych, dotyczących tego, jak istnieją wartości podstawowe dla tego systemu i czy są one poznawalne. Walor legitymizacyjny posiada przede wszystkim uznanie obiektywnego charakteru tych wartości i ich poznawalności (uznanie kognitywizmu aksjologicznego). Realizacja zasadniczego celu zakłada uporządkowanie podstawowych pojęć dotyczących problematyki powszechności praw człowieka – termin „powszechność” stosowany w odniesieniu do praw człowieka w kontekście uniwersalnego systemu ochrony ma wiele znaczeń. Przede wszystkim odróżnić trzeba powszechność w aspekcie opisowym i w aspekcie normatywnym. W przypadku powszechności w aspekcie normatywnym w grę może wchodzić powszechność w sensie ideowym (moralnym) i powszechność w sensie pozytywnoprawnym. Uzasadnienie tej ostatniej jest też uzasadnieniem poszukiwanej tu legitymizacji uniwersalnego systemu ochrony praw człowieka. Prowadzone analizy prowadza także do sformułowania postulatów dotyczących sposobu definiowania uzasadnienia aksjologicznego norm prawnych. Modyfikacji wymagają powszechnie przyjmowane w polskiej teorii prawa definicje relatywizujące takie uzasadnienie do ocen przyjmowanych przez konkretne podmioty oceniające lub ich grupy. (shrink)

Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This paper investigates the marriage-citizenship parallel (...) with a particular focus on three questions prompted by recent developments in law and policy: -/- 1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples — have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies. -/- 2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens? -/- 3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy. (shrink)

Many just war theorists (call them traditionalists) claim that just as people have a right to personal self-defense, so nations have a right to national-defense against an aggressive military invasion. David Rodin claims that the traditionalist is unable to justify most defensive wars against aggression. For most aggressive states only commit conditional aggression in that they threaten to kill or maim the citizens of the nation they are invading only if those citizens resist the occupation. Most wars, then, claimed to (...) be justified by the traditionalist fail to meet the proportionality criterion. Thus, a just war, for Rodin, is best conceived of as a punitive war of law enforcement, not as a war of national-defense. I argue that Rodin does not have a case against the traditionalist. If national-defense is a disproportionate response to conditional aggression, then punitive war is a disproportionate response as well. Furthermore, the belief that punitive war is a proportionate response to conditional aggression underscores the traditionalist’s view that self-determination, cultural identity and the like are of sufficient value to defend by means of lethal force. I end the paper by very briefly sketching an account, different from that of Rodin’s, of how individual nations can be justified in waging wars of law enforcement. (shrink)

Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity (...) conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond the state. This article aims to use legal positivism to conceptualize a transnational commercial law order. Prevailing positivist accounts at least implicitly condition legal order on state sovereignty. The article offers a cosmopolitan conception of legal positivism, in which the state is no longer an enabling condition for law. The cosmopolitan conception provides the means by which to adequately describe a transnational commercial law order. There are limits to the conceptual analysis this article provides, one of which is that it does not purport to evaluate the justice or morality of transnational legal order. But the cosmopolitan conception of legal positivism elucidated in this article stands on its own as a way of understanding a number of transnational legal orders other than commercial law. The attractiveness of the account is that it describes law as a human social practice even when it is not solely the product of the state, so that we do not have to rely on natural law theories to understand legal rules that states do not maintain. (shrink)

This paper is a historical, legal and philosophical analysis of the concept of human dignity in German and Kenyan constitutional law. We base our analysis on decisions of the Federal Constitutional Court of Germany, in particular its take on life imprisonment and its 2006 decision concerning the shooting of hijacked airplanes, and on a close reading of the Constitution of Kenya. We also present a dialogue between us in which we offer some critical remarks on the concept of human dignity (...) in the two constitutions, each one of us from his own philosophical perspective. (shrink)

Antony Duff argues that the criminal law’s characteristic function is to hold people responsible. It only has the authority to do this when the person who is called to account, and those who call her to account, share some prior relationship. In systems of domestic criminal law, this relationship is co-citizenship. The polity is the relevant community. In international criminal law, the relevant community is simply the moral community of humanity. I am sympathetic to his community-based analysis, but argue that (...) the moral community must play a greater role in the domestic case and that the collection of individual political communities must play a greater role in the international case. (shrink)

Pogge and Wenar have recently argued that we are responsible for the persistence of the so-called ‘resource curse’. But their analyses are limited in important ways. I trace these limitations to their undue focus on the ways in which the international rules governing resource transactions undermine government accountability. To overcome the shortcomings of Pogge’s and Wenar’s analyses, I propose a normative framework organized around the social value of government responsiveness and discuss the implications of adopting this framework for future normative (...) assessment of the resource curse and our relationships to it. (shrink)

In this paper, I suggest that for some proposed solutions to global justice problems, incompatibility with the necessary features of international law is a reason to reject them. I illustrate this by discussing the problem raised by the case of unjust combatants, that is, combatants lacking a just cause for war. I argue that the principle of inequality of combatants, which suggests that we ought to prohibit those without a just cause for war from fighting, is not only a bad (...) international legal principle, but also a bad principle of global justice. (shrink)