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)

In the field of human rights, expressions like justice and legal reform are closely linked to the process of harmonization of domestic and international human rights standards. Harmonization of human rights standards can be described as a process wherein international human rights are incorporated or given full effect to at the domestic level. [i] To harmonize the two set of standards i.e. domestic and international is viewed as both a commitment and obligation of states under international law. (...) [ii] In terms of state practice, the process of harmonization may entail a set of actions including adoption of laws and creation of mechanisms for enforcement and redressal of violations. -/- At the international level, the harmonization agenda is actively promoted at forums including the Universal Periodic Review (UPR) or during consultations between states and human rights treaty bodies, etc. Questions on whether states are in compliance with their international human rights commitments under treaties and other resolutions are to a large extent determined based on the extent of harmonization. Other pertinent questions being whether existing domestic laws are compatible with international human rights standards? What conditions obstruct and facilitate harmonization of human rights standards? Are there any parameters to measure harmonization? -/- While harmonization is widely promoted, its study and assessment is complex. (shrink)

This article examines the domestic use of drones by law enforcement to gather information. Although the use of drones for surveillance will undoubtedly provide law enforcement agencies with new means of gathering intelligence, these unmanned aircrafts bring with them a host of legal and epistemic complications. Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II explores philosopher Wittgenstein’s notion of actional certainty as a means to (...) interpret citizens' expectations of privacy with regard to their patterns of movement over time. Part III discusses how the theory of actional certainty can apply to the epistemic challenge of determining what is a “reasonable” expectation of privacy under the law. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment. (shrink)

Any foreign manufacturer desiring to market its products in Jordan has several courses open to it. The foreign manufacturer could establish a branch or wholly-owned subsidiary in Jordan or enter into a licensing or joint venture agreement with a company doing business in Jordan. If it wants a less significant presence, however, it is left with the alternative of having a local commercial agent market and sells its products. -/- The purpose of this article is to study certain aspects-exclusivity and (...) termination- of commercial agency according to the Jordanian law. The article is divided into four sections. Section two explains the general rules governing commercial agency in Jordan. Section three analyzes exclusivity of commercial agents. This section introduces the WTO's General Agreement on Trade in Services (GATS), the basic instrument covering trade in services, and analyses the current commercial agencies regulation in Jordan and its relation to articles VIII and IX of GATS. Also, section two explores Jordan schedule of specific commitments under the GATS in order to shed light on the extent and limit of its obligations with regard to commercial agents. Section four discusses agency termination. Finally, the article concludes by summarizing the main. (shrink)

Domestic courts are often quoting foreign case law on human rights. The conversation pursued through cross-referencing across jurisdictions has added to the globalization of international human rights standards. As the practice is gaining ground and becoming a more permanent feature of domestic judgments, its relevance needs to be examined. A closer look at the practice will bring forth a more realistic understanding of the approaches of domestic courts and the advantages which they offer to the institution. This (...) paper raises few questions on the value and influence of cross-referencing in the area of human rights. Questions in this regard can be posed as to (a) whether cross-referencing is reflective of an emerging consensus on the subject matter? (b) Is it strategic for domestic courts to quote foreign case law? (c) Is the practice of cross-referencing simply a trend or an urge to belong to a community of courts? (d) Is the practice of relevance towards the implementation and advancement of international human rights standards? The topic can shed light on broader themes including the universality of human rights, contestations/disagreements over human rights standards, and the measure of acceptability of international human rights standards within domestic settings. This paper discusses the practice, its role and influence in relation to international human rights standards. Three judgments [of the courts of Nepal, India and Singapore] addressing the human rights and homosexuality agenda have been illustrated for discussion. (shrink)

How can legal orders coexist? Contemporary lawyers and philosophers frequently accept that a legal system operates under its own terms and is shaped by its own participants. Any problems posed by the plurality of legal orders in the world are to be dealt with by each legal order separately. So persons that are caught in transnational disputes because they are subject to two or more jurisdictions, have recourse to private international law, which is always part of domestic law, i.e. (...) the law where the case happens to arise. But this analysis does not capture international law. This is, or appears to be, a distinct legal order that is certainly not the law of a distinct nation or a people but aspires to cover the whole of the world and – perhaps surprisingly – does seem to meet many of the ordinary criteria of a legal order. This review essay discusses two recent attempts at accommodating international law, Regulating Jurisdictional Relations Between National and International Courts, by Yuval Shany and A Theory of Interpretation of the European Convention of Human Rights, by George Letsas. In their own ways both books outline a ‘substantive’ theory of international law, which is to be welcomed. (shrink)

Demonstrating that a developing norm is not yet well established in international law is frequently thought to show that states are not bound by the norm as law. More precisely, showing that a purported international legal norm has only limited support from well-established international legal sources is normally seen as sufficient to rebut an obligation on the part of subjects to comply with the norm in virtue of its legal status. I contend that this view is mistaken. Nascent norms of (...) international law (e.g., crystallizing norms of customary law) can be binding in much the same way as better-established doctrine. This point becomes perspicuous, I argue, once we get a clear sense of the plausible options for grounding the moral authority of international law generally. -/- This result is interesting in its own right, but it also reveals two other features of the character of state responsibility under international law. First, the distinction between legislation and compliance is less pronounced compared to domestic law. Consequently, the virtues of good governance will frequently be pertinent to determining the content of states’ obligations under international law. Second, normally more powerful and influential agents will be more strongly bound by international law than other subjects. This is an attractive result, addressing a concern that motivates many international lawyers to view international law as absolutely binding. An absolutist view international legal authority is unnecessary for showing that the most powerful and dangerous states are strongly bound by the terms of much existing law. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of (...) three landmark decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights.]. (shrink)

The prosecution of international crimes is a challenge both under international and domestic law. Taking the example of international criminal law (ICL) , the fullest realization of its objectives is influenced by many factors including; (a) the adoption of appropriate laws by states, (b) the adequacy of the ICL framework on definitions of crimes and principles of criminal responsibility, (c) the level of political control and involvement in decision making related to investigation, prosecution or extradition, (d) Problems with exclusion (...) including restrictions on the rights of victims with regard to the proceedings and to reparation, and (e) The application of provisions for amnesties and similar measures of impunity. -/- Over the years, the mandate of States under ICL has expanded. Key reforms under ICL and domestic laws have been led by the above mentioned concerns. The scope of state obligations, in particular, has been shaped by the standards adopted under the ICL framework including the "duty to prosecute" international crimes. The article discusses the normative significance of the "duty to prosecute". (shrink)

The WTO Agreement on Safeguards prescribes each member to adopt appropriate domestic legislation before it imposes safeguard measures. Historically, Jordan enacted its first WTO-compatible safeguard law, known as the National Production Protection Law No.4 of 1998 (“NPP Law”), in 1998 on the eve of Jordan’s accession to the WTO. Afterward, it amended its NPP Law of 1998. So now, Jordan’s safeguard system is based on the amended NPP Law No. 50 of 2002 and Regulation on Safeguard of National Production. (...) -/- The purpose of the paper is to examine Jordan's safeguard law. The paper analyzes safeguard investigation, safeguard review, and duration. In addition, the paper examines safeguard measures under the U.S.-Jordan Free Trade Agreement. (shrink)

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. -/- No one should be neutral in relation to cruelty. Eminently, cruelty in (...) criminal law, a human-created phenomenon, vigorously calls for responses in the form of preventive and corrective action on the part of private and public actors. It is in this sense that cruelty is a problem of practical reason, one of action preoccupied with its legal or moral obligations, rational grounds, value commitments, and actual consequences. -/- However, the connection between conceptions of cruelty and the implications practical reason can draw from the correct application of a conception of cruelty to phenomena in the world remains too detached to be able to capture and explain people's actual experiences both of seeing cruelty in the world and of confronting the question of what to do about cruelty and how to address its cultural and institutional aspects. Something is missing. -/- What is missing is the integration of conceptions of cruelty and the practical reason implications of detecting cruelty in the world into normative models which operate as meaning matrixes for cognition, meaning, and action. This Article undertakes this explanatory task through an exercise of reconstructing seminal philosophical ideas about cruelty. The result is that the four conceptions of cruelty are placed within three distinct normative models, which ultimately render intelligible legal conceptions of cruelty and legal reactions to it. (shrink)

This chapter discusses major theories of domestic justice in the context of South African Constitutional, statutory and case law. It begins by considering when it is permissible for legislators to restrict civil liberty. South Africa's Parliament has criminalised prostitution, liquor sales on Sundays and marijuana use, actions that few liberals would say should be illegal. However, South African law permits abortion, gambling and homosexual relationships, which many conservatives would criminalise. Is there any deep inconsistency here? Should South Africa become (...) more liberal or less? Then, this essay takes up the issue of the way the law ought to govern the distribution of personal property such as houses, TVs and money. Is it permissible for the state to force those who have acquired wealth without using force or fraud to give some of it to those with less? Libertarians say that it is not permissible, while redistributivists say that it is. If the latter are correct, are wealthy South Africans giving their fair share, and is the South African state redistributing it in the right way? Next, the discussion considers whether the law should protect private property, something that capitalists affirm and socialists deny. Despite its socialist disposition before the end of apartheid, the ANC has decisively promoted private ownership of the means of production. Has this been appropriate? Is there a 'third way' between the communism of the East and the capitalism of the West that South Africa should pursue? The chapter concludes by providing a brief summary of the use of legal coercion in the new South Africa along with readings for further consideration. (shrink)

The UK has been slack in fulfilling its international obligations regarding human trafficking. The UK Modern Slavery Act 2015 has apparently nothing to say about the demand for women trafficked into prostitution, although it addresses the demand for other forms of trfficking though the supply chain provisins in the Act. The UK has disappointed many in condoning prostitution, as Lady Butler-Sloss describes as 'one of the longest standing industries'. However it is one of the longest-standing forms of exploitation. The Act (...) instead, has given much importance to modern -day slavery. An effective way of tackling demand for prostitution and the attendant exploitation would be to make it an offence to purchase someone for sex. Yet perhaps the point is that to curb modern-day slavery is to curb prostitution and pornography, through curbing the supply side. However the UK hasragged its feet over many years, especially when one considers that Internet pornography brings in over £4 billion annually to the UK Gross Domestic Product. (shrink)

The Constitution is the highest law of the country, while international law is a field of law that deals with the rights and obligations between countries. The essence of international community is of decentralized nature, in which the legal order is formed according to the principle of sovereign equality. However, there are many perspectives that approach the international community and international law from a universalistic and idealistic viewpoint. In other words, if the positivist and pseudo-oriented view of international law is (...) the reality of international community and international law, the universalist or idealist perception of international law can be said to be their goals. It is true that those two perspectives on international community and international law are neither omnicient nor all-perceiving, but complexly intertwined. The Constitution and international law, which can be considered the two axes of public law, are closely interrelated to the formation of a modern absolute state and civic democracy. The absoluteness of state power and civic democracy are doomed to fate our present and our future. This is not only such fundamental political order, but it also has become a foundation for the development of modern and contemporary order of law. And the two dimensions of order, politics and law, are developing in a dialectical manner. Under this background, this paper aims to provide a harmonious view sprucing up the reality of public law that penetrates both of the international and domestic society within a large framework. It is for research purpose and needs an effort of work by reviewing and analyzing the essence, commonalities, and differences among various adjacent concepts of the Constitution and international law discourse. This paper first begins with a discussion by presenting the historical development of existing hard legal system that penetrates the Constitution and international law through their realistic framework. Furthermore, we look at the softness of international law, conceptual discourse on the international law and world law, international constitutionalism and constitutional theory, and a compendium of world administrative law. We look at the background for the development of these commentaries, the main topics of discussion, and their commonalities or differences. Finally we briefly diagnose and place the future of new sermons that needs to be adduced due to changes in the international community. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence and Criminal Law, (...) Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

How should international law’s role in determining international distributive outcomes, economic and otherwise, affect how we think about its legitimate authority? Domestic institutions’ legitimate authority in respect of distribution derives in large part from their concurrent roles in enabling security and coordination. Internationally, by contrast, functional disaggregation means that distribution must be legitimised in its own right. I begin by distinguishing the phenomenon of Distributive International Law, on which my argument focuses. I next introduce a number of wide instrumental (...) accounts of legitimate authority, including Rawls’ Natural Duty account, Buchanan’s metacoordination view, and Williams’ political realism, showing how each understands legitimacy as an institution-level characteristic, allowing an institution’s success in one area to support its legitimacy in another where it may be less successful. This poses the question of how we distinguish amongst distinct institutions, which I answer by reference to the causal and constitutive (in)dependence amongst activities. This approach explains why distributive legitimacy does not arise as a separate question domestically: we cannot distinguish the state’s security and coordination activities from its distributive activities, so if the former are legitimate then so, ipso facto, are the latter. Internationally, by contrast, these mutual dependencies are limited, requiring that the legitimacy of distribution be established independently of other roles that international law plays. (shrink)

Notwithstanding International Economic Law’s (IEL’s) inevitable distributional effects, IEL scholarship has had limited engagement with theoretical work on global distributive justice and fairness. In part this reflects the failure of global justice theorists to derive principles that can be readily applied to the concrete problems of IEL. This article bridges this gap, drawing on existing coercion-based accounts of global justice in political theory to propose a novel account of global distributive justice that both resolves problems within the existing theoretical literature (...) and can be directly applied to both explain and critique concrete issues in IEL, including in particular WTO law. By complementing existing coercion-based accounts with a more nuanced typology of international coercion, it distinguishes two morally salient classes of economically relevant measures: External Trade Measures (ETMs), which pursue their goals specifically through the regulation of international economic activity; and Domestic Economic Measures (DEMs), which do not. The distinctive intentional relationship between ETMs and the outsiders they affect means such measures require more stringent justification, in terms of global equality or other goals those outsiders themselves share; whereas DEMs can be justified under the principle of self-determination. Non-Product Related Production Processes and Methods (NPRPPMs) provide a case study to show how this framework can illuminate recurring problems in IEL. (shrink)

From the traditionalist position on international law, a new form of compact agreement, which cannot be classified as an international treaty in terms of academic framework, had long fueled much of contention in politics, international law, and constitutional law. A growing practice of compact agreement had been natural as corresponding with the global compression of international community and rising aspiration of peace regime on the international relations. The scholars of international law believe that, regardless of whether the President of the (...) United States is an internationalist or an isolationist, the enactment of international law in the 21st century will be based on more pragmatic rather than formal criteria. It is still true whether or not he is willing to accept or escape the international obligations so that we can more realistically share the powers conferred by the Constitution. On the other hand, a constitutional controversy on somewhat mushy yet sophisticated issues on the compact agreements began with the Laurence Tribe's acrimonious criticism in 1990. He argues that a procedure between Congress and the executive branch for the Clinton administration's accession to the North American Free Trade Agreement(NAFTA) is unconstitutional. His criticism pointed out that the NAFTA is unconstitutional since it is contrary to the text and structure of the Constitution. On the other hand, scholars of political science believe that, while a politics is termed as the distribution of values, the new form of compact agreement serves connecting the domestic and international politics as a living organism and must be affirmed from the standpoint of parliamentary politics. The political scientists argue on the necessity and inevitability of a new form of international agreement as pursuant to the nature of political process on informal procedures and parliamentary practices. In respect of the theoretical controversy, the paper is devoted to survey what the new form of compact agreement is, what types we can identify and explore the theoretical contest among the disciplines. As the dealings of paper attempt to touch on the core of scholarly assertions as fundamental and philosophical, the endeavor could inculcate the mind of international lawyers within and outside the government by providing a better framework to understand the specific real-world issues. The perception and rationale for the new form of international agreement should differ varying with their academic disciplines from which their thought stems from. The paper ends with implications within the grand scale of jurisprudence. (shrink)

One of the fundamental problems in the philosophy of psychology is to determine the relation between personal and subpersonal explanations of human behavior. The problem of determining the relation between the personal and subpersonal levels is called the “interface problem”. This paper has two goals. The first is to introduce the domestic reader to the interface problem from the perspective of the philosophy of psychology. The second goal is to show that insufficient focus on the interface problem and its (...) potential solutions can lead to uncritical and fallacious reasoning that can have significant consequences for particular debates in philosophy of medicine and philosophy of law. (shrink)

Jordan acceded to the WTO in 1999. In its accession Jordan agreed, for example, to reduce tariffs on imported products and open its services market; it also modified its intellectual property regime. Jordan enjoyed special and differential treatment in few areas and was not able to designate olive oil as a good eligible for special safeguards. The WTO agreements required fundamental changes in the domestic laws and regulations of Jordan. The article concludes by arguing that Jordan’s accession to the (...) WTO was a lengthy and costly process. Jordan agreed to an arduous package of legal and economic reforms. Given that Jordan agreed to greater commitments compared to the obligations of the original WTO members, the multilateral trading system witnessed an accession saga. (shrink)

This article addresses the so-called to human rights. Focusing specifically on the work of Onora O'Neill, the article challenges two important aspects of her version of this objection. First: its narrowness. O'Neill understands the claimability of a right to depend on the identification of its duty-bearers. But there is good reason to think that the claimability of a right depends on more than just that, which makes abstract (and not welfare) rights the most natural target of her objection (section II). (...) After examining whether we might address this reformulated version of O'Neill's objection by appealing to the specificity afforded to human rights in international, regional and domestic law (in section III), the article challenges a second important feature of that objection by raising doubts about whether claimability is a necessary feature of rights at all (section IV). Finally, the article reflects more generally on the role of abstraction in the theory and practice of human rights (section V). In sum, by allaying claimability-based concerns about abstract rights, and by illustrating some of the positive functions of abstraction in rights discourse, the article hopes to show that abstract rights are not only theoretically coherent but also useful and important. (shrink)

An increasing number of European research projects return, or plan to return, individual genomic research results (IRR) to participants. While data access is a data subject’s right under the General Data Protection Regulation (GDPR), and many legal and ethical guidelines allow or require participants to receive personal data generated in research, the practice of returning results is not straightforward and raises several practical and ethical issues. Existing guidelines focusing on return of IRR are mostly project-specific, only discuss which results to (...) return, or were developed outside Europe. To address this gap, we analysed existing normative documents identified online using inductive content analysis. We used this analysis to develop a checklist of steps to assist European researchers considering whether to return IRR to participants. We then sought feedback on the checklist from an interdisciplinary panel of European experts (clinicians, clinical researchers, population-based researchers, biobank managers, ethicists, lawyers and policy makers) to refine the checklist. The checklist outlines seven major components researchers should consider when determining whether, and how, to return results to adult research participants: 1) Decide which results to return; 2) Develop a plan for return of results; 3) Obtain participant informed consent; 4) Collect and analyse data; 5) Confirm results; 6) Disclose research results; 7) Follow-up and monitor. Our checklist provides a clear outline of the steps European researchers can follow to develop ethical and sustainable result return pathways within their own research projects. Further legal analysis is required to ensure this checklist complies with relevant domestic laws. (shrink)

In international law and just war theory, war is treated as normatively and legally unique. In the context of international law, war’s special status gives rise to a specific set of belligerent rights and duties, as well as a complex set of laws related to, among other things, the status of civilians, prisoners of war, trade and economic relationships, and humanitarian aid. In particular, belligerents are permitted to derogate from certain human rights obligations and to use lethal force in a (...) far more permissive manner than is the case in other kinds of conflicts and in domestic law enforcement operations. Given war’s unique status, the task of defining war requires not just identifying the empirical features that are characteristic of war but explaining and justifying war’s special legal and moral status. In this chapter, I propose a definition of war that captures war’s unique features and can offer insights into when and how some forms of unarmed conflict could count as wars. (shrink)

This paper surveys, not exhaustively but rather in summary, the development of legal philosophy surrounding the constitutional and international laws as corresponding that of world politics from the first world war through the formation of WTO governance. The world has changed gradually thus far while the westerners have long forge their hegemony through the recent US one. Before the dusk of new millennium, the political scientists entertained the version of US uni-pole in terms of world politics. Its version have confront (...) new development of world politics surrounding the rise of EU, China, and Japan. In this backdrop, they frequently mention bi-polar or multi-polar consequence of world politics. The politics are normally juxtaposed to the legal regime where the constitutional and international law reflect the fare of world politics. In other words, it subjugates in some form of legal regime whether the constitutional law surfaces strongly over international dimension for some superpower. In other dimension of power balance, the international law surges to legally govern the world politics. According to Rubenfeld, the first case represents a democratic constitutionalism while the later case, in legal terms, is related with the international constitutionalism. I would propose in thesis purpose to divide three stage of world politics. The first one is surge of the German empire to pursue world hegemony at the start of two world wars. In this period, the constitution has highlighted in ways of resolutionism, incorporatism or unilateralism. The second period runs from post world war to 190's while the pacifists or cold war dominate the world politics. In this era, UN works in the least as a symbol of world politics, and the international laws mater over the domestic laws. Hans Kelsen, a German legal positivist, led the post-war world politics in legal ways as demonstrated in his foundational influence over the formation of United Nations. In this flow, I suppose that the world politics turned on the pacificist road until the rise of US hegemony. As the bipolar system collapse upon the dismantlement of Soviet Union, US rise as a unitary world hegemony. In reflection, the unilateral constitutionalism enjoys an influential passion of that nation. As EU and China started to voice as political power in the international dimension, the international law and constitutionalism flourish while we cognize WTO as one of crucial products in such point of view. Hart, a European legal positivist is again contested to prove who governs the world in terms of legal theory adapted to the WTO's intrinsic and its function. (shrink)

‘Dumping’ is a practice in international trade whereby a product is introduced into the commerce of another country at less than its ‘normal value,’ which might cause or threaten material injury to the domestic industry of the importing country. To address the practice of dumping and provide rules to deal with it, the World Trade Organization (WTO) adopted the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (1994), known as the Anti-Dumping Agreement (ADA). (...) -/- The ADA sets out anti-dumping investigation procedures that importing countries must follow if they wish to impose anti-dumping measures, which are determined by comparing the normal value and the export price of the goods in question. However, not all countries are treated equally under these arrangements. Countries that are non-market economies (NMEs) are accorded special treatment provided by specific rules, including the option for investigating authorities to resort to surrogate prices in a third country for the purpose of establishing normal value. This application of surrogate prices is referred to as ‘NME treatment’. In the absence of an internationally recognised definition of an NME, each WTO Member has adopted its own definition and/or a list of NMEs. Vietnam, a WTO Member whose economy is moving from being centrally planned to being market-based, is considered an NME by both the United States (US) and the European Union (EU). This research investigates whether the non-market economy status of NMEs such as Vietnam disadvantages exporters in anti-dumping investigations and proceedings. The research analyses legal, procedural and other issues relating to the non-market economy status of NMEs in general and Vietnam in particular, in anti-dumping investigations and proceedings conducted by the US and the EU. The research uses a qualitative methodology design, by which data was collected primarily using desk-based study, supplemented by interviews with anti-dumping experts, Vietnamese exporters and government officials. It involves the examination of international law pertaining to anti-dumping, the US and EU anti-dumping laws and investigation procedures, analysis of the WTO anti-dumping dispute settlement procedures and related jurisprudence, as well as the analysis of Vietnam’s transition to a market economy. -/- The research has found that both the US and EU treat Vietnam as a NME and have developed their own specific methodologies for anti-dumping investigations on exports from Vietnam. Furthermore, it highlights the wide discretion of the US and the EU under their domestic laws in many stages of anti-dumping investigations. -/- The findings also show that the WTO Dispute Settlement Body generally considers the US and the EU practices to be consistent with the ADA provisions. However, certain US and EU practices were found to be inconsistent with the ADA, including ‘zeroing’, limited examination, surrogate country selection, and the imposition of the ‘entity-wide rate.’ Further, by applying these practices, investigating authorities might establish unpredictable normal values that may inflate the estimated dumping margins and ultimately lead to the imposition of a higher than appropriate anti-dumping duty. The analysis concludes that the NME status of countries such as Vietnam disadvantages them when facing claims of dumping. Finally, this thesis provides recommendations for Vietnamese exporters that will serve to improve their competence as defendants/respondents in anti-dumping investigations and proceedings and more effectively demonstrate the degree to which their operations are based on market-based principles. Recommendations are also provided to the Vietnam Government on ways in which it can support Vietnamese exporters in anti-dumping investigations and proceedings. (shrink)

Contemporary international law separates the international justice of war from the domestic justice of society, but empirically, there is a correlation between democratic governance and military effectiveness, which could have a number of causes. A contemporary reconstruction from _The Seven Military Classics_ of Chinese military philosophy offers potential lessons for how domestic virtues may yield military and geopolitical victory. This chapter reconstructs arguments from the seven treatises into a collective an amalgamated conception of “good governance” that weaves together (...) military strategy and virtue ethics and maintains that good governance at home actually wins wars abroad. A reconstructed classical Chinese conception of “good governance” presents theoretical and ethical challenges, but also offers viable justicial content for contemporary jus ad bellum considerations beyond sovereign self-defense or human rights. It presents a way of instantiating the sprawling conception of human rights that falls short in contemporary discourse. (shrink)

The relationship between power, law and consent is a key feature of the Western debate on criminal law. On the one side, defining the legitimate ways of exercising the punitive power has been a critical question since the Enlightenment thought onwards and especially as to the rule of law doctrine. On the other side, the role played by public punishment in shaping consent and its communicative potential have been crucial questions for critical, as well as non-critical approaches to criminal law (...) in contemporary thought. These questions gain in strength and radicalism when it comes to international criminal law (ICL). In this case the filter of the state is not present anymore to mediate between power, law and consent, and the power to punish individuals is directly exercised by international institutions. This means, on the one hand, that traditional justifications of the power to punish and which are elaborated on in the domestic sphere are not useful anymore in legitimating international punishment. International criminal norms are not framed by an international democratically elected parliament, and their exercise is not controlled by the complex system of checks and balances typical of the rule of law. On the other hand, having not being created by a sovereign, international criminal law cannot be conceived as an instrument to build or consolidate consent around the sovereign. A double-sided dilemma therefore arises: traditional explanations are no longer apt to answer the question whether ICL is legitimate, while ICL itself can no longer be considered an instrument to build consent around the traditional power exercising it, namely the state. Although I consider both sides of the dilemma equally interesting and stimulating, I will focus here only on one side of the coin: the ability to build consent of the ICL institutions, and in particular the International Criminal Court (ICC). In other words, instead of asking whether the consent around the ICC is broad enough for the Court to be considered legitimate, I shall ask whether the ICC is able to build consent around the world order it embodies. (shrink)

This Paper addresses the problem of statelessness, a problem which remains despite treaties and judicial decisions elaborating distinct rules to protect stateless persons. I explain why this has been so. Drawing from the work of Bernhard Waldenfels, I argue that international and domestic courts have presupposed a territorial sense of space, a territorial knowledge and the founding date for the territorial structure of a state-centric international legal community. I then focus upon the idea that an impartial third party can (...) resolve a dispute involving stateless persons by deferring to a universal rule. I call the third party the ‘rule of law third’. Such a rule, I argue, presupposes a presupposed knowledge over stateless persons. The Third takes for granted the territorial boundary of a legal structure, a boundary which excludes the recognition of outsiders to the boundary. (shrink)

The liberal international legal order faces a legitimacy crisis today that becomes visible with the recent anti-internationalist turn, the rise of populism and the recent Russian invasion of Ukraine. Either its authority or legitimacy has been tested many times over the last three decades. The article argues that this anti-internationalist trend may be read as a reaction against the neoliberal form taken by international law, not least over the last three decades. In uncovering the intricacies of international law’s legitimacy crisis, (...) the article uncovers the paradox of global constitutionalism: that its need to adopt a sectoral form of integration may cause a legitimacy gap/deficit because international authorities, resting their legitimacy primarily on instrumental grounds, may face problems in compensating for the legitimacy deficit caused by the erosion of domestic sovereignty and extending their legitimacy to non-instrumental grounds. This paradox has one necessary structural and two contingent content-related implications for domestic democracies: (1) it necessarily narrows down the regulatory space of nation-states; and this may in turn (2) impair democratic stability and solidarity, and (3) provide a fertile ground for populism. Drawing on Raz’s service conception, the article focuses on the interaction between international and domestic authorities and highlights the problematic aspects of the neoliberal constitutionalization of international law. (shrink)

Backlashing is a perennial challenge for human rights. Its manifestation in various forms including the repudiation of human rights standards or resistance to being evaluated by them has made the phenomena central to the discourses on human rights. The backlash or reversal of progress, a strong negative reaction, and counter reactions have been witnessed in various settings across the world. An analysis of the phenomena what can be called the backlash analysis is done in light of specific rights like LGBT (...) rights, women’s sexual and reproductive freedom, rights of immigrants and ethnic and religious minorities. The analysis also covers the behaviour of institutions and movements. The backlashers have been identified as state institutions, a group of states, movements and non-state actors. With growing attention on the subject, it is of great value to ascertain whether there a way to comprehensively understand it? (shrink)

The dissertation deals with the questions surrounding the legal, ethical and strategic aspects of armed drones in warfare. This is a vast and complex field, however, one where there remains more conflict and debate than actual consensus. -/- One of the many themes addressed during the course of this research was an examination of the evolution of modern asymmetric transnational armed conflict. It is the opinion of the author that this phenomenon represents a “grey-zone”; an entirely new paradigm of warfare. (...) International terrorism has not been dealt with in a cohesive fashion. Any international prosecution of terrorism which has been conducted has been either “sectoral” adopting a piecemeal typological approach or has been carried out at the domestic level. -/- A novel approach to the problem, of sub-national actors with transnational reach, was proposed, by attributing certain groups with a new legal personality, that of “Stateless International Entities”, or “SIEs”. Those groups who possess, for all intents and purposes, the same attributes as those of States, could then be judged for their behavior before an international tribunal. Other important topics addressed in this research include an examination of important case law, targeted killing, autonomy, preemption versus prevention, imminence versus intent, the find, fix and finish paradigm, the impact of the media, and the role of the CIA, and finally, the flawed reasoning which adopts technology as a form of strategy. (shrink)

This Special Issue is an outcome of the lectures and discussions on ‘Cross-cutting Themes and Concepts in Human Rights’, offered as a Seminar Course to the students of the MA Programme, School of International Studies, Jawaharlal Nehru University. As part of the Course, a Webinar on ‘Rethinking Rights and Justice for Non-Humans’ was held in 2022, in which the participants advanced some of the most compelling arguments for the meaningful representation of non-human entities in law and governance. In the three (...) sessions of the webinar, the participants explored the terrain of relevant concepts, emerging norms, and moral justifications that underline the case of non-human entities: (i) The Limits of Animal Rights: Exploring the Case for Multispecies Justice, (ii) Humanist Dimensions of Machines, and (iii) Representing Nature: Rights, Crimes, and Diplomacy. Scholarly literature on the subject matter sheds light on the gaps in existing legal frameworks concerning the responsibilities of human beings towards non-human life forms. There is evidence of a growing universal consciousness embedded in the worth and sacredness of non-human life forms. A series of developments in the fields of technology, philosophy, and other disciplines have moved non-human entities to the forefront of legal reforms, domestic and international. (shrink)

The article studies some of the most important political ideas present in the origins of the modern State, especially the notion of political sovereignty, which, borne and developed in the maiestas of the imperial roman law and in the averroistic interpretation of the aristotelian idea of the perfect community, is accepted and developed by Francisco de Vitoria in the De potestate civili. Vitoria characterizes sovereignty with the features of supremacy in the domestic activity of the State and independence with (...) regard to other States. (shrink)

Child soldiers, who often appear to be both victims and perpetrators, present a vexing moral and legal challenge: how can we protect the rights of children while seeking justice for the victims of war crimes? There has been little stomach, either in domestic or international courts, for prosecuting child soldiers—but neither has this challenge been systematically addressed in international law. Establishing a uniform minimum age of criminal responsibility would be a major step in the right direction; we argue that (...) such a standard ought to be guided by the best evidence from neuropsychology about the development, during childhood and adolescence, of the executive functions that give rise to morally and legally responsible agents. In light of that evidence, which suggests that the brain’s executive functions are still maturing into early adulthood, we recommend a graded structure of culpability for child soldiers. (shrink)

Mental health is a global priority, and states and stakeholders are taking steps toward advancing a human right to mental health for all (APA, 2018). This is evidenced by international studies, initiatives, declarations, and domestic policy interventions. From a right-based perspective, mental health is not the mere absence of a psychiatric condition or psychosocial disability (WHO, 2022). It speaks of an environment in which individuals live a life of dignity. The application of human rights principles to mental health allows (...) us to incorporate novel ideas about the role of all stakeholders in fostering the security, freedom, justice, and dignity of individuals. With this point of view in mind, many states are revisiting their mental health laws and governance practices. (shrink)

The right to food is recognized as a basic right under international human rights law. The lack of implementation of the right is a challenge for societies around the world. The failures in implementation are leading stakeholder's to strongly advance more appropriate standards vis-a-vis the right to food. The concept of food sovereignty for instance has gained importance in this regard. The concept of food sovereignty is interpreted to be larger in scope than the right to food. Food sovereignty is (...) not limited to the making "provision" of food to the beneficiaries by the state. In addition, it also mandates the empowerment of communities by the adoption of policies to secure land, food production and consumption, etc. -/- In 2010, the UN Special Rapporteur on the Right to Food recognized the wider import of the right to food based on the concept of food sovereignty. The Rapporteur emphasised on the provision of land for instance as essential to right to food. The acceptance of food sovereignty as a benchmark for state performance is one of the most notable developments in the field of economic, social and cultural rights. This chapter discusses the role of the concept of food sovereignty, and how it is shaping international and domestic policy frameworks. (shrink)

This article examines the use of ‘enhanced interrogation techniques’ in the context of international legal obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT) and the domestic implementation of the international prohibition of torture into United States (US) law under 18 United States Code Sections 2340-2340A. The legal basis for the interrogation programme was a series of contentious legal memoranda written by Department of Justice Office of Legal Counsel lawyers.1 This article (...) examines whether the memo drafters ought to be investigated for incurring criminal liability for the consequences of their memoranda, namely under CAT and Sections 2340-2340A and what has unfolded under President Obama’s administration. (shrink)

The Paris Convention on Climate Change is a convention under the United Nations Framework Convention on Climate Change that deals with greenhouse gas emission reduction, coordination and financing issues. The Convention shall enter into force from 2020. The Paris Climate Convention is an international environmental law with stronger social norms than other international law areas. Furthermore, the national characteristics of the norm have been doubled as a result of adopting the nationally determined contribution as the most important mechanism. In this (...) context, this paper examines the issues of the Paris Climate Convention at the international legal level. We examine the issue of enhancing normative efficiency through international trials of the Paris Convention and the International Court of Justice. Second, we examine possible conflicts between the Paris Climate Convention and the WTO law. This is to look at the bilateral issues between the WTO and the Parisian climate treaty, which represents the interests of developmentalists in the basic framework of the confrontation between developmentalists and environmentalists. Of course, when the two norms are in harmony, the normative effectiveness of the Paris Climate Convention is increased. Third, we briefly discuss the role of the domestic courts in raising the Paris Climate Convention, human rights issues, and normative effectiveness. In the end, the Paris Climate Convention enhances the normative effectiveness and suggests ways for lawyers and key actors to move forward. (shrink)

With the establishment of the World Trade Organization in 1995, the dispute settlement mechanism for international trade was greatly prepared unlike the old GATT system. It has a very different pattern from that of original GATT system. In our case, international trade is a matter of the future of nations, and in reality of the intense world economic competition, this system change may well be of concern to our government or legal experts. In this context, this paper examines the nature (...) and problems of the WTO appeal system under the premise of the rule of law, judicial prowess, and the role of a judge. The WTO dispute settlement mechanism is based on the domestic judicial system or other international judicial systems. In contrast to this, the comparative history is only short indeed, but according to the accumulation of future precedents, it is highly possible to provide a model for the achievement of the rule of law ideals in the international community. However, due to the inherent limitations of international agreement system, the reality of appellate body is not easy. In terms of the international trade and rule of law, the role of appellate body and judges is very broad. However, in this paper, we first look at the significance and nature of the launch of WTO and furthermore; 1) the rule of law and judicial system, 2) several issues related to the nature of WTO dispute settlement mechanism, 3) the importance of judge-made law and the scope and limitations of appellate jurisdiction, 4) issues of reference materials submitted by procedures outside the process, 5) the relationship between the appellate body and political authorities. Over the review, the penetrating thoughts will be focused on judicial activism. Those points of consideration will be discussed through the approach and method on the comparative legal studies and several significant WTO precedents. (shrink)

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further (...) and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law. (shrink)

This article explores the philosophical underpinnings that guided the Framers of the US Constitution in establishing a government, following its War of Independence (1775-1783), as the first large republic in history. The Founding Fathers first began convening formally during the First Continental Congress in 1774, though the path to independence escalated with the Second Continental Congress in 1775. Central to their concerns was the protection of individual rights, a concept deeply rooted in Western political thought. These rights, including freedom of (...) speech, belief, and private property, were essential to safeguard against government overreach. The tyrannical rule of King George III constantly violated His Majesty’s American subjects’ fundamental rights, due to the high rising costs of the war with France. Although, it was the British government (the Parliament) which was in charge of running the Empire. Through the eyes of American subjects, it was the King who was responsible for many grievances such as “taxation without representation.” The Declaration of Independence (July 4, 1776), and the US Constitution (September 17, 1787) declare, enlist and protect those rights. The measures for protecting those rights for the people, and protecting the integrity of the government were among the two essential concerns for the Founding Fathers after gaining the independence. There is a delicate balance between these two concerns which has been engraved within the Constitution. American republic represents that balance to keep. The concern for saving the republic from foreign and domestic enemies remain as strong as before. After the Philadelphia Convention in 1787, when Benjamin Franklin was leaving Independence Hall, he was reportedly asked by a woman, “Well, Doctor, what have we got—a republic or a monarchy?” Franklin famously responded: “A republic, if you can keep it.” (McHenry, 85.). (shrink)

The republican tradition has long been ambivalent about markets and commercial society more generally: from the contrasting positions of Rousseau and Smith in the eighteenth century to recent neorepublican debates about capitalism, republicans have staked out diverse positions on fundamental issues of political economy. Rather than offering a systematic historical survey of these discussions, this chapter will instead focus on the leading neo-republican theory—that of Philip Pettit—and consider its implications for market society. As I will argue, Pettit’s theory is even (...) friendlier to markets than most have believed: far from condemning commercial society, his theory recognizes that competitive markets and their institutional preconditions are an alternative means to limit arbitrary power across the domestic, economic, and even political spheres. While most republican theorists have focused on political means to limit such power—including both constitutional means (e.g., separation of powers, judicial review, the rule of law, federalism) and participatory ones (democratic elections and oversight)—I will examine here an economic model of republicanism that can complement, substitute for, and at times displace the standard political model. Whether we look at spousal markets, labor markets, or residential markets within federal systems, state policies that heighten competition among their participants and resource exit from abusive relationships within them can advance freedom as non-domination as effectively or even more effectively than social-democratic approaches that have recently gained enthusiasts among republicans. These conclusions suggest that democracy, be it social or political, is just one means among others for restraining arbitrary power and is consequently less central to (certain versions of) republicanism than we may have expected. So long as they counteract domination, economic inroads into notionally democratic territory are no more worrisome than constitutional ones. (shrink)

Within the immigration debate, libertarians have typically come down in favor of open borders by defending two main ideas: i) individuals have a right to free movement; and ii) immigration restrictions are economically inefficient, so that lifting them can make everyone better off. This entry describes the rationale for open borders from a libertarian perspective (in part by analogy to the debate around minimum wage laws). Three main objections within the immigration literature are then discussed: i) the view that states (...) may restrict immigration to protect the interests (e.g. jobs) of their domestic needy; ii) the claim that restrictions are justified as a means of preserving culture; and iii) the influential argument that the right to freedom of association entails a right to exclude. These arguments are well-known, and I describe some of the compelling responses to be found in the recent literature. The essay then turns to more neglected critiques. The first concerns how liberal regimes should think about immigration from countries where the dominant norms are illiberal. The second examines the idea that political and economic institutions are sensitive to immigration policy, especially in the long run. Both of these critiques approach the topic from a non-ideal theory perspective, emphasizing the “public choice” dimensions of immigration policy. The entry closes by suggesting that this form of critique is especially important for open-borders libertarians to respond to given their general commitments to non-ideal, non-romantic theorizing in the context of government institutions and policy. (shrink)

After nearly 76 years following the UN Charter, the dominant feature of the multilateral international order has shifted from a focus on states’ sovereignty to the rights of the individual. It is now widely accepted that human rights are not the province of any one state’s domestic affairs, but of importance to the entire international community. The UN Security Council sits atop the supra-state order, and holds the ultimate authority to initiate consensus-based, collective action so as to limit or (...) prevent gross human rights violations. Yet, many times the Security Council is slow to act, and consensus is exceedingly rare. This begs the question: in the face of gross human rights violations and Security Council inaction, is unilateral humanitarian intervention justified? The present state of international law on the matter is unsettled and controversial to many. What follows is a discussion on the development of international law relating to unilateral humanitarian intervention, the permissibility of intervention for gross human rights violations, and justification for intervention under existing international law. I conclude that under the present multilateral regime, unilateral humanitarian intervention is legally justified, despite fears that the principle may be invoked for the purposes of cloaking acts of aggression. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 61.3 (2000) 453-471 [Access article in PDF] Liberty, Authority, and Trust in Burke's Idea of Empire Richard Bourke When Edmund Burke first embarked upon a parliamentary career, British political life was in the process of adapting to a series of critical reorientations in both the dynamics of party affiliation and the direction of imperial policy. During the period of the Seven Years' War, (...) a reconstituted militia became a focus for patriotic enthusiasm, uniting national sentiment against France and effectively eradicating the remnants of Jacobite rhetoric and aspiration. Traditional opposition between Tory and Whig became irrelevant, while Court and Country jointly came to the support of the Pitt-Newcastle ministry. However, in due course the Old Corps disintegrated as George III succeeded to the throne with the promise of an end to factional strife and the beginning of a patriotic alliance in government. But while competing ideologies and interests on the domestic political scene were undergoing comprehensive realignment, the pursuit of a blue-water policy in tandem with strategic continental campaigns brought Britain's struggle against France into North America, the Caribbean, and India. Trade continued to expand into Asia and West Africa, but the principles of commercial advantage were continually brought into open conflict with the exigencies of war. The division of power in Europe became embroiled in a substantial redivision of empire, and by 1763 British territorial expansion had reached its zenith.When Burke was appointed private secretary to the Marquis of Rockingham, with the national debt standing at an all time high and the demands of imperial defense unlikely to diminish, the politics of empire called for urgent attention from all sections of the political establishment. In particular the Rockinghamites, adopting a posture of aloofness from venality and petty interest, were obliged to advance policies for imperial government on the solid basis of political principle. 1 Coming into parliament as a member for Wendover in the wake of [End Page 453] Grenville's Stamp Act, at a time when the East India Company was assuming control of the revenue in Bengal, Burke set about formulating a doctrine of imperial sovereignty which would be serviceable to the party either in power or in opposition and which would be adequate to the complex reality of detached and extensive empire. The immediate reception of that inquiry, both in Britain and on the Continent, into the fraught world of post-Revolutionary political debate has had the long-term effect of distorting the order of emphasis in terms of which his career as a whole ought properly to be understood.The vigorous elaboration, in opposition to the Jacobin experiment in France, of the conditions under which moderate government could be exercised within the context of an absolute sovereignty was expressed in terms which had originally been invoked as part of a sustained attempt to reconcile civility with empire. As we shall see, that attempt involved a process of delicate coordination by means of which the interests of freedom would be brought into harmony with the demands of public power. In that sense the effort to make liberty and authority mutually responsible can be said to constitute the core ambition of Burke's political rhetoric. In this context responsibility defines the optimally beneficial relation between government and people on the one hand and national sovereignty and the extended empire on the other. This article outlines the practical and theoretical exploration of those relations within the frame of Burke's intervention in the world of eighteenth-century political discourse.Burke was of course well placed in 1765 to evolve a theory of imperial government that was at once ideologically compelling and politically viable. In his capacity as secretary to William Gerard Hamilton in the early 1760s he had already examined the corruption of legitimate empire as represented by the introduction of penal legislation into Ireland after 1694. The Tracts Relating to Popery Laws set out to convict the Irish Parliament in Dublin of flagrant misrule. A subordinate legislature within the empire is charged with having employed... (shrink)

Recent discussions among lawyers, philosophers, policy researchers and athletes have focused on the potential threat to privacy posed by the World Anti-Doping Agency’s (WADA) whereabouts requirements. These requirements demand, among other things, that all elite athletes file their whereabouts information for the subsequent quarter on a quarterly basis and comprise data for one hour of each day when the athlete will be available and accessible for no advance notice testing at a specified location of their choosing. Failure to file one’s (...) whereabouts, or the non-availability for testing at said location on three occasions within any 18-month period constitutes an anti-doping rule violation that is equivalent to testing positive to a banned substance, and may lead to a suspension of the athlete for a time period of between one and two years. We critically explore the extent to which WADA’s whereabouts requirements are in tension with existing legislation on privacy, with respect to UK athletes, who are simultaneously protected by UK domestic and EU law. Both UK domestic and EU law are subject to the European Convention on Human Rights (ECHR) Article 8, which establishes a right to “respect for private and family life, home and correspondence”. We critically discuss the centrality of the whereabouts requirements in relation to WADA’s aims, and the adoption and implementation of its whereabouts rules. We conclude that as WADA’s whereabouts requirements appear to be in breach of an elite athlete’s rights under European workers’ rights, health & safety and data protection law they are also, therefore, in conflict with Article 8 of the ECHR and the UK Human Rights Act 1998. We call for specific amendments that cater for the exceptional case of elite sports labour if the WADA requirements are to be considered legitimate. (shrink)

The present study aims at understanding how Ethica Nicomachea V.6 relates to its preceding chapters, V.1-5. On the one hand, the interpreter wonders for what purpose Aristotle introduces a topic named ‘the civic just’ (to politikon dikaion) in V.6, since V.1-5 treats extensively of matters of justice in the city. On the other hand, the same text posits that there is a certain ‘just without qualification’ (to haplōs dikaion), which may or may not be the civic just itself; compared to (...) the just without qualification, other forms of just are so by similitude (kath’homoiteta). In attempting to clear the confusion around those two points, the present study proposes the following: (1) the civic just is the just without qualification insofar as it is the primordial form of the just, in which only humans who are cumulatively free, equals and self-sufficient have a share; (2) the description of the civic just recapitulates several aspects of the discussions of justice in V.1-5 – the laws, the kinds of equality, rule, the legal suit - because the civic just encompasses all the forms of just (dikaion) related to the virtues of universal justice (V.1) and partial justice (V.2-5); (3) the expression to politikon dikaion is introduced in V.6 in order to contrast everything treated in V.1-5 with the domestic just, to oikonomikon dikaion, mentioned for the first time in V.6; (4) the forms of the domestic just are just only by similitude with the civic just because justice loses density outside the civic sphere, a situation which can be explained by the shortcomings Aristotle ascribes to women, children and slaves in EN V.6 (lack either of freedom or equality or yet self-sufficiency) as well as in Politica I (varying degrees of defective deliberation and virtue). (shrink)

The world's political and military leaders are under increasing pressure to intervene in the affairs of sovereign nations. Although the sovereignty of states and the corollary principle of nonintervention have been part of the foundation of international law, there is some latitude for states, as well as collective security organizations, to intervene in another state's domestic and foreign affairs, thus making sovereignty and the principle less than absolute. In this paper I first sketch a reasonable foundation for sovereignty of (...) states and the principle of nonintervention. Second, I offer a decision-making procedure for justified intervention. Finally, I argue that there is an important difference between the strategic argument and the humanitarian argument, a difference that may have profound implications for the future use of the latter argument by our political leaders. (shrink)

Cosmopolis A Review of Cosmopolitics -/- 2015/3-4 -/- Editorial Dominique de Courcelles & Paul Ghils -/- This issue addresses the general concept of “spirituality” as it appears in various cultural contexts and timeframes, through contrasting ideological views. Without necessarily going back to artistic and religious remains of primitive men, which unquestionably show pursuits beyond the biophysical dimension and illustrate practices seeking to unveil the hidden significance of life and death, the following papers deal with a number of interpretations covering a (...) wide field extending from belief to theory, from emotions to concepts, from the wisdom of personal experience to the most sophisticated doctrines. Spirit and spirituality are indeed many-faceted notions. They may refer to the intricate world of the interacting spirits which inhabit living beings in animistic traditions, without excluding a “grand force” linking human beings within a dynamic whole on which their very existence rely . They also bear upon more atomistic and either/or approaches of Western philosophy, which have become embodied in Cartesian dualism against a monotheist background, to the point of freezing the essence of individuals and culminating in the extreme individualism that characterizes our contemporaries. However, this equally refers to the opposite conception of materialism, across times and cultures, from ancient India and Greece (Cārvāka, originally known as Lokāyata, or some Buddhist doctrines for the former, Democritus or Lucretius for the latter) to more contemporary materialistic schools, whether modern or postmodern. -/- The following papers look at the contrasting forms of the philosophy and spirit of the human factor set into a whole, with no artificial disjoint between the psychical and the physical levels, as Wittgenstein put it: “And how can a body have a soul?”. This approach is not unrelated to the notion of anthropocene examined in a recent issue of Cosmopolis, with provides another comprehensive framework open to a spiritual life emerging from the very environment that generated it. -/- *** The first section of this issue was edited by Dominique de Courcelles, director at the National French Research Centre (CNRS), whom we wish to thank for collecting relevant studies relating to the religious and political questions, with a view to focusing on the war of ideas inevitably waged behind images, concepts and perceptions, taking an asymmetrical approach. To the extent that they are mindful of global/local interactions and include representations, opinions and beliefs, such disciplines as philosophy, philology, history and social sciences can provide useful studies accounting for new practices in geopolitics and a fair diplomacy. -/- In her introduction, Dominique de Courcelles first poses the question of how the religious and political spheres interrelate, with their corresponding religious demands and humanistic values. She then suggests that the right question today may be breaking with the philosophy of human rights concerned with the defense of human beings against the hazards of arbitrary politics or the instrumental use of religion, in favour of a fair philosophy of humankind, a new humanism. This would consist in recognizing a common loyalty of all towards one interhuman, not only interstate community, to protect it from both the autonomy demanded by individuals and the instrumental use of minorities. -/- Considering the fact of diversity, so important today in terms of both politics and religion, Abdelhai Azarkan looks at the conditions under which tolerance could obtain the double status of right and duty. He revisits to two philosophers, John Locke and Voltaire, who thought about it from the historical reality of religious wars. The former made tolerance into a right, basing his analysis on the political-legal level, while the latter saw tolerance as a duty, from an analysis based on ethical-political criteria. -/- Mathieu Guidère examines what he calls semantic denominationalism, a term which implies religious attributes and identities, whichever national loyalties or personal belonging they may have at the same time. Since the early 2000s, thie phenomenon has expanded tremendously, compounded by the “war on terror” and the over media-oriented terrorist actions. Denominational expressions act as formal names for ordinary and high-profile players in domestic and foreign policies of democratic states. These systems reveal a receding secularization, while the powerful comeback of religious identities signals the failure of nation-states and the weakening of the humanist spirit. -/- Barbara De Poli retraces the history of a contemporary jihadism claiming its Islamic essence and asserting the truth of genuine coranic principles via the war on infidels, with a view to restoring the Caliphate. After defining the term jihad, she shows that even if this contemporary jiadism is spreading in the Muslim world, it radically departs from Islamic law and the received use of the term jihad, in so far as it is rooted in the early radical thinking of Islamic ideologues in the 20th century, starting with with Hassan al-Banna, the founder of the Muslim Brotherhood. This current has been fueled by by international conflicts since the outbreak of the war in Afghanistan, in which the so-called Western countries bear a major responsibility. -/- Abderrazak Sayadi starts from the Tunisian experience to ask the question of humanist values and democracy within the relationships between the religious and political spheres. As a historian of religion, he is brought to demystify certain islamic principles and to paying attention to the reform of law, seeing the separation of religion and politics as a precondition to a successful democratic gamble and the establishment of a renewed humanism. -/- Dominique de Courcelles reminds us that getting a better knowledge of narrations and words makes it possible to better understand how logical and rhetorical thinking works for those who wage an asymetriccal war, re-enchanting and mystifying the world to better take control. As soon as 1932, an exchange of letters between Einstein and Freud made it clear that, in order to free man from fatality and war, education understood as culture was fundamental. Such illustrations as the exécution of Oussama ben Laden and the Caliph’s speech in Mossoul show that a premiminary analysis of images and words is essential to a fair diplomacy conducted by people from civil society, whose culture and wisdom allow justice and force to speak together and better resist war. -/- Marcel Boisard thinks that on the day the guns fall silent, exhausted by war, we will not return to the state borders that have prevailed for a century as an outcome of the Sykes-Picot agreement of 1916. It is time to prepare the “day after”, which will be a huge challenge. To this end, a summit of Middle-East nations is urgently needed to globally decide the fate of those peoples. On the condition that we know who the enemy is and accept to name it, to understand the history of the countries, groups and alliances, and to question any false or self-interested sense of certainty. -/- *** In the second section, Paul Schafer provides the author’s experiences to explain how culture, from the artistic to the biological, has the power to to open the doors to spirituality, from the inner self to the global environment. He asks himself whether a relative permanence of spirituality can arise from the specific moments that characterize it. Laurent Ledoux synthesizes the conclusion of a symposium held on 22 January 2015 on the links between philosophy and management, on the basis of the spiritual dimension conceived as “natural” and the answers it may suggest to the issues that face the organizations in a “contemporaniversal” world. Jacques Rifflet makes that question in a secular perspective, based on the wellsprings of personal commitment before it can be caught by any religious creed or scientific theory. In this sense spirituality, in alliance with reason, both inspires human consciousness and illuminates its destiny. Sami Aldeeb asks himself whether Islam can be reconciled with human rights. Caught between the belief in an absolute and final Word descended from the sky, and evidence showing that any religion is the creation of a given culture and a society situated in time and space, the Makkan and … contexts et médinois call for differentiated, if not opposite answers and exegeses. Bernard Carmona provides the outline of a dialogical framework, which is known to be a feature of debates between the various philosophical schools of classical India, exemplified here by the transdisciplinary perspective of debates within a Buddhist context. *** The articles not focused on the previous topic include a study by Landry Signé on China’s strategy, competing with the United States to control African resources. The author deals with the specific case of China’s rapprochement with Southern Sudan since Sudan was broken up. In the last paper, Goran Fejić and Rada Iveković, return to the essential role that women should play, and comments upon the role of some international legal instruments related in particular to the elimination of all forms of discrimination. The perspective is transnational and transethnic and is based on secular criteria, as regards nation-building and more generally society-building. Considering the persistence of widespread violence, whether in times of armed conflict or in times of peace, the question remains whether it is possible to fully implement rights and justice instruments. (shrink)

International relations (IR) scholars have increasingly integrated Hannah Arendt into their works. Her fierce critique of the conventional ideas of politics driven by rulership, enforcement, and violence has a particular resonance for theorists seeking to critically revisit the basic assumptions of IR scholarship. Arendt’s thinking, however, contains complexity and nuance that need careful treatment when extended beyond domestic politics. In particular, Arendt’s vision of free politics—characterized by the dualistic emphasis on agonistic action and institutional stability—raises two crucial issues that (...) need further elaboration for IR research that appropriates her thinking. One involves the orientation of her international thoughts. Although Arendt shows “idealistic” aspirations for authentic politics practiced by diverse equals in an institutionally articulated space of freedom, she never loses interest in the extant situation of “non-idealistic” politics. Engaging with Arendt’s theory orientation requires a careful analysis of difficult topics, such as her distinctive conception of the political and her critiques of the nation-state and international law. The other topic that needs clarification when Arendt’s thoughts are applied to IR involves specific ways of associating different sites of power. A close examination of Arendt’s council-based federalism reveals her distinctive idea of international politics, based on her acute awareness of the fundamental complexity that lies in power association and state agency. Bringing IR topics like state agency into conversation with her works generates illuminating questions for Arendt scholarship. Likewise, the ongoing debate on agonistic and institutional features of Arendt’s thoughts can provide crucial insights into critical studies of international politics. (shrink)