Search the Lounge


« What is Your Reaction to This Headline? | Main | Federal Anti-SLAPP Legislation Introduced In The House »

December 20, 2009


Feed You can follow this conversation by subscribing to the comment feed for this post.

Patrick S. O'Donnell


There's quite a bit of food for thought here but I'll confine myself to a few observations:

It's interesting to consider the fact that the founding fathers of international law gave wide berth to natural law reasoning and morality and that not a few contemporary scholars are beginning to give new life to that tradition in international law (or one quite close to it, as in the case of Allen Buchanan's important efforts on behalf of developing 'moral foundations' for international law), owing largely to the notion of jus cogens norms (where do they come from? how do we ground them? etc., etc.). So, one instance when opting out of CIL would not be an option is when CIL has recognized jus cogens norms, although the "grounding" of these norms, as Larry May has persuasively argued, can hardly come from CIL itself:

"Think of the prohibition of torture. What started out as a matter of mere consent by some States is said to have evolved into a norm that is binding on all States, and that cannot now be overturned by the express agreement of States. And this is supposed to be due to the fact that these States not only consent to the norm, but behave as if they are bound by it from a sense of obligation. But how can it happen that a norm that is based on consent of various States can itself be transformed into a norm that is universally binding? At least part of the answer is that in addition to the original consent, it must now be that all, or almost all, States regard a given norm as a universal norm. [....] But in addition, all, or nearly all, States must demonstrate by their behavior that they regard the norm as binding."

It is here that May reminds us that we must distinguish between EVIDENCE for the existence of universal norm, and JUSTIFICATION of that norm." We can then appreciate the fact that

"consensually based custom cannot justify a jus cogens norm. The main reason for this is quite simple. Even if all States once consented to be bound by a given custom, and behaved as if this custom were universally binding, that would not make the norm universally binding since the States could change their views toward this custom. [....] If the norm is to be universally binding now, it cannot also be true that now States can make that norm not universally binding. Either the norm is universally binding or it is not."

May argues that conclusive evidence for a universal norm of international law (like jus cogens and obligations erga omnes) "is when there is both opinio juris and normative justification for such a norm." May, persuasively, in my opinion, proffers a Hobbesian- and natural law-inspired, morally minimalist "security principle" together with an "international harm principle" as a normative justification for jus cogens norms against genocide, crimes against humanity (e.g., enslavement, torture) war crimes and aggression (or crimes against peace).

A different and likewise normative justificatory argument (rather more ambitious than May's) for jus cogens norms is Criddle and Fox-Decent's "a Fiduciary Theory of Jus Cogens," available:

We can have pluralism AND a unitary system here insofar as various religious and non-religious worldviews possess the conceptual and moral resources from which they can argue to a recognition and endorsement of jus cogens norms provided, I think, their justification is fashioned--a la May--in a morally minimalist and abstract fashion much like the best justifications for human rights principles that have come to be accepted by a plurality of nations and peoples from rather different traditions and worldviews.


I strongly suspect that the changes you see in customary international law are connected with European imperialism in the 19th century in a rather more dark way, that is, as itself providing justification for subjecting "uncivilized" nations in the brutal and murderous way that was done in (all in accord with the law of the time!) in the later 19th century. That is, I suspect the main role of customary international law at the time was to allow Europeans to feel better about themselves while the slaughtered people and established colonies all over Africa and Asia. I'm not certain about this at all, but if there's an increasingly "moral" element in international law at the time it's hard to see how that had any impact on the behavior of European powers in the Congo, China, etc.

Patrick S. O'Donnell

While I don't share his characterization of the nature of international law (despite being, on many counts, a self-described Marxist), what Matt refers to above, namely, the "question of the relationship between international law and the systematic coercion of imperialism," is discussed in China Mieville's chapter, "Imperialism, Sovereignty and International Law," in his book Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic, 2005/Chicago, IL: Haymarket Books, 2006): 225-293.

Also important in this regard is Martti Koskenniemi's The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960 (Cambridge, UK: Cambridge University Press, 2002), Paul Keal's European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Law (Cambridge, UK: Cambridge University Press, 2003), and Antony Anghie's Imperialism, Sovereignty and the Making of International Law (Cambridge, UK: Cambridge University Press, 2005).

Representative of the efforts to remedy some of the consequences of imperialism that persist in our own time is S. James Anaya's Indigenous Peoples in International Law (New York: Oxford University Press, 2nd ed., 2004). See too Part Three, "Self-Determination" (a pellucid discussion of the issues of secession and intrastate autonomy), of Allen Buchanan's Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford Unversity Press, 2004): 331-424.

The comments to this entry are closed.


  • StatCounter
Blog powered by Typepad