Besson, Samantha --- "The Authority of International Law: Lifting the State Veil" [2009] SydLawRw 14; (2009) 31(3) Sydney Law Review 343
[∗] Professor of Public International Law and European Law, University of Fribourg (Switzerland). This is a revised version of the Julius Stone Address I gave on 19 August 2008 in Sydney. I would like to thank Wojciech Sadurski for the kind invitation and hospitality and Kevin Walton for the excellent co-ordination before and after the lecture. Many thanks also to the Sydney Law School faculty members who attended the lecture and the seminar on the next day for their helpful comments and feedback. Further thanks are due to the audience at the University of Frankfurt’s Cluster of Excellence on the Emergence of Normative Orders’ opening conference on 14 and 15 November 2008 for their remarks and critiques. Last but not least, I would not have been able to prepare my article in better conditions than those provided by the Adam Smith Research Foundation, University of Glasgow, in July and August 2008 and would like to thank Adam Tomkins for inviting me there. More generally, I am grateful to John Tasioulas and Allen Buchanan for lively discussions of their respective papers on the legitimacy of international law (see Buchanan, below n1 and Tasioulas, below n20), as those discussions have helped me clarify my own ideas in the course of our disagreements.
[1] Allen Buchanan, ‘The Legitimacy of International Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming).
[2] The article focuses on legal authority in contrast to private authority, but also to political authority in general. On the distinction, see Joseph Raz, The Authority of Law (1979) (‘Raz 1979’); Joseph Raz, The Morality of Freedom (1986) 23, 38 and 70 (‘Raz 1986’); Joseph Raz, Ethics in the Public Domain (1995) 210, 341 and 355 (‘Raz 1995’); Joseph Raz, ‘Comments and Responses’ in Lukas Meyer, Stanley Paulson and Thomas Pogge (eds), Rights, Culture and the Law: Themes from the legal and political philosophy of Joseph Raz (2003) 253–78 (‘Raz 2003’); Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’ (2006) 90 Minnesota Law Review 1003, 1004–5 (‘Raz 2006’). Interestingly, some authors, influenced by international relations literature, focus on political authority only, and not legal authority in order to grasp the specificity of law-making by international organisations: see, for example Daniel Bodansky, ‘Legitimacy’ in Daniel Bodansky, Jutta Brunnee and Ellen Hey (eds), Oxford Handbook of International Environmental Law (2007) 704–23; Ian Clark, Legitimacy in International Society (2005); Jean-Marc Coicaud and Veijo Heiskanen (eds), The Legitimacy of International Organizations (2001). This approach faces the risks of: being too broad (by covering political duties distinct from duties to obey the law), of begging the question of the existence of an international political community and, finally, of conflating too quickly law and law-making institutions. See also section 3a, below.
[3] In what follows, I will use ‘authority’ to mean legitimate authority. For the same use of the term, see Raz 1986, above n2; Raz 1995, above n2; Raz 2006, above n2.
[4] See Raz 1986, above n2, 23.
[5] See Raz 1986, above n2; Raz 1995, above n2; Raz 2006, above n2 for the distinction between theoretical and practical authority.
[6] See Herbert Hart, The Concept of Law (Rev ed, 1994) 227–30 on the difference between international legal norms and morality. Of course, Hart (230–2) then rejects the necessary existence of a moral duty (or conviction thereof) to obey international law qua morally correct law or even qua law tout court, but this has to do with his own account of law’s authority rather than with a specificity of international law itself.
[7] See Raz 1995, above n2, 342–3.
[8] See Raz 2006, above n2, 1006–7. See also Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral foundations for international law (2004) 16–19; Buchanan, above n1. See, however, Thomas Franck, ‘Legitimacy in the International System’ (1988) 82 American Journal of International Law 705, 706 (‘Franck 1988’); Thomas Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International law in an age of power disequilibrium’ (2006) 100 American Journal of International Law 88, 91 and 93 (‘Franck 2006’) for a conflation of the sociological and normative approaches to legitimacy.
[9] On de facto authority, see Raz 1986, above n2, 65; Raz 2006, above n2, 1005–6. De facto authority implies a claim to legitimate authority, albeit not necessarily a justified one. However, legitimate authority does not necessarily imply de facto authority, even though they are likely to be connected. As a result, international legal norms can be legitimate without being effectively complied with and vice-versa; the question of practical compliance with international law (and of its motivation) is an altogether different question. On that question, see Mary Ellen O’Connell, The Power and Purpose of International Law (2008).
[10] See Hart, above n6, 220.
[11] See Raz 1986, above n2, 27–8.
[12] This view contrasts with that of Mattias Kumm, ‘The Legitimacy of International Law: A constitutionalist framework of analysis’ (2004) 15 European Journal of International Law 907, 917. International legality cannot therefore be used as a presumption of legitimacy. See Samantha Besson, ‘Theorizing the Sources of International Law’ in Samantha Besson, and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming).
[13] Legitimate authority ought not therefore be understood as excluding power-play in international relations. Scope precludes, however, addressing this topic here. See Bodansky, above n2, 707. Note that de facto authority implies the exercise of actual power, albeit not necessarily coercive power.
[14] See Raz 1995, above n2, 80; et seq Raz 1986, above n2; Raz 2006, above n2 on consent as a source of simple voluntary obligations and as a source of respect or recognition of an institution, but according to whom consent can only be accepted as a source of authoritative obligations if the other conditions of legitimacy are fulfilled independently.
[15] See, for example Andrew Guzman, How International Law Works: A rational choice theory (2007); Jack Goldsmith and Eric Posner, The Limits of International Law (2005) 185 et seq for a rational choice account of states’ compliance with international law. See critiques by Allen Buchanan, ‘Democracy and the Commitment to International Law’ (2006) 34 Georgia Journal of International and Comparative Law 305; Franck 2006, above n8.
[16] See, for example John Rawls, A Theory of Justice (1971) 114–17 and 333–7; Jeremy Waldron, ‘Special Ties and Natural Duties’ (1993) 22 Philosophy and Public Affairs 3. Of course, traditional critiques against the justice-based justification of authority are less incisive when applied to international law. Many general principles of international law such as equality, human rights or good faith, may actually also be principles of justice, and international subjects may therefore have independent or additional duties of justice to abide by those principles. Scope precludes, however, addressing this topic in the present article, and in particular the difficult issue of the allocation of duties of global justice to states, and of the nature and extent of those duties (see Thomas Pogge, World Poverty and Human Rights: Cosmopolitan responsibilities and reforms (2002); Liam Murphy, ‘International Responsibility’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming)). In any case, the justification of the law’s moral right to rule qua law remains essential in an international community ridden by cultural and moral disagreements and needs to be addressed as such.
[17] See, for example Thomas Franck, Fairness in International Law and Institutions (1995). Scope precludes addressing this topic in the present article.
[18] See, for example Buchanan, above n15, 315–16; Buchanan, above n1; Jeremy Waldron, ‘The Rule of International Law’ (2006) 30 Harvard Journal of Law and Public Policy 15 on the relationship between the legitimacy of international law and the rule of international law. See section 4b, below.
[19] See, for example Raz 1986, above n2, 66; et seq Raz 1995, above n2; Raz 2006, above n2 on the distinction. See also Buchanan, above n1.
[20] On these reasons, see, for example John Tasioulas, ‘The Legitimacy of International Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming).
[21] See Tasioulas, above n20.
[22] See, for example Kumm, above n12, 909–17.
[23] See, for example Franck 1988, above n8; Franck, above n17; Fernando Teson, A Philosophy of International Law (1998) (‘Teson 1998’); Daniel Bodansky, ‘The Legitimacy of International Governance: A coming challenge for international environmental law’ (1999) 93 American Journal of International Law 596; Buchanan, above n8; Kumm, above n12; Fernando Teson, Humanitarian Intervention: An inquiry into law and morality (3rd ed, 2005) (‘Teson 2005’); Goldsmith and Posner, above n15; Allen Buchanan and Robert Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics and International Affairs 405; Buchanan, above n15; Bodansky, above n2; Rüdiger Wolfrum, ‘Legitimacy in International Law’ in August Reinisch and Ursula Kriebaum (eds), The Law of International Relations – Liber Amicorum Hanspeter Neuhold (2007) 471–82; Daniel Bodansky, ‘The Concept of Legitimacy in International Law’ in Rüdiger Wolfrum and Volker Röben (eds), Legitimacy in International Law (2008); Buchanan, above n1; Tasioulas, above n20.
[24] See, for example Hart, above n6, 213 et seq.
[25] See Hart, above n6, 213–15.
[26] See, for example Franck 1988, above n8, 91; Franck, above n17, 4–8; Tasioulas, above n20. But see also Goldsmith and Posner, above n15, 186–9 for a rebuttal of non-instrumental reasons for states to abide by international legal norms.
[27] See Raz 1986, above n2, 215; Raz 1995, above n2, 230–7 on the sources thesis and its justification based on the law’s claim to legitimate authority. See also Besson, above n12.
[28] See Tasioulas, above n20.
[29] See Franck, above n17, 6; Franck 2006, above n8, 91.
[30] See, for example Besson, above n12; David Lefkowitz, ‘The Sources of International Law: Some philosophical reflections’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming).
[31] See the discussion in Raz 1986, above n2, 62. See especially Raz 2006, above n2, 1005–6, 1007–10.
[32] See Buchanan, above n1.
[33] Of course, some international legal norms are backed up by coercive sanctions (eg the prohibition of the use of force) and some international institutions claim to have exclusive centralised jurisdiction over certain matters (eg the UN Security Council over the use of force). However, these qualities cannot be generalised, contrary to what is the case in the domestic legal order. In any case, the absence of sanctions is not a constitutive element of the legality of international law, and it is even less a requirement of its legitimate authority: see Hart, above n6, 216–20.
[34] See the discussion of the changes in the sources of international law in Besson, above n12; Wolfrum, in Reinisch and Kriebaum above n23; Kumm, above n12, 909–17. Most of those changes are usually interpreted as bringing international law closer to domestic law with respect to its nature, but also to its legitimacy and justifications for that legitimacy.
[35] See on relative normativity, Prosper Weil, ‘Towards Relative Normativity in International Law?’ (1983) 77 American Journal of International Law 413; John Tasioulas, ‘In Defence of Relative Normativity: Communitarian values and the Nicaragua case’ (1996) 16 Oxford Journal of Legal Studies 85. Due to constraints of space, the section of the lecture addressing questions related to the relative normativity of international law and the authority of jus cogens norms or soft law was excised: see, however, Besson, above n12.
[36] See the discussion in Tasioulas, above n20.
[37] See the discussion of Buchanan, above n1 in Tasioulas, above n20.
[38] See, for example Kumm, above n12, 909–17.
[39] Of course, sharing the same concept of legitimacy does not exclude providing different justifications of the legitimacy of national and of international law, as we will see. See Tasioulas, above n20.
[40] One may give different examples, such as international criminal law or EU law. Of course, international law differs from EU law in that it is not an integrated legal order whose subjects are always both states and individuals. See Samantha Besson, ‘How International is the European Legal Order? Retracing Tuori’s Steps in the Exploration of European Legal Pluralism’ (2008) 4 No Foundations Journal of Extreme Legal Positivism <http://www.helsinki.fi/nofo/> at 29 June 2009, on integrated legal orders.
[41] The reference to ‘citizens’ covers more than those individuals actively taking part in the political life of the state, and is a shorthand for all individuals residing in a state and whose fundamental interests are affected by the decisions taken in that state.
[42] See Kumm, above n12, 910; Murphy, above n16.
[43] See Raz 1986, above n2; Raz 1995, above n2; Raz 2006, above n2.
[44] See also Tasioulas, above n20.
[45] See Raz 1986, above n2, 35 et seq; Raz 2006, above n2, 1012–20.
[46] See Raz 1986, above n2, 57 et seq; Raz 2006, above n2, 1012–20.
[47] See Raz 1986, above n2, 42 et seq; Raz 2006, above n2, 1012–20.
[48] See Raz 1986, above n2, 53; Raz 2006, above n2, 1014.
[49] See Raz 2006, above n2, 1012 et seq.
[50] See James Griffin, On Human Rights (2008) 33.
[51] See Raz 1986, above n2, 75 et seq.
[52] See Raz 1986, above n2, 88 et seq; Raz 2006, above n2, 1028–9, 1037–40. See also Raz 1995, above n2, 80–94.
[53] For a general discussion of the shortcomings of the consent-based justification of political authority, see Alan John Simmons, Moral Principles and Political Obligations (1979).
[54] See Raz 1986, above n2, 89; Raz 1995, above n2, 355–69. See the discussion in Scott Hershovitz, ‘Legitimacy, Democracy and Razian Authority’ (2003) 9 Legal Theory 201, 215.
[55] See Raz 1986, above n2, 90, 93; Raz 1995, above n2, 368–9.
[56] See, for co-ordination-based accounts of legal authority founded on Razian authority, Jeremy Waldron, ‘Authority for Officials’ in Lukas Meyer, Stanley Paulson and Thomas Pogge (eds), Rights, Culture and the Law: Themes from the legal and political philosophy of Joseph Raz (2003) 45; Samantha Besson, The Morality of Conflict (2005) 161 et seq, 459 et seq and 503 et seq.
[57] According to Waldron, above n56, 49, a question is of common concern among a group of people if it is better for a single answer to be accepted among them than for each person to deal with the question on their own, the best they can.
[58] See Besson, above n56, 164 et seq, 465 et seq; Waldron, above n16, 14–15; Jeremy Waldron, Law and Disagreement (1999) 101–13. See also John Finnis, ‘The Authority of Law in the Predicament of Contemporary Social Theory’ (1984) 1 Notre Dame Journal of Law, Ethics and Public Policy 115.
[59] See Besson, above n56, 459, 503; Waldron, above n58, 101–13.
[60] On the difference between consent and co-ordination, see Besson, above n56, 473–5; Waldron, above n16, 25–7. Consent can enhance co-ordination, but is not necessary for co-ordination to take place.
[61] See, for example Raz 2006, above n2, 1031–2.
[62] See Waldron, above n58, 101–13; Besson, above n56, 459 et seq on democratic co-ordinative authority.
[63] See, for example Hershovitz’s critique of Raz’s account of legal authority, above n54, 209–10.
[64] See Raz 2006, above n2, 1031 fn 20, 1037–40 for an insufficiently charitable reading of the democratic conception of authority, a reading that fails to accommodate the circumstances of pervasive and persistent reasonable disagreement about issues of justice and common moral concern, and the need to address that disagreement in current political conditions.
[65] In contrast to what is often said (see, for example Tasioulas, above n20) and presumably derived from a skewed idea of participatory practices in a democracy, individual consent ought not therefore be conflated with democracy as a justification of authority. See Hershovitz, above n54, 215.
[66] Waldron, above n56, 67–9.
[67] See Raz 2006, above n2, 1031.
[68] See Waldron, above n56, 66 on the contrast between purely individual and co-ordination-based individual reasons to obey the directives of a public authority.
[69] See Waldron, above n56; Besson, above n56, 490–8; Samantha Besson, ‘Review Article: Democracy, law and authority’ (2005) 2 Journal of Moral Philosophy 89.
[70] See the replies by Raz 2003, above n2; Raz 2006, above n2, 1040–4. See Besson, above n69.
[71] See Waldron, above n56, 59–61. See also Buchanan and Keohane, above n23, 408 for a similar concern in international law.
[72] See Raz 2003, above n2. See also Raz 2006, above n2, 1025 et seq.
[73] See Waldron, above n56, 61–3. See also Besson, above n56, 497–8.
[74] Raz 2003, above n2, 260.
[75] See Raz 1986, above n2, 75–6.
[76] Waldron, above n56, 66.
[77] See, for example, Hershovitz, above n54, 216 et seq.
[78] See Besson, above n56, 496–8; Waldron, above n58, 101–13. This view contrasts with that of Raz 1995, above n2, 347. This is particularly important in the context of international law as its moral authority is often the mere reflection of its underlying moral values (see discussion above, n16).
[79] See Waldron, above n56, 66. Even though it is a different sort of reason, it affects the way the NJC is satisfied individually – in conditions of reasonable disagreement over matters of common concern, the existence of a co-ordinative authority around which people know they might be able to co-ordinate necessarily affects the ways in which the NJC is satisfied individually.
[80] See Raz 1995, above n2, 117 on the NJC and the epistemic qualities of democratic authority.
[81] This view differs from that of Hershovitz, above n54, 212 et seq.
[82] Tasioulas, above n20. Tasioulas also argues that procedural requirements in the rule of law (such as publicity or transparency) are ‘certainly relevant to the fulfilment of the NJC’, without elaborating further.
[83] On this argument, see Besson, above n56, 505–6; Waldron, above n58, 102 et seq.
[84] See Tasioulas, above n20. Contrast with Buchanan, above n1.
[85] See, for example Raz 1986, above n2, 70.
[86] See, for example Hershovitz, above n54. See, however Raz 2006, above n2, 1031–2.
[87] See, for example Waldron, above n56. See, however Raz 2006, above n2, 1031–2.
[88] See Alan Boyle and Christine Chinkin, The Making of International Law (2007); Antonio Cassese and Joseph Weiler (eds), Change and Stability in International Law-Making (1988); Vaughan Lowe, ‘The Politics of Law-Making: Are the method and character of norm creation changing?’ in Michael Byers (ed), The Role of Law in International Politics (2000) 207–26.
[89] See, for example José Alvarez, International Organizations as Law-makers (2006); Robert McCorquodale, ‘An Inclusive International Legal System’ (2004) 17(3) Leiden Journal of International Law 477.
[90] On the difference, see Abram Chayes, ‘A Common Lawyer looks at International Law’ (1965) 78 Harvard Law Review 1396, 1410.
[91] This hiatus, and the matching traditional conception of international law, is presumably what lies behind certain authors’ focus on states, as opposed to individuals, as the main or only subjects of the authority of international law.
[92] See, for example Buchanan, above n1 who discusses ‘international law-making institutions’; Lefkowitz, above n30 who discusses ‘international actors’.
[93] See, for example Franck 1988, above n8; Franck, above n17; Franck 2006, above n8; Tasioulas, above n20. Of course, this may be explained by the use of international human rights law as the main example, where the law binds primarily states towards other states and (directly or indirectly) individuals, and only very rarely binds individuals directly.
[94] See, for example Kumm, above n12.
[95] See, for example Buchanan and Keohane, above n23.
[96] See, for example Buchanan, above n8; Buchanan, above n1 (although he mostly addresses the case of states’ duties to obey international law); Waldron, above n18 (although he focuses on the rule of law and not the authority of law).
[97] I owe this expression to Murphy, above n16. Hart, above n6, 231–2 already hinted at the issue, although he did not address it: ‘Precisely whose motives, thoughts and feelings on such matters of moral conviction are to be attributed to the state is a question which need not detain us here.’
[98] See Murphy, above n16. See also, albeit in the domestic context, Raz 1986, above n2, 72.
[99] Buchanan, above n1. See, however, Raz 2006, above n2, 1004 on the possibility of illegitimate institutions producing legitimate laws.
[100] See Waldron, above n18, 23–5.
[101] Ibid 23 et seq.
[102] See Besson, above n12.
[103] This is why participation in treaty-making and the use of consent therein does not necessarily imply that consent is the source of the authority of international law. This view contrasts with that of Kumm, above n12, 914. Of course, consent may still be used as one of the criteria of legal validity, but that is a different matter.
[104] See, for example Besson, above n12.
[105] See Chayes, above n90, 1410.
[106] See Waldron, above n18, 15; Raz 1979, above n2, 212–19; Rawls, above n16, 236–9.
[107] See section 2b, above. See Waldron, above n56, 67–9.
[108] See also Tasioulas, above n20.
[109] See Besson, above n12.
[110] See Tasioulas, above n20.
[111] This view differs from that of Timothy Endicott, ‘The Logic of Freedom and Power’, in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming); and Tasioulas, above n20.
[112] See Waldron, above n18, 21.
[113] Besides the direct burdens imposed by new international legal norms, state responsibility in cases of violation of those morally binding norms will trigger further (moral and not only legal) duties to cease the violation and to remedy it, thus shifting new burdens onto individuals. The question of authority (and primary obligation) is more sensitive in terms of burden-imposition, however, than that of international responsibility for a wrongful act (and secondary obligation), where the representation of its constituent individuals and their duties by the state can account for shifting part of the burden of reparation onto those individuals: see the discussion in James Crawford and Jeremy Watkins, ‘International Responsibility’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming); and in Murphy, above n16.
[114] On the difficulties this raises in the context of loans contracted out through treaties by corrupt governments, see Murphy, above n16. See also Pogge, above n16 on the ‘international borrowing privilege’.
[115] See Raz 1986, above n2, 87–8. See also section 3c, below.
[116] See Buchanan, above n1, 53 on the ‘Vanishing Subject Matter Problem’.
[117] Of course, this does not exclude correctives within the legal system itself from protecting states against themselves and in particular against corrupt governments.
[118] One may argue that the inclusion of individuals in democratic decision-making at the international level (see section 3b, below) may compensate for the lack of representation of states participating in those processes. This view underestimates, however, the importance of the role of democratic political communities as full members of the international political community besides individuals: see Samantha Besson, ‘Ubi Ius, Ibi Civitas: A republican account of the international community’ in Samantha Besson and José Luis Martí (eds), Legal Republicanism: National and international perspectives (2009) 205, 217–19; Jean Cohen, ‘Rethinking Human Rights, Democracy and Sovereignty in the Age of Globalization’ (2008) 36(4) Political Theory 578.
[119] For instance, the obligation of states to prevent genocide is different in its content from that of individuals. Compare the International Court of Justice’s decision in The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 91 with that of the International Criminal Tribunal for the former Yougoslavia, ICTY, Appeals Chamber, Prosecutor v Dusko Tadić, 15 July 1999 (Case no. IT-94-1-A).
[120] See Besson, above n56, 197–203.
[121] See John Tasioulas, ‘Customary International Law and the Quest for Global Justice’ in Amanda Perreau-Saussine and James Murphy (eds), The Nature of Customary Law: Legal, historical and philosophical perspectives (2006) 307, 320–4.
[122] See Besson, above n12 on a co-ordination-based account of international customary law and the difference between the co-ordinative rules of creation and change (secondary rules), and actual customary rules. See also section 2c, above.
[123] See Besson, above n56, 192–5; Waldron, above n58, 105–6.
[124] See Waldron’s, above n56 critique of Raz’s account of legal authority at the domestic level.
[125] See Raz 2006, above n2, 1020–1, 1023–5. Due to the constraints of space, the section of the lecture pertaining to conflicts of claims to primacy and the competing authority of norms stemming from different legal regimes of international law and between legal orders in conditions of (internal and external) legal pluralism was excised. See, however, the discussion in Samantha Besson, ‘Whose Constitution(s)? International Law, Democracy and Constitutionalism’ in Jeff Dunoff and Joel Trachtman (eds), Ruling the World: Constitutionalism, international law and global governance (2009) 381.
[126] This view differs from that of Tasioulas, above n20 who, like Raz 2006, above n2, fn 20, concentrates only on classic co-ordination problems.
[127] Tasioulas, above n20 describes this move (which he understands as an attempt to provide an exclusive justification of the authority of international law) as a ‘serious overreaction’, without clearly arguing against that development.
[128] See Hart, above n6, 219–20; Tasioulas, above n20. Contrast with Buchanan, above n1.
[129] See Buchanan, above n1.
[130] See Besson, above n118, 213 et seq. In this sense, I agree with Buchanan and Keohane, above n23 and Buchanan, above n1.
[131] See Samantha Besson, ‘Deliberative Demoi-cracy in the European Union: Towards the deterritorialization of democracy’ in Samantha Besson and José Luis Martí (eds), Deliberative Democracy and its Discontents (2006) 181; Samantha Besson, ‘Institutionalizing Global Demoi-cracy’ in Lukas Meyer (ed), Justice, Legitimacy and Public International Law (2009) 58.
[132] Id.
[133] See section 3a, above.
[134] This is when the identification of the law-makers and legal subjects at stake in the argument matters.
[135] See Besson, above n118, 216; Robert McCorquodale, ‘International Community and State Sovereignty: An uneasy symbiotic relationship’ in Colin Warbrick and Steven Tierney (eds), Towards an International Legal Community (2006) 241.
[136] Daniele Archibugi, ‘The Reform of the UN and Cosmopolitan Democracy: A critical review’ (1993) 30(3) Journal of Peace Research 301.
[137] See Thomas Christiano, ‘International Institutions and Democracy’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (2010, forthcoming).
[138] Buchanan, above n1. See also Buchanan and Keohane, above n23.
[139] See Besson, above n56, 319–323.
[140] See, for example Teson 2005, above n23; Teson 1998, above n23; Robert Goodin, ‘Enfranchising All Affected Interests, and Its Alternatives’ (2007) 35(1) Philosophy and Public Affairs 40.
[141] See Besson, above n12; Allen Buchanan, ‘Human Rights and the Legitimacy of the International Order’ (2008) 14(1) Legal Theory 39; Buchanan, above n1; Buchanan and Keohane, above n23, 421–2. See also Cohen, above n118 on the human right to have rights.
[142] See Tasioulas, above n20 for a detailed discussion of those justifications in the context of international law.
[143] See Tasioulas, above n20, although my democratic co-ordination-based justification of legal authority might cover more ground overall than his different justifications.
[144] See Raz 2006, above n2, 1028–9.
[145] See Tasioulas, above n20. See also Raz 1995, above n2, 360 et seq; Raz 2006, above n2, 1037 et seq.
[146] See Raz 1995, above n2, 355–69. See also Hart, above n6, 224 et seq.
[147] On the limitations of democratic state consent, see Buchanan, above n8; Besson, above n118, 214–17. On the relationship between democracy and consent in general, see the discussion above n65.
[148] See Buchanan, above n8, 301–14; Buchanan, above n1.
[149] See Raz 1986, above n2, 87–8.
[150] See Lefkowitz, above n30.
[151] Raz 1995, above n2, 365–6; Raz 2006, above n2, 1014.
[152] Raz 2006, above n2, 1014.
[153] Tasioulas, above n20. See, however, the discussion in Raz 2006, above n2, 1015 et seq.
[154] See Waldron, above n18, 21–2.
[155] See Murphy, above n16.
[156] See Endicott, above n111.
[157] Hart, above n6, 223.
[158] This view contrasts with that of Kumm, above n12, 920 et seq; Mattias Kumm, ‘International Law Meets Domestic Law: Terms of engagement’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (2007) 256. Subsidiarity cannot be a ground of justification of the authority of international law. Only once that authority is justified, can subsidiarity become the principle that will demarcate conflicting claims to authority made by international and national law.
[159] This is a missing link in the argument by Tasioulas, above n20 who rightly distinguishes between the argument of pluralism and the argument of freedom in the human rights context, but fails to see that the key lies in the unicity of subjects between the national and the international legal orders and in the relationship between legitimate authorities in both orders.
[160] See Besson, above n118, 229–36.
[161] See in other words, Tasioulas, above n20.
[162] See, for example Harold Koh, ‘On American Exceptionalism’ (2003) 55 Stanford Law Review 1479.
[163] I owe this distinction to Tasioulas, above n20.
[164] See Besson, above n56, 52 et seq.
[165] See Bernard Williams, ‘Human Rights and Relativism’ in In the Beginning was the Deed: Realism and moralism in political argument (2005) 62, 66.
[166] See Buchanan, above n141; Buchanan, above n1.
[167] See, for example Tasioulas, above n20 for a detailed rebuttal of parochialism in a moral pluralist context, and especially in the human rights context.
[168] See section 2c, above.
[169] See John Tasioulas, ‘The Moral Reality of Human Rights’ in Thomas Pogge (ed), Freedom from Poverty as a Human Right: Who owes what to the very poor? (2007) 75; Tasioulas, above n20. See also for a modified interest-based account of European human rights and of their social contextualisation, Samantha Besson, ‘The European Union and Human Rights: Towards a new kind of post-national human rights institution’ (2006) 6(2) Human Rights Law Review 323.
[170] See section 2c, above.
[171] See Tasioulas’, above n20 response to the exceptionalism objection.
[172] On the distinction, see Besson, above n56, 503–4.
[173] See, for example Besson, above n56, 503 et seq.
[174] See, for example Allen Buchanan, ‘From Nuremberg to Kosovo: The morality of illegal international law’ (2001) 111(4) Ethics 673, 680; Robert Goodin, ‘Toward an International Rule of Law: Distinguishing international law-breakers from would-be law-makers’ (2005) 9 The Journal of Ethics 225.
[175] See Waldron, above n18, 22.
[176] See Jeremy Waldron, ‘The Concept and the Rule of Law’ (2009) 43(1) Georgia Law Review 1.
[177] See, for example Arthur Watts, ‘The International Rule of Law’ (1993) 36 German Yearbook of International Law 15; Ruti Teitel, ‘Humanity’s Law: Rule of law for the new global politics’ (2002) 35 Cornell International Law Journal 355.
[178] See Besson, above n12.
[179] Julius Stone, Human Law and Human Justice (1965).