Philosophy of International Law (LAWS70429)

The philosophy of international law has recently emerged as an exciting area of jurisprudential inquiry. This subject will explore the moral and political values that provide a basis for the critical appraisal of international law and institutions. It begins with a study of the legitimacy of international law: its claim to be binding on its subjects. Does legitimacy require consent, democracy or something else? This will lead to an investigation of the ideas of state sovereignty, communal self-determination and, in particular, human rights, as factors bearing on international law’s legitimacy. The final section of the subject considers the implications for the critical evaluation of specific areas of international law, beginning with the doctrine of its sources. The selection of the other two or three areas to be discussed (eg international economic law, international environmental law, humanitarian intervention, international criminal law etc.) will be determined by class vote.

Principal topics include:

• The legitimacy of international law (in particular, consent, democracy and service conceptions of legitimacy)
• The value and limits of state sovereignty (and the compatibility of sovereignty with the legitimacy of international law)
• The basis of communal self-determination (whether in the value of a shared communal identity or shared occupancy of a given territory)
• The nature and justification of human rights (in particular, the conflict between ‘orthodox’ and ‘political’ conceptions of human rights, and the debate about the foundations of human rights, and whether human rights are merely parochial ‘Western’ constructs)
• The theory of the sources of international law, esp. the debate between positivist and non-positive accounts of customary international law, the idea that new customary law can be made by violating existing customary law, the doctrine of jus cogens
• Selected topics arising in at least two of the following areas of international law: international economic law, international environmental law, humanitarian intervention, international criminal law and laws of war.