with Steven Ratner Völkerrechtsblog
- with Steven Ratner 2021 EJIL:Talk – Blog of the European Journal of International Law [WEB]
- “A Just yet Unequal European Union: A Defense of Moderate Economic Inequality.” Review of Social Economy. What does justice require concerning socio-economic distribution among citizens of the European Union? The EU should reduce cross-national economic inequalities among inhabitants of different member states, but full economic distributive equality or a European ‘Difference Principle,’ may not be required. Individuals’ claim to more political influence over matters controlled by their own state in the quasi-federal EU may permit some economic inequality. Section 1 orients this contribution relative to arguments for a European universal income. Section 2 provides relevant features of the EU. Section 3 considers contractualist arguments against certain forms of economic inequality, while section 4 identifies a further argument in favour of equal shares of benefits of social cooperation, based on an interpretation of ‘social primary goods’ consistent with Rawls’ theory. Section 5 argues that these reasons for economic distributive equality must be weighed against more political influence over matters controlled by the individual’s sub-unit. [D0I/LINK]
Journal of Political Philosophy 2020. States are free, yet everywhere live under international courts and tribunals (ICs). As they proliferate and gain power across ever more domains, ICs become targets of resistance and criticism that they are illegitimate authorities. What reasons might a state have to defer to an IC’s judgment or interpretation, even when the state regards it as mistaken, and even when it conflicts with the interests and objectives of government? Section I sketches the multiple tasks of ICs, in complex interdependence with other actors. Their core task is to adjudicate disputes through interpretation and application of international law by legal methods. This may also contribute indirectly to a range of further tasks. Section II addresses some aspects of the relation between normative legitimacy of ICs and descriptive legitimacy – actors’ beliefs therein. Section III shows how a wide range of legitimacy challenges concern ways ICs fail to carry out their tasks. This account does not seek to provide substantive arguments or seek to show that all such criticisms are correct. The aims are rather to make many such criticisms comprehensible as legitimacy concerns, to provide a rationale for popular taxonomies of legitimacy criticisms, and to indicate which premises and arguments are required for such criticisms to be sound.[D0I/LINK] [SSRN]
in Legitimacy: The State and Beyond, ed. W. Sadurski, M. Sevel & K. Walton. Oxford, Oxford University Press 2019: 223-237. Many claims that international courts (ICs) are illegitimate are related in complex ways – differently in fields ranging from human rights to trade. This is not to deny that some talk of the illegitimacy of ICs is inaccurate or wrong. But it is possible and indeed valuable to develop a coherent account that connects several various usages, so as to specify better, worse and downright mistaken claims concerning the legitimacy of ICs. normative legitimacy provides helpful unity to many of the canvassed forms of legitimacy. The particular substantive normative conception of global justice to be respected and promoted by these institutions is not central to this task. I develop the outline of a theory by drawing on Joseph Raz’ ‘service conception’ of normatively legitimate authority, David Easton’s ‘systems analysis,’ and a cosmopolitan normative theory. Section 1 sketches relevant aspects of Raz’ account of legitimate authority: the service conception. Section 2 lays out some normative standards relevant for the ICs. The next sections then elaborate why, on the service conception, various legitimacy conceptions matter for normative legitimacy: why legality matters (section 3) including some reasons for the (limited) significance of state consent – even by rogue states. Section 4 starts to explore why and when actual compliance is important but not always decisive. Section 5 considers why the performance or effects of an IC matters. [WEB].
-“More Than Meets the Eye – and Less: On the Internationalists.” Global Constitutionalism 7 (3): 330-341. These comments explore further some game theoretical themes of O Hathaway and S Shapiro The Internationalists (2017) of how outlawing of war led to profound changes in international relations even when the norm was breached. The Peace Pact arguably contributed to avoid war by creating institutions – such as international courts – that helped stabilize an assurance game among states by providing trustworthy information and commitments, in turn influencing practices and beliefs concerning mutual non-aggression.
Second, the authors at times claim that the Peace Pact was not only a cause of, but the cause of the massive shift in reduced warfare. Further arguments would be required to substantiate that this treaty not only was a necessary condition, but the trigger that ‘began a cascade’ (xv). Other factors might also have been necessary, and equally deserving of the label ‘triggers,’ – such as increased global interdependence, or democratization. The authors might best modify their claim.
Third, the authors claim not only to present a historical account, but also to draw lessons for the future. At a time when international norms and institutions are under severe pressure, such lessons are very welcome. However, there are reasons to be less optimistic than the authors about the extent of lessons we can draw from The Internationalists about how to preserve and improve on the New World Order of the Pact, rather than backsliding into the Old World Order.[D0I/LINK] [WEB]