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Toward a Dignity-Based Account of International law

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Abstract

Once limited to issues in maritime and trade law, today, the most recognizable examples of international law govern issues such as human rights, intellectual property, crimes against humanity, and international armed conflicts. In many ways, this proliferation has been a welcomed development. However, when coupled with international law’s decentralized structure, this rapid proliferation has also posed problems for how we (and in particular judges) identify if, when, and where international law exists. This article puts forward a novel, dignity-based account for how we answer this question: arguing that an international law exists if and only if it is consistent with respecting dignity. The upshot of this account is twofold. First, it explains many features of international law that other theories leave unaccounted for or under-explained. And second, my dignity-based account provides for a mechanism through which the system can continue to be developed and improved.

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Notes

  1. In various places, Hart (2012) calls international law a “borderline example of law” and often discusses it in connection with other examples of “primitive law” (pp. 79, 156). Thus, although it appears Hart avoids making Austin’s (1831) stronger claim that the word “law” does not properly extend to “international law,” nevertheless, he concludes international law does not constitute a proper legal system.

  2. Recently, David Lefkowitz (2020) has called this view Orthodox International Legal Positivism (OILP). As Lefkowitz describes it, OILP “holds that states are legally bound only by those standards to which they have explicitly or tacitly consented” (p. 54).

  3. For more on the nature of legal obligations, see Raz (2009), pp. 233–249.

  4. Henkin (1995), somewhat famously, has claimed that “State consent is the foundation of international law” (p. 27).

  5. Recently, Neff (2019) has articulated a more nuanced position which distinguishes between different “levels” of state consent in an effort to explain the increasingly large role international bodies such as the World Trade Organization play in international law-making.

  6. In the third edition of his seminal book, despite acknowledging that human dignity plays a “quasi foundational” role in International Human Rights Law (Donnelly, 2013, p. 121), Donnelly goes on to claim that “international law can be seen as a body of restrictions on sovereignty that have been accepted by states through the mechanisms of custom or treat” (p. 212).

  7. Among them, of course, are natural law theorists such as John Finnis, but this paper will largely set these sorts of objections aside (see Finnis 2011).

  8. See also Belgium v. Spain (1970) and the ruling in France v. Turkey (1927) from the ICJ’s predecessor court the Permanent Court of International Justice (especially paragraph 35).

  9. I return to this point in Section 3.

  10. For a similar observation, see also Buchanan (2008).

  11. Goldsmith and Posner (2005) argue there are considerable problems with the consent-based account even for commonly accepted norms of customary international law, including the 3-mile rule (23–43). See also D’Amato (1971).

  12. Of course, the 3-mile rule has subsequently been replaced by the United Nations Convention on the Law of the Sea (1982), but this is beside the point. My intention here is merely to illustrate the traditional story for identifying the conditions under which customary international law emerges.

  13. Even the International Law Commission admitted, after it released the draft article for jus cogens under the VCLT, that “there is no simple criterion by which to identify a general rule of international law as having the character of jus cogens” (2 Yearbook of the ILC (1966)). See also, G. Danilenko (1991).

  14. For more on examples of transnational law, see Ovide (2021) as well as Giudice and Scarffe (2021).

  15. For other examples of references to “human dignity” found in human rights documents (e.g., the Universal Declaration on Bioethics and Human Rights (2005)), see Roger Brownsword (2014).

  16. For an excellent article summarizing some of these relationships, as well as various understanding of dignity, see Beitz (2013).

  17. For instance, Louis Sohn (1982) claims that the whole of the ICCPR rose to the level of jus cogens.

  18. I note that Buchanan believes the International Human Rights Regime is not grounded in a strictly voluntarist, or consent-based, justification. Nevertheless, he argues that many of the functional features of the IHRL can be explained without reference to “human dignity.” See A. Buchanan (2013) 98–106.

  19. See also M. Nussbaum (2001); R. Dworkin (2011); M. Lagon and Arend A. (2014).

  20. Tiedemann (2020) puts this perhaps most plainly, writing that: “[w]e do not want to derive the principle of human dignity from human rights. Instead we search for the opportunity to derive human rights from the principle of human dignity” (73).

  21. This last point also distinguishes my method from Capps (2009), who more narrowly derives an understanding of dignity from the framework of IHRL.

  22. See R. Dworkin (1977), in particular “Model of Rules I”. See also R. Dworkin (1986), Law's Empire and J. Waldron (2012), p. 15.

  23. For a detailed analysis of the history of the separation thesis in legal positivism, see M. Giudice and E. Scarffe (2021).

  24. Including, but not limited to, L.M. Henry (2011), E. Daly (2011), M. Rosen (2012), and J. Waldron (2012).

  25. A few lines later, we also get a reference to the dignity of the sovereign qua state official, with the Court noting that the armed ship “constitutes part of the military force of her nation; acts under the immediate and direct command of the sovereign; is employed by him in national objects. His many powerful motives for preventing those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affecting his power and his dignity” (emphasis mine).

  26. To see evidence of this ambiguity, see Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992); Saudi Arabia v. Nelson, 507 U.S. 349 (1993); and EM LTD., Plaintiff-Appellant v. Republic of Argentina 473 F.3d 463 (2007).

  27. Hess v. Port Authority Trans-Hudson Corporation, 513 US 30, 115 S. Ct. 394, 130 L. Ed. 2d 245 (1994); Alden v. Maine, 527 US 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999); Federal Maritime Commission v. South Carolina State Ports Authority 535 US 743 (2002).

  28. For more on this case in particular, see V. Jackson (2004).

  29. See also E. Daly (2011); M. Rosen (2012); and J. Waldron (2012).

  30. To his credit, Endicott appears to be aware of this problem and attempts to buttress his account by appealing to something like Christiano’s and Besson’s constituency account (discussed momentarily). As Endicott (2010) writes, “International organizations are radically subsidiary, because unlike the British government, they do not have a general claim to act directly for the people of [Britain] in respect of any of their concerns” (p. 256).

  31. For a similar argument about the role of dignity in interpreting the 14th amendment of the US Constitution, see E. Scarffe (2022).

  32. Although Killmister ultimately advances a more sophisticated understanding of dignity, she appears to tacitly endorse the (quasi Kantian) relationship between dignity and autonomy as the one being relevant to international human rights law. See Killmister (2009) 160. See also S. Killmister (2017).

  33. Christiano discusses this as a “representative relationship”; nevertheless, I treat these independently derived accounts as substantively similar here. See T. Christiano (2010).

  34. Tasioulas makes a similar critique against attempts to ground human rights in political legitimacy more broadly. See J. Tasioulas (2013) p. 9.

  35. Thank you to an anonymous reviewer for raising this important objection to a previous draft of this paper.

  36. Recently, Gordley and Jiang (2020) have argued that this problem is persistent within contract law in general, not just at the level of international law.

  37. For other thorough accounts of the development of an understanding of the “dignity of states” in the USA, see J. Resnik and J. Chi-hye Suk (2003), A. Althouse (2000), P.J. Smith (2003), and J.L. Greenblatt (2008).

  38. See also Cooper, E.B. (2015) and Scarffe (2022).

  39. Notably, in a later paper, Luban (2015) explicitly rejects the “mirroring view”: where IHRL must necessarily mirror moral human rights. As such, Luban and I almost certainly agree more than we disagree on these issues, but nevertheless, I do not believe we must turn outside of the practices of international law to appreciate the connection between dignity and “humiliation.”

  40. United States — Import Prohibition of Certain Shrimp and Shrimp Products WT/DS58/AB/R/(1998).

  41. Ibid. paragraph 130.

  42. This final step distinguishes my view from Oscar Schachter (1983) who argues that dignity is best left to an intuitive understanding.

  43. In several places, both Buchanan and Besson endorse a similar understanding of international law as incompletely theorized. For instance, in defending IHRL, Buchanan (2008) argues that a “more accurate description of the current state of affairs is that the existing normative structure for the international legal order is incomplete […]” (p. 52). See also Besson (2016) p. 313.

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Correspondence to Eric Scarffe.

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Scarffe, E. Toward a Dignity-Based Account of International law. Jus Cogens 4, 207–236 (2022). https://doi.org/10.1007/s42439-022-00063-8

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