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Dworkin on International Law: Not Much of a Legacy?

Published online by Cambridge University Press:  01 July 2015

Miodrag A. Jovanović
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Abstract

Dworkin’s proposal for a new philosophy of international law shares all the important features of his latest stage of philosophizing about domestic law. As a derivative theory, however, it faces not only the same problems as the original position, but some new ones as well. This paper focuses on three problems. First, already Dworkin’s exposition of the international legal regime of human rights, which is briefly analyzed in the paper, suffers from the ill-treatment of sovereignty, insofar as it is equated with the outdated Westphalian conception. Furthermore, Dworkin’s attempt to ground human rights in value monism opens a number of intricate philosophical and practical issues. At the general plane of international law, this theoretical proposal becomes even more vulnerable. Second, Dworkin’s moral reading of international law makes a revolutionary discontinuity with the developed institutional practices and standards of the international community, which is within his own theory considered as one of the key features of legality. Finally, Dworkin’s proposal is profoundly futuristic and utopian. It is no more about the claim that ‘law as it is’ needs to be assessed in light of ‘law as it ought to be’, according to some inherent standards of political morality of a given political community, but in light of some law that might develop in the distant future. The paper concludes by noticing that if Dworkin’s ‘interpretivist’ theory is to be employed in the area of international law, it would have to be along some different lines than the ones proposed by Dworkin himself.

Keywords

Dworkininternational lawhuman rights
Type
Discussion
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Canadian Journal of Law & Jurisprudence , Volume 28 , Issue 2 , July 2015 , pp. 443 - 460
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2015 

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References

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2. Ibid at 806.

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10. Ibid at 204. In his earlier works, Dworkin spoke of “the principle of intrinsic value” and “the principle of personal responsibility”. Dworkin, Is Democracy Possible Here?, supra note 8 at 9-10.

11. Ibid at 33. Yet, in a highly provocative article, “The Right to Ridicule”, regarding the Muhammad cartoon controversy, Dworkin invites the European Court of Human Rights to abandon its practice and surrender to the US-style interpretation of freedom of speech, which apparently captures the best-light meaning of this freedom. See Dworkin, Ronald, “The Right to Ridicule” (2006) 53:5 The New York Review of Books.Google Scholar

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19. For other works from authors in this camp, whom Dworkin explicitly mentions, see Beitz, Charles R, The Idea of Human Rights (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar; Rawls, John, The Law of Peoples: with “The Idea of Public Reason Revisited” (Cambridge: Harvard University Press, 1999).Google Scholar

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25. Waldron admits that in its clearest form it cannot be attributed to any of the proponents of a political conception of human rights. Interestingly enough, he does not mention Dworkin’s account, and instead focuses on Beitz, Raz and Rawls. He argues that Rawls comes closest to the “Armed Intervention View”. Jeremy Waldron, “Human Rights: A Critique of the Raz/Rawls Approach”, Public Law & Legal Theory Research Paper Series: Working Paper No 13-32 (Faculty of Law, New York University, 2013) at 4, online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2272745. For Raz’s response, see Joseph Raz, “On Waldron’s Critique of Raz on Human Rights”, Public Law & Legal Theory Working Paper Group: Paper No 13-359 (Faculty of Law, Columbia University, 2013), online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2307471.

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38. Ibid at 11.

39. Ibid at 7.

40. Ibid at 13.

41. Later, he offers the guidelines for the emergence of an “international legislative body with sufficient jurisdiction to solve the great coordination problems that every nation now confronts.” Ibid at 27-29.

42. Ibid at 14.

43. By “associative” or “communal obligations” Dworkin means “the special responsibilities social practice attaches to membership in some biological or social group, like the responsibilities of family or friends or neighbors.” Since people normally conceive of those responsibilities as not necessarily being a matter of choice or consent, special political obligations can be also construed as associative obligations. Dworkin, Ronald, Law’s Empire (Cambridge: Harvard University Press, 1986) at 196 [Dworkin, Empire].Google Scholar

44. Dworkin, “A New Philosophy”, supra note 3 at 16-17.

45. Ibid at 17.

46. Ibid.

47. Ibid at 18.

48. Ibid at 19.

49. Ibid at 21.

50. Ibid at 22.

51. Ibid at 22-27.

52. For an attempt to further develop this position, admittedly along the lines that sometimes go beyond what was said in Justice for Hedgehogs, see Waldron, Jeremy, “Jurisprudence for Hedgehogs”, Public Law & Legal Theory Research Paper Series: Paper No 13–45 (Faculty of Law, New York University, 2013) at 1-28, online: SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290309.Google Scholar

53. This is what Austin, Hart and Kelsen did in their theories. For more detail, see Jovanović, Miodrag, “Revisiting the Concept of International Law:—On Methodological Aspects” (Paper delivered at the Methodology of Legal Theory Conference, Zagreb, 29 November 2013).Google Scholar

54. Çali, supra note 1 at 822. Besson and Tasioulas have recently brought an even stronger claim. Namely, that the state-centered features of a legal system that ought to be exhibited at the international level for there to be international law are not in themselves “immune to theoretical challenge.” Consequently, if the criteria of the concept of law used at the domestic level are not met at the international level, “it may not (only) be a problem for the legality of international law, but (also) for those criteria themselves and hence for a given legal theory.” Besson, Samantha & Tasioulas, John, “Introduction” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010) 1 at 8.Google Scholar

55. This question “is crucial because how these rules and principles should be interpreted hinges on it.” Dworkin, “A New Philosophy”, supra note 3 at 3.

56. Dworkin, Justice in Robes, supra note 31 at 169. “That value insists that the coercive power of a political community should be deployed against its citizens only in accordance with standards established in advance of that deployment.” Ibid at 172.

57. Ibid at 178.

58. Ibid at 183.

59. Ibid at 184.

60. That is, Dworkin’s moral concern for individuals is mediated by the role of states in the organization of political life. This is the reason Thomas Christiano in his paper “Dworkin on State Consent” (Paper delivered at the McMaster Philosophy of Law Conference: The Legacy of Ronald Dworkin, Burlington, ON, 2014) charges Dworkin’s new philosophy regarding international law for being anti-cosmopolitan.

61. This contentious point seems to imply some sort of legal monism which Dworkin does not elaborate in detail.

62. Çali, supra note 1 at 818. Shaw notices that, despite the proliferation of international human rights instruments, which “have enabled individuals to have direct access to international courts and tribunals”, individual actors “as a general rule lack standing to assert violations of international treaties in the absence of a protest by the state of nationality”, Shaw, Malcolm N, International Law, 5th ed (Cambridge: Cambridge University Press, 2003) at 233.CrossRefGoogle Scholar

63. Dworkin, “A New Philosophy”, supra note 3 at 14.

64. Ibid at 11.

65. These obligations flow from a particular nature of individuals’ group relations:

First, they must regard the group’s obligations as special, holding distinctly within the group, rather than as general duties its members owe equally to persons outside it. Second, they must accept that these responsibilities are personal: that they run directly from each member to each other member, not just to the group as a whole in some collective sense.… Third, members must see these responsibilities as flowing from a more general responsibility each has of concern for the well-being of others in the group…. Fourth, members must suppose that the group’s practices show not only concern but an equal concern for all members.

Dworkin, Law’s Empire, supra note 43 at 199-200.

66. Jeske, Diane, “Special Obligations” in Zalta, Edward N, ed, The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), online: Stanford Encyclopedia of Philosophyhttp://plato.stanford.edu/archives/spr2014/entries/special-obligations/.Google Scholar

67. Dworkin, Taking Rights Seriously, supra note 5 at 91, n 1.

68. “My own view is that only individuals have political rights, though these rights include a right not to be discriminated against because they are members of some group and may also include a right to benefits in common with other members of their group—a right, for instance, that legal proceedings be available in their group’s language. However, I shall not pursue this question here. My argument holds equally for group political rights if there are any.” Dworkin, Hedgehogs, supra note 4 at ch 15, n 1.

69. Dworkin, “A New Philosophy”, supra note 3 at 17.

70. Ibid at 19.

71. Krasner, Stephen D, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999) at 3–4.Google Scholar

72. He defines this situation as one “in which institutional norms are enduring but frequently ignored.” Ibid at 66.

73. Laski famously argued as early as 1917 that “there is nothing absolute and unqualified about” sovereignty and that it is “a matter of degree.” Laski, Harold J, Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917) at 17.Google Scholar

74. This is evident from the very titles of recent books in the field, such as, Neil Walker, ed, Sovereignty in Transition (Oxford: Hart, 2003); Jacobsen, Trudy, Sampford, Charles &Thakur, Ramesh, eds, Re-envisioning Sovereignty: The End of Westphalia? (Aldershot, UK: Ashgate, 2008)Google Scholar; Kalmo, Hent & Skinner, Quentin, eds, Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (Cambridge: Cambridge University Press, 2010). Dworkin does not refer to any of these contemporary treatises in his works.CrossRefGoogle Scholar

75. Donnelly, Jack, “State Sovereignty and Human Rights”, online http://mysite.du.edu/∼jdonnell/papers/hrsov%20v4a.htm.Google Scholar

76. Ibid.

77. Koskenniemi, Martti, “What Use for Sovereignty Today?” (2011) 1:1 Asian Journal of Int’l Law 60 at 70Google Scholar. Cf Christopher J Bickerton, Philip Cunliffe & Alexander Gourevitch, “Politics without Sovereignty?” in Christopher J Bickerton, Philip Cunliffe & Alexander Gourevitch, eds, Politics without Sovereignty: A Critique of Contemporary International Relations (London: University College London Press, 2007) 20.

78. International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (Report of the Study Group of the International Law Commission, finalized by Martti Koskenniemi), UNGAOR, 2006, UN Doc at para 15.

79. The MOX Plant case, Provisional Measures (Ireland v the United Kingdom), [2001] ITLOS Case No 10 at para 51, online: International Tribunal for Law of the Sea https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_10/Order.03.12.01.E.pdf.

80. International Law Commission, supra note 78 at para 12.

81. Dworkin, “A New Philosophy”, supra note 3 at 22.

82. Çali, in that respect, notices that an interpretivist theory of international law “has to appeal to different values because of the kinds of concerns it responds to and the kinds of relationships it regulates.” Çali, supra note 1 at 822.

83. Such is, at moments, Dworkin’s interpretation of Article 2(4) of the UN Charter concerning the Kosovo case. Dworkin, “A New Philosophy”, supra note 3 at 22ff. Moreover, some elements of the proposed alternative interpretation directly contradicts his general concern about the value of legality. Dworkin notices that “it is central to legality” that all decisions of the norm application are “guided and justified by standards already in place, rather than by new ones made up ex post facto.” Dworkin, Justice in Robes, supra note 31 at 183. Yet, in the controversy surrounding the Kosovo case from 1999, Dworkin’s new interpretative route relies largely on the “generally favorable reception” of the R2P doctrine, which came only after 2001. Dworkin, “A New Philosophy”, supra note 3 at 24. I have elsewhere demonstrated that the UN adoption of the R2P was considered an act of clear discontinuity with the practice of unilateral humanitarian interventions of the Kosovo style. See Jovanović, “Responsibility to Protect”, supra note 27. Accordingly, Dworkin’s employment of the R2P argument in the interpretation of the Kosovo case can be only qualified as an illegitimate endorsement of ex post facto standards.

84. Dworkin, “A New Philosophy”, supra note 3 at 14.

85. Ibid at 29.

86. Dworkin believes that his proposal is not unrealistic, because, first, “even powerful nations now claim to defer to international law”, and, second, “a time may come, sooner than we suppose, when the need for an effective international law is more obvious to more politicians in more nations than it is now.” Ibid at 15. However, Dworkin’s proposal may not only be unrealistic, but also be harmful for the future of international law. Chilton warns that if Dworkin’s interpretative strategy was taken seriously by international tribunals, “it would run the very serious threat of causing states to be unwilling to negotiate robust agreements in the future.” Namely, Dworkin holds that sources of international law are to be interpreted to enable robust checks against state sovereignty, even if states did not initially give consent to that agreement. However, “if states begin to be held to more demanding standards than they thought had previously been agreed upon, in future negotiations those states would have strong reasons to block even weak language in international agreements to avoid it being held against those states later on.” Chilton, Adam S, “A Reply to Dworkin’s New Theory of International Law” (2013) 80 University of Chicago L Rev Dialogue 105 at 113–14.Google Scholar

87. Buchanan, Allen E, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004) at 61.Google Scholar

88. Dworkin, “A New Philosophy”, supra note 3 at 15.

89. Ibid at 7. Cf Miodrag Jovanović, “Interpretation in International Law and International Rule of Law: Any Lesson for Jurisprudence?” in Miodrag Jovanović & Kenneth Einar Himma, eds, Courts, Interpretation, the Rule of Law (The Hague: Eleven International, 2014) at 33-55.

90. Ibid at 30.

91. Drawing inspiration from the 19th century German tradition in theorizing international law, Kelsen postulated his “identity thesis”, according to which the state is nothing more than the central point of imputation for all acts of its organs. It is merely a “personifying fiction” of the prevailing legal doctrine. Hans Kelsen, Das problem der souveränität und die theorie des völkerrechts (Tübingen: JCB Mohr (P Siebeck), 1920) at 18. According to von Bernstorff, “[t]he ‘identity thesis’ became the pivotal point in the sought-after revision of the conceptual apparatus of international law.” Jochen von Bernstorff, The Public International Law Theory of Hans Kelsen: Believing in Universal Law, translated by Thomas Dunlap (New York: Cambridge University Press, 2010) at 50.

92. Besson, Samantha, “Sovereignty, International Law and Democracy” (2011) 22:2 EJIL 373 at 377.Google Scholar

93. Besson & Tasioulas, “Introduction”, supra note 54 at 4.

94. Çali, supra note 1 at 815.

95. “The call of interpretivism for international legal theorists is to engage in the systematic analysis of the very meaning of the values and procedures to identify the best justification in the face of competing values.” Ibid at 816.

96. Ibid at 819. She further notices that devising an adequate conception of legality requires taking into account “the distinct value of international law as the framework for regulating conduct in international relations.” Ibid at 822.

97. Ibid at 820.

98. Ibid at 821.

99. Ibid at 822.