Sovereign equality and moral disagreement : premises of a pluralist international legal order / Brad R. Roth.
2011
KZ4041 .R683 2011 (Map It)
On loan from Cellar, due 31. Aug 2025
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Details
Author
Title
Sovereign equality and moral disagreement : premises of a pluralist international legal order / Brad R. Roth.
Published
Oxford ; New York : Oxford University Press, [2011]
Copyright
©2011
Call Number
KZ4041 .R683 2011
ISBN
9780195342666 (hbk. : alk. paper)
0195342666 (hbk. : alk. paper)
0195342666 (hbk. : alk. paper)
Description
x, 303 pages ; 25 cm
System Control No.
(OCoLC)708243791
Summary
"In Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order, Professor Brad R. Roth provides readers with a working knowledge of the various applications of sovereign equality in international law, and defends the principle of sovereign equality as a morally sound response to disagreements in the international realm. The United Nations system's foundational principle of sovereign equality reflects persistent disagreement within its membership as to what constitutes a legitimate and just internal public order. While the boundaries of the system's pluralism have narrowed progressively in the course of the United Nations era, accommodation of diversity in modes of internal political organization remains a durable theme of the international order. This accommodation of diversity underlies the international system's commitment to preserving a state's territorial integrity and political independence, sometimes at the expense of efforts to establish a universal justice that transcends territorial boundaries. Efforts to establish a universal justice, however, need to heed the dangers of allowing powerful states to invoke universal principles to rationalize unilateral (and often self-serving) impositions upon weak states. In Sovereign Equality and Moral Disagreement, Brad R. Roth explains that though frequently counterintuitive, limitations on cross-border exercises of power are supported by substantial moral and political considerations, and are properly overridden only in a limited range of cases"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Acknowledgments
Ix
1.
A Different Sovereignty Discourse: Sovereign Equality As A Response To Disagreement
3
I.
Sovereignty Discourses
3
II.
Why Invoke The Language Of Sovereignty?
6
III.
Neither Moral Relativism Nor Natural Justice: Sovereignty Equality As A Legal Response To Moral Disagreement
11
IV.
The Equal Sovereignty Of Weak States
13
V.
Human Rights As A Shield, Or A Sword?
15
VI.
The Way Forward
17
2.
The Project Of International Legal Order
19
Introduction
19
I.
Moral And Practical Considerations In The Crafting Of Legal Standards
23
II.
Moral And Practical Considerations In Adjudication Of International Law
32
A.
Positivism, Naturalism, And The Sources Of International Law
32
B.
The Juridical Role
37
C.
The Nature Of Public Law
39
II.
Moral Obligations To Comply With Existing International Law
42
A.
The Obligation To Obey Law As Such
42
B.
The Obligation To Obey International Law As Such
44
C.
Overcoming The Presumption: Moral Justifications For Breach
50
Conclusion
52
3.
The International. Law Of Sovereign Equality
53
Introduction
53
I.
The Many Meanings Of Sovereignty
57
A.
Sovereignty As An Empirical Condition
58
B.
Sovereignty As A Policy Imperative
60
C.
Sovereignty And Domestic Legality
62
D.
Sovereignty And International Legality: The Sovereign Equality Regime
67
II.
The Persistence Of "Antiquated" Sovereignty Within International Law
69
A.
The Recognized Sources Of Law
70
B.
The Interface Between The International And Domestic Legal Systems
71
C.
The Fundamental Stricture Against Coercive Intervention
77
III.
Self-Determination And Non-Intervention
80
A.
Popular Sovereignty And Effective Control
81
B.
Peoples And Territorial Units
85
IV.
Assertions Of Normative Hierarchy In International Law
88
Conclusion
91
4.
Global Pluralism And Conflicting Political Moralities
93
Introduction
93
I.
The Elusive Consensus On Universal Norms
95
II.
Culture-Based Pluralisms
98
A.
Walzer And Rawls
98
B.
Rejecting Culture-Based Pluralism
100
III.
The Moral Justification Of A Non-Culture-Based Pluralism
103
A.
Collective Self-Determination And Moral Disagreement
103
B.
The Moral Significance Of The State
107
1.
Deontological Liberalism And The Moral Devaluation Of The State
107
2.
Compulsory Collective Decisions And The Conditions Of Human Flourishing
111
3.
Proliferating Rights, Clashing Duties, And Political Decisions
115
C.
Pluralism At The Far End: Political Conflict And The Physical Integrity Of The Person
117
D.
Patriotism And The Duty To Uphold A Community's Political Independence
121
IV.
Moral Disagreement As The Foundation Of A Pluralist Global Order
124
A.
The Moral Implications Of Disagreement
124
B.
The Policy Justification Of A Non-Culture-Based Pluralism
126
C.
The Legal Terms Of A Bounded Pluralism
128
Conclusion
130
5.
Reconciling The Non-Intervention Norm With The "Responsibility To Protect"
133
Introduction
133
I.
The Challenge To The Premises Of The Charter Peace And Security System
135
II.
Rationalizing The Use Of Force Outside The Charter Framework: Three Jurisprudential Approaches
143
A.
Bending The Law: Policy-Oriented Jurisprudence
144
B.
Breaking The Law: Positivism For Moralists
151
C.
Humanitarian Intervention And The Progressive Development Of The Law
157
III.
Overselling The Responsibility To Protect: The Dangers Of Disparaging Constraints On Empowered Moralism
162
Conclusion
167
6.
Secessions, Coups, And The Effective Control Doctrine
169
Introduction
169
I.
Effective Control And The Assessment Of Secession Questions
172
A.
"Recognition" And International Legal Status: Constitutive And Declaratory Approaches
172
B.
Effectivity As An Aspect Of The Traditional Criteria Of Statehood
174
C.
Self-Determination Of Peoples In Non-Colonial Contexts
181
D.
Nonconsensual Dissolution Of Federal States: The Badinter Improvisation
186
E.
Kosovo And Beyond: The Inevitability Of Ad Hoc Responses To Secession Crises
193
II.
Effective Control And The International Status Of Coup Regimes
200
A.
Popular Sovereignty, Ideological Pluralism, And The Effective Control Doctrine
200
B.
Toward A Doctrine Of Governmental Illegitimacy In International Law
205
The Haiti And Sierra Leone Cases
205
C.
The Anti-Coup Proclamations Of Regional Organizations
208
D.
The New Wave Of Rejection Of Coup Regimes: Honduras And Madagascar
213
Conclusion
218
The Decline Of The Effective Control Doctrine And The Absence Of A Coherent Substitute
218
7.
Coming To Terms With Ruthlessness: State Sovereignty And International. Criminal Law In Domestic Courts
221
Introduction
221
I.
Impunity As A Dirty Word
224
II.
Championing Legality In A Ruthless World
229
III.
Law And Morality In Retrospective And Extraterritorial Prosecution
235
A.
Positivism, Naturalism, And The Rule Of Law
235
B.
Nullum Crimen Sine Lege
241
C.
Jurisdictional Limitations And Immunity Ratione Materiae
244
D.
The Doctrine Of Strict Interpretation (Lenity)
246
IV.
Extraordinary Circumstances: Rule-Of-Law Standards In Judging The Unrechtsstaat
252
V.
International Legality And The Criminalization Of Ordinary Human Rights Violations
261
Conclusion
270
8.
Concluding Observations: The Enduring Need For A Pluralist Global Legal Order
273
Introduction
273
I.
Eschewing Liberal-Democratic Norms As The Basis For Acknowledging State Authority
275
II.
Locating Anti-Impunity At The Periphery, Not The Core, Of The International Legal Order
283
A Final Word
289
Table Of Cases
291
Index
293