We argue that the idea of moral risk is necessary to understanding (a) the nature of certain morally significant relationships and their constitutive rights, duties, and responsibilities; and (b) the nature of (international) law and the character of legal rights, duties, and responsibilities. Moral risk is exposure to harmful normative change (normative change being change...
STRUCTURAL PRINCIPLES FOR PUBLIC INTERNATIONAL LAW
Traditional accounts of the ‘structural’ principles of international law are ‘positivistic‘ and ‘voluntarist‘, suggesting that: a) law and morality are conceptually distinct; and b) no international obligations can exist without state consent. Each paper in this panel challenges these orthodoxies in different ways. Whether by assessing the limits of legitimate democratic rule, the need to...
The Puzzle of States and their Territory
No state can emerge without territory. However, only states (and some similar entities) possess territorial title. This creates a puzzle: statehood cannot emerge only in response to the rights that it grounds. Maybe the capacity to possess title is a consequence of statehood, whilst control of territory is one of its antecedents? This achieves consistency...
What Value for Consensus? Human Rights, Normative Force, and Universality
The ECtHR sometimes relies on a notion of European consensus. Reasons why consensus is seen as important include values of identity, and democratic decision making. The question is to what extent relying on consensus is justified. I propose to understand the debate on the universality of international human rights as a relevantly similar concern about...
Thick and thin moralities and legitimacy in international adjudication – the case of the WTO
WTO adjudication faces a crisis of social legitimacy. I diagnose that crisis in terms of competing theories of interpretation, and thick and thin political moralities. WTO law‘s dominant self-image is as voluntarist-positivist treaty law, reflecting an implicit thin international political morality. Interpretation is exclusively a matter of textual analysis complemented by originalist intent. Yet text...