Whose Public? Which Law? Mapping the Internal/External Distinction in International Law

SANCTIONS, ACCOUNTABILITY AND GOVERNANCE IN A GLOBALISED WORLD, Jeremy Farrell and Kim Rubenstein, eds., Cambridge University Press, 2009

U of Maryland Legal Studies Research Paper No. 2010-38

Posted: 20 Aug 2010

See all articles by Peter Danchin

Peter Danchin

University of Maryland Francis King Carey School of Law

Abstract

This chapter challenges and problematizes the convergence thesis between sovereignty and human rights which is argued to rest on only a partial understanding of the liberal tradition in international law, a position commonly referred to as “liberal anti-pluralism.” While relying on a contingent and thus contestable conception of individual autonomy, liberal anti-pluralist accounts do not in fact seek to challenge the rationale for public law or public reason itself. To the contrary, such accounts advance a vision of “universal” or “global” social order governed by a “neutral” public law which limits the freedom of its subjects pursuant to the single “trumping” or “covering” value of individual freedom itself. The difficulty with such a conception of social order, however, is that it now itself poses a danger to freedom and diversity by threatening to eviscerate the law’s existing limits on the demands of international social order on the liberty of its subjects. It does so by effectively eliminating the public-private distinction and by redefining fundamental rights to mean only, or ultimately, the rights of autonomous individuals. On this view, the very idea of sovereignty as a mediating device between a wide diversity of “private” or “national” political communities and ways of life and a “public” or “inter-national” community dissolves ultimately to be replaced by a universal or global law. Similarly, the idea of collective subjects as rights-holders - whether “peoples,” “nations,” or “minorities” asserting various claims rights to self-determination - is rejected, or at least premised on the notion that the rights of groups are derivative of or contingent on the rights of their members. On this view, sovereignty becomes a human right and thereby loses its traditional intersubjective and value pluralist function in international law: i.e., to maintain the conditions necessary for peaceful coexistence between different ways of life as opposed to their merging into that single form of life we have known since at least the late nineteenth century as civilization. The chapter considers how to make sense of these distinctions and asks whether the problem may be that, in order to justify and maintain these oppositions, we need to qualify liberal theory by something other than itself. If so, what are the implications of this insight for both national and international public law?

Keywords: states' rights, individual rights, public international law

Suggested Citation

Danchin, Peter G., Whose Public? Which Law? Mapping the Internal/External Distinction in International Law. SANCTIONS, ACCOUNTABILITY AND GOVERNANCE IN A GLOBALISED WORLD, Jeremy Farrell and Kim Rubenstein, eds., Cambridge University Press, 2009, U of Maryland Legal Studies Research Paper No. 2010-38, Available at SSRN: https://ssrn.com/abstract=1662569

Peter G. Danchin (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

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