The Doctrine of Fundamental Rights of States and Anthropomorphic Thinking in International Law

4 Cambridge Journal of International and Comparative Law (2015)

Amsterdam Law School Research Paper No. 2015-38

Amsterdam Center for International Law No. 2015-18

20 Pages Posted: 2 Oct 2015 Last revised: 4 Sep 2016

See all articles by Jean d'Aspremont

Jean d'Aspremont

Sciences Po Law School; University of Manchester - School of Law

Date Written: October 1, 2015

Abstract

This article recalls the various manifestations of the anthropomorphic doctrine of the fundamental rights of states with a view to critically examining the various functions of anthropomorphic thinking in international law. This allows the article to provide some critical insights on the remnants of the doctrine of fundamental rights of states and the role played by those anthropomorphic residues in contemporary international law. This article is built on a diachronic examination of the functional changes which the doctrine of fundamental rights of states underwent since its origin. This article, after some introductory considerations on the relations between rights and anthropomorphic thinking, examines how anthropomorphic thinking materialised in the form of a doctrine of fundamental rights of states and came to thrive in international legal thought. The article then turns to the manifestation of the doctrine of fundamental rights of states in the inter-American and United Nations contexts with a view to shedding light on the functions that such positive rules pertaining to the fundamental rights of states were meant to play in the international legal order. The article subsequently discusses the demise of the classical doctrine of fundamental rights of states and the foundering of the codification process in order to examine the role that the remains thereof are meant to play in contemporary international law. It ends with a few concluding remarks on the ubiquity of anthropomorphic thinking about international law. Throughout this examination of the functions of the anthropomorphic doctrine of fundamental rights of states, this article espoused the view that, in of contemporary legal argumentation, the notion of fundamental right of state does not constitute any autonomous construction to which specific legal effects are ascribed but rather a textual package of contestation and resistance.

Keywords: History of International Law, Fundamental Rights, Rights of States, Anthropomorphism, Self-Defence, Statehood, Montevideo Convention on the Rights and Duties of States, peremptory norms, jus cogens, International Law Commission

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, The Doctrine of Fundamental Rights of States and Anthropomorphic Thinking in International Law (October 1, 2015). 4 Cambridge Journal of International and Comparative Law (2015) ; Amsterdam Law School Research Paper No. 2015-38; Amsterdam Center for International Law No. 2015-18. Available at SSRN: https://ssrn.com/abstract=2668119

Jean D'Aspremont (Contact Author)

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

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