Richard Collins | Queen's University Belfast (original) (raw)
Papers by Richard Collins
Proceedings of the Annual Meeting American Society of International Law, 2008
Global Constitutionalism
The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambi... more The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the 'basis of association' in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of 'global governance'.
Revista Española de Derecho Internacional, 2019
forthcoming in V Ruiz Abou-Nigm, K McCall-Smith and D French, Linkages and Boundaries in Private ... more forthcoming in V Ruiz Abou-Nigm, K McCall-Smith and D French, Linkages and Boundaries in Private and Public International Law (Hart 2018)
Pre-proof draft of forthcoming editorial in Volume X of the Irish Yearbook of International Law
Introduction to The Institutional Problem in Modern International Law (Hart, 2016) Abstract Mode... more Introduction to The Institutional Problem in Modern International Law (Hart, 2016)
Abstract
Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focused on international law's peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this ‘institutional problem’ has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believe that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law’s decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory than in practice.
Draft chapter, open to comments, to be included in S Besson and J d'Aspremont (eds), Oxford Handb... more Draft chapter, open to comments, to be included in S Besson and J d'Aspremont (eds), Oxford Handbook on the Sources of International Law (OUP, forthcoming)
Journal of Conflict and Security Law, 2008
International Organizations Law Review, 2010
The concept of the ‘legal official’ is one of the most under-theorised yet critical explanatory e... more The concept of the ‘legal official’ is one of the most under-theorised yet critical explanatory elements of modern analytical jurisprudence. However, it is also a term beset by conceptual uncertainty and functional ambiguity. In fact, as commonly employed by analytical theorists, it seems to function merely as a boot-strapping device, relinquishing the need to justify the kind of pre-legal hierarchy or constitutional authority commonly found at the state level. This reliance on officialdom is particularly problematic bearing in mind that the lack of any such hierarchies at the international level has been the cause of constant scepticism as to the reality and efficacy of international law as a legal system. Recognising the specific functional benefits which officials bring to the task of law within the state, however, offers up two methodological conclusions: first, that the theorist cannot simply presume, a priori, that legal officials are necessary without a coherent normative defence of the perceived functions of law upon which this justification stands; second, that any view of law’s function and important institutional features must still be informed by a more genuinely global empiricism.
In a tribute to James Leslie Brierly (1881-1955) published in the British Yearbook of Internation... more In a tribute to James Leslie Brierly (1881-1955) published in the British Yearbook of International Law shortly after his death, Hersch Lauterpacht (1897-1960) described the late jurist’s greatest contribution to international law in having adopted what he termed ‘a progressive conception of international law’. In many respects, it is clear that Lauterpacht shared in this conception of international law. Most obviously, despite disagreement on one or two ‘fundamentals’, both jurists shared many similar commitments, which we might position towards the liberal-reformist end of the disciplinary spectrum – for instance, their aversion to a strictly positivist and State-centric approach to international law, as well as their belief that, ultimately, the individual human being stood centre stage as the primary subject of international law. However, it is really in terms of their method and core understanding of the role of the international lawyer in shaping international law doctrines that both jurists should be considered together as developing a progressive agenda. Indeed, insofar as both jurists emerged during the interbellum period – an era described by Lauterpacht himself as ‘a period of transition and reassessment of values’ that ‘witnessed radical changes in the doctrine of international law’ – the enduring influence of both lies in the path that they are able to steer between the moral certainties of international law’s historical origins, and the more sceptical modernity of the years that followed. It is this careful approach that makes both true progenitors to the kind of progressive internationalism which has become a hallmark of more ‘mainstream’ approaches to international law today. In this chapter, therefore, I give an account of Lauterpacht and Brierly’s method and approach, positioning it as a particular product of the disappointment and upheaval witnessed in the interbellum period.
Forthcoming in R McCorquodale and J-P Gauci (eds), British Influences on International Law 1915-2015 (Brill, 2016)
Call for Papers: "Europe’s Shared Burden: Collective Responsibility for Migrants at Sea" - An Int... more Call for Papers: "Europe’s Shared Burden: Collective Responsibility for Migrants at Sea" - An Interdisciplinary Workshop
Friday 9th and Saturday 10th October 2015
University College Dublin
UCD Sutherland School of Law welcomes paper proposals for its eighteenth Irish European Law Forum, addressing the topic of “Europe’s Shared Burden: Collective Responsibility for Migrants at Sea”, to be held on 9th and 10th October 2015 at University College Dublin. The workshop aims to foster a strong interdisciplinary focus in order to better understand and critically engage with the concept of collective responsibility in the context of irregular maritime migration. In this respect, we hope to encourage contributions from law, politics, philosophy, as well as other cognate social and human science disciplines. We are also delighted to have keynote addresses from both Peter Sutherland, UN Special Representative for International Migration and Guy S. Goodwin-Gill, Professor of International Refugee Law, University of Oxford (TBC).
Deadline: Friday 26 June 2015
Further details, including submission requirements and timeline are available here: bit.ly/1dj0aND and included in the attached PDF document.
It has been common in recent years to contrast modern and classical international law-making, dep... more It has been common in recent years to contrast modern and classical international law-making, depicting the former as dynamic and heterogeneous, and the latter, as state-centric and “doctrinal.” This doctrinal image is characterized as state-centric both in terms of the actors involved in rule-making processes and the nature of the rules themselves. In short, an actor’s ability to make law is limited by their international legal personality, whilst the rules which result have legal “pedigree” only if traceable to one or more of the formal sources of international law. Accordingly, doctrinal understandings are often depicted negatively as cementing the hegemony of the state as (almost) the sole international law-maker. However, the argument that I wish to defend in this paper is that these kinds of characterization of doctrinal approaches not only fail to grasp the openness of international law to other actors as participants in international law-making processes, but also miss what is important about doctrine in the context of international law.
Accordingly, the central question posed in this paper is how international law should accommodate the increasingly complex array of actors involved in normative standard setting (rule-making) within the international legal system, including how it absorbs or understands the nature of those rules themselves. In particular, I want to consider to what extent one can retain a formalist (doctrinal) understanding of the subjects and sources of international law yet at the same time account for the array of actors involved in post-national rule-making. I will argue that any attempt to absorb within international law the range of actors and forms of normativity that exist as a result of the increasing “institutionalization” that has occurred throughout the twentieth and twenty-first centuries creates a significant tension between legal form and function, particularly with regard to the roles which many of these regimes and institutions have come to fulfil within the international system. Nevertheless, I will argue that this tension between form and function is an important part of securing some measure of legal accountability in a decentralized legal order such as international law.
Nordic Journal of International Law (forthcoming), 2014
For many years now international law has been broadly understood as an autonomous system of posit... more For many years now international law has been broadly understood as an autonomous system of positive legal rules, similar in nature, though importantly not in structure, to the law that exists in most state-based legal systems. Nevertheless, this structural distinction -the lack of centralised institutions of a judicial, executive or legislative nature -appears to undermine this claim to autonomy to a significant degree, blurring the boundary between the legal subject and the legal official, the participant and the observer. The ultimate effect of this structural condition is a greater level of uncertainty not only as to what the rules are, but also how those rules should be interpreted, applied or understood in relation to one another. 1 At a simplistic level, much of this uncertainty arises from the fact that different international legal participants are using the law to pursue distinct purposes. At a more fundamental level, however, we might also say that such participants have different, often conflicting understandings as to what international law is and, importantly, what it is for. 2 As a result of this structural condition, therefore, there has been recurrent scepticism over the course of the last two centuries, questioning and challenging the idea of international law as an autonomous system, i.e. one in which law can (in theory at least) be identified, understood and applied in isolation of the particular interests and normative pursuits of those who participate in the international legal system (whether states, non-state actors, international lawyers, or other commentators). In fact, much of 20 th and 21 st century international law has been characterised by a tradition of 'anti-formalism,' stressing the creative role of the legal academic, and their projection of the normative purpose of international law, as crucial to the particular nature of international law as a professional practice.
Modern international law has an inseparable, yet uneasy connection to the analytical tradition in... more Modern international law has an inseparable, yet uneasy connection to the analytical tradition in jurisprudence, yet the two have not been easy bedfellows. International lawyers have struggled to find a convincing account of the legality of the object of their study, largely retreating into pragmatism, whilst legal theorists have marginalised the study of international law as a result. In this article, however, I will consider recent hopes for a reengagement between the two disciplines, brought about by a growing dissatisfaction with the disciplinary scope and coherence of both fields. In particular, I draw on recent work by the international lawyer, Patrick Capps, challenging post-Hartian conceptual theory, and instead defending a more purposive, evaluative account of international law. Whilst I am sympathetic to this aim, I will show why Capps' aprioristic account of law as aimed at the protection of human dignity results in an account of legal practice which both distorts reality and, in any event, ends up subordinating the international legal order again as a deviant exception to a more perfect domestic paradigm.
International Organizations and the Idea of Autonomy is an exploratory text looking at the idea o... more International Organizations and the Idea of Autonomy is an exploratory text looking at the idea of intergovernmental organizations as autonomous international actors. In the context of concerns over the accountability of powerful international actors exercising increasing levels of legal and political authority, in areas as diverse as education, health, financial markets and international security, the book comes at a crucial time. Including contributions from leading scholars in the fields of international law, politics and governance, it addresses themes of institutional autonomy in international law and governance from a range of theoretical and subject-specific contexts. The collection looks internally at aspects of the institutional law of international organizations and the workings of specific regimes and institutions, as well as externally at the proliferation of autonomous organizations in the international legal order as a whole. Although primarily a legal text, the book takes a broad, thematic and inter-disciplinary approach. In this respect, International Organizations and the Idea of Autonomy offers an excellent resource for both practitioners and students undertaking courses of advanced study in international law, the law of international organizations, global governance, as well as aspects of international relations and organization.
Leiden Journal of International Law, Jan 1, 2009
The future of international law is uncertain. The long-hoped-for revitalization of international ... more The future of international law is uncertain. The long-hoped-for revitalization of international law and its institutional structures following the end of the Cold War now seems at risk from an increasing deformalization of, and neo-liberal disregard for, international law. Meanwhile European international lawyers are responding by reasserting a Kantian project for a global constitution under an international rule of law. In this article I attempt to position these recent claims that the international legal order is undergoing a process of constitutional transformation in the context of a long-standing connection, since at least the post-revolutionary nineteenth century, between the idea of a positive international law and the emerging structures of the European constitutional nation-state. If one can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law's promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law's embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy. In tracing similarities in concerns from the nineteenth century to the twenty-first, as well as repetitions in legal arguments, I suggest that the alternatives of American empire and a (European) vision of global constitutionalism are merely necessary oppositions, reflecting this broader tension underlying the discipline. Because lawyers avoid clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is a mainstream, liberal-juridical consciousness – rather than any explicit legal theory – which continues to sustain shared assumptions about international law's past, as well as a promise of a future liberal world order. The apparently opposing visions of future world order are merely different sides of the same coin: each reflecting back, but each ultimately sustained by the other.
Books by Richard Collins
by Sahib Singh, Jean d'Aspremont, Richard Collins, Ntina Tzouvala, Onur Ulas Ince, Mohammad Shahabuddin, Robert Knox, Christian Tams, Umut Özsu, Fleur Johns, Oliver Kessler, Filipe dos Reis, Johannes Gerald (Anne) van Mulligen, Janne Nijman, Matthias Goldmann, Vidya Kumar, Geoff Gordon, and Iain Scobbie
This is the final table of contents, introduction and all 60 chapter abstracts for the volume "Co... more This is the final table of contents, introduction and all 60 chapter abstracts for the volume "Concepts for International Law: Contributions to Disciplinary Thought."
The introduction, entitled 'The Life of International Law and its Concepts', is a standalone piece that grapples with the relation between legal concepts, life and living in international law. First, we briefly explore the contemporary malaise in international law’s disciplinary life, in and for which this book emerges. We urge a sensibility that sees working on international law’s concepts as opening up a range of possibilities in how we may act, live, know, see and understand within and towards the discipline. Second, we offer an overview into how legal thought has, in its diversity, approached legal concepts. We aim to draw out those sensibilities that remain prevalent in today’s legal writings on concepts, whilst also pointing to the limits, nuances and fractures of these sensibilities. In this regard we offer detailed readings, criticisms and extensions of texts by Jhering, Hohfeld, Ross, Cohen, Kennedy, Koskenniemi, and Marks to name but a few. These readings primarily point to the intricate and intractable difficulties of reconciling concepts with social life. They also point to a series of shifting and entwined aesthetic, ethical and political presuppositions that dominate the various ways in which we approach legal concepts today. In showing the diversity of legal sensibilities towards legal concepts, we hope to not only open up the various possibilities and limits of these sensibilities, but to point towards the intellectual cultural resources at the modern scholar’s disposal. Third, and finally, we offer an introduction to the volume itself. Here we outline how we chose its concepts, the types of concepts contained therein, and how we see the complex relations between different concepts.
Proceedings of the Annual Meeting American Society of International Law, 2008
Global Constitutionalism
The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambi... more The international rule of law is a somewhat ubiquitous concept yet, as idea, it is marred by ambiguity and disagreement and, as ideal, constantly frustrated by the institutional conditions of the decentralised international legal order. Rather than necessarily undermining the concept, however, I argue that these structural conditions cause a kind of conceptual rupture, resulting in seemingly opposed or contradictory idealisations. On the one hand, the international rule of law can be understood as what Terry Nardin has called the 'basis of association' in international relations. This understanding places importance on the legal form as an end in itself, whereby the structural or institutional autonomy of international law is critical to the peaceable conduct of international relations. On the other hand, however, the rule of law exists as an unfulfilled promise of an order to come: it is distinctly anti-formalist in nature, stressing the functional capacity of international law to actually constrain political actors (primarily states) and thus seeking to develop more effective international institutional mechanisms. Although these competing idealisations give rise to a certain contradiction and inherent tension, their conceptual opposition is, I believe, critical to an understanding of authority and accountability dynamics in an era of 'global governance'.
Revista Española de Derecho Internacional, 2019
forthcoming in V Ruiz Abou-Nigm, K McCall-Smith and D French, Linkages and Boundaries in Private ... more forthcoming in V Ruiz Abou-Nigm, K McCall-Smith and D French, Linkages and Boundaries in Private and Public International Law (Hart 2018)
Pre-proof draft of forthcoming editorial in Volume X of the Irish Yearbook of International Law
Introduction to The Institutional Problem in Modern International Law (Hart, 2016) Abstract Mode... more Introduction to The Institutional Problem in Modern International Law (Hart, 2016)
Abstract
Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focused on international law's peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this ‘institutional problem’ has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believe that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law’s decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory than in practice.
Draft chapter, open to comments, to be included in S Besson and J d'Aspremont (eds), Oxford Handb... more Draft chapter, open to comments, to be included in S Besson and J d'Aspremont (eds), Oxford Handbook on the Sources of International Law (OUP, forthcoming)
Journal of Conflict and Security Law, 2008
International Organizations Law Review, 2010
The concept of the ‘legal official’ is one of the most under-theorised yet critical explanatory e... more The concept of the ‘legal official’ is one of the most under-theorised yet critical explanatory elements of modern analytical jurisprudence. However, it is also a term beset by conceptual uncertainty and functional ambiguity. In fact, as commonly employed by analytical theorists, it seems to function merely as a boot-strapping device, relinquishing the need to justify the kind of pre-legal hierarchy or constitutional authority commonly found at the state level. This reliance on officialdom is particularly problematic bearing in mind that the lack of any such hierarchies at the international level has been the cause of constant scepticism as to the reality and efficacy of international law as a legal system. Recognising the specific functional benefits which officials bring to the task of law within the state, however, offers up two methodological conclusions: first, that the theorist cannot simply presume, a priori, that legal officials are necessary without a coherent normative defence of the perceived functions of law upon which this justification stands; second, that any view of law’s function and important institutional features must still be informed by a more genuinely global empiricism.
In a tribute to James Leslie Brierly (1881-1955) published in the British Yearbook of Internation... more In a tribute to James Leslie Brierly (1881-1955) published in the British Yearbook of International Law shortly after his death, Hersch Lauterpacht (1897-1960) described the late jurist’s greatest contribution to international law in having adopted what he termed ‘a progressive conception of international law’. In many respects, it is clear that Lauterpacht shared in this conception of international law. Most obviously, despite disagreement on one or two ‘fundamentals’, both jurists shared many similar commitments, which we might position towards the liberal-reformist end of the disciplinary spectrum – for instance, their aversion to a strictly positivist and State-centric approach to international law, as well as their belief that, ultimately, the individual human being stood centre stage as the primary subject of international law. However, it is really in terms of their method and core understanding of the role of the international lawyer in shaping international law doctrines that both jurists should be considered together as developing a progressive agenda. Indeed, insofar as both jurists emerged during the interbellum period – an era described by Lauterpacht himself as ‘a period of transition and reassessment of values’ that ‘witnessed radical changes in the doctrine of international law’ – the enduring influence of both lies in the path that they are able to steer between the moral certainties of international law’s historical origins, and the more sceptical modernity of the years that followed. It is this careful approach that makes both true progenitors to the kind of progressive internationalism which has become a hallmark of more ‘mainstream’ approaches to international law today. In this chapter, therefore, I give an account of Lauterpacht and Brierly’s method and approach, positioning it as a particular product of the disappointment and upheaval witnessed in the interbellum period.
Forthcoming in R McCorquodale and J-P Gauci (eds), British Influences on International Law 1915-2015 (Brill, 2016)
Call for Papers: "Europe’s Shared Burden: Collective Responsibility for Migrants at Sea" - An Int... more Call for Papers: "Europe’s Shared Burden: Collective Responsibility for Migrants at Sea" - An Interdisciplinary Workshop
Friday 9th and Saturday 10th October 2015
University College Dublin
UCD Sutherland School of Law welcomes paper proposals for its eighteenth Irish European Law Forum, addressing the topic of “Europe’s Shared Burden: Collective Responsibility for Migrants at Sea”, to be held on 9th and 10th October 2015 at University College Dublin. The workshop aims to foster a strong interdisciplinary focus in order to better understand and critically engage with the concept of collective responsibility in the context of irregular maritime migration. In this respect, we hope to encourage contributions from law, politics, philosophy, as well as other cognate social and human science disciplines. We are also delighted to have keynote addresses from both Peter Sutherland, UN Special Representative for International Migration and Guy S. Goodwin-Gill, Professor of International Refugee Law, University of Oxford (TBC).
Deadline: Friday 26 June 2015
Further details, including submission requirements and timeline are available here: bit.ly/1dj0aND and included in the attached PDF document.
It has been common in recent years to contrast modern and classical international law-making, dep... more It has been common in recent years to contrast modern and classical international law-making, depicting the former as dynamic and heterogeneous, and the latter, as state-centric and “doctrinal.” This doctrinal image is characterized as state-centric both in terms of the actors involved in rule-making processes and the nature of the rules themselves. In short, an actor’s ability to make law is limited by their international legal personality, whilst the rules which result have legal “pedigree” only if traceable to one or more of the formal sources of international law. Accordingly, doctrinal understandings are often depicted negatively as cementing the hegemony of the state as (almost) the sole international law-maker. However, the argument that I wish to defend in this paper is that these kinds of characterization of doctrinal approaches not only fail to grasp the openness of international law to other actors as participants in international law-making processes, but also miss what is important about doctrine in the context of international law.
Accordingly, the central question posed in this paper is how international law should accommodate the increasingly complex array of actors involved in normative standard setting (rule-making) within the international legal system, including how it absorbs or understands the nature of those rules themselves. In particular, I want to consider to what extent one can retain a formalist (doctrinal) understanding of the subjects and sources of international law yet at the same time account for the array of actors involved in post-national rule-making. I will argue that any attempt to absorb within international law the range of actors and forms of normativity that exist as a result of the increasing “institutionalization” that has occurred throughout the twentieth and twenty-first centuries creates a significant tension between legal form and function, particularly with regard to the roles which many of these regimes and institutions have come to fulfil within the international system. Nevertheless, I will argue that this tension between form and function is an important part of securing some measure of legal accountability in a decentralized legal order such as international law.
Nordic Journal of International Law (forthcoming), 2014
For many years now international law has been broadly understood as an autonomous system of posit... more For many years now international law has been broadly understood as an autonomous system of positive legal rules, similar in nature, though importantly not in structure, to the law that exists in most state-based legal systems. Nevertheless, this structural distinction -the lack of centralised institutions of a judicial, executive or legislative nature -appears to undermine this claim to autonomy to a significant degree, blurring the boundary between the legal subject and the legal official, the participant and the observer. The ultimate effect of this structural condition is a greater level of uncertainty not only as to what the rules are, but also how those rules should be interpreted, applied or understood in relation to one another. 1 At a simplistic level, much of this uncertainty arises from the fact that different international legal participants are using the law to pursue distinct purposes. At a more fundamental level, however, we might also say that such participants have different, often conflicting understandings as to what international law is and, importantly, what it is for. 2 As a result of this structural condition, therefore, there has been recurrent scepticism over the course of the last two centuries, questioning and challenging the idea of international law as an autonomous system, i.e. one in which law can (in theory at least) be identified, understood and applied in isolation of the particular interests and normative pursuits of those who participate in the international legal system (whether states, non-state actors, international lawyers, or other commentators). In fact, much of 20 th and 21 st century international law has been characterised by a tradition of 'anti-formalism,' stressing the creative role of the legal academic, and their projection of the normative purpose of international law, as crucial to the particular nature of international law as a professional practice.
Modern international law has an inseparable, yet uneasy connection to the analytical tradition in... more Modern international law has an inseparable, yet uneasy connection to the analytical tradition in jurisprudence, yet the two have not been easy bedfellows. International lawyers have struggled to find a convincing account of the legality of the object of their study, largely retreating into pragmatism, whilst legal theorists have marginalised the study of international law as a result. In this article, however, I will consider recent hopes for a reengagement between the two disciplines, brought about by a growing dissatisfaction with the disciplinary scope and coherence of both fields. In particular, I draw on recent work by the international lawyer, Patrick Capps, challenging post-Hartian conceptual theory, and instead defending a more purposive, evaluative account of international law. Whilst I am sympathetic to this aim, I will show why Capps' aprioristic account of law as aimed at the protection of human dignity results in an account of legal practice which both distorts reality and, in any event, ends up subordinating the international legal order again as a deviant exception to a more perfect domestic paradigm.
International Organizations and the Idea of Autonomy is an exploratory text looking at the idea o... more International Organizations and the Idea of Autonomy is an exploratory text looking at the idea of intergovernmental organizations as autonomous international actors. In the context of concerns over the accountability of powerful international actors exercising increasing levels of legal and political authority, in areas as diverse as education, health, financial markets and international security, the book comes at a crucial time. Including contributions from leading scholars in the fields of international law, politics and governance, it addresses themes of institutional autonomy in international law and governance from a range of theoretical and subject-specific contexts. The collection looks internally at aspects of the institutional law of international organizations and the workings of specific regimes and institutions, as well as externally at the proliferation of autonomous organizations in the international legal order as a whole. Although primarily a legal text, the book takes a broad, thematic and inter-disciplinary approach. In this respect, International Organizations and the Idea of Autonomy offers an excellent resource for both practitioners and students undertaking courses of advanced study in international law, the law of international organizations, global governance, as well as aspects of international relations and organization.
Leiden Journal of International Law, Jan 1, 2009
The future of international law is uncertain. The long-hoped-for revitalization of international ... more The future of international law is uncertain. The long-hoped-for revitalization of international law and its institutional structures following the end of the Cold War now seems at risk from an increasing deformalization of, and neo-liberal disregard for, international law. Meanwhile European international lawyers are responding by reasserting a Kantian project for a global constitution under an international rule of law. In this article I attempt to position these recent claims that the international legal order is undergoing a process of constitutional transformation in the context of a long-standing connection, since at least the post-revolutionary nineteenth century, between the idea of a positive international law and the emerging structures of the European constitutional nation-state. If one can trace a cosmopolitan or constitutional project to the influence of domestic public law from this time, one can also trace the inherent tension between international law's promise of a substantive ‘good life’, or sense of justice, and its purported legitimacy in a commitment to a voluntarist, or contractarian, form of obligation. These simultaneous commitments seem incompatible, but are inseparable from international law's embedded liberalism, which requires interplay between them to make sense of progress in the absence of any explicit underlying philosophy. In tracing similarities in concerns from the nineteenth century to the twenty-first, as well as repetitions in legal arguments, I suggest that the alternatives of American empire and a (European) vision of global constitutionalism are merely necessary oppositions, reflecting this broader tension underlying the discipline. Because lawyers avoid clarity on what is taken for granted in a leap from (selective) empirical realism towards assertive normative ambition, I argue that it is a mainstream, liberal-juridical consciousness – rather than any explicit legal theory – which continues to sustain shared assumptions about international law's past, as well as a promise of a future liberal world order. The apparently opposing visions of future world order are merely different sides of the same coin: each reflecting back, but each ultimately sustained by the other.
by Sahib Singh, Jean d'Aspremont, Richard Collins, Ntina Tzouvala, Onur Ulas Ince, Mohammad Shahabuddin, Robert Knox, Christian Tams, Umut Özsu, Fleur Johns, Oliver Kessler, Filipe dos Reis, Johannes Gerald (Anne) van Mulligen, Janne Nijman, Matthias Goldmann, Vidya Kumar, Geoff Gordon, and Iain Scobbie
This is the final table of contents, introduction and all 60 chapter abstracts for the volume "Co... more This is the final table of contents, introduction and all 60 chapter abstracts for the volume "Concepts for International Law: Contributions to Disciplinary Thought."
The introduction, entitled 'The Life of International Law and its Concepts', is a standalone piece that grapples with the relation between legal concepts, life and living in international law. First, we briefly explore the contemporary malaise in international law’s disciplinary life, in and for which this book emerges. We urge a sensibility that sees working on international law’s concepts as opening up a range of possibilities in how we may act, live, know, see and understand within and towards the discipline. Second, we offer an overview into how legal thought has, in its diversity, approached legal concepts. We aim to draw out those sensibilities that remain prevalent in today’s legal writings on concepts, whilst also pointing to the limits, nuances and fractures of these sensibilities. In this regard we offer detailed readings, criticisms and extensions of texts by Jhering, Hohfeld, Ross, Cohen, Kennedy, Koskenniemi, and Marks to name but a few. These readings primarily point to the intricate and intractable difficulties of reconciling concepts with social life. They also point to a series of shifting and entwined aesthetic, ethical and political presuppositions that dominate the various ways in which we approach legal concepts today. In showing the diversity of legal sensibilities towards legal concepts, we hope to not only open up the various possibilities and limits of these sensibilities, but to point towards the intellectual cultural resources at the modern scholar’s disposal. Third, and finally, we offer an introduction to the volume itself. Here we outline how we chose its concepts, the types of concepts contained therein, and how we see the complex relations between different concepts.
Attached is an introduction to the forthcoming volume R. Collins, The Institutional Problem in Mo... more Attached is an introduction to the forthcoming volume R. Collins, The Institutional Problem in Modern International Law (Hart, 2016)
Abstract
Modern international law is widely understood as an autonomous system of binding legal rules. Nevertheless, this claim to autonomy is far from uncontroversial. International lawyers have faced recurrent scepticism as to both the reality and efficacy of the object of their study and practice. For the most part, this scepticism has focused on international law’s peculiar institutional structure, with the absence of centralised organs of legislation, adjudication and enforcement, leaving international legal rules seemingly indeterminate in the conduct of international politics. Perception of this ‘institutional problem’ has therefore given rise to a certain disciplinary angst or self-defensiveness, fuelling a need to seek out functional analogues or substitutes for the kind of institutional roles deemed intrinsic to a functioning legal system. The author of this book believe that this strategy of accommodation is, however, deeply problematic. It fails to fully grasp the importance of international law’s decentralised institutional form in securing some measure of accountability in international relations. It thus misleads through functional analogy and, in doing so, potentially exacerbates legitimacy deficits. There are enough conceptual weaknesses and blindspots in the legal-theoretical models against which international law is so frequently challenged to show that the perceived problem arises more in theory than in practice.
forthcoming in R Buchan, D Franchini and N Tsagourias (eds), The Changing Character of International Dispute Settlement (Cambridge University Press, 2021-22)
The conclusion of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) after a consi... more The conclusion of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) after a considerable period of negotiation undoubtedly represented a phenomenal moment of achievement. The Convention was unprecedented in terms of scale, scope and ambition, such that it came to be described as a ‘Constitution for the Oceans’. Even if this might somewhat oversell this achievement, the constitutional character of UNCLOS is nevertheless evident, not only in the breadth and scope of its subject matter, or its functioning as an umbrella framework for the incorporation of a range of marine regulatory standards, but crucially because of the way it opens up to and interacts with other areas of international law. In this respect, there was considerable expectations of the rather complex dispute settlement provisions included in Part XV of the Convention. A compulsory dispute settlement mechanism was thought important to protect the integrity of the constitutional settlement, whist recognising the need to give meaning to and flesh out many of the more nuanced and tricky provisions. After a somewhat slow, tentative start, UNCLOS dispute settlement – and particularly its own International Tribunal for the Law of the Sea (ITLOS) – has recently sparked into life, but not without some controversy. Indeed, recent cases and arbitral rulings have been critiqued for both substantive and jurisdictional overreach. In this contribution I aim to critically assess these concerns, framing recent concerns by reference to a standard of legality, which aims to reconcile the need for effective international dispute mechanisms, whilst recognising that the legitimacy and authority of such mechanisms stems not from overt deference to strategic interest, but the coherence, consistency and credibility of their reasoning in practice.
Recent concern over criminality and perceived impunity at sea (including inter alia piracy, IUU f... more Recent concern over criminality and perceived impunity at sea (including inter alia piracy, IUU fishing, environmental crime) has resulted in a popular image of the high seas as a lawless space. Whilst there is clearly a considerable body of law that actually applies to the high seas under UNCLOS 1982 and elsewhere, if we instead focus on the freedom of the seas (mare liberum) and its regulatory consequences as encoded and perpetuated through UNCLOS, especially through the principle of exclusive flag state jurisdiction (EFSJ), the imagery of lawlessness has a great deal more resonance. Nevertheless, in this chapter I show how the EFSJ principle is far more limited, both conceptually and practically, than is often presumed. Indeed, despite the evident disincentives to effective enforcement that it arguably creates, it still leaves a great deal of room for proactive legislative and policy measures from port, coastal and flag states alike.
International Organizations Law Review (forthcoming), 2019
In contemporary debates on the authority of global institutions, there is an important yet often... more In contemporary debates on the authority of global institutions, there is an important yet
often overlooked organisational curiosity: namely, the International Seabed Authority
(ISA). The ISA reflects a highpoint in international communitarian governance.
Premised around traditional notions of access, control and allocation of deep seabed
resources, its mandate is both invariably spatial-temporal, and yet also limited and
functional. Its purpose is to govern the extraction of seabed mineral resources for the
collective benefit of the international community. To achieve that ambition, however, a
highly complex and bureaucratic regulatory structure has been established. In this
paper we aim to consider this tension in the mandate of the ISA, particularly insofar as
it manifests in aspects of its institutional design and functioning in practice.
Understanding these dynamics not only helps one better understand governance of the
deep seabed, but also broadly demonstrates the innate tensions in granting
institutional control over common spaces.
Chapter forthcoming in P Capps, H Palmer Olsen and S Toddington, Legal Authority beyond the State... more Chapter forthcoming in P Capps, H Palmer Olsen and S Toddington, Legal Authority beyond the State (CUP 2017)
What is ‘global law’? What is specifically global and specifically legal about global law? Is it ... more What is ‘global law’? What is specifically global and specifically legal about global law? Is it even coherent to define law by reference to its ‘globality’? These are just some of the questions taken up by Neil Walker in his new book, Intimations of Global Law. In this review essay, I engage critically with Walker’s response to these and other questions. Whilst I believe that Walker’s mapping of different ‘species’ of global law is useful and informative in revealing a ‘state of the art’ of globalising legal trends, his effort to draw these various and not necessarily commensurate species together into a coherent meta-theorisation of global law is, I believe, far less convincing. Walker’s conceptualisation of global law is self-defined by reference to its openness, its intimated quality, and its ‘adjectival’ categorisation – characteristics that leave the concept of global law somewhat ‘slippery’ and malleable to the point of its non-utility in actually helping to guide law’s direction, resolve normative disputes, or remedy apparent accountability deficits and injustices at the global level.