In This Article International Community

  • Introduction
  • A Stateless Ontology

International Law International Community
by
William Conklin
  • LAST MODIFIED: 22 April 2020
  • DOI: 10.1093/obo/9780199796953-0205

Introduction

This annotated bibliography, preoccupied with Anglo-American scholarship, analytically distinguishes several very different competing senses of an international community. The scholarship exemplifies a serious tension between the universalism of the international community and the particularism of state members, non-state organizations, the global markets, and excluded communities such as nomadic and indigenous peoples. A fundamental paradox has characterized the scholarship. On the one hand, the universalism of an international community includes everyone everywhere. And yet, on the other hand, historically contingent, context-specific particularities have fragmented the universality into a more realistic critique of the universality. Each of the five approaches to a sense of an international community has been preoccupied with this paradox. First, the international community has been considered a structure of texts and principles justifying judicial decisions. By grounding or taking for granted that a commonality, such as humanitas, dignity, human species, or shared values, is shared among human beings, the ambition has been to elaborate general principles and a rational methodology that intellectually transcend the contingent particularity of a state member of the community. A second image has continued this line of argument by portraying the international community as cosmopolitanism. Here, the particularism of state members in a cosmopolitanism has left the international community to be an “add-on” to the aggregate of the wills of the state members. A third image has highlighted a global civil society constituted from a network of regulatory treaties, contracts, corporations, cultural organizations, and adjudicative and administrative tribunal decisions. These three forms of an international community have led to a fourth sense of an international community. Here, there is a critique of the very idea of a universal international community. The critique has highlighted two themes: first, the exclusionary character of the international community; and second, the exclusionary international community has disguised the dark (or ant-universal human rights) moments manifested by the particularism of states. The fourth form of an international community has continued in a more affirmative tone by emphasizing how the particularity of a social-cultural ethos manifests shifts through time, raising the possibility of a universal international community grounded in a shared ethos. The final theme in recent scholarship has turned to an inquiry about the ontological character of a world before the existence of law and before the international community have taken form.

The International Community as a Formal Structure of Texts and Principles

Influenced by the works of John Rawls and Ronald Dworkin during the 1970s to 1990s, scholars have identified the international community as the justification of principles with reference to basic texts such as the UN Charter and the six human rights treaties. Such constituting principles recognize the members of the international community as well as their duties to others in the community. The constituting principles are a priori concepts reified from the social-cultural-economic content of the community. Although the structure of concepts has sometimes been considered the international community itself, they have also centered on the community as the aggregate of the wills of states. In the latter context, the state is considered a self-defining and self-determining territorial entity. The said principles are considered an “add-on” to the particularity represented by the reserved domain of law making in the international community. The reserved domain has been associated with the state member of the international community. Such a legal space reserves the authority of law creation, adjudication, and enforcement to the state members with regard to their self-defense. As well, the admission, conditions, expulsion, and withdrawal of individuals into the state’s territory are left to the state member. In addition, the community is the consequence of alliances and international organizations to which the state members have consented. This approach to the international community has been described as formalist because it lacks an examination of the social-cultural content of the interpretative acts. The formalist sense of an international community has served as the object for a realist critique outlined in Exclusionary International Community. This section is composed of the sections A Basic Text: The UN Charter, Rationalist Method, Community as the Product of Principles, and International Community of Conceptual Differences.

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