Abstract
This chapter discusses how the radical social ontology inaugurated by the late Dutch, Christian, philosopher, Herman Dooyeweerd—hitherto largely unexplored for this purpose—may help illuminate contemporary debates on notions of an “international community” in relation to the international legal order.
In Dooyeweerd’s social ontology, extrapolated into a legal one, various associational spheres with their respective “sphere sovereignty” or differentiated responsibilities are themselves bearers of rights, thus inviting a renewed discussion on the philosophical foundations of international legal personality as well as of the sources of international law. Here, a state-centric international law is avoided, although states play an indispensable role in upholding public justice on the international plane. Moreover, the interrelations between these various spheres in what the philosopher calls the process of “enkapsis” is at the heart of what might be termed a Dooyeweerdian international legal theory. His theory of enkapsis promises to provide a better account of the problematique of the structure, composition and values of the so-called “international community.”
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Notes
- 1.
Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969).
- 2.
Barcelona Traction, Light and Power Company (Belgium v. Spain), Judgment (1970) ICJ Reports 3.
- 3.
See Preamble and Art. 5 of the Rome Statue of the International Criminal Court, adopted and opened for signature 17 July 1998, UN Doc. A/Conf/183/9 (1998). Art. 48 may still be treated as part of lege ferenda, or the progressive development of international law.
- 4.
While yet to be codified into a multi-lateral treaty, the draft articles may be treated as indicative of state practice or evidence of customary norm in international law.
- 5.
In an earlier report, Crawford rejected suggestions that the article be rephrased so as to say that the obligation is owed to “the international community of States as a whole.” Instead, he argued that “the international community includes entities in addition to States; for example, the European Union, the International Committee of the Red Cross, the United Nations itself.” See A/CN.4/517, Fourth Report on State Responsibility, 31 March 2000, para. 36.
- 6.
Cf Art. 42 (b), which talks of when a state is entitled as an injured state to invoke the responsibility of another state; that is, with respect to a breach obligation that is owed to “[a] group of states including that State, or the international community as a whole…”.
- 7.
This also appeared earlier as International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law—Report of the Study Group of the International Law Commission UN Doc. A/CN.4/L.682 (Apr. 13, 2006), as corrected and finalized by Martti Koskenniemi UN Doc. A/CN.4/L.682/Corr.1 (Aug. 11, 2006).
- 8.
It is interesting to note that, in international law, a distinction is often made between formal and material sources of law; one that roughly corresponds to the general distinction Dooyeweerd makes between formal law and material sources, albeit with a key difference, as will be discussed shortly. As a Filipino international law scholar says in his compact but highly useful primer on the fundamentals of international law of this divide in the sources of international law: Formal sources consist of methods and procedures by which norms are created, and material sources are the substantive evidence of the existence of norms. A rule, for example, will be considered legally binding as customary norm or custom on account of the process or method by which it has created through the formal of general practice accepted as law. Hence custom as norm-creating process is a formal source of law. Its content in terms of state practice arising from a sense of legal duty is its material source (Magallona 2005, 11). Magallona then quotes the work of the early twentieth century jurist John Salmond, whose work appears to have been echoed by Dooyeweerd ’s distinction between the formal and material sources of law: “the material sources supply the substance of the rule to which formal sources give the force and nature of law” (Salmond 1924). What Dooyeweerd adds to Salmond’s definition of material sources of law is that, for him, the latter springs from the invariant structural principles of the various societal relationships that are sovereign in their own spheres, based on the latter’s material competence. Dooyeweerd can very well agree with one contemporary philosopher of international law’s contention that material sources of law pertain to all the moral or social processes that give rise to the content of international law and that the formal sources of international law refer to the formal processes through which such content is identified and transformed into law (Besson 2005).
- 9.
Otherwise known as Republic Act No. 386, The New Civil Code of the Philippines, which took effect in 1950. The new Philippine Civil Code finds roots in Spanish conquest, although it draws from the wider civil law tradition (Rivera 1977), and also exhibits some innovations taken from the American tradition, such as in the area of notions of individual autonomy, torts, actions for damages for violations of constitutional rights, and the constitutional right to privacy (Agabin 1991). Balane observes that around 57% of the 2270 articles in the new civil code were either verbatim translations or adaptations from the Spanish Code, and which Spanish derivation pertains to the “most basic provisions, like the law on persons, the law on property, on succession, and on obligations” (Balane 1979, 43). In 1988, a new Code on Persons and Family Relations subsequently amended the 1950 Civil Code, but the above provisions remain in force, along with many other books and chapters of the latter. If anything, Agabin’s essay noted here further underscores the significance of Dooyeweerd ’s theory of legal enkapsis, as the noted Filipino constitutionalist shows how concepts drawn from both American common law and constitutional law have been grafted into the Philippine civil law system.
- 10.
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) 1986 ICJ 1
- 11.
G.R. No. L-2662 (En Banc) March 26, 1949.
- 12.
S.S. Lotus (France v. Turkey) 1927 P.C.I.J (ser. A) no. 10, at p. 18 (Sept. 7), says: “Restrictions upon the independence of States cannot be presumed….”and that that therefore, states “have a wide measure to act” under international law, subject only to express prohibitions.
- 13.
See Vienna Convention on the Law of Treaties art. 53, May 23, 1969, U.N.T.S. 331.
- 14.
See General Agreement on Trade in Services art. XIV(a), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, Legal Instruments-Results of the Uruguay Round, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994). In fact, disputes have already arisen on the matter of interpreting this clause in the context of gambling regulation (Marwell 2006).
- 15.
From a Dooyeweerdian standpoint, it is argued that, even prior to these developments, the sphere of private international law has always rested on the framework of public international law. One can point, for instance, to the work of the Hague Conference on Private International Law—an intergovernmental organization that, since 1893, has worked for the progressive unification of the rules of private international law. Indeed, it now calls itself the “World Organization for Cross-Border Cooperation in Civil and Commercial Matters.” With 81 members consisting of 80 states and one regional economic integration organization (the European Union), it is arguably the largest among such organizations working for such a unified system of private international law rules. In addition, 68 other states, while they are not members of the conference, have signed, ratified or acceded to one or more Hague Conventions, or are in the process of becoming a member. Consider the list of conventions, protocols, and principles it has given birth to, 39 in total, listed in the Appendix to this chapter.
Space constraints do not allow here a treaty by treaty analysis. Suffice it to say that the work of the Hague Conference underscores a key Dooyeweerdian insight about the interlacement of civil, commercial, and public legal issues, even at the international level. It also highlights how public justice undergirds state obligations towards ensuring that civil and commercial matters that implicate the interests not just of individuals, but of states, achieve harmonization as much as possible. Further, it shows—in no uncertain terms—how private international law intersects with public international law in many ways, and how, in fact, the former cannot exist without the framework provided by the latter. Indeed, the mere device of the treaty to further the aims of private international law already assumes the former’s reliance on the latter. Recall that Art. 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties defines a treaty as an “international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” See the Hague Conference’s official website at https://www.hcch.net/en/home <last visited September 9th, 2018>. All information discussed in this paper concerning the conference have been taken from this website.
- 16.
Working within the field of international relations, Lucas Freire points to the need to study the sort of politics—the kind of pluralistic ordering that now obtains in the international realm—zeroing in on, among other things, the ontology of such order and the centrality of Dooyeweerd ’s notion of enkapsis to such an order (Freire 2011).
References
A. Books and Articles
Agabin, Pacifico A. 1991. The philosophy of the Philippine civil code. Philippine Law Journal 66: 1.
Alexandrov, Stanimir A. 1996. Self-defense against the use of force in international law. The Hague: Kluwer Law International.
Balane, Ruben F. 1979. The Spanish antecedents of Philippine civil code. Diliman: University of the Philippines Law Center.
Besson, Samantha. 2005. Theorizing the sources of international law. In The philosophy of international law, ed. Samantha Besson and John Tasioulas, 170. Oxford: Oxford University Press.
Chaplin, Jonathan. 2005. Towards a social pluralist theory of institutional rights. Ave Maria Law Review 3: 147–149.
Clouser, Roy. 2005. The myth of religious neutrality. Indiana: University of Notre Dame Press.
Crawford, James. 2002. The international law commission’s articles on state responsibility: Introduction, text and commentaries. Cambridge: Cambridge University Press.
———, ed. 2005. The creation of states in international law. Oxford: Oxford University Press.
De Wet, Erika. 2006. The international constitutional order. International & Comparative Law Quarterly 55: 51–76.
Dooyeweerd, Herman. 1986. A christian theory of social institutions. Grand Rapids: Paideia Press.
———. 1997. The collected works, 1953–1958, the new critique of theoretical thought series A. Vol. 3. London: Edwin Mellen Press.
———. 2002. The collected work: Encyclopedia of the science of law. Vol. 8. London: Edwin Mellen Press.
———. 2003. The collected works, 1953–1958: Roots of western culture: Pagan, secular, and christian options, series b. Vol. 3. London: Edwin Mellen Press.
Enache-Brown, Colleen, and Ari Fried. 1998. Universal crime, jurisdiction and duty: The obligation of Aut Dedere, Aut Judicare in international law. McGill Law Journal 43: 614–433.
Fischel, Daniel R. 1982. The corporate governance movement. Vanderbilt Law Review 35: 1259–1273.
Franck, Thomas. 1999. The empowered self: Law and society in the age of individualism. Oxford: Oxford University Press.
Freire, Lucas. 2011. Opening up space for a reformational approach to the study of world politics, unpublished conference paper, (on file with the author), 14–15.
Friedrichs, Jorg. 2004. The neomedieval renaissance: Global governance and international law in the new medieval ages. In Governance and international legal theory, ed. Ige F. Dekker and Wouter G. Werner, 17–19. Leiden: Brill Publishers.
Higgins, Rosalyn. 1995. Problems and process: International law and how we use it. Oxford: Oxford University Press.
Koskenniemi, Martti. 1998. From apology to utopia: The structure of international legal argument. Cambridge: Cambridge University Press.
———. 2007. Fragmentation of international law: Difficulties arising from the diversification and expansion of international law, report of the study group of the international law commission. New York: United Nations.
Koyzis, David T. 2004. Political theory in the calvinist tradition. In The collected works: Political philosophy, series D, ed. D.F.M. Strauss and Herman Dooyeweerd, vol. 1, 11. London: Edwin Mellen Press.
Kwakwa, Edward. 2003. The international community, international law, and the United States: Three in one, two against one, or one and the same? In United States hegemony and foundations of international law (31, 47, 55), ed. Michael Byers and Georg Nolte. Cambridge: Cambridge University Press.
Magallona, Merlin. 2005. Fundamentals of international law, vi–vii, 11. Quezon City: C & E Publishing.
Malanczuk, Peter. 1997. Akehurt’s modern introduction to international law. 7th ed, 11. New York: Routledge.
Marwell, Jeremy. 2006. Trade and morality: The WTO public morals exception after gambling. New York University Law Review 81: 802–842.
Muir-Watt, Horatia. 2008. Guest editorial: Reshaping international law in a changing world, Conflict of Laws.Net, available at http://conflictoflaws.net/2008/guest-editorial-muir-watt-on-reshaping-private-international-law-in-a-changing-world/. Last visited 7 Apr 2010.
Nowrot, Karsten. 2006. Reconceptualising international legal personality of influential non-state actors: Towards a rebuttable presumption of normative responsibilities. Philippine Law Journal 80 (4): 564–573.
Paulus, Andreas. 2003. US influence on the concept of “International Community,”. In United States hegemony and foundations of international law, ed. Michael Byers and Georg Nolte, 57–58. Cambridge: Cambridge University Press.
———. 2004. From territoriality to functionality? Towards a legal methodology of globalization. In Governance and international legal theory (42, 60), ed. Ige F. Dekker and Wouter G. Werner. Leiden: Brill Publishers.
Paulus, Andreas, and Bruno Simma. 1998. The international community: Facing the challenge of globalization. European Journal of International Law 9: 266–269.
Risse, Mathias. 2006. What to say about states? Social Theory and Practice 32: 671–698.
Rivera, Juan F. 1977. The Jorge Bocobo terminal work: The civil code of the Philippines: His interviews, articles, speeches, lectures and commentaries. Diliman: University of the Philippines Law Center.
Salmond, John. 1924. Jurisprudence. 6th ed., para. 44. London: Smith and Maxwell.
Sarkin, Jeremy. 2004. The coming of age of claims for reparations for human rights violations in the South. Sur International Journal of Human Rights 1: 67, 69–70.
Simma, Brunno, and Andreas L. Paulus. 1998. The international community: Facing the challenge of globalization. European Journal of International Law 9: 277.
Skillen, James W. 1973. Development of calvinistic political theory in the Netherlands, with special reference to the thought of herman Dooyeweerd (unpublished Ph.D. Dissertation, Duke University) (on file with the Free University of Amsterdam library).
Slaughter, Ann-Marie. 2004. A new world order, 270. New Jersey: Princeton University Press.
Strauss, D.F.M. 2010. Philosophy: Discipline of the disciplines. Grand Rapids: Paideia Press.
Tsagorias, Nicholas. 2004. The will of the community as a normative source of international law. In Governance and international legal theory, ed. Ige F. Dekker and Wouter G. Werner, 100, 102, 108. Leiden: Brill Publishers.
Van Woudenberg, Rene. 2006. Theories of things-structures. In Philosophical foundations I reader, international masters in christian studies of science and society program (3). Amsterdam: VU-University Amsterdam Press.
Wald, Patricia M. 2007. Genocide and crimes against humanity. Washington University Global Studies Law Review 6: 621–633.
B. Legal Sources and Materials
1969 Vienna Convention on the Law of Treaties. UN Doc. A/CONF.39/27 (196).
Barcelona Traction. Light and Power Company (Belgium v. Spain), Judgment (1970) ICJ Reports 3.
Case Concerning the Military and Paramilitary Activities In and Against Nicaragua. (Nicaragua v. US) 1986 ICJ 1.
International Law Commission. Fragmentation of international law: Difficulties arising from the diversification and expansion of international law—Report of the Study Group of the International Law Commission UN Doc. A/CN.4/L.682 (Apr. 13, 2006), as corrected and finalized by Martti Koskenniemi UN Doc. A/CN.4/L.682/Corr.1 (Aug. 11, 2006).
Kuroda v. Jalandoni. G.R. No. L-2662 (Philippine Supreme Court En Banc) March 26, 1949.
The Hague Conference On Private International Law. n.d. Official website, https://www.hcch.net/en/home. Last visited 8 Apr 2016.
The Rome Statue of the International Criminal Court. adopted and opened for signature 17 July 1998, UN Doc. A/Conf/183/9 (1998).
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Appendix: Conventions, Protocols and Principles of the “World Organization for Cross-Border Cooperation in Civil and Commercial Matters”
Appendix: Conventions, Protocols and Principles of the “World Organization for Cross-Border Cooperation in Civil and Commercial Matters”
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1.
Convention of 1 March 1954 on civil procedure;
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2.
Convention of 15 June 1955 on the law applicable to international sales of goods;
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3.
Convention of 15 April 1958 on the law governing transfer of title in international sales of goods;
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4.
Convention of 15 April 1958 on the jurisdiction of the selected forum in the case of international sales of goods;
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5.
Convention of 15 June 1955 relating to the settlement of the conflicts between the law of nationality and the law of domicile;
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6.
Convention of 1 June 1956 concerning the recognition of the legal personality of foreign companies, associations and institutions;
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7.
Convention of 24 October 1956 on the law applicable to maintenance obligations towards children;
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8.
Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children;
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9.
Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of infants;
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10.
Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions;
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11.
Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents;
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12.
Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions;
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13.
Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;
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14.
Convention of 25 November 1965 on the Choice of Court;
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15.
Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters;
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16.
Supplementary Protocol of 1 February 1971 to the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters;
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17.
Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations;
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18.
Convention of 4 May 1971 on the Law Applicable to Traffic Accidents;
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19.
Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters;
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20.
Convention of 2 October 1973 Concerning the International Administration of the Estates of Deceased Persons;
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21.
Convention of 2 October 1973 on the Law Applicable to Products Liability;
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22.
Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations;
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23.
Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations;
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24.
Convention of 14 March 1978 on the Law Applicable to Matrimonial Property Regimes;
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25.
Convention of 14 March 1978 on Celebration and Recognition of the Validity of Marriages;
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26.
Convention of 14 March 1978 on the Law Applicable to Agency;
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27.
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
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28.
Convention of 25 October 1980 on International Access to Justice;
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29.
Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition;
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30.
Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods;
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31.
Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons;
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32.
Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption;
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33.
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children;
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34.
Convention of 13 January 2000 on the International Protection of Adults;
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35.
Convention of 5 July 2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary;
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36.
Convention of 30 June 2005 on Choice of Court Agreements;
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37.
Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance;
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38.
Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations; and
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39.
Principles on Choice of Law in International Commercial Contracts
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Bagares, R.R. (2018). International Legal Theory, International Community, and International Legal Order from a Dooyeweerdian Perspective. In: Buijs, G., Mosher, A. (eds) The Future of Creation Order. New Approaches to the Scientific Study of Religion , vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-92147-1_14
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