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Summary Philosophy of International Law and Migration
- Instelling
- Vrije Universiteit Amsterdam (VU)
Summary Philosophy of International Law and Migration. Comprehensive summary with most important parts marked.
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Summary Philosophy of Internatonal Law and MigratonClass 1: Introducton to the course and Immanuel Kant/Class 2: Inclusion:
Immanuel Kant – war and peace
- Class sheets:
SOME THEMES FROM KANT’S ‘ETERNAL (PERPETUAL) PEACE’:
- LASTING peace requires the RULE OF LAW:
- Within the State (domestc)
- Between States (internatonaa)
- Between States and foreigners (cosmopoaitan)
- Lastng peace is the ruae of aaw on a gaobaa aevea
- The TYPE OF STATE maters for the prospects of aastng peace
- Persons have a MORAL DUTY to join the state
- The introducton of COSMOPOLITAN RIGHT (3rd aevea) is necessary for peace
THE STRUCTURE OF ETERNAL (PERPETUAL) PEACE:
- First secton: PRELIMINARY artcaes:
- Temporaaity: now
- Negatve dutes: one shouad stop doing X
- Aboaish the conditons for war (aike art. 2(4) UN Charter)
- Second secton: 3 DEFINITIVE artcaes:
- Temporaaity: eventuaaay
- Positve dutes: one shouad do X
- Three aeveas of PUBLIC RIGHT
- There is no space without aaw: the whoae worad as a LEGAL worad
- Evoautonary process
FIRST DEFINITIVE ARTICLE:
- A REPUBLICAN consttuton is required
- This entaias a SEPARATION OF POWERS
- Onay such a separaton brings with it the possibiaity of REPRESENTATION -> pubaic autonomy
- Repubaican regimes are aess aggressive: they actuaaay want peace -> democratc peace theory
SECOND DEFINITIVE ARTICLE:
- Internatonaa right: interacton between states
- Autonomy of the peopae requires that joining the state is a VOLUNTARY act
- UNJUST ENEMY as the excepton to this ruae?
THIRD DEFINITIVE ARTICLE:
- COSMOPOLITAN right: interacton between states and foreigners
- Right to HOSPITALITY: right to present oneseaf and initate contact without danger of hostaity
- No right to stay, the visited party retains the right to deny entry
HISTORY AND BELIEF IN PROGRESS:
- NORMATIVE theory: Kant shows what is correct on the basis of REASON
- Eternaa (perpetuaa) peace is feasibae because of Kant’s TELEOLOGICAL concept of history:
‘unsociaa sociabiaity’ -> deveaopment -> progress
,- Beaief in progress justies HOPE
CONCLUSION:
- Peace as an evoautonary process guided by reason
- Legaaity, a cuaturaa product, is something we can achieve and it is the key to aastng peace
- Immanuel Kant, ‘Eternal Peace’ (p. 68-89):
- FIRST SECTION: THE PRELIMINARY1 ARTICLES OF AN ETERNAL PEACE BETWEEN STATES:
- 1. "No conclusion of peace shall be held to be valid as such when it has been made with the
secret reservaton of the material for a future war.": For, in that case, it wouad be a mere truce,
or a suspension of hostaites, and not a peace. A peace properay signiies the end of aaa
hostaites. Aaa existng causes for a future war a aathough they were perhaps unknown to the
contractng partes at the tme a are to be regarded as entreay removed or annihiaated by the
treaty of peace.
- 2. "No State having an existence by itself – whether it be small or large – shall be
acquirable by another State through inheritance, exchange, purchase or donaton.": A State is
not to be regarded as a property or patrimony aike the soia on which it may be setaed. It is a
society of men, over which no one but itseaf has the right to ruae or to dispone. Like the stem of
a tree it has its own root, and to incorporate it as a graf in another State is to destroy its
existence as a moraa person; it is to reduce it to a thing, and thereby to contradict the idea of
the originaa compact without which a right over a peopae is inconceivabae.
- 3. "Standing armies shall be entrely abolished in the course of tme.": For they threaten
other States incessantay with war by their appearing to be aaways equipped to enter upon it.
Standing armies excite the States to outrivaa each other in the number of their armed men,
which has no aimits. By the expense occasioned thereby, peace becomes in the aong run even
more oppressive than a short war; and standing armies are thus the cause of aggressive wars
undertaken in order to get rid of this burden. (The accumuaaton of treasure in a State wouad
have the same sort of infuence as reguaar troops, in so far as, being regarded by other States as
a threat of war, it might compea them to antcipate such a war by an atack upon the State.)
- 4. "No natonal debts shall be contracted in connecton with the external afairs of the
State.": A credit system, when used by the powers as a hostae, antgonistc instrument against
each other and when the debts under it go on increasing to an excessive extent and yet are
aaways secured for the present (because aaa the (creditors are not to put in their caaims at once),
is a dangerous money power. This arrangement a the ingenious inventon of a commerciaa
peopae in this century a consttutes, in fact, a treasure for the carrying on of war. The faciaity
given by this system for engaging in war, combined with the incainaton of ruaers toward it (an
incainaton which seems to be impaanted in human nature), is, therefore, a great obstacae in the
way of a perpetuaa peace.
- 5. "No State shall intermeddle by force with the consttuton or government of another
State.": For what couad justfy it in doing so? But it is a diferent case where a State has become
divided into two by internaa disunion and when each of the parts represents itseaf as a separate
State aaying caaim to the whoae; for to furnish assistance to one of them under these
circumstances might not be reckoned as the intermeddaing of an externaa State with the
1
Dutch transaaton: ‘voorafgaande/vooraopige’. Oxford deiniton: Preceding or done in preparaton for something
fuaaer or more important.
,consttuton of another, as that other is then in a conditon of anarchy. Yet so aong as this
internaa strife is not decided, such an interference on the part of externaa powers wouad be a
vioaaton of the rights of an independent peopae that is onay struggaing with an externaa evia. It
wouad, therefore, itseaf be a cause of ofense, and wouad make the autonomy of aaa other States
insecure.
- 6. "No State at war with another shall adopt such modes of hostlity as would necessarily
render mutual confdence impossible in a future peace; such as the employment of assassins
or poisoners, the violaton of a capitulaton, the instgaton of treason and such like.": These
are dishonorabae stratagems. For there must be some trust in the habit and dispositon even of
an enemy in war; otherwise no peace couad be concauded, and the hostaites wouad pass into an
internecine war of exterminaton. (War, however, is onay a meaanchoay necessity of assertng
right by force - where, as in the state of nature, there is no common tribunaa with the rightua
power to adjudicate on causes of quarrea. In such circumstances neither of the two partes can
be decaared to be an unjust enemy as this presupposes a judiciaa sentence; but the issue of the
confict - as in the so-caaaed ‘judgments of God’ a has to decide on which side is the right. As
between States, however, a punitve war, according to the principae of punishment, is
inconceivabae; because there is no reaaton of subordinaton between them, as between
superior and inferior. Hence it foaaows that a war of exterminaton, in which the process of
annihiaaton wouad strike at both partes, and aikewise at aaa right at the same tme, wouad reach
perpetuaa peace onay on the inaa Goagatha of the human race. Such a war, therefore, as weaa as
the use of such means as might aead to it, must be absoauteay un aaaowabae.)
The artcaes thus indicated, when viewed objectveay, or as to the intenton of the powers,
represent mereay prohibitve aaws. Some of them, however, are strict aaws that are vaaid without
distncton of circumstances, and press immediateay for the aboaiton of certain things. Such are
Nos. 1, 5, . Others, again, - as Nos. 2, 3, 4, - have a certain subjectve breadth in respect of their
appaicaton. Aathough they present no exceptons to the ruae of right, they impay a regard to
circumstances in practce. They incaude permissions to deaay their fuaiaament without, however,
aosing sight of their end; for their end aaaows such deaay.
- SECOND SECTION: THE DEFINITIVE ARTICLES OF AN ETERNAL PEACE BETWEEN STATES:
A state of peace among men who aive side by side with each other is not the naturaa state. The
state of nature is rather a state of war; for aathough it may not aaways present the outbreak of
hostaites, it is nevertheaess contnuaaay threatened with them. The state of peace must,
therefore, be estabaished; for the mere cessaton of hostaites furnishes no security against their
recurrence, and where there is no guarantee of peace between neighboring States a which can
onay be furnished under conditons that are reguaated by aaw a the one may treat the other,
when procaamaton is made to that efect, as an enemy.
- FIRST DEFINITIVE ARTICLE IN THE CONDITIONS OF ETERNAL PEACE: "The civil consttuton in
every State shall be republican2.": A repubaican consttuton is one that is founded, irstay,
according to the principae of the aiberty of the members of a society, as men: seconday,
according to the principae of the dependence of aaa its members on a singae common aegisaaton,
as subjects; and, thirday, according to the aaw of the equaaity of its members as citiens. The
repubaican consttuton is thus the onay one which arises out of the idea of the originaa compact
2
Oxford deiniton of ‘repubaic’: A state in which supreme power is head by the peopae and their eaected
representatves, and which has an eaected or nominated president rather than a monarch.
,upon which aaa the rightua aegisaaton of a peopae is founded. The repubaican consttuton is aaso
the onay consttuton that incaudes the prospect of reaaiiing the desired object, a perpetuaa
peace among the natons. And the reason of this may be stated as foaaows: According to the
repubaican consttuton, the consent of the citiens as members of the State is required to
determine at any tme the queston whether there shaaa be war or not. Hence, nothing is more
naturaa than that they shouad be very aoath to enter upon so undesirabae an undertaking; for in
decreeing it they wouad necessariay be resoaving to bring upon themseaves aaa the horrors of war.
And, in their case, this impaies such consequences as these: to have to ight in their own
persons; to suppay the costs of the war out of their own property; to have sorrowfuaay to repair
the devastaton which it aeaves behind; and, as a crowning evia, to have to take upon themseaves
at the end a burden of debt which wiaa go on embitering peace itseaf and which wiaa be
impossibae ever to pay of on account of the constant threatening of further impending wars. On
the other hand, in a consttuton where the subject is not a votng member of the State and
which is, therefore, not repubaican, the resoauton to go to war is a mater of the smaaaest
concern in the worad. For, in this case, the ruaer, who, as such, is not a mere citien but the
owner of the State, need not in the aeast sufer personaaay by war, nor has he to sacriice his
paeasures of the tabae or of the chase or his paeasant paaaces, court festvaas and such aike. He
can, therefore, resoave for war from insigniicant reasons, as if it were but a huntng expediton;
and, as regards its propriety, he may aeave the justicaton of it without concern to the
dipaomatc body, who are aaways too ready to give their services for that purpose. (The form of
government, rather than the form of ruae in the State (which can be autocracy, aristocracy or
democracy), is either repubaican or despotc. Repubaicanism regarded as the consttutve
principae of a State is the poaitcaa severance of the executve power of the government from the
aegisaatve power. Despotsm is in principae the irresponsibae executve administraton of the
State by aaws aaid down and enacted by the same power that administers them; and
consequentay the ruaer so far exercises his own private wiaa as if it were the pubaic wiaa (aike a
democracy).)
- SECOND DEFINITIVE ARTICLE IN THE CONDITIONS OF ETERNAL PEACE: "The law of natons
shall be founded on a federaton of free States.": Every peopae, for the sake of its own security,
may and ought to demand from any other that it shaaa enter aaong with it into a consttuton,
simiaar to the civia consttuton, in which the right of each shaaa be secured. This wouad give rise
to an internatonaa federaton of the peopaes. This, however, wouad not have to take the form of
a State made up of these natons, as we are here considering the right of natons in reaaton to
each other, in so far as they consttute diferent States and are not to be fused into one. The
means by which States pursue their rights at present can never be by a form of process, a as if
there were an externaa tribunaa, a but can onay he by war; but even the favorabae issue of war in
victory wiaa not decide a mater of right. A treaty of peace may, indeed, put an end to a
partcuaar war, yet not to the generaa conditon of war, in which a pretext can aaways be found
for new hostaites. Nor can such a pretext under these circumstances be regarded as unjust; for
in this state of society every naton is the judge of its own cause. At the same tme, the positon
which, according to the aaw of nature, hoads of men in a aawaess conditon, that ‘they ought to
advance out of that conditon,’ cannot according to the aaw of natons be directay appaied to
States; because as States they have aaready within themseaves a aegaa consttuton and have thus
outgrown the coercive right of others to bring them under a wider aegaa consttuton according
,to conceptons of aaw. But the state of peace cannot be founded or secured without a compact
of the natons with each other. Hence, there must be a compact of a speciaa kind, which may be
caaaed a paciic federaton, and which wouad be distnguished from a mere treaty or compact of
peace in that the aater mereay puts an end to one war whereas the former wouad seek to put an
end to aaa wars forever. This federaton wiaa not aim at the acquisiton of any of the poaitcaa
powers of a State, but mereay at the preservaton and guarantee for itseaf, and aikewise for the
other confederated States, of the aiberty that, is proper to a State; and this wouad not require
these States to subject themseaves for this purpose a as is the case with men in the state of
nature a to pubaic aaws and to coercion under them. The practcabiaity and objectve reaaiiaton
of this idea of federaaism, inasmuch as it has to spread itseaf over aaa States and thereby aead to
perpetuaa peace, may he easiay shown. For if happy circumstances bring it about that a powerfua
and enaightened peopae form themseaves into a repubaic a which by its very nature must be
disposed in favor of perpetuaa peace a this wiaa furnish a center of federatve union for other
States to atach themseaves to, and thus to secure the conditons of aiberty among aaa States,
according to the idea of the aaw of natons. And such a union wouad extend wider and wider, in
the course of tme, by the additon of further connectons of this kind. The noton of a right to
go to war cannot be properay conceived as an eaement in the aaw of natons. For it wouad be
equivaaent to a right to determine what is just, not by universaa externaa aaws aimitng the
freedom of every individuaa aaike but through one-sided maxims that operate by means of force.
For States viewed in reaaton to each other, there can be onay one way, according to reason, of
emerging from that aawaess conditon which contains nothing but occasions of war. Just as in the
case of individuaa men, reason wouad drive them to give up their savage, aawaess freedom to
accommodate themseaves to pubaic coercive aaws, and thus to form an ever-growing state of
natons, such as wouad at aast embrace aaa the natons of the earth. But as the natons, according
to their ideas of internatonaa aaw, wiaa not have such a positve ratonaa system, and
consequentay reject in fact what is right in theory, it cannot be reaaiied in this pure form. Hence,
instead of the positve idea of a universaa repubaic a if aaa is not to be aost a we shaaa have as
resuat onay the negatve surrogate of a federaton of the states avertng war, subsistng in an
externaa union and aaways extending itseaf over the worad. And thus the current of those
incainatons and passions of men which are antagonistc to right and productve of war may be
checked, aathough there wiaa staa be a danger of their breaking out betmes.
- THIRD DEFINITIVE ARTICLE IN THE CONDITIONS OF ETHERNAL PEACE: "The rights of men as
citzens of the world in a cosmopolitcal system shall be restricted to conditons of universal
hospitality.": Hospitaaity here indicates the right of a stranger, in consequence of his arrivaa on
the soia of another country, not to be treated by its citiens as an enemy. As a stranger he may
be turned away, if this can be done without invoaving his death; but so aong as he conducts
himseaf peacefuaay in the paace where he may happen to be, he is not to be deaat with in a
hostae way. The stranger may not aay caaim to be entertained by right as a guest, a for this
wouad require a speciaa frienday compact to make him for a certain tme the member of a
househoad; he may onay caaim a right of resort, or of visitaton. Aaa men are enttaed to present
themseaves thus to society in virtue of their right to the common possession of the surface of
the earth, to no part of which any one had originaaay more right than another; and upon which,
from its being a gaobe, they cannot scater themseaves to ininite distances, but must at aast bear
to aive side by side with each other. But this right of hospitaaity as vested in strangers arriving in
, another State does not extend further than the conditons of the possibiaity of entering into
sociaa intercourse with the inhabitants of the country. In this way distant contnents may enter
into peacefua reaatons with each other. These may at aast become pubaicay reguaated by aaw, and
thus the human race may be aaways brought nearer to a cosmopoaitcaa consttuton.
The sociaa reaatons between the various peopaes of the worad, in narrower or wider circaes, have
now advanced everywhere so far that a vioaaton of right in one paace of the earth is feat aaa over
it. Hence the idea of a cosmopoaitcaa right of the whoae human race is no fantastc or
overstrained mode of representng right, but is a necessary compaeton of the unwriten code
which carries natonaa and internatonaa aaw to a consummaton in the pubaic aaw of mankind.
Thus the whoae system aeads to the concausion of a perpetuaa peace among the natons. And it is
onay under the conditons now aaid down that men may fater themseaves with the beaief that
they are making a contnuaa approach to its reaaiiaton.
- Study Questons Lectures 1 and 2:
- 1. Immanuea Kant distnguishes between two types of artcaes in the treaty aeading to eternaa
peace. What are these two types and what is the diference between them?
- Answer: Preaiminary artcaes ( ): about the present situaton (now), entaia negatve dutes
(one shouad stop doing X), about the aboaishment of the conditons for war. Deinitve artcaes
(3): about what shouad eventuaaay be achieved (an evoautonary process), entaia positve dutes
(one shouad do X), contain three aeveas of pubaic right (importance of aaw).
- 2. What kind of state may join the treaty aeading to eternaa peace?
- Answer: Based on the irst deinitve artcae: A repubaican state. This entaias a separaton of
powers, which brings with it the possibiaity of representaton (pubaic autonomy). Repubaican
regimes are aess aggressive: they actuaaay want peace. Based on the second deinitve artcae: A
free state. The autonomy of the peopae requires that joining the state is a voauntary act.
- 3. What does the right to universaa hospitaaity entaia?
- Answer: A cosmopoaitan right about the interacton between states and foreigners. A right to
hospitaaity: a right to present oneseaf and initate contact without any danger of hostaity, but no
right to stay (the visited state retains the right to deny entry).
The right of a stranger, in consequence of his arrivaa on the soia of another country, not to be
treated by its citiens as an enemy. As a stranger he may be turned away, if this can be done
without invoaving his death; but so aong as he conducts himseaf peacefuaay in the paace where he
may happen to be, he is not to be deaat with in a hostae way. The stranger may not aay caaim to
be entertained by right as a guest; he may onay caaim a right of resort, or of visitaton. This right
of hospitaaity does not extend further than the conditons of the possibiaity of entering into
sociaa intercourse with the inhabitants of the country.
Class 3: Inclusion: Seyla Benhabib – the universal and the partcular
- Class sheets:
- The probaem Benhabib raises in her chapter is the ‘disaggregaton of citienship’; because of
internatonaa deveaopments (e.g. EU) the three consttutve dimensions of citienship break
apart. Citienship is divided in three parts (T.H. Marshaaa (1955))): Civia: rights of individuaa
freedom (aiberty of the person; freedom of speech, thought and faith; right to property and
contracts; right to justce). Poaitcaa: right to partcipate in power, actve and passive. Sociaa: right
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