Chapter

Fairness and International Law: An Analytical Framework

Thomas M. Franck

in Fairness in International Law and Institutions

Published in print January 1998 | ISBN: 9780198267850
Published online March 2012 | e-ISBN: 9780191683398 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198267850.003.0001
Fairness and International Law: An Analytical Framework

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Sovereignty has historically been a factor greatly overrated in international relations. International law has matured into a complete legal system covering all aspects of relations among states, and also, more recently, aspects of relations between states and their federated units, between states and persons, between persons of several states, between states and multinational corporations, and between international organisations and their state members. The fairness of international law has two aspects, distributive justice and the right process. They may not always pull in the same direction, because the former favors change and the latter stability and order. The tension between stability and change, if not managed, can disorder the system. Fairness is the rubric under which this tension is discursively managed. Legitimacy thus expresses the preference for order, which may or may not be conducive to change. A belief in the law's legitimacy re-enforces the perception of its fairness and encourages compliance. Two structural preconditions for optimal fairness discourse and critique are moderate scarcity and community.

Keywords: sovereignty; international law; international relations; fairness; distributive justice; right process; legitimacy; compliance; moderate scarcity; community

Chapter.  10052 words. 

Subjects: Public International Law

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