Chapter

Rights, Individuals, and States

Alejandro Chehtman

in The Philosophical Foundations of Extraterritorial Punishment

Published in print December 2010 | ISBN: 9780199603404
Published online May 2011 | e-ISBN: 9780191725173 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199603404.003.0002
Rights, Individuals, and States

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This chapter clarifies the moral methodology used in this book. It advocates a rights-based approach to address the topic of extraterritorial punishment. That is, it assumes that the issue of extraterritorial criminal jurisdiction can be adequately explored by considering whether and under what conditions we shall confer upon a particular body (or bodies) the right to punish a particular offender. This approach has two direct sources. On the one hand, it builds upon Wesley Hohfeld's classic distinction between different types of rights, and suggests that the right to punish is essentially a normative power. On the other hand, it draws heavily on a plausible version of the interest theory of rights. This rights-based approach concedes, however, that in order to confer upon a particular state or tribunal the right to punish an offender, it does not suffice to identify a particular interest sufficiently important to be protected by a right; we must also account for that specific body having the authority to exercise that right. Distinguishing these two separate arguments is crucial for the purposes of providing an analytically sound account of extraterritorial punishment, as it will be argued throughout the book. The chapter is also concerned with explaining the specific moral challenge presented by extraterritoriality. This normative challenge is closely associated with the principle of state sovereignty, and with the normative argument on which it rests. This book endorses a broad cosmopolitan position and advances an account of state sovereignty based on the interest of individuals living or belonging to a particular state. Under this particular framework, the main normative challenge is the fact that states enjoy a right to self-government which entails a prima facie (i.e., defeasible) immunity against extraterritorial bodies enforcing criminal prohibitions on its territory.

Keywords: rights; Wesley Hohfeld; interest-based theories; authority; sovereignty; territorial integrity; self-government; cosmopolitanism

Chapter.  12196 words. 

Subjects: Public International Law

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