Why Japan and Russia have failed to solve the territorial dispute: the 1956 Joint Declaration and the mechanism of political coherence

Despite the several chances of agreement, Japan and Russia have failed to solve the dispute over the Northern Territories/South Kuril Islands. The 1956 model seems to be the most plausible method, but the lack of political coherence of the central politics and the will of negotiation became the factors that hinder the two countries from reaching an agreement. By reviewing the conflicting footprints and strategies of the two countries, the authors argue that the more democratized and diffused a political system is, the more difficult it is to come to an agreement in negotiations. This intensifies the existing theory of foreign policy decision-making process emphasizing the influence of domestic constituents.     

The EU as a global rule of law promoter: the consistency and effectiveness challenges

This paper aims to examine the consistency and effectiveness of the EU as a global promoter of values by focusing on the rule of law, one of the key values on which the EU is based and which is also supposed to guide EU’s external action. The paper first offers the diagnosis that the EU has failed to properly address a number of key issues: (i) what the EU seeks to promote under the heading ‘rule of law’, (ii) how it measures and monitors a country’s adherence to this principle and (iii) the disconnect between its external and internal policies and instruments. To address these issues, four key recommendations are made: (i) the adoption of a guidance note, (ii) the development of a transversal measurement and monitoring instrument, (iii) the adoption of a rule of law checklist and (iv) the revision of the role of EU Fundamental Rights Agency, with the view of transforming it into a ‘Copenhagen Commission’ with new powers and a broader geographical remit.     

The Restricting Claims Principle Revisited: Grounding the Means Principle on the Agent–Patient Divide

In an earlier article, I introduced the “restricting claims principle” (RCP) to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle     

Is Coercion a Ground of Distributive Justice?

In his rich and stimulating book, Blake argues (among other things) that comprehensive coercion triggers egalitarian obligations of distributive justice. I argue that (1) coercion is not a necessary condition for egalitarian justice to apply; (2) Blake’s use of a moralised conception of coercion is a mistake; (3) coercion is a redundant member of any set of sufficient conditions that might explain why distributive justice applies; (4) Blake’s emphasis on providing conditions for the exercise of autonomy might support a much more cosmopolitan theory of distributive justice.     

Complicity,Collectives, and Killing in War*

Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants are not permissible targets because they are not complicit. I then argue that just combatants have some reason to direct force against unjust combatants rather than unjust noncombatants, because they should respect the reasonable self-determining decisions of other political communities, when those communities settle on the distribution of a negative surplus of cost for which they are collectively but not individually responsible. These collectivist reasons will not fully justify the Permission and the Prohibition, but they can contribute to that justification.     

Self-Defense as Claim Right,Liberty, and Act-Specific Agent-Relative Prerogative

This paper is not so much concerned with the question under which circumstances self-defense is justified (I use the term self-defense to include other-defense), but rather with other normative features of self-defense as well as with the source of the self-defense justification. I will argue (as has been done before) that the aggressor’s rights-forfeiture alone – and hence the liberty-right of the defender to defend himself – cannot explain the intuitively obvious fact that a prohibition on self-defense would wrong victims of attack. This can only be explained by conceiving of self-defense also as a claim-right. However, I will also argue (more innovatively) that a claim-right cannot ground the self-defense justification either. Rather, what grounds the self-defense justification and its particular strength and scope is the fact that self-defense is an act-specific agent-relative prerogative: a defender is allowed to give particularly grave weight to his interest in engaging in self-defense, which distinguishes self-defense from most other acts. This is not the same as saying that he has a right or a liberty to engage in self-defense. Thus, self-defense, understood as a normative concept, is a claim-right, a liberty-right, and an act-specific agent-relative prerogative.     

The Scope of Application of Analogical Reasoning in Precedential Law

This article describes the scope of application of an analogical argument in the province of precedential law. Inter alia, it revolves around such issues of the doctrine of precedent as: distinguishing, ascertaining and crystallizing the meaning of ratio decidendi or expanding its coverage onto the cases of first impression. Allowance has also been made for the presence of analogy in searching for the law-maker’s intention, the determining of the obsolescence of precedents and quoting precedents out-of-jurisdiction. The place analogical reasoning has in legal education has also been touched upon. On top of that, the article highlights the usage of analogy in precedential law which enables the replacement of the conception of rationes decidendi for the proposition of applying judicial precedents directly upon the relationship of similarity that obtains between cases decided previously and the instant case.