Rightful Relations with Distant Strangers: Kant, the EU, and the Wider World

Administrative / Constitutional Law › European Union Law

Rightful Relations with Distant Strangers: Kant, the EU, and the Wider World

By Aravind Ganesh
Hart Publishing October 2022

Specifications

ISBN-13
9781509946754
Publisher
Hart Publishing
Publication
October 2022
Format
Paperback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

This book provides a philosophical critique of legal relations between the EU and 'distant strangers' neither located within, nor citizens of, its Member States. Starting with the EU's commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in 'all its relations with the wider world', Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant's philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant's final and comprehensive statement of his general theory of law.

The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.

The thesis on which this book was based was awarded the 2020 Rene Cassin Thesis Prize (English section).

Table of Contents

1. Introduction
I. Force, Freedom and Formality: Kant's Philosophy of Right
II. Methodology: Immanent Critique and Private Law Analogies
III. Outline of the Book
IV. Conclusion

2. Territorial Extension: Power and Authority in the Wider World
I. The Post-Lisbon Articles
A. Between Multilateralism and Evangelism
II. Bartels and the 'Compliance' Interpretation
A. Human Rights Jurisdiction
B. Jurisdiction under General International Law
C. Standing
III. Legal Effects and the Spatial Scope of EU Law
A. Defending Air Transport: Emerging Explanations and Forgotten Precedents
B. Fluctuat nec mergitur: The Lotus Case in CJEU Jurisprudence
IV. Power and Authority: A Subtle Difference
A. The Nature of Territorial Extension
V. Conclusion

3. The 'Missionary' Principle: A False Start
I. The Sovereign Trusteeship of Humanity
II. Harms and Wrongs
A. Public Actors and Human Rights Jurisdiction
B. The Failure of the Argument from Well-Being
III. Blurred Frontiers: Values and Constitutional Objectives
A. Policy Consistency/Coherence in the Light of EU Constitutional Objectives
B. The Missionary Principle and Territorial Extension
IV. Conclusion: Dignity as Independence

4. Kant's International Legal Order and the Forms of Private Law
I. Private Right: The Building Blocks of Kant's General Theory of Law
A. The Division of Torts: Damage and Injury
B. The Three Defects in the State of Nature
C. Legislating on Property and Personality
II. Public Right: The Fiduciary State
A. The Separate, Public Person of the State
B. Human Rights and the Fiduciary State
III. International Law: Property and Personality
A. Territory: Property or Body?
B. No Property, Only Personality
IV. Conclusion

5. Extraterritorial Jurisdiction to Provide Global Public Goods
I. Ripstein's Roads
A. Expanding the Concept: Other Public Goods
B. Limitations upon the Right to Provide Public Goods
II. Global Public Goods
A. The Right to Regulate Global Public Goods
B. The Irrelevance of Harm
C. Public Purpose and Necessity
III. Appraising the EU
IV. Conclusion

6. Extraterritorial Human Rights Obligations
I. Human Rights as Public Fiduciary Rights
A. 'Moral' Theories of Human Rights Law 6
B. Human Rights as Legal and Directed all the Way Down
C. Human Rights as Rights and as Philanthropy
II. Authority and Human Rights Jurisdiction
A. Capability
B. Control
C. Arendt's Loophole
III. Territorial Extension and Human Rights Jurisdiction
IV. Conclusion

7. Closing the Courthouse Door: The Standing of Distant Strangers
I. Standing in EU Law
A. The Requirement of Legal Effects
B. Direct and Individual Concern under Article 263 TFEU
II. The EU-Morocco Agreements: Trustees de son tort of Humanity
III. Polisario and Western Sahara Campaign
A. Case T-512/12 Front Polisario v Council - The General Court Decision
B. Case C-104/16 Council v Front Polisario - Before the ECJ
C. Case C-266/16 Western Sahara Campaign - The Preliminary Reference
IV. Conclusion

8. General Conclusion
I. Are the EU's Unilateral Assertions of Authority over Distant Strangers Defensible?
II. Does the EU Owe Obligations towards Distant Strangers over whom it Claims Authority?
III. If So, does the EU Fulfil them?
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