No abstract

Traditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

This article develops an account of innate cosmopolitanism in international law and relations. Innate cosmopolitanism stands for the proposition that the world as a whole should be considered as an entity relevant in international legal theory, which has interests and a will of its own capable of giving rise to norms of international law. Although innate cosmopolitanism has not been the subject of a dedicated scholarship, in contrast to better known traditions such as liberal cosmopolitanism and cosmopolitan constitutional theory, the concept of innate cosmopolitanism has informed the historical development of international law. Tracing its development from the 16th century Spanish School, this article addresses the scope and substance of the tradition of innate cosmopolitan thought in the discourse of international law; its domain relative to other streams of cosmopolitan thought in international law; and a critical evaluation of the role of innate cosmopolitan ideas in the discourse and development of international law.