Is International Law Impartial? Steven R. Ratner The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s-the vietnam War and the North-South economic imbalance-have returned to the domain of philosophers. This engagement has taken place in two distinct, but related, debates. First, philosophers have devoted considerable attention to the ethical significance of nationality and patriotism king whether an impartial morality permits some disparate treatment of an individuals co-nationals. These questions are not new, of course, having been raised in important earlier works by Alisdair MacIntyre, Peter Singer, Andrew Oldenquist, and others Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as brian Barry put it, given a world that is made up of states, what is the morally permissible range of diversity among them? One impetus for renewed work on these ideas-which again were the subject of major works by Charles Beitz, Terry Nardin, and others- was the publication of John rawls The Law of peoples While in many ways asking and answering different questions, these two bodies of work are related in that they focus on what constitutes a just world, and what role the Professor of Law, University of Michigan Law School. I greatly appreciate comments from Eyal Benvenisti, Allen Buchanan, John Deigh, Brian Leiter, and David wippman Brian Barry, International Society from a Cosmopolitan Perspective, in INTERNATIONAL SOCIETY: DIVERSE ETHICAL PERSPECTIVES 144, 154 (David R Mapel Terry Nardin ed 1998)
Is International Law Impartial? Steven R. Ratner∗ The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s – the Vietnam War and the North-South economic imbalance – have returned to the domain of philosophers. This engagement has taken place in two distinct, but related, debates. First, philosophers have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits some disparate treatment of an individual’s co-nationals. These questions are not new, of course, having been raised in important earlier works by Alisdair MacIntyre, Peter Singer, Andrew Oldenquist, and others. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?”1 One impetus for renewed work on these ideas – which again were the subject of major works by Charles Beitz, Terry Nardin, and others – was the publication of John Rawls’ The Law of Peoples. While in many ways asking and answering different questions, these two bodies of work are related in that they focus on what constitutes a just world, and what role the ∗ Professor of Law, University of Michigan Law School. I greatly appreciate comments from Eyal Benvenisti, Allen Buchanan, John Deigh, Brian Leiter, and David Wippman. 1 Brian Barry, International Society from a Cosmopolitan Perspective, in INTERNATIONAL SOCIETY: DIVERSE ETHICAL PERSPECTIVES 144, 154 (David R. Mapel & Terry Nardin eds, 1998)
individual should play in furthering it. They correspond, in rough terms, to the interactional vS institutional conceptions of morality and justice identified by Thomas Pogge.That is, works on the ethical significance of nationality tend to focus on moral conduct of the individual; works on international justice tend to focus on inter-state arrangements that promote a particular version of such moral conduct Theorizing about transnational duties must, however, take proper account of the structure of the international legal order. As Rawls recognized, in order to propose a realistic utopia" for the world, we must proceed from the international political world as we see it. 3 In other words. let us ask about the moral character of the existing legal order before we propose changes to it. International lawyers analyze and seek the construction of an international order with a normative component, and the norms and processes that they study and appraise, just like those of the domestic legal system, cannot be set aside in asking about personal duties and justice. Such attention is key not only to making international ethics stronger within philosophy, but equally important, to making it convincing to those concerned with operationalizing ethical theory- political scientists legal academics, governmental and non-governmental elites, and the educated public. As recently noted by allen Buchanan and david golove(a rare pairing of a philosopher and international lawyer) Too often it is assumed that the effects of attempting to institutionalize these principles [favored by philosophers..are wholly irrelevant to the task of justifying them. The result..is that principles are endorsed which are not suitable for nstitutionalization because they are inconsistent with existing Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 50-52(1992) see also Barry, supra note 1, at 144-45 JOHN RAWLS, THE LAW OF PEOPLES 83 (1999)
2 individual should play in furthering it. They correspond, in rough terms, to the interactional vs. institutional conceptions of morality and justice identified by Thomas Pogge.2 That is, works on the ethical significance of nationality tend to focus on moral conduct of the individual; works on international justice tend to focus on inter-state arrangements that promote a particular version of such moral conduct. Theorizing about transnational duties must, however, take proper account of the structure of the international legal order. As Rawls recognized, in order to propose a “realistic utopia” for the world, we must “proceed[] from the international political world as we see it.”3 In other words, let us ask about the moral character of the existing legal order before we propose changes to it. International lawyers analyze and seek the construction of an international order with a normative component, and the norms and processes that they study and appraise, just like those of the domestic legal system, cannot be set aside in asking about personal duties and justice. Such attention is key not only to making international ethics stronger within philosophy, but equally important, to making it convincing to those concerned with operationalizing ethical theory -- political scientists, legal academics, governmental and non-governmental elites, and the educated public. As recently noted by Allen Buchanan and David Golove (a rare pairing of a philosopher and international lawyer): Too often it is assumed that the effects of attempting to institutionalize these principles [favored by philosophers] . . . are wholly irrelevant to the task of justifying them. The result . . . is that principles are endorsed which are not suitable for institutionalization because they are inconsistent with existing 2 Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 50-52 (1992); see also Barry, supra note 1, at 144-45. 3 JOHN RAWLS, THE LAW OF PEOPLES 83 (1999)
institutional arrangements whose abandonment would be morally prohibitive.. or because institutionalizing them would generate incentives that undermine the realization of other important goals."4 The result can be seen in the predilection of cosmopolitan ethicists to condemn aspects of the international legal order without examining whether those aspects have an underlying oral basis. This shortcoming is apparent in works on redistributive justice(the bulk of work a generation ago) as well as on human rights( the more common concern recently) Even when political and moral philosophers purport to take account explicitly of the structure of the international legal order, their vision is often limited, misconceived, or anachronistic. In particular, customary international law, the law that emerges as states accept a repeated practice as legally required, is sometimes described as if nothing had happened in the field in the last 60 years. For instance, David Mapel has written that "under customary international law each state has a right to order its own domestic affairs as it sees fit, a position at odds with developments in international human rights, international environmental law, and even much older principles like a states responsibilities to protect aliens on its territory from mistreatment(unless Mapel is limiting the meaning of domestic"to the point where the statement is a tautology ) More recently, Eric Cavallero wrote in these pages that"states enjoy the sovereign power to undertake policies that can impose detrimental externalities on those outside their borders, an assertion inconsistent with international environmental law as manifested in numerous Allen Buchanan David Golove, Philosophy of International Law in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 869, 870 Jules Coleman and Scott Shapiro eds, 2002). See also Andrew Hurrell, Norms and Ethics in international Relations, in HANDBOOK OF INTERNATIONAL RELATIONS 137, 139-41(Walter Calsnaes Thomas risse and Beth Simmons eds, 2002) David R Mapel, Justice, Diversity, and Law, in INTERNATIONAL SOCIETY, supra note 1 at242.250
3 institutional arrangements whose abandonment would be morally prohibitive . . . or because institutionalizing them would generate incentives that undermine the realization of other important goals.”4 The result can be seen in the predilection of cosmopolitan ethicists to condemn aspects of the international legal order without examining whether those aspects have an underlying moral basis. This shortcoming is apparent in works on redistributive justice (the bulk of work a generation ago) as well as on human rights (the more common concern recently). Even when political and moral philosophers purport to take account explicitly of the structure of the international legal order, their vision is often limited, misconceived, or anachronistic. In particular, customary international law, the law that emerges as states accept a repeated practice as legally required, is sometimes described as if nothing had happened in the field in the last 60 years. For instance, David Mapel has written that “under customary international law each state has a right to order its own domestic affairs as it sees fit,”5 a position at odds with developments in international human rights, international environmental law, and even much older principles like a state’s responsibilities to protect aliens on its territory from mistreatment (unless Mapel is limiting the meaning of “domestic” to the point where the statement is a tautology). More recently, Eric Cavallero wrote in these pages that “states enjoy the sovereign power to undertake policies that can impose detrimental externalities on those outside their borders,” an assertion inconsistent with international environmental law as manifested in numerous 4 Allen Buchanan & David Golove, Philosophy of International Law in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 869, 870 (Jules Coleman and Scott Shapiro eds., 2002). See also Andrew Hurrell, Norms and Ethics in International Relations, in HANDBOOK OF INTERNATIONAL RELATIONS 137, 139-41 (Walter Calsnaes, Thomas Risse and Beth Simmons eds., 2002). 5 David R. Mapel, Justice, Diversity, and Law, in INTERNATIONAL SOCIETY, supra note 1, at 242, 250
treaties on pollution as well as a bedrock principle of customary environmental law regarding transboundary activities. Most tellingly, Rawls in The Law of peoples grounds nuch of his work on an unargued summary of international law based on a selective reading of a 40-year old treatise. These"familiar and traditional principles of justice among free and democratic peoples, as he calls them, gloss over some of the most important issues in international law, including the centrality of states to the international legal order. the increased role of individuals as holders of rights and duties and the norms for participation by "peoples"(his principal subject of the law)in international society International law cannot be ignored or misconstrued by those engaging in international ethical discourse. whether interactional or institutional. As Andrew hurrell has put it, "the ethical claims of international law rest on the contention that it is the only set of globally institutionalized processes by which norms can be negotiated on the basis of dialogue and consent, rather than being simply imposed by the powerful.. The unavoidability of process again separates law as an ethical enterprise from other forms of normative inquiry and debate. How to describe and appraise international law --both its norms and its processes for resolving competing claims -- in a way that contributes to Eric Cavallero, Popular Sovereignty and the law of peoples, 9 LEG THEORY 181, 198 (2002). See also infra note 75 (on Stockholm Declaration principles). Later, he writes that international law"should recognize""a set of political freedoms meant to instantiate deliberativeness, such as freedom of speech, assembly, and mobility, id at 200, 192, when in fact nearly every international lawyer would say it already does See the critique of Rawls in FERNANDO TESON, A THEORY OF INTERNATIONAL LAW 1998) Andrew Hurrell, International Lay and the Making and Unmaking of Boundaries, in STATES. NATIONS AND BORDERS: THE ETHICS OF MAKING BOUNDARIES 275.277-78 (Allen Buchanan Margaret Moore eds, 2003)
4 treaties on pollution as well as a bedrock principle of customary environmental law regarding transboundary activities.6 Most tellingly, Rawls in The Law of Peoples grounds much of his work on an unargued summary of international law based on a selective reading of a 40-year old treatise.7 These “familiar and traditional principles of justice among free and democratic peoples,” as he calls them, gloss over some of the most important issues in international law, including the centrality of states to the international legal order, the increased role of individuals as holders of rights and duties, and the norms for participation by “peoples” (his principal subject of the law) in international society. International law cannot be ignored or misconstrued by those engaging in international ethical discourse, whether interactional or institutional. As Andrew Hurrell has put it, “the ethical claims of international law rest on the contention that it is the only set of globally institutionalized processes by which norms can be negotiated on the basis of dialogue and consent, rather than being simply imposed by the powerful. . . . The unavoidability of process again separates law as an ethical enterprise from other forms of normative inquiry and debate.”8 How to describe and appraise international law -- both its norms and its processes for resolving competing claims -- in a way that contributes to 6 Eric Cavallero, Popular Sovereignty and the Law of Peoples, 9 LEG. THEORY 181, 198 (2002). See also infra note 75 (on Stockholm Declaration principles). Later, he writes that international law “should recognize” a set of political freedoms meant to instantiate deliberativeness, such as freedom of speech, assembly, and mobility, id at 200, 192, when in fact nearly every international lawyer would say it already does. 7 See the critique of Rawls in FERNANDO TESON, A THEORY OF INTERNATIONAL LAW (1998). 8 Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in STATES, NATIONS, AND BORDERS: THE ETHICS OF MAKING BOUNDARIES 275, 277-78 (Allen Buchanan & Margaret Moore eds., 2003)
debates among philosophers presents a challenge for both the international lawyer and the philosopher Indeed, the fault lies not only with moral and political philosophy. Relatively few in writing in international jurisprudence- Fernando Teson, Martti Koskenniemi, and Hurrell are among the handful- have sought to bridge the gap between the disciplines This tendency remains despite the frequency with which international legal theorists write about legitimacy or justice. I hasten to add, with regret, that even fewer in mainstream urisprudence have taken on this task. Instead, following Hart's example in The Concept of Law, they have mostly confined themselves to the ontological questions about whether international law is"really law, an issue fine for an introductory international law class but past which international law scholars(and practitioners )moved long ago This paper thus offers one approach to bring international legal theory and moral and political philosophy together. It analyzes the ethics of international law by casting it as a system of general and special duties, with particular attention to the latter as understood in debates over impartiality in moral philosophy. It does so on the understanding that making a just world under law turns on(1)whether relevant international actors should owe the same or different duties to all other such actors and (2) whether the international system is constructed according to some coherent vision of this problem. What emerges is a set of spheres of general and special duties, and special duties to vastly different sets of actors. The patterns suggest that certain ways of morally justifying those special duties are more persuasive than others; indeed, I believe any special duties can and should be justified from an impartialist perspective. My goals, then, are three-fold: first, to place the basic norms of international law within a structure of
5 debates among philosophers presents a challenge for both the international lawyer and the philosopher. Indeed, the fault lies not only with moral and political philosophy. Relatively few in writing in international jurisprudence – Fernando Teson, Martti Koskenniemi, and Hurrell are among the handful – have sought to bridge the gap between the disciplines. This tendency remains despite the frequency with which international legal theorists write about legitimacy or justice. I hasten to add, with regret, that even fewer in mainstream jurisprudence have taken on this task. Instead, following Hart’s example in The Concept of Law, they have mostly confined themselves to the ontological questions about whether international law is “really law,” an issue fine for an introductory international law class but past which international law scholars (and practitioners) moved long ago. This paper thus offers one approach to bring international legal theory and moral and political philosophy together. It analyzes the ethics of international law by casting it as a system of general and special duties, with particular attention to the latter as understood in debates over impartiality in moral philosophy. It does so on the understanding that making a just world under law turns on (1) whether relevant international actors should owe the same or different duties to all other such actors and (2) whether the international system is constructed according to some coherent vision of this problem. What emerges is a set of spheres of general and special duties, and special duties to vastly different sets of actors. The patterns suggest that certain ways of morally justifying those special duties are more persuasive than others; indeed, I believe any special duties can and should be justified from an impartialist perspective. My goals, then, are three-fold: first, to place the basic norms of international law within a structure of