duties that is both meaningful to philosophers and fairly reflects contemporary developments in the field; second, to explain how those duties are consistent with an to demonstrate the analytical advantages of this construct for the understanding ofg impartialist perspective on ethics(though not any particular impartialist theory ) and thi international ethics, including by demonstrating the shortcomings of other approaches to the subject In Part I, I explain the advantages of constructing international law in terms of general and special duties by situating those duties within current debates among moral and political philosophers. In Part Il, I rather quickly identify the principal actors in international law and the fundamental claims and counterclaims of each that the international legal process seeks to resolve. This task permits identification of the duty holders and, as a general matter, to whom their duties extend. Part Ill then organizes the most significant obligations in international law into general duties and various sorts of special duties; it also offers a vision of these duties as impartial in nature. In Part IV, offer a critique of two main approaches to international justice. I conclude with some reflections for further work in the area Situating General and Special Duties Why view general vs. special duties as the most-or, at a minimum, a particularly significant organizing principle of international law? My justification lies philosophical work on these questions that both highlights the importance of such concerns for ethics and demonstrates their relevance to international law These debates in turn will benefit from an analysis of such duties
6 duties that is both meaningful to philosophers and fairly reflects contemporary developments in the field; second, to explain how those duties are consistent with an impartialist perspective on ethics (though not any particular impartialist theory); and third, to demonstrate the analytical advantages of this construct for the understanding of international ethics, including by demonstrating the shortcomings of other approaches to the subject. In Part I, I explain the advantages of constructing international law in terms of general and special duties by situating those duties within current debates among moral and political philosophers. In Part II, I rather quickly identify the principal actors in international law and the fundamental claims and counterclaims of each that the international legal process seeks to resolve. This task permits identification of the dutyholders and, as a general matter, to whom their duties extend. Part III then organizes the most significant obligations in international law into general duties and various sorts of special duties; it also offers a vision of these duties as impartial in nature. In Part IV, I offer a critique of two main approaches to international justice. I conclude with some reflections for further work in the area. I. Situating General and Special Duties Why view general vs. special duties as the most – or, at a minimum, a particularly - - significant organizing principle of international law? My justification lies in philosophical work on these questions that both highlights the importance of such concerns for ethics and demonstrates their relevance to international law. These debates, in turn, will benefit from an analysis of such duties
Any discussion of general and special duties should begin with H L.A. Harts 1955 essay, Are There Any Natural Rights? Hart made two key insights relevant for my analysis. First, he distinguished between someone who holds a right corresponding to another's duty and someone who is the beneficiary of that duty. Hart pointed out the obvious case of two people who agree that in exchange for a favor or payment by one to another, the latter will look after the firsts aged mother; the mother is the beneficiary of the second person's duty, but does not herself have a right to the care. As Hart notes, while the person who stands to benefit by the performance of the duty is discovered by considering what will happen if the duty is not performed, the person who has the right is discovered by examining the transaction or antecedent situation or relations of the parties out of which the 'duty'arises. I will return later to this important distinction insofar as it helps us understand international legal duties Second, and most pertinent for now hart introduced the notion of special and general rights. Special rights" arise out of special transactions between individuals or out of some special relationship in which they stand to each other; thus the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction or relation: oll General rights " are rights which all men capable of choice have in the absence of those special conditions which give rise to special rights with] correlative obligations .. to which everyone else is subject and not merely the parties to some special relationship or transaction. Hart then sketches the sorts of 64PHL.REV.175(1955) ld at 181 ld at 183 ld. at 188
7 Any discussion of general and special duties should begin with H.L.A. Hart’s 1955 essay, Are There Any Natural Rights?9 Hart made two key insights relevant for my analysis. First, he distinguished between someone who holds a right corresponding to another’s duty and someone who is the beneficiary of that duty. Hart pointed out the obvious case of two people who agree that in exchange for a favor or payment by one to another, the latter will look after the first’s aged mother; the mother is the beneficiary of the second person’s duty, but does not herself have a right to the care. As Hart notes, “while the person who stands to benefit by the performance of the duty is discovered by considering what will happen if the duty is not performed, the person who has the right . . . is discovered by examining the transaction or antecedent situation or relations of the parties out of which the ‘duty’ arises.”10 I will return later to this important distinction insofar as it helps us understand international legal duties. Second, and most pertinent for now, Hart introduced the notion of special and general rights. Special rights “arise out of special transactions between individuals or out of some special relationship in which they stand to each other;” thus “the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction or relationship.”11 General rights “are rights which all men capable of choice have in the absence of those special conditions which give rise to special rights [, with] correlative obligations . . . to which everyone else is subject and not merely the parties to some special relationship or transaction.”12 Hart then sketches the sorts of 9 64 PHIL. REV. 175 (1955). 10 Id. at 181. 11 Id. at 183. 12 Id. at 188
relationships or transactions that can create such duties. Robert Goodin relied on this distinction to define general and special duties as follows In contrast to the universality of general moral law, some people have special duties that other people do not. In contract to the impartiality of the general moral law, we all have special duties to some people that we do not have to others. Special duties, in short bind particular people to particular other people. 3 As Philip pettit and Goodin note, these special duties can arise by virtue of agents identities, relationships or histories At least two significant debates within ethics generally, and international ethics in particular, point to the analytical payoff of distinguishing between general and special duties in international law. Those debates also show how any ethical theory of international law must be able to find a moral justification for special duties The Partiality debate. First are debates between partialists and impartialists. At its most fundamental level, impartiality describes a way that individuals and institutions decide and act, one based on disinterestedness consistency and fairness and not merely personal motives. Lawrence Becker has categorized these debates as 13 Robert E Goodin, What is So Special about Our Fellow Countrymen?, 98 ETHICS 663 665(1988 Philip pettit robert Goodin, The Possibility of special Duties, 16 CANAD. J. PHIL. 651 I am not here equating these terms with moral particularism and moral universalism That debate concerns whether generalizeable moral rules are even possible or whether all ethics is situation-specific. The debate in this paper is among groups of moral universalists. For a clarification of terms, see Lawrence Blum, Against Deriving Particularity, in MoRaL PARTICULARISM 205-11 (Brad Hooker Margaret Little eds 2000) 16 It is in this sense that Brian barry and Terry Nardin define justice as impartiality.See BRIAN BARRY, JUSTICE AS IMPARTIALITY(1995): TERRY NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES 258-59, 265(1983). See also Maclntyre's notion of the"liberal
8 relationships or transactions that can create such duties. Robert Goodin relied on this distinction to define general and special duties as follows: In contrast to the universality of general moral law, some people have special duties that other people do not. In contract to the impartiality of the general moral law, we all have special duties to some people that we do not have to others. Special duties, in short, bind particular people to particular other people.13 As Philip Pettit and Goodin note, these special duties can arise by virtue of agents’ “identities, relationships or histories.”14 At least two significant debates within ethics generally, and international ethics in particular, point to the analytical payoff of distinguishing between general and special duties in international law. Those debates also show how any ethical theory of international law must be able to find a moral justification for special duties. 1. The Partiality Debate. First are debates between partialists and impartialists.15 At its most fundamental level, impartiality describes a way that individuals and institutions decide and act, one based on disinterestedness, consistency, and fairness and not merely personal motives.16 Lawrence Becker has categorized these debates as 13 Robert E. Goodin, What is So Special about Our Fellow Countrymen?, 98 ETHICS 663, 665 (1988). 14 Philip Pettit & Robert Goodin, The Possibility of Special Duties, 16 CANAD. J. PHIL. 651 (1986). 15 I am not here equating these terms with moral particularism and moral universalism. That debate concerns whether generalizeable moral rules are even possible or whether all ethics is situation-specific. The debate in this paper is among groups of moral universalists. For a clarification of terms, see Lawrence Blum, Against Deriving Particularity, in MORAL PARTICULARISM 205-11 (Brad Hooker & Margaret Little eds. 2000). 16 It is in this sense that Brian Barry and Terry Nardin define justice as impartiality. See BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995); TERRY NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES 258-59, 265 (1983). See also MacIntyre’s notion of the “liberal
concerning three major questions: whether personal interests can play a role in determining oral duties, whether it is possible to adopt a standpoint for moral deliberation that is dependent of ourselves; and whether we can take into account personal relationships in assessing moral duties. Most of the impartiality debate, and certainly its analysis of special duties, concerns the last issue. In one rather simple sense of the term, partialists seek to morally justify these relationships(to family members, community, or country) while impartialists downplay them Some of the differences between partialists and impartialists have been narrowed through the notion of orders(or levels)of impartiality. Under this view, one can remain impartial as an individual while accepting the morality of special duties long as one can justify those duties from an independent moral perspective such that all individuals owe those special duties to all persons in that special relationship to them. In other words special duties are not violations of the principle of impartiality because that principle means treating all like cases alike, not simply all cases alike. This sort of reason undergirds the very impartialist defense of special duties put forth years ago by Pettit and Goodin, arguing that such duties derive from special responsibilities that an agent can have for a certain state of affairs. By virtue of those responsibilities, only certain agents(rather than all agents) have the duties, but others with those responsibilities(to a different state of affairs involving a different beneficiary )also have special duties. An impartialist could thus defend an individual s patriotic ties if he were convinced that there were a moral basis impersonal morality"in Is PATRIOTISM A VIRTUE? (Lindley Lecture, University of Kansas 1984 Lawrence C Becker, Impartiality and Ethical Theory, 101 ETHICS 698(1991) Pettit Goodin, supra note 14
9 concerning three major questions: whether personal interests can play a role in determining moral duties; whether it is possible to adopt a standpoint for moral deliberation that is independent of ourselves; and whether we can take into account personal relationships in assessing moral duties.17 Most of the impartiality debate, and certainly its analysis of special duties, concerns the last issue. In one rather simple sense of the term, partialists seek to morally justify these relationships (to family members, community, or country), while impartialists downplay them. Some of the differences between partialists and impartialists have been narrowed through the notion of orders (or levels) of impartiality. Under this view, one can remain impartial as an individual while accepting the morality of special duties long as one can justify those duties from an independent moral perspective such that all individuals owe those special duties to all persons in that special relationship to them. In other words, special duties are not violations of the principle of impartiality because that principle means treating all like cases alike, not simply all cases alike. This sort of reason undergirds the very impartialist defense of special duties put forth years ago by Pettit and Goodin, arguing that such duties derive from special responsibilities that an agent can have for a certain state of affairs. By virtue of those responsibilities, only certain agents (rather than all agents) have the duties; but others with those responsibilities (to a different state of affairs involving a different beneficiary) also have special duties.18 An impartialist could thus defend an individual’s patriotic ties if he were convinced that there were a moral basis impersonal morality” in IS PATRIOTISM A VIRTUE? (Lindley Lecture, University of Kansas, 1984). 17 Lawrence C. Becker, Impartiality and Ethical Theory, 101 ETHICS 698 (1991). 18 Pettit & Goodin, supra note 14
(utilitarian, Kantian, etc. ) for all such ties. Barry, John Deigh, and Marcia Baron have deployed the notion of"second-order impartiality to describe this approach Because international law is a regime prescribing the rights and duties of international actors(as described more fully below ) any appraisal of the morality of that system must address its impartiality in Becker's third sense. Just as the notion of special duties provides an important complement to the general duties so central to ethics, so too the notion of special duties helps complement the universalist notion in international lay that all states are sovereign equals with identical rights and duties. It is critically important to ask, for instance, with respect to states, What duties do all states have to all others? Can states have duties to some states but not others? If special duties exist, how does nor should the law justify them? Do these justifications show that international law is not impartial as a first-order matter or second-order matter? These questions need to be asked for international actors other than states too Indeed, the gap in conceptualizing is not that international ethics has failed to address these issues for it has in the debates over the duties we owe to our co-nationals as opposed to foreigners, including debates about special duties on the richest states with regard to economic redistribution. The problem is that those debates have not made sufficient reference to the extant system of rights and duties under international law. By asking these questions of international law, we can help to bridge this gap. I do not suggest that the divide between general and special duties is the only way to organize 19 See, e. g, BARRY, supra note 16, at 191-95; Marcia Baron, Impartiality and Friendship 101 ETHICS 836 (1991); for a recent attempt at reconciliation, see SUSAN MENDUS IMPARTIALITY IN MORAL AND POLITICAL PHILOSOPHY(2002) UN CHARTER, art. 2(1)
10 (utilitarian, Kantian, etc.) for all such ties. Barry, John Deigh, and Marcia Baron have deployed the notion of “second-order impartiality” to describe this approach.19 Because international law is a regime prescribing the rights and duties of international actors (as described more fully below), any appraisal of the morality of that system must address its impartiality in Becker’s third sense. Just as the notion of special duties provides an important complement to the general duties so central to ethics, so too the notion of special duties helps complement the universalist notion in international law that all states are sovereign equals with identical rights and duties.20 It is critically important to ask, for instance, with respect to states, “What duties do all states have to all others? Can states have duties to some states but not others? If special duties exist, how does nor should the law justify them? Do these justifications show that international law is not impartial as a first-order matter or second-order matter?” These questions need to be asked for international actors other than states too. Indeed, the gap in conceptualizing is not that international ethics has failed to address these issues, for it has in the debates over the duties we owe to our co-nationals as opposed to foreigners, including debates about special duties on the richest states with regard to economic redistribution. The problem is that those debates have not made sufficient reference to the extant system of rights and duties under international law. By asking these questions of international law, we can help to bridge this gap. I do not suggest that the divide between general and special duties is the only way to organize 19 See, e.g., BARRY, supra note 16, at 191-95; Marcia Baron, Impartiality and Friendship, 101 ETHICS 836 (1991); for a recent attempt at reconciliation, see SUSAN MENDUS, IMPARTIALITY IN MORAL AND POLITICAL PHILOSOPHY (2002). 20 UN CHARTER, art. 2(1)