international law for ethical analysis, one might, for instance, distinguish between traditional interstate-duties and those emanating from individual human rights. But just as the impartiality debate has shown the general/special duty distinction to be particularly helpful for appraising interpersonal ethics, so that same divide has a payoff for international ethics The partiality/impartiality debate has sometimes been cast in terms of whether special duties are morally justified based on the personal relationship per se- what Rawls calls"relations of affinity"-or some other grounds. As David Miller writes, one position says that "only the general facts about other individuals can serve to determine my duties towards them while the other sees relations between individuals as so central to ethics that"fundamental principles may be attached directly to these relations. 23 Christopher Wellman has characterized the different stances toward special duties as reductionist andassociativist(or" nonreductionist). Reductionists attempt to reduce the relationship to some other, morally significant tie justify ing special duties associativists find the relationship itself sufficient Within these two general outlooks are a variety of justifications for special duties, with the line between the two approaches--and the extent to which the division between them maps onto the impartialist/partialist divide -- sometimes not very clear. Thus Goodin offers a consequentialist account of special duties toward co-nationals under which states represent the most efficient means of allocating general duties among all I appreciate this point from Allen Buchanan 23 RAWLS, supra note 3, at 112 DAVID MILLER, ON NATIONALITY 50(1995) Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun My,?, 110 ETHICS 537(2000)
11 international law for ethical analysis; one might, for instance, distinguish between traditional interstate-duties and those emanating from individual human rights.21 But just as the impartiality debate has shown the general/special duty distinction to be particularly helpful for appraising interpersonal ethics, so that same divide has a payoff for international ethics. The partiality/impartiality debate has sometimes been cast in terms of whether special duties are morally justified based on the personal relationship per se – what Rawls calls “relations of affinity”22— or some other grounds. As David Miller writes, one position says that “only the general facts about other individuals can serve to determine my duties towards them”, while the other sees relations between individuals as so central to ethics that “fundamental principles may be attached directly to these relations.”23 Christopher Wellman has characterized the different stances toward special duties as “reductionist” and “associativist” (or “nonreductionist”). Reductionists attempt to reduce the relationship to some other, morally significant tie justifying special duties; associativists find the relationship itself sufficient.24 Within these two general outlooks are a variety of justifications for special duties, with the line between the two approaches -- and the extent to which the division between them maps onto the impartialist/partialist divide -- sometimes not very clear. Thus, Goodin offers a consequentialist account of special duties toward co-nationals under which states represent the most efficient means of allocating general duties among all 21 I appreciate this point from Allen Buchanan. 22 RAWLS,supra note 3, at 112. 23 DAVID MILLER, ON NATIONALITY 50 (1995). 24 Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My’?, 110 ETHICS 537 (2000)
individuals. Alan Gewirth offers a Kantian perspective emphasizing individual autonomy as the ethical lodestar of special relationships, seemingly making him a reductionist, though he insists that his view serves to give intrinsic, rather than instrumental, value to the relationships. Oldenquist and Samuel Scheffler defend the patriot whose allegiance is based on loyalties or special ties alone.27 An inquiry into the morality of the international legal order should both incorporate and contribute to these debates as well. For if international law does have special duties, we need to ask if they are justified based on morally significant" relations of affinity"or on characteristics other than the relationship per se. Thus, for example, states are constantly confronted with whether and why their duties to their members, whether based on ethnicity, citizenship, or residency, might differ from their duties to non-members, whether ethnic minorities. aliens. or those abroad 2. Cosmopolitanism and International Justice. Special duties are also at the heart of debates over international justice between cosmopolitans and non cosmopolitans. Strong cosmopolitans see nations and national identities as morally irrelevant or nearly irrelevant for constructing a just world. The classic works of the earlier era, such as Beitz's Political Theory and International Relations, Henry Shue's Basic Rights, and Singers"Famine, Affluence, and Morality, though different in much of their justification for cosmopolitanism, have seen recent defenses in the works of Teson ROBERT GOODIN, PROTECTING THE VULNERABLE(1985); Goodin, supra note 1 Alan Gewirth, Ethical Universalism and particularism, 85 J. PHIL. 283, 294-96(1988) Andrew Oldenquist, Loyalties, 74 J. PHIL. 173, 182-83, 176(1982); Samuel Scheffler Relationships and Responsibilities, 26 PHIL. PUB. AFF. 189, 200(1987); for other defenses of the moral significance of community, see MILLER, supra note 23, at 65-80 MICHAEL WALZER, SPHERES OF JUSTICE 33(1983)(People who do share a common life have much stronger duties. ): YAEL TAMIR, LIBERAL NATIONALISM 95-116(1993)
12 individuals.25 Alan Gewirth offers a Kantian perspective emphasizing individual autonomy as the ethical lodestar of special relationships, seemingly making him a reductionist, though he insists that his view serves to give intrinsic, rather than instrumental, value to the relationships.26 Oldenquist and Samuel Scheffler defend the patriot whose allegiance is based on loyalties or special ties alone.27 An inquiry into the morality of the international legal order should both incorporate and contribute to these debates as well. For if international law does have special duties, we need to ask if they are justified based on morally significant “relations of affinity” or on characteristics other than the relationship per se. Thus, for example, states are constantly confronted with whether and why their duties to their members, whether based on ethnicity, citizenship, or residency, might differ from their duties to non-members, whether ethnic minorities, aliens, or those abroad. 2. Cosmopolitanism and International Justice. Special duties are also at the heart of debates over international justice between cosmopolitans and noncosmopolitans. Strong cosmopolitans see nations and national identities as morally irrelevant or nearly irrelevant for constructing a just world. The classic works of the earlier era, such as Beitz’s Political Theory and International Relations, Henry Shue’s Basic Rights, and Singer’s “Famine, Affluence, and Morality,” though different in much of their justification for cosmopolitanism, have seen recent defenses in the works of Teson, 25 ROBERT GOODIN, PROTECTING THE VULNERABLE (1985); Goodin, supra note 13. 26 Alan Gewirth, Ethical Universalism and Particularism, 85 J. PHIL. 283, 294-96 (1988). 27 Andrew Oldenquist, Loyalties, 74 J. PHIL. 173, 182-83, 176 (1982); Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFF. 189, 200 (1987); for other defenses of the moral significance of community, see MILLER, supra note 23, at 65-80; MICHAEL WALZER, SPHERES OF JUSTICE 33 (1983) (“People who do share a common life have much stronger duties.”); YAEL TAMIR, LIBERAL NATIONALISM 95-116 (1993)
Buchanan, and David Held. Many theorists sought to extend the ideas of Rawls's A Theory of Justice into the international realm, e.g., through a global difference principle though Rawls himself opted out of the strong cosmopolitan camp in A Law of peoples Nonetheless, as Barry points out, cosmopolitans need not deny that special duties by citizens to co-nationals are inconsistent with cosmopolitanism; they simply insist that proponents of such duties offer a defense from an impartialist perspective The questions asked in the cosmopolitanism debates further undergird the need for seeing international law in terms of general and special duties. The debates over cosmopolitanism are effectively debates over general and special duties to(and by) individuals. It is thus important to ask, in the context of international law, whether states and other international actors owe equal duties to all individuals or just to some. Indeed these already reverberate in international law circles, both academic and policy-oriented International lawyers who emphasize human rights and the impartial application thereof are making strong cosmopolitan arguments insofar as they focus on the worth of the individual regardless of nationality. Special duties based on national or other ties thus do not play a big role. They may also propose institutional models that include ways of putting individuals, wherever situated, first. Some international lawyers, like cosmopolitans, ask whether a state's territorial integrity can be sacrificed to allow for humanitarian intervention to rescue oppressed peoples 28 Barry, supra note 1, at 145
13 Buchanan, and David Held. Many theorists sought to extend the ideas of Rawls’s A Theory of Justice into the international realm, e.g., through a global difference principle, though Rawls himself opted out of the strong cosmopolitan camp in A Law of Peoples. Nonetheless, as Barry points out, cosmopolitans need not deny that special duties by citizens to co-nationals are inconsistent with cosmopolitanism; they simply insist that proponents of such duties offer a defense from an impartialist perspective.28 The questions asked in the cosmopolitanism debates further undergird the need for seeing international law in terms of general and special duties. The debates over cosmopolitanism are effectively debates over general and special duties to (and by) individuals. It is thus important to ask, in the context of international law, whether states and other international actors owe equal duties to all individuals or just to some. Indeed, these already reverberate in international law circles, both academic and policy-oriented. International lawyers who emphasize human rights and the impartial application thereof are making strong cosmopolitan arguments insofar as they focus on the worth of the individual regardless of nationality. Special duties based on national or other ties thus do not play a big role. They may also propose institutional models that include ways of putting individuals, wherever situated, first. Some international lawyers, like cosmopolitans, ask whether a state’s territorial integrity can be sacrificed to allow for humanitarian intervention to rescue oppressed peoples. 28 Barry, supra note 1, at 145
IL. Claims and duties in international law Before constructing my model of international law as based on general and special duties, it is first necessary to explain international law's approach to duties generally. I do so by clarifying the nature of both the dutyholders and the targets of those duties. This brief exposition serves an additional purpose of showing that international law is a much richer and complex process than most contemporary moral and political philosophers have acknowledged A. The actors As a general matter, six major actors participate in the international legal process states, individuals, peoples, international organizations, non-governmental organizations (NGOS), and business entities. I do not wish to offer here any sort of international law definition of each group; rather, I assume the reader can appreciate a generally shared meaning for them. Obviously, some of the terms are hard to define without wrongly excluding or including some entities; others overlap at the margins(e.g, NGOs and business entities). Moreover, the legal process includes other participants, such as organized religions, sports entities, and transnational organized crime or terrorist groups Some traditional international legal scholars prefer to label these participants, or at least some of them, international"persons"based on the old concept of legal personality, i.e., the capacity to be subject to legal rights and duties. My listing does not rely on this notion because I see it as either circular in its usage or unhelpful in contributing to any understanding of whether an entity has rights and duties. In a similar vein, Brent Fisse and See, e.g., Nkambo Mugerwa, Subjects of International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 247, 249( Max Sorenson ed 1968)
14 II. Claims and Duties in International Law Before constructing my model of international law as based on general and special duties, it is first necessary to explain international law’s approach to duties generally. I do so by clarifying the nature of both the dutyholders and the targets of those duties. This brief exposition serves an additional purpose of showing that international law is a much richer and complex process than most contemporary moral and political philosophers have acknowledged. A. The Actors As a general matter, six major actors participate in the international legal process: states, individuals, peoples, international organizations, non-governmental organizations (NGOs), and business entities. I do not wish to offer here any sort of international law definition of each group; rather, I assume the reader can appreciate a generally shared meaning for them. Obviously, some of the terms are hard to define without wrongly excluding or including some entities; others overlap at the margins (e.g., NGOs and business entities). Moreover, the legal process includes other participants, such as organized religions, sports entities, and transnational organized crime or terrorist groups. Some traditional international legal scholars prefer to label these participants, or at least some of them, international “persons” based on the old concept of “legal personality,” i.e., the capacity to be subject to legal rights and duties.29 My listing does not rely on this notion because I see it as either circular in its usage or unhelpful in contributing to any understanding of whether an entity has rights and duties. In a similar vein, Brent Fisse and 29 See, e.g., Nkambo Mugerwa, Subjects of International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 247, 249 ( Max Sørenson ed. 1968)
John Braithwaite, as well as Peter Cane, have rejected the notion that an actor can only be blameworthy if it is previously determined to have"philosophical personality I will also assume, without arguing, that the six classes of actors are not merely the principal legal participants, but that they are moral actors in that they can make moral claims and that one can prescribe appropriate ethical behavior for them. I ground this assumption in the sense, which others have argued better than I can, that if these entities are a legitimate way for persons to organize themselves and exhibit some cohesiveness in structure, they are also moral actors. Barry took a similar position long ago in his Tanner Lectures, and Rawls accepts the idea in calling peoples the actors in the society of peoples 31 I recognize, however, that this is a contested notion, certainly among cosmopolitans. Barrys more recent work and well as others' evince a strong belief that only the claims of individuals should matter on the international (and domestic) plane Part and parcel of this view is a deep-seated skepticism of international law 32 The purpose of this paper, however, is to describe and evaluate some core aspects of international law Although it is not an apologia for the existing international order, neither does it shirk from finding an ethical basis for aspects of that order, even if others may disagree with it and wish to reconstruct it. I cannot overcome the objections of those who embrace only the Brent Fisse John Braithwaite, The Allocation of Responsibility for Corporate Crime Individualism, Collectivism and Accountability, 1l SYDNEY L REV. 468, 483-88(1988): ROBERT CANE, RESPONSIBILITY IN LAW AND MORALITY 143-150(2002) Brian Barry, Do Countries Have Moral Obligations THE TANNER LECTURES ON HUMAN VALUES 27, 41(Justice .. is concerned with the way in which rights and powers are allocated. And rights, powers, or resources may be attributes of collectivities as well as individuals ) RAWLS, supra note 3, at 23. But see Pogge, supra note 2, at 73-74 Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in GLOBAL JUSTICE 12 (Nomos XLl, 1999)
15 John Braithwaite, as well as Peter Cane, have rejected the notion that an actor can only be blameworthy if it is previously determined to have “philosophical personality.”30 I will also assume, without arguing, that the six classes of actors are not merely the principal legal participants, but that they are moral actors in that they can make moral claims and that one can prescribe appropriate ethical behavior for them. I ground this assumption in the sense, which others have argued better than I can, that if these entities are a legitimate way for persons to organize themselves and exhibit some cohesiveness in structure, they are also moral actors. Barry took a similar position long ago in his Tanner Lectures, and Rawls accepts the idea in calling peoples the actors in the society of peoples.31 I recognize, however, that this is a contested notion, certainly among cosmopolitans. Barry’s more recent work and well as others’ evince a strong belief that only the claims of individuals should matter on the international (and domestic) plane. Part and parcel of this view is a deep-seated skepticism of international law.32 The purpose of this paper, however, is to describe and evaluate some core aspects of international law. Although it is not an apologia for the existing international order, neither does it shirk from finding an ethical basis for aspects of that order, even if others may disagree with it and wish to reconstruct it. I cannot overcome the objections of those who embrace only the 30 Brent Fisse & John Braithwaite, The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability, 11 SYDNEY L. REV. 468, 483-88 (1988); ROBERT CANE, RESPONSIBILITY IN LAW AND MORALITY 143-150 (2002). 31 Brian Barry, Do Countries Have Moral Obligations?, THE TANNER LECTURES ON HUMAN VALUES 27, 41 (“Justice . . . is concerned with the way in which rights and powers are allocated. And rights, powers, or resources may be attributes of collectivities as well as individuals.”); RAWLS, supra note 3, at 23. But see Pogge, supra note 2, at 73-74. 32 Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in GLOBAL JUSTICE 12 (Nomos XLI, 1999)