claims and moral standing of individuals. Instead, the paper speaks to philosophers who are willing to use international law -at least its basic structure and norms-as part of an approach to both interactional and institutional morality and seek a normative assessment of it. lt thus assumes the moral relevance of these six actors B. Their Claims Having identified the most important international legal actors, I now sketch their principal claims and upon whom they are making them; I will then translate this set of claims into a simple matrix of duties and dutyholders. For the sake of space, I will focus on the three entities given the greatest consideration by philosophers-states, individuals, and peoples-though the analysis can be extended to the other three actors as well 1. The State. The state's fundamental claim in the international order is to its sovereignty, a mystical term encompassing several key concepts: territorial integrity the claim not to be invaded and conquered; political independence -the claim not to be subservient to another state; and recognition --the claim to be treated as an equal player on he international plane. It also has tended to include the claim to be left alone in a broad sense of opting out of emerging international norms or, more insidiously for international lawyers, of seeking to opt out of established international norms. 3 Against whom does the state make these sovereignty claims? principally against other states- states seeking to dominate it through political or economic strong-arming intervention, nonrecognition, or, rarely, aggression. But the state can make the claim against any of the other participants as well. Russia and China are making sovereignty Compare, e.g., LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8-10 (1995)with STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY(1999)
16 claims and moral standing of individuals. Instead, the paper speaks to philosophers who are willing to use international law – at least its basic structure and norms – as part of an approach to both interactional and institutional morality and seek a normative assessment of it. It thus assumes the moral relevance of these six actors. B. Their Claims Having identified the most important international legal actors, I now sketch their principal claims and upon whom they are making them; I will then translate this set of claims into a simple matrix of duties and dutyholders. For the sake of space, I will focus on the three entities given the greatest consideration by philosophers – states, individuals, and peoples – though the analysis can be extended to the other three actors as well. 1. The State. The state’s fundamental claim in the international order is to its sovereignty, a mystical term encompassing several key concepts: territorial integrity -- the claim not to be invaded and conquered; political independence -- the claim not to be subservient to another state; and recognition -- the claim to be treated as an equal player on the international plane. It also has tended to include the claim to be left alone in a broad sense of opting out of emerging international norms or, more insidiously for international lawyers, of seeking to opt out of established international norms.33 Against whom does the state make these sovereignty claims?: principally against other states – states seeking to dominate it through political or economic strong-arming, intervention, nonrecognition, or, rarely, aggression. But the state can make the claim against any of the other participants as well. Russia and China are making sovereignty 33 Compare, e.g., LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8-10 (1995) with STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999)
claims against peoples--Chechen and Tibetans, respectively -and Israel against Palestinians. The current United States opposition to the International Criminal Court is essentially a sovereignty claim against an organization of states as well as against pro-ICC NGOs around the world; the attempts by the developing world to regain control of their natural resources after decolonization were sovereignty claims in part against transnational business entities 34 2. The Individual: The individual's rise as a participant in the international legal process has ancient origins, but gained some momentum in the 19 century in the anti-slavery movement; it stood on its own after World War I as states agreed to protect thnic minorities in the new states emerging after the war and to protect some workers through international labor law. The era after World war li saw the rise of individual human rights and the codification of numerous treaties to advance them. Any description of international law that does not consider human rights and the accompanying duties is quite simply, fatally flawed. As David Held has noted, through these developments, a bridge is created between morality and law where, at best, only stepping stones existed before. The individual's fundamental claim is one of dignity, which encompasses negative claims(to be free of governmental abuse)and positive claims(to attain a certain See generally Steven R. Ratner, Corporations and Human Rights: A Theory oflegal Responsibility, 111 YALE L.J. 443(2001) As stated by the UNs International Criminal Tribunal for the Former Yugoslavia, A State-sovereignty-oriented approach has been gradually supplanted by a human-being- oriented approach. gradually the maxim of roman law hominum causa omne jus constitutum est... has gained a firm foothold in the international community... Tadic Interlocutory Appeal, 1995, para. 97 6 David Held, Law of States, Law of Peoples: Three Models of Sovereignty, 8 LEG THEORY 1, 13 (2002). Held's grasp of international law, rare for a political theorist, is evident in id as well as his democracy and the global order: from moDERn state TO COSMOPOLITAN GOVERNANCE(1995)
17 claims against peoples -- Chechen and Tibetans, respectively -- and Israel against Palestinians. The current United States opposition to the International Criminal Court is essentially a sovereignty claim against an organization of states as well as against pro-ICC NGOs around the world; the attempts by the developing world to regain control of their natural resources after decolonization were sovereignty claims in part against transnational business entities.34 2. The Individual: The individual’s rise as a participant in the international legal process has ancient origins, but gained some momentum in the 19th century in the anti-slavery movement; it stood on its own after World War I as states agreed to protect ethnic minorities in the new states emerging after the war and to protect some workers through international labor law. The era after World War II saw the rise of individual human rights and the codification of numerous treaties to advance them.35 Any description of international law that does not consider human rights and the accompanying duties is, quite simply, fatally flawed. As David Held has noted, through these developments, “a bridge is created between morality and law where, at best, only stepping stones existed before.”36The individual’s fundamental claim is one of dignity, which encompasses negative claims (to be free of governmental abuse) and positive claims (to attain a certain 34 See generally Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001). 35 As stated by the UN’s International Criminal Tribunal for the Former Yugoslavia, “A State-sovereignty-oriented approach has been gradually supplanted by a human-beingoriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est . . . has gained a firm foothold in the international community . . . .” Tadic Interlocutory Appeal, 1995, para. 97. 36 David Held, Law of States, Law of Peoples: Three Models of Sovereignty, 8 LEG. THEORY 1, 13 (2002). Held’s grasp of international law, rare for a political theorist, is evident in id. as well as his DEMOCRACY AND THE GLOBAL ORDER: FROM MODERN STATE TO COSMOPOLITAN GOVERNANCE (1995)
standard of living for himself and his family). The individual principally makes these claims on the state, usually his own, for it generally has the readiest capacity to grant that which the claimant seeks. An individual can assert a claim against a people, as when a member of an indigenous group seeks to opt out of a practice that the group mandates; or against business entities, as when an individual accuses such entities of not providing proper conditions of labor 3. Peoples: The Charter of the United Nations recognizes the principles of "equal rights and self-determination of peoples, but each of those terms, including the definition of a people, is subject to disagreement. Many ethnic minorities often call themselves a people, but international law generally views peoples as having something beyond ethnic kinship- some sort of territorial affiliation or attachment(e.g, the Finnish, Corsican, or Sioux people). Despite these definitional difficulties, the central claim of peoples is to self-government. This includes a claim to recognition as a distinct actor and not a mere loose group of individuals and, most significantly, claims to control its future hrough political arrangements ranging from self-administration within states up to creation of its own state. Minority groups typically assert more modest claims, i.e., to assert their identity through the ability to continue various linguistic, educational, cultural and other practices central to that identity. The primary target of these claims is the state or, in some cases(as in claims related to secession), a community of states, as these entities have generally have the power to act on these claims. Peoples also make claims again their members, in seeking to constrain their behavior, including by seeking to prevent exit 37。4A, See antonio Cassese. selF-DEtERMInation OF PEOPLES: A LEGAL REAPPRAISAL 59- 62(1995)
18 standard of living for himself and his family). The individual principally makes these claims on the state, usually his own, for it generally has the readiest capacity to grant that which the claimant seeks. An individual can assert a claim against a people, as when a member of an indigenous group seeks to opt out of a practice that the group mandates; or against business entities, as when an individual accuses such entities of not providing proper conditions of labor. 3. Peoples: The Charter of the United Nations recognizes the principles of “equal rights and self-determination of peoples,” but each of those terms, including the definition of a people, is subject to disagreement. Many ethnic minorities often call themselves a people, but international law generally views peoples as having something beyond ethnic kinship – some sort of territorial affiliation or attachment (e.g., the Finnish, Corsican, or Sioux people).37 Despite these definitional difficulties, the central claim of peoples is to self-government. This includes a claim to recognition as a distinct actor and not a mere loose group of individuals and, most significantly, claims to control its future through political arrangements ranging from self-administration within states up to creation of its own state. (Minority groups typically assert more modest claims, i.e., to assert their identity through the ability to continue various linguistic, educational, cultural, and other practices central to that identity.) The primary target of these claims is the state or, in some cases (as in claims related to secession), a community of states, as these entities have generally have the power to act on these claims. Peoples also make claims against their members, in seeking to constrain their behavior, including by seeking to prevent exit. 37 See ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 59- 62 (1995)
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C. From Claims to duties The resolution of claims through law is principally carried out through rules and processes that allocate to different persons, entities, and institutions various rights, duties and powers, including the power to make the rules. The relationship between rights and duties is, of course, a source of great debate in both law and ethics. 8 For my purposes here, I need not take a position in favor of a rights-based or duty-based morality or legal order; I need only posit that much moral philosophy, like law, is about duties in a broad sense. The common language of duties makes a discussion of international legal duties relevant to understanding ethical questions of special duties and vice-versa.3 9 What follows is what I see as the core duties that international law has recognized in response to the claims of the three actors above. For purposes of this section, I identify the duty and the target of that duty. I will not ask or answer whether the particular duty is directed to all or only some of the targets in that class(e.g, does a state owe duty x to all individuals, or to all peoples) that issue will be addressed later 1. States: States owe legal duties to other states, to peoples, and to individuals. Their principal duty to other states is the obligation under the United Nations H.L. A HART, THE CONCEPT OF LAW(1961); see the overview in Jeremy Waldro Introduction, in THEORIES OF RIGHTS 8-14 Jeremy Waldron ed 1984). Also, compare JOSEPH RAZ, THE MORALITY OF FREEDOM 183-86, 210-16(1986)with J.L. Mackie, Can There be A Right-Based Moral Theory?, in THEORIES OF RIGHTS at 168 This view does not, of course, equate moral and legal duties, as Hart, Cane, and others have pointed out. I share Nardin's view that law and ethics are" parallel but not identical ways of conceiving and judging international conduct. NARDIN, supra note 16, at 250 4o I organize these duties in the same order as the discussion above though obviously the duty of one actor emanates from the claims of other actor
20 C. From Claims to Duties The resolution of claims through law is principally carried out through rules and processes that allocate to different persons, entities, and institutions various rights, duties, and powers, including the power to make the rules. The relationship between rights and duties is, of course, a source of great debate in both law and ethics.38 For my purposes here, I need not take a position in favor of a rights-based or duty-based morality or legal order; I need only posit that much moral philosophy, like law, is about duties in a broad sense. The common language of duties makes a discussion of international legal duties relevant to understanding ethical questions of special duties and vice-versa.39 What follows is what I see as the core duties that international law has recognized in response to the claims of the three actors above.40 For purposes of this section, I identify the duty and the target of that duty. I will not ask or answer whether the particular duty is directed to all or only some of the targets in that class (e.g., does a state owe duty x to all individuals, or to all peoples); that issue will be addressed later. 1. States: States owe legal duties to other states, to peoples, and to individuals. Their principal duty to other states is the obligation under the United Nations 38 H.L.A. HART, THE CONCEPT OF LAW (1961); see the overview in Jeremy Waldron, Introduction, in THEORIES OF RIGHTS 8-14 (Jeremy Waldron ed. 1984). Also, compare JOSEPH RAZ, THE MORALITY OF FREEDOM 183-86, 210-16 (1986) with J.L. Mackie, Can There be A Right-Based Moral Theory?, in THEORIES OF RIGHTS at 168. 39 This view does not, of course, equate moral and legal duties, as Hart, Cane, and others have pointed out. I share Nardin’s view that law and ethics are “parallel but not identical ways of conceiving and judging international conduct.” NARDIN, supra note 16, at 250, 233-53. 40 I organize these duties in the same order as the discussion above, though obviously the duty of one actor emanates from the claims of other actors