I. Introduction
Republican political and legal theory has for some time largely focused on questions of justice and legitimacy associated specifically with the modern state. Recently, however, a number of republican theorists have turned their gaze to the international and transnational spheres. This is as it should be, as states, their peoples, and the individuals that comprise them have long found their freedom subject to external forces. Greece has found its policy autonomy severely curtailed in its negotiations with the European Commission, the European Central Bank, and the International Monetary Fund. The climate in any given state is affected by every other state's carbon emissions. Decisions about matters ranging from the kinds of weapons that a state's military may use, to how a state may regulate cigarette packaging within its borders, are now made in the shadow of international law and institutions. Even for those whose primary focus is legitimacy and justice at the domestic level, what takes place at the international level cannot be ignored.
Philip Pettit, one of the world's most eminent political theorists and a leading figure in the contemporary republican revival,Footnote 1 has recently sought to extend his distinctive theory of republicanism to the international sphere.Footnote 2 Just as he frames his republican theory as an alternative to prevailing liberal approaches to domestic justice and legitimacy, he frames his “republican law of peoples” as a desirable alternative to prevailing liberal accounts of international justice and legitimacy. His reconfiguration of republicanism for the international sphere allocates a prominent role to international law and institutions which demands careful scrutiny. As such, this article assesses Pettit's attempts to extend his republican “theory of freedom and government” to encompass the international order, with a specific focus on his treatment of international law and institutions. In doing so, it seeks to connect the nascent political theory literature on international and global forms of republicanism with the practice of international law, thereby continuing the conversation started by Pettit.Footnote 3
The article begins by briefly situating Pettit's contribution within the broader republican tradition. From there, it sets out the basic tenets of Pettit's republican theory of freedom as non-domination as applied to both the state and the international order. The article then uses the practice of international law and institutions to test the assumptions built into Pettit's theory, and to consider whether and how some of those assumptions might need to be revised in light of the legal, institutional, and practical constraints of the international domain. Overall, the article concludes that although the central strands of Pettit's republican vision hold some promise to counter prevailing liberal accounts of international legitimacy and to enhance the critical potential of international law, this is undermined by many of the assumptions that Pettit makes about the international order. These include assumptions about the ontology of the international order, the capacity of international institutions for domination, and how well equipped international law and international institutions are for countering domination. In making these assumptions, Pettit paradoxically ends up replicating many of the pathologies that made liberal approaches so problematic in the first place.
II. Republicanism beyond the State
The republican tradition is long, rich, and comprises many disparate strands. Samantha Besson and José Luis Martí, for a start, identify “[c]ivic republicanism, Aristotelian republicanism, neo-Roman republicanism, neo-Athenian republicanism, socialist republicanism, communitarian republicanism, and even liberal republicanism”.Footnote 4 Writers as diverse as Polybius,Footnote 5 Cicero,Footnote 6 Machiavelli,Footnote 7 Harrington,Footnote 8 Montesquieu,Footnote 9 Rousseau,Footnote 10 Blackstone,Footnote 11 and MadisonFootnote 12 have been associated with the republican tradition in various forms. These writers shared a common concern with the idea of the res publica (or “the commonwealth” in the traditional English renditionFootnote 13) which Pettit describes as being “understood in this tradition to mean, roughly, a shared political system in which there is no direct personal rule of some people by others, but rather a condition of equal citizenship governed by the rule of law”.Footnote 14 That said, many early incarnations of republicanism took a severely exclusionary approach to citizenship (whether on the grounds of gender, race, property ownership, or otherwise), thereby justifying terrible inequality between citizens and non-citizens.
These writers, to varying degrees, emphasised civic virtue, public participation, the benefits of a mixed constitution and the rule of law, all held together and enabled by a complex set of interlocking laws and institutions. As such, many of them saw republican ideals as working best on a small scale.Footnote 15 Trying to extend these versions of republicanism (several of which take the Athenian, Florentine, or Genevese city-state as the ideal republican polity) to the international or global levels would seem an impossible project.
Nonetheless, many of the forerunners of contemporary international law were also clearly informed and influenced by republican terminology and values. Looking back over history, Nicholas Onuf argues that “international thought bears the legacy of republican ways of thinking”.Footnote 16 Mortimer Sellers goes further to argue that “[r]epublican principles provide the ultimate foundation for international law and legal doctrine”.Footnote 17 Francisco de Vitoria, as part of his project to place the American Indians within the reach of the ius gentium, drew on and rejected the medieval idea of the res publica Christiana in favour of a unifying agglomeration of political communities constituting the “totius orbis, qui aliquo modo est una respublica” – the whole world, which is in a sense a republic.Footnote 18 Christian Wolff wrote of the civitas maxima,Footnote 19 which Vattel in turn described as “the idea of a kind of great republic of nations”.Footnote 20 Kant, too, famously noted the possibility of a “world republic”Footnote 21 or a “republicanism of all states, together and separately”.Footnote 22
In referencing these authors, I am not trying to claim that they share a common vision of “the republic”. That would be too great an anachronism. For each, their references to the idea of a republic were all part of much larger and more complex tapestries interweaving distinctive understandings of the state, the divine, authority, the good, etc. That said, each of them was in some sense committed to or intrigued by the idea of the republic beyond the confines of the state or nation. This consistent connection to at least some part of the republican tradition, broadly conceived, was largely to drop out of not only the law of nations and international law, but also Western legal thought more generally. The ubiquity of republicanism in the eighteenth century gave way in the nineteenth century to an ascendant liberalism.Footnote 23
Nevertheless, in the last few decades, the republican tradition has undergone something of a revival among historians, political theorists, and lawyers. Contemporary republicanism tends to be far more egalitarian and progressive in orientation than its antecedents. Quentin SkinnerFootnote 24 and John PocockFootnote 25 have done much to excavate republican theory for present-day consideration. In political theory, both Michael SandelFootnote 26 and PettitFootnote 27 have presented book-length and distinctive treatments of contemporary republican ideals. In US constitutional law, a republican approach has been spearheaded by Frank MichelmanFootnote 28 and Cass Sunstein,Footnote 29 while John Braithwaite has pioneered the application of republican ideals to criminal law.Footnote 30 The turn to the international realm, however, has been much more recent,Footnote 31 and very few contemporary international lawyers have engaged in any sustained way with republican thought.Footnote 32 Pettit's foray into the international sphere is thus timely, welcome, and merits further attention.
III. Testing Pettit's Vision for International Law and Institutions
A. Freedom as Non-Domination
At the domestic level, Pettit's republican vision is generally pitted as an alternative to prevailing liberal visions of justice and legitimacy. The beating heart of Pettit's vision lies in his conception of freedom as non-domination. He contrasts freedom as non-domination with freedom as non-interference, which he considers to provide the basis for the liberal tradition. Consider, for example, John Stuart Mill's claim that “the only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs”Footnote 33 or Jeremy Bentham's understanding of the relationship between law and freedom, that “[e]very law is an evil, for every law is an infraction of liberty”.Footnote 34 To be free of domination, by contrast, means to be free of arbitrary interference or control, the flipside of which is that certain non-arbitrary forms of interference or control are permissible. Much thus turns on what is considered arbitrary interference and what is considered non-arbitrary. The standard response, as formulated in relation to domestic republicanism, is that control is not arbitrary so long as it serves the common good.
The common good is itself a highly nebulous term and contemporary republicans tend to define it in one of two ways. Substantive visions define the common good by reference to particular substantive standards or values, pointing to specific ideals of justice or the realisation of political community.Footnote 35 Procedural visions emphasise the importance of mechanisms such as elections and deliberation in generating how the common good should be understood. Pettit's approach mixes both substantive and procedural elements – the common good is that which reflects collective rationality as manifested through representative and deliberative democratic processes which “track the interests” of citizens.Footnote 36 Put another way, the common good is served when ultimate control over political decisions is exercised “by those on the receiving end”.Footnote 37 Pettit also acknowledges the need for certain “basic liberties” to be respected to enable citizens to effectively contest public decisions.Footnote 38
Pettit commonly invokes two images to illustrate these points. The first focuses on the nature of freedom as non-domination by considering the position of a slave relative to a master. It may be that the master is, relatively speaking, well intentioned: heFootnote 39 refrains from physically abusing his slaves, allows them some leisure time, and so on. The non-interference view suggests that the slave has a degree of freedom. The non-domination view, however, focuses on the fact that the slave is nonetheless a slave, and is still subject to the control and whims of the master – and, as such, cannot be considered free. Its emphasis is thus on the threat to freedom posed by the structural relationship between the dominated and the dominating, rather than on contingent violations of freedom.
The second image, of Odysseus tied to the mast, demonstrates how control can be non-arbitrary, by being self-authored and in service of the common good.Footnote 40 In the course of his long journey home, Odysseus's ship draws near the rocky shores of the sirens. Curious to hear their song, but not wishing to be so lured to a calamitous death, Odysseus asks his men to tie him to the mast (while they make judicious use of beeswax earplugs to save themselves). Although Odysseus is subjected to control here, it is not arbitrary because it is at his own request – he is the author of his own constraints (the freedom of his shipmates is more questionable). Moreover, his constraint in being tied to the mast, and his shipmates' in their use of earplugs, serves the common good of not dashing their ship to pieces.
This republican vision of freedom as non-domination thus differs from a liberal vision of freedom as non-interference in four crucial ways. First, it admits that some form of interference or control may be desirable, and even necessary. Republicanism is thus far less sceptical of, say, governmental regulation of the market in the public interest.Footnote 41 Second, it incorporates and emphasises an idea of the common good as a central precondition to the realisation of freedom, as distinct from the more atomised liberal approach in which collective decision-making is at best a process of aggregating individual, otherwise disconnected preferences (or a neo-liberal insistence on the protection of individual economic rights).Footnote 42 Third, its advocates argue that, whereas the liberal conception of freedom as non-interference only addresses contingent forms of control, the republican conception of freedom as non-domination addresses structural forms of control. This is because, instead of merely responding to incidents of actual interference, freedom as non-domination is also sensitive to the possibility of interference even when it is not clearly manifested. Fourth, republicanism recognises the fundamentally political nature of economic and legal decision-making, providing a useful counterbalance to contemporary liberalism's often technocratic outlook.
This ideal of freedom as non-domination provides the basis for Pettit's articulation of the requirements of neo-republican justice and legitimacy for the state. Neo-republican domestic justice demands that the citizens of a state “should each have sufficient resources not to be subject to personal domination by other agents”.Footnote 43 Neo-republican domestic legitimacy requires that a state both guards its citizens against private domination (dominium) and itself avoids public domination (imperium) in the pursuit of public goods. In particular, Pettit argues that the “core concern” of legitimacy at the state level is whether state coercion is justifiable.Footnote 44
With these requirements in mind, Pettit seeks to construct a strong normative programme with significant implications for legal and institutional design.Footnote 45 Indeed, Pettit and Lovett argue that “the aim of the neorepublican program is to rethink issues of legitimacy and democracy, welfare and justice, public policy and institutional design, from within the framework that these basic ideas provide”.Footnote 46 Lovett nonetheless views this project as being at a very early stage. He describes republicanism as a “still underdeveloped political doctrine” and notes that there are many central issues that have only begun to receive attention in contemporary republican thought, especially as regards international relations, global justice, and distributive justice.Footnote 47
B. Pettit's Vision of the International Realm
In explicating the idea of non-domination, Pettit makes regular use of specific, individualistic accounts of domination – including, for instance, the images of the slave–master relationship and Odysseus and his shipmates outlined above. It is no straightforward task to move from these stories to stories about how domination may take place on a global or international scale,Footnote 48 or to what relevance actors on the international plane may have for localised incidents of domination. To do so, Pettit builds up a very specific vision of the international realm in which the principle of non-domination is reconfigured to be addressed to peoples,Footnote 49 not just individuals. It is this that inspires Pettit to name this approach a “republican law of peoples”, drawing on Rawls's famous phrase.Footnote 50 Pettit argues that his peoples-based ontology is preferable to the cosmopolitan alternative, which he views as “utopian”.Footnote 51
Moreover, whereas, at the domestic level, Pettit contrasts freedom as non-domination with freedom as non-interference, at the international level, he contrasts non-domination with, in his terminology, the Westphalian principle of non-intervention. He argues that is not sufficient that states be free from intervention at a given moment; at a structural level, they must not be arbitrarily beholden to other states or international agencies. As with the domestic level, this differentiates the neo-republican approach from a liberal approach to the international order on the grounds that it allows for interference in the affairs of states so long as such interference is non-arbitrary and it confronts structural rather than just contingent forms of control. Pettit further argues that, contrary to the “Westphalian orthodoxy”, “[e]very people has a right under the international order to claim assistance from other states in dealing with impoverishment and oppression”.Footnote 52 This reconfiguration of republican liberty, in which peoples are “entrenched against domination by other states and from the various non-state actors”, is labelled the ideal of “globalized sovereignty”.Footnote 53
These changes lead Pettit to reformulate the neo-republican requirements of justice and legitimacy for the international order. The requirement of international justice is that peoples “have sufficient resources as a group not to be subject to collective domination by agents such as states, multinational corporations or international organizations”.Footnote 54 International legitimacy then focuses on the less well-defined “international order”,Footnote 55 ensuring that the international order guards against the domination of peoples while in itself avoiding dominating any individuals or peoples. These reformulations, however, include a series of problematic assumptions about how the international order is and should be organised.
1. Categorising states on the bases of effectiveness and representativeness
Although peoples comprise the basic ontological units for Pettit's neo-republican approach to the international order, states remain a primary focus. Pettit claims that he is “[t]aking states as they are” to ask how “the international order … might be”.Footnote 56 To begin, Pettit divides states on the basis of two qualities, of effectiveness and representativeness.Footnote 57 Pettit treats these as binary qualities (effective/ineffective and representative/non-representative), rather than as gradated axes. Effective states have “the capacity to provide basic services to their populations”, while ineffective states do not and are thus likely to descend into “civil war, unchecked famine, continuing genocide, a class of warlords, and general lawlessness”.Footnote 58 Pettit initially defined representative states as those which have sufficiently well-developed institutional mechanisms to provide citizens with a genuine measure of control over the decisions of the state, through mechanisms of “election, contestation and accountability”.Footnote 59
This latter requirement has recently been loosened. On the one hand, Pettit still argues that “nothing less than full democracy can be normatively satisfactory”.Footnote 60 On the other, he claims that it is “reasonable” to extend the category of representative states to include those run by authorities which “may not be elected in a meaningful way, yet the effective, non-oppressive manner in which they operate may show that they can reasonably claim to be indicative representatives of their subjects”.Footnote 61 At this point, the division between the concepts of representativeness and effectiveness would seem to break down somewhat. Pettit has tried to clarify this further by defining a state as being “oppressive” (i.e. non-representative) “just to the extent that it offends against the human rights of its subjects”.Footnote 62 Indeed, at one point, Pettit claims that “[t]o establish that a state has [violated the human rights of its citizens] is to show that the state is oppressive”.Footnote 63 This again requires further refinement: given the human rights records of every existing state, without further qualification, this claim would appear to categorise all states as oppressive.
2. The requirements of a legitimate international order
The distinctions between representative/non-representative and effective/ineffective states become central to Pettit's normative project at the international level, which he sees as concerned with two problems. The first is to identify the basis on which the international order may legitimately facilitate and constrain the policy preferences of representative and effective states (again, as representative shells for their respective peoples).Footnote 64 Not surprisingly, for Pettit, that basis is the pursuit of non-domination. However broadly “representative” is understood, Pettit frames an effective, representative state as representing a single, distinctive people. Such states are broadly considered to serve republican ideals, as they, apparently without qualification, “will be effective in protecting members against private domination and will be representative in doing this in an undominating way”.Footnote 65 Thus a legitimate international order is required to minimise the domination of representative and effective states, and to serve their interests by way of networks and agreements between similarly representative and effective states.Footnote 66
This is reminiscent of the vision of the democratic peace,Footnote 67 in both its descriptive assumptions and normative orientation. Indeed, Pettit and Lovett argue that “the foreign policy of the neo-republican state naturally supports the promotion of what is now called the ‘democratic peace’ as the most viable means for protecting republican institutions and values”.Footnote 68 The notion of the democratic peace as the basis for a normative/institutional programme at the international level has been extensively criticised elsewhere.Footnote 69 Suffice to say for present purposes that its descriptive aspect tends to overstate the extent of the “peace” existing between and within democratic states,Footnote 70 and (at best) ignores conflict between democratic and non-democratic states.Footnote 71 It does not provide a promising start for a republican law of peoples that claims not to be utopian.Footnote 72
The second issue that Pettit identifies is how to address “the problems suffered by members of ineffective and non-representative regimes”, including human rights abuses, systemic poverty, etc.Footnote 73 These are then expressly framed as “issues that the international order has to address”,Footnote 74 as the peoples of ineffective and non-representative states, too, are entitled to freedom from domination. Pettit even acknowledges that his conception of non-domination may, “at the limit”, require representative and effective states to “organize humanitarian intervention”,Footnote 75 although he does not otherwise explore the specific policy implications of how such problems are to be addressed by the international order. Presumably, consistently with the principle of non-domination, the international order could only take action in a way that is sensitive to representational concerns of the peoples inhabiting non-representative and ineffective states. The ultimate aim would then be to “establish conditions under which all populations can form legitimate states to act for them as peoples”.Footnote 76
Critically, Pettit only considers human rights abuses to be of concern to the international order when they have taken place in ineffective and non-representative regimes. He assumes that representative and effective states will “in normal circumstances” have sufficient mechanisms of “contestation and correction” as to be self-correcting with respect to any such failings.Footnote 77 This is fully consistent with Pettit's approach to non-domination at the national level; Bohman argues that, for Pettit, “constitutional democracy not only minimizes domination, but brings it to an end”.Footnote 78 This raises at least five problems. First, it reinforces the normative divide between representative/effective and non-representative/ineffective states – a normative divide which is alien to the international law principle of sovereign equality.Footnote 79 Second, it substantially reduces the critical potential of the international realm, whether expressed through international law or otherwise, with respect to purportedly representative and effective states.Footnote 80 Third, it underestimates the extent to which the preferences of states and their citizens are constituted by international/global factors, including in relation to international rather than domestic human rights norms. Fourth, it ignores the tendency of purportedly representative and effective states to undermine the effectiveness (in terms of maintaining peace, a stable economy, human rights, etc.) and representativeness of other states. Finally, it ignores the capacity of an effective/representative state to dominate those who are not considered to belong to its “people”, whether within or beyond its borders.Footnote 81
This optimism about the corrective capacity of effective/representative states also sits oddly with several aspects of the international order. Consider, for example, investor-state dispute settlement (ISDS), which allows for private actors to bring claims directly against states in international tribunals, seeking large awards,Footnote 82 and often bypassing domestic judicial mechanisms. At first, Pettit's neo-republicanism may appear to suggest that there will be no need for ISDS when the host state satisfies the requirements of representativeness and effectiveness, or even that ISDS would be harmful in such cases as it has the potential to allow multinational corporations and investment arbitration tribunals to dominate domestic representative structures. Indeed, ISDS would seem to undermine the republican principles of equalityFootnote 83 and authorship as nationals of the host state are jurisdictionally excluded from utilising ISDS mechanisms.Footnote 84 These problems are only exacerbated by the use of nationalities of convenience by investors to obtain the benefits of specific bilateral investment treaties,Footnote 85 and by the very limited options for contesting the determinations of investment arbitration tribunals.Footnote 86 As such, ISDS may enhance opportunities for domination of representative/effective states by either foreign investors or even arbitral tribunals.Footnote 87
On the other hand, republicanism may provide additional arguments for a strong ISDS system in relation to states that are non-representative and ineffective. If a state's judicial system does not measure up to an externally defined standard of the rule of law, this makes it all the easier for investors to claim the necessity of turning to international tribunals to adjudicate disputes to avoid domination, at least until one considers that the investment tribunals claims to representation are not necessarily any better.Footnote 88 Furthermore, if certain states are a priori considered not to represent their peoples, this may even suggest that investment tribunals need not pay much heed to their regulatory choices. The non-reciprocal nature of such a justification for ISDS then raises charges of hypocrisy and makes for tricky diplomacy. Moreover, it has the potential to replicate and reinforce the implicit liberal division between established democracies which purportedly live up to the rule of law, and the “developing” world in need of administrative, bureaucratic, and judicial reform to live up to internationally defined standards of good administration.Footnote 89 This is all the more problematic when considered against the history of international economic law, which is strongly marked by colonial and postcolonial exploitation.Footnote 90 Pettit does not address these issues: indeed, Pettit declares that his theory of international justice “ignore[s] issues of historical justice”.Footnote 91
Notably, Pettit declines to identify which specific states would be classified as representative and/or effective, noting that such identification is bound to raise “tricky issues”.Footnote 92 Without a more rigorously defined standard of what would constitute effectiveness and/or representativeness, and whether these serve some kind of minimalist threshold or represent aspirational ideals, it is difficult to determine just how many states would fall within the representative and effective category.Footnote 93 This has serious implications for the role of the international order and international law in this context. If only a handful of states are taken to be both representative and effective, then the international order comes to serve a very limited set of interests, while simultaneously granting those few states a sort of immunity from international attention to their internal affairs. If the thresholds are set lower, then this makes for a potentially more inclusive international order, but simultaneously appears to undermine the critical capacity of international law in relation to its members. It also strikes at the very heart of how control is classified as arbitrary in the international sphere. There are thus political and legal implications of how these distinctions are applied which require further attention.
C. International Domination, International Law, and International Institutions
Pettit is primarily concerned with peoples as the potential subjects of international domination: whether the peoples of effective and representative states, as represented by their states, or the peoples of ineffective and non-representative states alone.Footnote 94 By contrast, he sees the potential sources of domination in the international sphere as far more varied, including “first, and most prominently, other states; second, non-domestic, private bodies that compare in resources to many states, such as corporations, churches, terrorist movements, even powerful individuals; and third, non-domestic, public bodies that are often created by states, such as the United Nations, the World Bank, the International Monetary Fund, the European Union, or the North Atlantic Treaty Organization”.Footnote 95
The focus on international domination provides an important point of departure from Rawls's law of peoples, which assumed an essentially cooperative relationship between states in the international order, rather than the potential for domination and control.Footnote 96 Pettit's primary focus in his writings to date has been on the dominating potential of states. Nonetheless, his express identification of corporations and other non-state actors as potential sources of ongoing, structural domination provides a useful counterbalance to many liberal assumptions. What the above quote appears to be missing, however, is the potential for domination to manifest in a way that is not necessarily attributable to any one agent – as with, say, domination that manifests through the accumulated practices of members of Foucauldian disciplinary networks,Footnote 97 even in the absence of direct intent. Mark Rigstad argues that this undermines republicanism's critical potential to address structural forms of domination.Footnote 98
The other aspect of international domination that requires further attention is the question of what constitutes the common good with respect to the international order, and what therefore defines the limits of non-arbitrary control at the international level. The common good for Pettit is inextricably tied to the idea of the interests of a given public, rather than the net aggregate of the interests of the members of that public. Presumably, each of the “peoples” in Pettit's approach would have their own publics with distinctive visions of the common good. What is less clear is whether Pettit considers there to be an equivalent to “the public” for the international sphere, in the same way as the ontology of individuals is substituted for one of peoples and the ideal of freedom as non-domination is replaced by the ideal of globalised sovereignty. In the absence of such a global public, the scope for non-dominating international action is profoundly reduced. Indeed, it would seem to only permit action where it is the subject of overlapping consensus between different national publics. As this goes to the very definition of what constitutes domination at the international level, it is not a question that can continue to be glossed over.
What Pettit does identify as domination would nonetheless seem to permit a more satisfying range of regulatory constraints than the liberal non-interference or non-intervention approaches – and particularly their neo-liberal incarnations, with their deep suspicion of governmental intervention in the market. For instance, Pettit expressly identifies economic coercion and dependency as sources of domination.Footnote 99 He also identifies more subtle forms of domination, such as through invigilation or intimidation,Footnote 100 in which the dominated state or person may find themselves “second-guessing its wishes and adjusting its behaviour”Footnote 101 to suit the wishes of the dominator. Indeed, Pettit describes this as “the most powerful sort of alien control. It may enable the corporation to secure a favourable tax rate, easy regulatory conditions, or an easing of environmental standards without the corporation being exposed to a danger of whistle-blowing”.Footnote 102 Continuing with the example of ISDS, this broad understanding of domination helps to articulate the problem with the “regulatory chill” that some argue the investment regime has cast over various states.Footnote 103 For instance, in 1997, the Canadian Government imposed restrictions on the fuel additive methylcyclopentadienyl manganese tricarbonyl (MMT) on public health grounds, pointing to potential risks of nerve and brain damage to humans. Ethyl Corp, a US investor, challenged the restrictions under NAFTA Chapter 11, seeking US$347 million in compensation. The Canadian Government instead chose to settle the claim, lifting the ban on MMT and paying US$13 million in compensation.Footnote 104 More recently, multinational tobacco companies have been accused of trying to use both ISDS and the World Trade Organization (WTO) dispute settlement system to discourage states from implementing “plain packaging” cigarette laws.Footnote 105
Pettit's disregard for the dominating potential of international institutions, however, is more problematic. Indeed, he comes to international institutions with a deep optimism about their republican potential, not least because of the dispersal of power they represent in relation to individual states.Footnote 106 Although he acknowledges their theoretical potential for domination, overall he claims that it would be perverse to focus on them because states' relative capacity for domination is so much greater.Footnote 107 Pettit's argument here can be broken down into two components: first, whether or not international institutions are capable of exercising sufficient control over states or other actors to be worthy of concern; and, second, whether international institutions are or can be designed in such a way as to ensure that what control they do exercise is non-arbitrary, and hence non-dominating.
1. Do international institutions exercise sufficient control?
As regards the degree of control, Pettit argues that global institutions such as the UN, the WTO, and the World Bank are unable to “achieve a high degree of discipline in relation to member states”.Footnote 108 As evidence, he cites the reaction of the US Ambassador to the UN following the US's withdrawal from the compulsory jurisdiction of the International Court of Justice (ICJ) in the wake of the Nicaragua Footnote 109 dispute in 1986 – that, at the time, the ICJ was merely a “semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't”.Footnote 110
This is not the place to take issue with this particular characterisation of the post-Nicaragua ICJ. Three points, however, are worth mentioning. First, few states possess the US's political and economic clout; other states feel the discipline of international institutions far more keenly. Second, the ICJ's complex compliance history is hardly representative. There is, for instance, a very high compliance rate for the WTO's dispute settlement system,Footnote 111 and awards by international investment tribunals are consistently and effectively enforced through national courts.Footnote 112 Third, considering Pettit's acknowledgment of the invigilatory and intimidatory forms of control, his focus on the immediate context of coercive enforcement proceedings by international courts seems unnecessarily limited. International institutions and regimes have a much broader array of norm-generating and enforcement mechanisms available to them.
In addition, Pettit's focus on the exercise of control by international institutions acting in a purely autonomous sense ignores how these institutions are used instrumentally, especially by powerful states. International institutions are worthy of attention not only in their own right, but precisely because they have the capacity to alter the context in which, and forms through which, control may be exercised.Footnote 113
2. Is control by international institutions non-arbitrary?
As to the second element of Pettit's dismissal of the dominating potential of international institutions, Pettit exhibits a simultaneously heartening (for an international lawyer) and baffling optimism about the non-arbitrary structure of decision-making in international institutions. He argues that, “despite the democratic deficits on which critics have seized”, “[s]tates normally appoint to the crucial positions on these bodies; appointments come with specific, restricted briefs; there are usually high bars of accountability to cross; global civic movements – non-governmental organizations – often exercise a significant degree of oversight; and decisions are routinely subject to objection and review by the states affected”.Footnote 114 As such, he is broadly satisfied that international institutions are constructed and operated in a way that respects the condition that those subject to rules exercise some form of control over their creation.
Turning again to ISDS, we can see that there are good reasons for maintaining a rather more pessimistic outlook. Many states have only consented to international investment agreements in the most anaemic and formal sense, with little appreciation of the potential consequences of ratification.Footnote 115 States do appoint arbitrators, but generally only with the agreement of the investors making the claim against them, and the pool of potential arbitrators is very small. The vague wording of the substantive standards in bilateral investment treaties, especially as regards fair and equitable treatment and indirect expropriation, have enabled investment tribunals to conceive of their briefs in extremely broad terms, ensuring that tribunals may be called upon to pronounce on anything from the validity of sovereign debt restructuringFootnote 116 to the validity of national attempts to phase out nuclear power.Footnote 117 As far as global civic movements are concerned, although there are some non-governmental organisations that keep an eye on the investment regime, these are few in number. Moreover, publication of investment awards generally requires the consent of the parties,Footnote 118 and the hearings themselves are usually closed. Finally, there are only very limited grounds for reviewing the decisions of investment tribunals. All of the above suggest that the design of the international investment regime, far from ensuring non-arbitrary control, encourages domination. Although this suggests that a republican approach could provide a powerful basis for critiquing ISDS as currently structured and practised, it also highlights just how arbitrary control by international institutions can be. Their dominating potential should not be underestimated.
D. International Law and Institutions as Countering Domination
Pettit's optimism about the potential of international law and institutions to limit domination provides the flipside of his view that international law and institutions have little capacity for domination. In particular, he sees international institutions as valuable instruments for blocking the domination of states by other states.Footnote 119 Pettit argues that such institutions help to counter domination in three ways: through facilitating deliberation, through enabling weaker states to enter into coalitions with one another, and through entrenching “sovereign liberties”.
As regards deliberation, Pettit argues that the very existence of international law and institutions helps to generate a:
currency of common global reasons and the valorization of those reasons as the terms of debate and exchange between countries … [which] is of importance in making it possible for countries to relate to one another in a reasoned manner, seeking a non-alien influence on one another's positions and holding out the possibility of an unforced, cooperative solution to many problems.Footnote 120
Pettit further argues that deliberative capacity, whether of international or domestic institutions, is strengthened through the adoption of a republican outlook. This is because, for classical liberal approaches, “the language of non-interference does not reach beyond the sector of opinion and interest with which it was in the first place associated” – that is, the “early days of industrial capitalism” in which this idea “articulated an indispensable condition for competitive success”.Footnote 121 As such, they ignore the problems of “insecurity, … lack of status, and the need to tread a careful path in the neighbourhood of the strong”.Footnote 122 Non-domination, by contrast, apparently provides a narrative capable of addressing these problems in a way that escapes the prejudices and preoccupations of its founders as it “transcends its origins”.Footnote 123 Here again we see the contrast between a liberal characterisation of the political realm as a site for the aggregation and competition of pre-established rational interests, and a republican vision which focuses on communal self-authorship and the common good.
Yet the extent to which international law and institutions facilitate deliberation in practice should not be overstated. While international law does provide a common professional grammar for international lawyers, its very commonality has long been undermined by processes of functional differentiation and concomitant legal and institutional fragmentation.Footnote 124 Moreover, international law itself is the product of a long history of inequality and exploitationFootnote 125 – it should not be presumed that it provides some kind of neutral language for deliberation. To this extent, the grand promise of international law as contributing to a “currency of common global reasons” seems chimerical in the face of the fractured and unequal historical development of international law. The language of non-domination may transcend its origins, but the language of international law does not.
Institutionally speaking, most international institutions have limited mandates and limit the opportunities for public participation, thereby ruling out the possibility of genuinely open deliberation. Moreover, even within international institutions interaction often takes the form of bargaining rather than deliberation in any strong sense,Footnote 126 and what is more that bargaining takes place between grossly unequal parties. Whether state interactions within even established institutions such as the UN General Assembly, the WTO, or the Codex Alimentarius Commission could be meaningfully classified as deliberative is questionable at best. Republicanism may provide a useful normative framework against which to criticise international institutions' current norms and practices in this respect, but the history and practice of international institutions to date suggests that there is little cause for optimism that these criticisms can be overcome.
Others have suggested that international deliberation may be facilitated specifically by international courts and tribunals. At the domestic level, Christopher ZurnFootnote 127 and Jürgen HabermasFootnote 128 have argued that judicial review serves deliberative democratic ideals to the extent that it helps to maintain the procedural conditions for deliberative processes to flourish elsewhere. Pettit has also argued that judicial review should be valued for its “editorial” function in democratic decision-making.Footnote 129 By contrast, Richard Bellamy, who expressly adopts a republican approach to freedom as non-domination, questions both the legitimacy and effectiveness of rights-based judicial review by constitutional courts.Footnote 130 Although he has not directly extended this analysis to review by international courts and tribunals, Bellamy's concerns about the threat to democratic decision-making posed by domestic judicial review are all the more powerful at the international level. ISDS,Footnote 131 for example, provides a forum in which investors can directly challenge state regulatory action, and in which there is almost no opportunity for the citizens affected by the decision to have a say about its validity, either during the course of the arbitration or in its aftermath. Moreover, at a structural level, as it is investors who invariably bring ISDS claims, it is they who have the opportunity to keep pushing the interpretation of the law to serve their interests, combining with other factors to suggest a distinct structural bias. Matters are less problematic in the WTO, which among other things allows only for state-to-state dispute settlement, allows for third-party WTO Members to make submissions, and includes a well-regarded mechanism for appeal in the form of the Appellate Body.Footnote 132
Pettit does acknowledge that “in a world of grossly unequal power, deliberation is not going to be enough; it will have to be matched by the groupings that enable the weak to deliberate from a position of strength”.Footnote 133 Properly multilateral institutions do have the capacity to facilitate the formation of such coalitions. This effect has been particularly obvious in the WTO, where developing and developed countries alike have banded together in multiple regional, sector-specific, and issue-specific coalitions (including, for example, the Friends of Fish).Footnote 134 There is, however, only so much that can be done to elevate the weak in this respect. In some cases, especially in relation to majoritarian voting institutions such as the UN Conference on Trade and Development and the UN General Assembly, major powers have simply turned away after concluding that their interests were not being served. Although Pettit acknowledges this possibility, he frames it as occurring when coalitions of weaker countries manage to “implement a regime that is unduly favourable to them”,Footnote 135 ignoring the possibility that it may also happen as such coalitions attempt to push for a regime which is simply a little less unduly favourable to the major powers. Moreover, Benvenisti and Downs have pointed to how the fragmentation of international law may be taken advantage of by states in a way that is precisely intended to limit weaker states' opportunities to turn to coalitions.Footnote 136 Thus, not only does the deliberative capacity of specific regimes seem limited, but the structure of the international legal order can act to undermine the opportunities for weaker states to guard against domination through forming coalitions. Pettit does not engage directly with such issues. Rather, he argues that he is not being “excessively optimistic” about such international deliberation, on the grounds that states that spurn such deliberation would be subject to “ignominy and ostracism” at the international level and “shame” at the national level.Footnote 137
Finally, Pettit envisages international law and institutions as meansFootnote 138 for both negotiating and entrenching a roughly defined set of “sovereign liberties” for representative states, which are “co-enjoyable” by all states.Footnote 139 These sovereign liberties are the international counterparts of the “basic liberties” central to Pettit's theory at the domestic level. Sovereign liberties are not considered to be natural rights of representative states, but are rather the product of a “negotiated articulation”.Footnote 140 “Clear candidates” would include “liberties of speech, expression, and association” for states rather than individuals, with other liberties, regarding the exploitation of natural resources and organising mutual trading privileges, declared “more problematic” for the moment.Footnote 141 The protection of sovereign liberties in this respect would help establish the conditions for meaningful inter-state deliberation and to entrench representative states against domination.
How such sovereign liberties might relate to international law remains unexplored. Whether such liberties would have a quasi-constitutional status, and whether they would be enshrined in specific rules or treated more as guiding principles, is unclear. As things stand, although some may argue that liberties of speech, expression, and association for states may be derived from the principle of sovereign equality, the “clear candidates” that Pettit suggests for the sovereign liberties tend not to be specifically enumerated in international law. Attempts to formulate lists of the fundamental rights and duties of states in treaties have rather focused on, among other things, matters such as the right to sovereign equality, respect for territorial borders, the prohibition of the use of force, and the right to exercise jurisdiction.Footnote 142 The “negotiated articulation” of sovereign liberties may also be more difficult than assumed. In 1947, for instance, the General Assembly tasked the International Law Commission with formulating a Declaration on the Rights and Duties of States. Once the Declaration was drafted, however, the General Assembly declined to adopt it on the grounds that “at the present time it has encountered some difficulties in formulating basic rights and duties of States in light of new developments of international law and in harmony with the Charter of the United Nations”.Footnote 143 No state has requested that the matter be taken up again with the UN since.Footnote 144
IV. Conclusion
Pettit's republican vision of globalised sovereignty makes an important contribution to how concepts such as freedom, justice, and legitimacy may be conceptualised at the international level. It allocates a central role to international law and institutions in generating and entrenching these ideals. The concept of freedom as non-domination, in particular, has the potential to provide a powerful critical tool for revealing arbitrary exercises of power in the international order. Nonetheless, Pettit's approach is also afflicted by a number of problematic assumptions and raises issues that require further clarification. Pettit's peoples-based ontology sits uneasily with various aspects of international law and practice, and opens his theory up to many of the same cosmopolitan critiques that were made of Rawls's law of peoples.Footnote 145 The substantive implications of the division between effective and representative states and others mean that these categories require further definition and a clearer picture of which states they would apply to in practice. How the common good is to be understood at the international level similarly requires further clarification. Moreover, Pettit's abstract vision of a republican law of peoples run by representative and effective states is intentionally dismissive of questions of historical injustice, but is unable to banish the spectres of colonialism and imperialism that have long haunted the international order. Finally, Pettit maintains a fairly extravagant optimism about the non-dominating potential of international law and international institutions which does not appear to be borne out by current practice. That said, these issues do not seem to be necessary implications of republican thought. Rather, they are traceable to the supplementary assumptions that Pettit makes about the international order, including its ontology and its detachment from history. Whether his account can be modified – or alternative republican accounts of international freedom, justice and legitimacy can be articulated – in a way which addresses these concerns is worthy of further consideration.
