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IS INTERNATIONAL LAW IMPARTIAL?
Published online by Cambridge University Press: 22 July 2005
Extract
The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s—the Vietnam War and the North-South economic imbalance—have returned to the domain of philosophers. This engagement has taken place in two distinct but related debates. First, philosophers have devoted attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits disparate treatment of an individual's co-nationals. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?” One impetus for renewed work on these ideas was the publication of John Rawls's The Law of Peoples.
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The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s—the Vietnam War and the North-South economic imbalance—have returned to the domain of philosophers. This engagement has taken place in two distinct but related debates. First, philosophers have devoted attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits disparate treatment of an individual's co-nationals. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?”1
Brian Barry, International Society from a Cosmopolitan Perspective, in INTERNATIONAL SOCIETY: DIVERSE ETHICAL PERSPECTIVES 144, 154 (David R. Mapel & Terry Nardin eds., 1998).
While in many ways asking and answering different questions, these two bodies of work are related in that they focus on what constitutes a just world and what role the individual should play in furthering it. They correspond, in rough terms, to the interactional versus institutional conceptions of morality and justice identified by Thomas Pogge.2
Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 50–52 (1992); see also Barry, supra note 1, at 144–145.
Theorizing about transnational duties must, however, take proper account of the structure of the international legal order. As Rawls recognized, in order to propose a “realistic utopia” for the world, we must “proceed… from the international political world as we see it.”3
JOHN RAWLS, THE LAW OF PEOPLES 83 (1999).
Equally important, as Allen Buchanan has noted, is that institutions matter not only because they affect the feasibility of proposals for ethical conduct but because they affect the underlying moral justification for the principles:
Principles that may be plausible for an isolated case often prove inadequate or even counter-productive if institutionalized to govern a practice that covers many cases… To the extent that proposed principles are to implemented through the actions of persons in institutional roles, the moral justification of principles must take into account institutional structures, and especially the incentives to which those in institutional roles will be subject.4
ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW 22–23 (2004).
Failure to understand global institutions has pernicious consequences, as philosophers derive “principles…not suitable for institutionalization because they are inconsistent with existing institutional arrangements whose abandonment would be morally prohibitive…or because institutionalizing them would generate incentives that undermine the realization of other important principles.”5
Allen Buchanan & David Golove, Philosophy of International Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 869, 870 (Jules Coleman & Scott Shapiro eds., 2002). See also Andrew Hurrell, Norms and Ethics in International Relations, in HANDBOOK OF INTERNATIONAL RELATIONS 137, 139–141 (Walter Carlsnaes, Thomas Risse, & Beth A. Simmons eds., 2002).
International law is at the center of these institutions; it is the normative lifeblood within them and the normative force between them. It encompasses a system of norms and processes for resolving competing claims among international actors—states, individuals, and others—in a manner both legitimate to them and effective among them. As Andrew Hurrell has put it:
the ethical claims of international law rest on the contention that it is the only set of globally institutionalized processes by which norms can be negotiated on the basis of dialogue and consent, rather than being simply imposed by the powerful…. The unavoidability of process again separates law as an ethical enterprise from other forms of normative enquiry and debate.6
Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in STATES, NATIONS, AND BORDERS: THE ETHICS OF MAKING BOUNDARIES 275, 277–278 (Allen Buchanan & Margaret Moore eds., 2003).
International lawyers, for their part, analyze and seek the construction of an international order with a normative component. The norms and processes that they appraise, just like those of the domestic legal system, cannot be set aside in asking about personal duties and justice. Such attention is key not only to making international ethics stronger within philosophy but to making it convincing to those concerned with operationalizing ethical theory—political scientists, legal academics, governmental and nongovernmental elites, and the educated public.
How to describe and appraise international law in a way that contributes to debates among philosophers presents a challenge for both the international lawyer and the philosopher. To date, the philosophers have done little to take the law and legal institutions into account. Many cosmopolitan ethicists, for example, condemn aspects of the international order without even discussing the legal norms governing it, let alone examining whether those norms have an underlying moral basis.
Even when political and moral philosophers purport to take account explicitly of the structure of the international legal order, their vision is often limited, misconceived, or anachronistic. For example, customary international law, the law that emerges as states accept a repeated practice as legally required, is sometimes described as if international relations had been frozen over the last sixty years. For instance, David Mapel has written that “under customary international law each state has a right to order its own domestic affairs as it sees fit,”7
David R. Mapel, Justice, Diversity, and Law, in INTERNATIONAL SOCIETY, supra note 1, at 239, 250.
More recently, Eric Cavallero wrote in these pages that “states enjoy the sovereign power to undertake policies that can impose detrimental externalities on those outside their borders,” an assertion inconsistent with international environmental law as manifested in numerous treaties and customary law.8
Eric Cavallero, Popular Sovereignty and the Law of Peoples, 9 LEGAL THEORY 181, 198 (2003). See also infra note 72 (on Stockholm Declaration principles). Later he writes that international law “should recognize” a set of political freedoms meant to instantiate deliberativeness, such as freedom of speech and assembly (id. at 200, 192), when nearly every international lawyer would say it already does.
RAWLS, supra note 3, at 37; see also the critique of Rawls in FERNANDO TESON, A PHILOSOPHY OF INTERNATIONAL LAW 109–122 (1998).
Indeed, the fault lies not only with moral and political philosophy. Relatively few of those writing in international jurisprudence—Fernando Teson, Martti Koskenniemi, and Hurrell are among the handful—have sought to bridge the gap between the disciplines. This tendency remains despite the frequency with which international legal theorists write about legitimacy or justice. I hasten to add, with regret, that even fewer in mainstream jurisprudence have taken on this task. Instead, following Hart's example in The Concept of Law, they have mostly confined themselves to the ontological questions about whether international law is “really law,” an issue fine for an introductory international law class but past which international law scholars (and practitioners) moved long ago.
This paper offers one approach to bringing international legal theory and moral and political philosophy together. It analyzes the ethics of international law by casting it as a system of general and special duties, with particular attention to the latter as understood in debates over impartiality in moral philosophy. It does so on the understanding that making a just world under law turns on (1) whether relevant international actors should owe the same or different duties to all other such actors; and (2) whether the international system is constructed according to some coherent vision of this problem. What emerges is a set of spheres of general and special duties, and special duties to vastly different sets of actors. The patterns suggest that certain ways of morally justifying those special duties are more persuasive than others; indeed, I believe any special duties can and should be justified from an impartialist perspective. My goals, then, are threefold: first, to place the basic norms of international law within a structure of 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 Section 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 Section II, I rather quickly identify the principal actors in international law and the fundamental claims of each that the international legal process seeks to resolve. This task permits identification of the duty-holders and to whom their duties extend. Section 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 Section 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 versus special duties as the most—or, at a minimum, a particularly—significant organizing principle of international law? My justification lies in philosophical work that highlights the importance of such concerns for ethics and demonstrates their relevance to international law.
My discussion of general and special duties begins with H.L.A. Hart's Are There Any Natural Rights?10
Hart, Are There Any Natural Rights? 64 PHIL. REV. 175 (1955).
while the person who stands to benefit by the performance of a duty is discovered by considering what will happen if the duty is not performed, the person who has a right… is discovered by examining the transaction or antecedent situation or relations of the parties out of which the “duty” arises.11
Id. at 181.
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”; 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
Id. at 183, 188.
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
Robert E. Goodin, What Is So Special about Our Fellow Countrymen?, 98 ETHICS 663, 665 (1988). As Philip Pettit and Goodin note, these special duties can arise by virtue of agents' “identities, relationships or histories.” Philip Pettit & Robert Goodin, The Possibility of Special Duties, 16 CAN. J. PHIL. 651 (1986).
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.
A. The Partiality Debate
First are debates between partialists and impartialists.14
I am not here equating these terms with moral particularism and moral universalism, whose differences turn on whether all ethics is situation-specific. See Lawrence Blum, Against Deriving Particularity, in MORAL PARTICULARISM 205, 205–211 (Brad Hooker & Margaret Olivia Little eds., 2000).
It is in this sense that Barry and Terry Nardin define justice as impartiality. See BRIAN BARRY, JUSTICE AS IMPARTIALITY 20–27 (1995); TERRY NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES 258–259, 265 (1983).
Lawrence C. Becker, Impartiality and Ethical Theory, 101 ETHICS 698 (1991).
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 while accepting the morality of special duties as 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. This sort of reason undergirds the impartialist defense of special duties put forth by Pettit and Goodin, who argue that such duties derive from special responsibilities of an agent.17
Pettit & Goodin, supra note 13.
See, e.g., BARRY, supra note 15, at 191–195; Marcia Baron, Impartiality and Friendship, 101 ETHICS 836 (1991); see also SUSAN MENDUS, IMPARTIALITY IN MORAL AND POLITICAL PHILOSOPHY (2002).
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 general duties, 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.19
U.N. CHARTER art. 2, para 1.
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 to co-nationals as opposed to foreigners, including debates on global 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 international law for ethical analysis; one might, for instance, distinguish between traditional interstate duties and those emanating from individual human rights.20
I appreciate this point from Allen Buchanan.
The partiality/impartiality debate has sometimes been cast in terms of whether special duties are morally justified based on personal relationships per se—what Rawls calls “relations of affinity”21
RAWLS, supra note 3, at 112.
DAVID MILLER, ON NATIONALITY 50 (1995).
See Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun “My”? 110 ETHICS 537 (2000).
Within these two general outlooks are a variety of justifications for special duties, with the line between the two approaches sometimes not very clear. Thus Goodin offers a consequentialist account of special duties toward co-nationals whereby states represent the most efficient means of allocating general duties among all individuals.24
ROBERT E. GOODIN, PROTECTING THE VULNERABLE: A REANALYSIS OF OUR SOCIAL RESPONSIBILITIES (1985); Goodin, supra note 13.
Alan Gewirth, Ethical Universalism and Particularism, 85 J. PHIL. 283, 294–296 (1988).
Andrew Oldenquist, Loyalties, 79 J. PHIL. 173 (1982); Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFF. 189 (1987); for other defenses of the moral significance of community, see MICHAEL WALZER, SPHERES OF JUSTICE 33 (1983); Yael Tamir, Liberal Nationalism 95–116 (1993).
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 nonmembers, whether ethnic minorities, aliens, or those abroad.
B. 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. Nonetheless, 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.27
Barry, supra note 1, at 145.
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. Does international law, as it were, play favorites? These issues already reverberate in international law circles. 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. They may also propose institutional models to put individuals, wherever situated, first. Some international lawyers ask whether a state's territorial integrity can be sacrificed to allow for humanitarian intervention to rescue oppressed peoples.
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 duty-holders and the targets of those duties. This brief exposition also serves to show that international law is a much richer 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, nongovernmental organizations (NGOs), and business entities. I do not wish to offer here any sort of international law definition of each group. 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 criminal 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,” that is, the capacity to be subject to legal rights and duties.28
See, e.g., Nkambo Mugerwa, Subjects of International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 247, 249 (Max Sørenson ed., 1968).
Brent Fisse & John Braithwaite, The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability, 11 SYDNEY L. REV. 468, 483–488 (1988); PETER CANE, RESPONSIBILITY IN LAW AND MORALITY 143–150 (2002).
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 in his Tanner Lectures, and Rawls accepts the idea in calling peoples the actors in the society of peoples.30
Brian Barry, Do Countries Have Moral Obligations?: The Case of World Poverty, in 2 THE TANNER LECTURES ON HUMAN VALUES 25, 41 (1981) (“[J]ustice… 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 73–75.
I recognize, however, that this is a contested notion, certainly among cosmopolitans. Many insist that only the claims of individuals should matter on the international (and domestic) plane, including with it a skepticism of international law.31
See, e.g., Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in GLOBAL JUSTICE 12 (Nomos XLI, Ian Shapiro & Lea Brilmayer eds., 1999).
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 duty-holders. 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 has also 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.32
Compare, e.g., LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8–10 (1995), with STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999).
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 other participants as well. Russia and China are making sovereignty claims against peoples—Chechen and Tibetans, respectively—and Israel against Palestinians. The current United States opposition to the International Criminal Court (ICC) 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.33
See generally Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443, 452–459 (2001).
2. The Individual
The individual's rise as a participant in the international legal process has ancient origins but gained some momentum in the nineteenth century in the antislavery 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.34
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-being-oriented approach…. [T]he maxim of Roman law hominum causa omne jus constitutum est…has gained a firm foothold in the international community.” Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Oct. 2, 1995, para. 97, available at http://www.un.org/icty. 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.”35
David Held, Law of States, Law of Peoples: Three Models of Sovereignty, 8 LEGAL THEORY 1, 13 (2002).
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 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 call themselves a people, but my own sense is that international law generally views peoples as having something beyond ethnic kinship—some sort of territorial claim, affiliation, or attachment (e.g., the Finnish, Corsican, or Sioux people).36
See THOMAS MUSGRAVE: SELF-DETERMINATION AND NATIONAL MINORITIES 148–179 (1997).
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. 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 posit only that much moral philosophy, like law, is about duties in a broad sense. The common language of duties makes a discussion of special duties in ethics relevant to understanding international legal duties, and vice versa.37
I share Nardin's view of law and ethics as “parallel but not identical ways of conceiving and judging international conduct.” NARDIN, supra note 15, at 250; see also id. at 233–253.
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.38
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.
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 Charter not to use force against them.39
U.N. CHARTER art. 2, para. 4.
The state's principal duty to individuals is to respect human rights. Some are accepted as custom (e.g., the duty not commit torture, slavery, or genocide) and others have been agreed only through treaty. States generally have fewer obligations to protect human rights during armed conflict, in which case the more minimal protections of international humanitarian law apply. States have duties to protect the individual from abuses by their agents; and various UN and regional human-rights bodies have found that states also must provide protections from or responses to abuses by private actors.40
See, e.g., Velásquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988); D. v. United Kingdom, 1997-III Eur. Ct. H.R. 777; General Comment 31, para. 8, in Report of the Human Rights Committee, U.N. GAOR, 59th Sess., Supp. No. 40, at 175, 176–177, U.N. Doc. A/59/40 (Vol. I) (2004).
The state's principal duty to peoples is to allow them self-determination. The scope of self-determination varies depending on the characteristics of a people, for example, colonial peoples, indigenous peoples, or territorially concentrated groups within states. States have a duty to grant political independence to colonial peoples they control (if the people want it); duties toward groups within states are significant less, though their violation in extreme cases can permit secession.41
Declaration on Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations, GA Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, 123–124, U.N. Doc. A/8028 (1970) [hereinafter Friendly Relations Declaration].
See, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Although the Canadian court held, and I agree, that peoples living within states have a right to self-determination—not a right to secession—some might simply identify such groups as ethnic minorities to whom self-determination does not even apply.
2. Individuals
International law does not recognize an expansive list of duties for individuals. This is historically contingent, in that the law's focus on states until the early twentieth century made the notion of individual duty-holders as unlikely as the notion of individual right-holders. International law was a law of state responsibility—the state might be responsible for harms caused by individuals, even private ones, but the individuals themselves had no duties under international law.43
See, e.g., NYUGEN QUOC DINH, DROIT INTERNATIONAL PUBLIC 649 (Patrick Daillier & Alain Pellet eds., 7th ed. 2002) (state as “screen” between individual and international law, though law is undergoing change).
The clearest duties on individuals today are those under international criminal law, which provides for individual criminal responsibility for certain harms. Thus treaties address crimes such as genocide, torture, slavery, harm to diplomats, war crimes, various offenses against aircraft, and drug trafficking.44
See generally STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY (2nd ed. 2001).
Id. at 11–12. For a contrary view, see Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM. J. INT'L L. 302, 308 (1999).
Torture is an exception under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, art. 1, para. 1, 1465 U.N.T.S. 85, 113–114 (severe pain “by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.”)
The full scope of individual duties may be larger in three senses. First, as noted, international courts are recognizing obligations on states to prevent and punish a range of abuses committed by individuals (beyond those crimes mentioned immediately above); in doing so, they are, at least indirectly, recognizing duties on individuals not to commit them. Second, international law recognizes notions of complicity and vicarious responsibility. Thus individuals are responsible for aiding and abetting the above crimes; and persons in authority are, under some circumstances, responsible for the offenses of subordinates.47
RATNER & ABRAMS, supra note 44, at 129–135.
See INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, TAKING DUTIES SERIOUSLY: INDIVIDUAL DUTIES IN INTERNATIONAL HUMAN RIGHTS LAW (1999); Inter-Action Council, Draft Universal Declaration on Human Responsibilities (1997).
To whom are these duties directed? International legal theory has generally not focused on the targets of duties beyond the duties of states. Again, much of the reason lies in the historic limitation of law to the duties of states. Even the advent of concepts of human rights and self-determination in the twentieth century addressed only two new permutations of duty-holders and targets—the duties of states to individuals (human rights) and the duties of states to peoples (self-determination). Nonetheless, the international criminalization of certain human rights abuses suggests that for those offenses, an individual's duties extend to other individuals, though in criminal cases it is the state or the United Nations that actually brings a case against the offender.49
For an argument that duties of individuals to other individuals flow directly from human rights treaties, see ANDREW CLAPHAM, HUMAN RIGHTS IN THE PRIVATE SPHERE (1993).
3. Peoples
Although peoples are the beneficiaries of the duty of states to provide for self-determination, the duties of peoples themselves are not much part of international law's vocabulary. Insofar as the norms of self-determination do not create a duty on states to allow all peoples to create their own state—as noted above, only colonial peoples have this unqualified right—one might suggest that peoples living in, for instance, democratic states have a duty not to secede. However, the absence of a right to secede on their part does not, as a matter of logic or positive law, equate with a duty not to secede.50
See, e.g., JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 268 (1979).
Peoples have two key sets of duties, both directed at individuals. First, under international humanitarian law, peoples fighting an armed conflict—whether a civil war or a war of independence—must respect basic principles of humanity, including nontargeting of civilians, respect for prisoners, and nonuse of particularly deleterious weapons.51
See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, December 12, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, December 12, 1977, 1125 U.N.T.S. 609.
See Lovelace v. Canada, in Report of the Human Rights Committee, U.N. GAOR, 36th Sess., Supp. No. 40, at 166, U.N. Doc. A/36/40 (1981).
International law's process for the resolution of claims among international actors has resulted in clear duties on them. The centrality of the state to the international political and legal order for most of the past 350 years has meant that the law recognizes the most elaborate set of duties as those of states toward other states, but states also have important duties in the area of human rights and self-determination toward individuals and peoples. The asymmetries among the nine possible permutations of duties of states, individuals, and peoples toward each other justify a shortcut that I take from this point on. Without denying the importance of obligations of individuals and peoples, I limit my inquiry here to duties of states toward other states, individuals, and peoples. This permits a more streamlined analysis of special duties that nonetheless captures the bulk of them; it also still takes account of the key transformations in international law by discussing duties of states to peoples and individuals.
III. A SCHEME OF GENERAL AND SPECIAL DUTIES
I now offer a scheme of international legal obligations based on the distinction between general and special duties. The result of this conceptualization is a set of spheres of duties of different breadths and with different beneficiaries in each sphere. In each case, I believe these duties can be justified from an impartial perspective.
Before beginning, it is worth pointing out that a duty's characteristic as general or special is distinct from two of its other significant traits: First, it differs from a duty's strength in terms of its overall importance to the international legal order or the burden it places on the state. A general duty, one owed to all states, may be strong or weak, just as may a duty to few.53
A good example, mentioned by Walzer, is the global norm prohibiting states from sending refugees back to their place of persecution. However, and not remarked upon by Walzer, the international norm under the UN's 1951 refugee convention does not require states to grant asylum to refugees. WALZER, supra note 26, at 48–51.
For more on this idea, see Michael Reisman, The Concept and Functions of Soft Law in International Politics, in ESSAYS IN HONOR OF JUDGE TASLIM OLAWALE ELIAS 135, 135–136 (E. Bello & Bola Ajibola eds., 1992).
A. General Norms: First-Order Impartiality in International Law
Most of international law's core state-to-state duties are general: they are held by all states and not merely some; and they are owed to all states and not merely some. Among the most significant are the norms on recourse to force (jus ad bellum) and the conduct of hostilities (jus in bello); treatment of another state's diplomats; treatment of states based on juridical or sovereign equality; carrying out of treaties in good faith; immunity of other states in one's courts for most official action; basic respect for aliens domiciled or setting up business in one's territory; respect for other states' control over their natural resources; the nonreturn of refugees to their place or persecution (non-refoulement); and much of the law of the sea. Many of these norms resemble what Thomas Franck has called the “ultimate canon,” obligations that “attach to all states by virtue of their status as validated members of the international community.”55
THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 45 (1995).
For a defense, see Benedict Kingsbury, Sovereignty and Inequality, 9 EUR. J. INT'L L. 599 (1998).
International law recognizes one particular category of general norms as unique—those it calls erga omnes. Not only does the state have such an obligation to all other states, but all other states may invoke the obligation in the event of a breach, not merely those specially affected by it. See, e.g., Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3, 32 (Judgment of Feb. 5) Under my definition, the set of general duties is broader than the set of erga omnes obligations, although some have used the term erga omnes more broadly in a way that essentially equates it with general duties.
These general duties create spheres or orbits around the states populated by all other states (or individuals). The breadth of these spheres is a function of the strength of the norm and its hardness. Core norms such as the ban on the use of force result in dense spheres, where the pull between a state and those to which it has a duty is strong; weaker general norms create larger orbits, though still populated by all states.
General norms easily fit within the basic notion of impartiality discussed above. All states have these duties to all other states regardless of size, location, domestic system of governance, or other differences. San Marino is just as obligated not to invade other states as is China; and each is obligated not to invade both Russia and Tonga. Most significant for purposes of impartiality, special relationships, such as historical or other ties between the states, are irrelevant to the duties. The United States is just as obligated not to invade Côte d'Ivoire or Burma as it is not to invade Canada or Britain, and it must treat the diplomats from distant or disliked states just as it treats those from its closest allies.
Which impartialist theory justifies these general duties? I have no need to choose here. Utilitarianism is obviously the easiest grounding for these principles if the unit for utilitarian calculations is the state; a Kantian or Rawlsian contractualist justification centered on the state as moral actor could also yield some of these duties. Clearly, some Kantian or utilitarian calculations focusing on individuals as moral actors would reject some of these norms, as Kantian attempts to exempt humanitarian intervention from the ban on the use of force demonstrate.58
See Allen Buchanan, From Nuremberg to Kosovo: The Morality of Illegal International Legal Reform, 111 ETHICS 673 (2001).
B. Special Duties: A Nonproblematic Case
International law recognizes numerous special duties as well. One situation raises no significant moral questions for purposes of impartiality analysis, so it is important to clear this ground first.
When two or more states agree to a treaty, they create a set of special duties, explicitly agreeing to treat each other differently from the way they treat other states. Hart recognized promises as “the most obvious cases of special rights.”59
HART, supra note 10, at 183–184.
Vienna Convention on the Law of Treaties, May 23, 1969, arts. 30, 53, 1155 U.N.T.S. 331, 339, 344; U.N. CHARTER art. 103.
As the number of states to such any treaty increases, it becomes increasingly difficult to label the duties under it special. Thus, for instance, the Vienna Convention on Diplomatic Relations, which has 180 parties, creates duties on the treatment of diplomats among the states parties, but its near-universal ratification makes the duties effectively general ones. They move from being merely contractual treaties to something akin to a legislative treaty generating duties for all to all.61
I appreciate this insight from David Wippman.
The range of special duties created by treaties is enormous: states agree to treat each other specially with regard to economic ties; they establish mutual defense arrangements such as the North Atlantic Treaty Organization (NATO); they cooperate in law enforcement or on scientific matters; and so on. In the sphere analogy, we might then picture each state surrounded by orbits of treaty partners, with the breadth of the orbit based on the strength or importance of the treaty, and the number of other states in the orbit a function of the scope of the treaty (and thus, of course, many states appearing in multiple orbits). The links between the states with these special duties can be equally varied—that is, the relations between the states range from thick to thin.62
See AVISHAI MARGALIT, THE ETHICS OF MEMORY 7–8 (2002).
Yet these duties do not raise the difficult moral questions addressed in the debates over impartiality. Rather, they are prima facie morally justified on the basis of voluntarism, a ground accepted by both partialists and impartialists as a basis for special duties. Individuals can always take on special duties by choice; but the—or at least one—key issue over which partialists and impartialists differ is whether there are special duties not based on choice. As for the idea, again accepted by impartialists and partialists, that not all voluntary obligations are morally justifiable—that is, that voluntarism is only a prima facie justification—as noted, international law provides that some treaties are void if they violate peremptory norms. It also has various rules to invalidate treaties that are not based on a truly voluntary choice of states, though those grounds are rather limited. They do not, for instance, include unequal bargaining power by the sides but only clearly egregious behavior such as fraud, corruption, coercion of a state's representative, or aggression; moreover, they do not include lack of participation of the population of the country in the making or ratification of the treaty.63
Vienna Convention on the Law of Treaties, supra note 60, arts. 49–52, 1155 U.N.T.S. at 344; a treaty could be terminated by one side if the other materially breached it.
Voluntarism and Customary International Law
If voluntarism provides a moral justification for treaties freely arrived at, one risks having proved too much. For not only is the treaty grounded in voluntarism, but so, to a certain extent, is all international law. The other main form of international law, customary international law, is the law that develops over time as states act in a certain way out of a sense that the behavior is not merely good policy but legally required (the notion of opinio juris). A rule requiring states to undertake a particular act “crystallizes” when some critical mass of states engage in the behavior with the sense of obligation.64
Thus the views of landlocked states over the width of a state's territorial sea would not have counted for much when the law of the sea was governed only by customary law.
1 OPPENHEIM'S INTERNATIONAL LAW 29 (Robert Jennings & Arthur Watts eds., 9th ed. 1992).
Yet at the same time, if a state has not engaged in this process of objection, the rule nonetheless binds it. Although this outcome might be viewed as merely a form of voluntarism—tacit consent—in practice it can amount to a nonconsensual obligation. First, in the case of former colonies, states emerging from secessions (like Bangladesh or Eritrea), or the dissolution of states (like the former Soviet Union or Yugoslavia), the new state is bound by customary law even though it was not even a state when the rule emerged—and thus had no opportunity to object to the rule.66
Id.
See, e.g., Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 66 (Adv. Op. of July 8) (diss. op. Shahabudeen).
International law may also be viewed as nonconsensual insofar as the UN Security Council can under the UN Charter make decisions legally binding on states. Although this power originates in the consent of states in ratifying the Charter, the Council clearly exercises it today without the contemporaneous consent of states.
C. Special Duties Based on Noncontractual Ties
Having dispensed with one case of special duties as relatively unproblematic ethically, I now turn to several that raise the most important set of concerns.
1. Duties Based on Proximity
International law also recognizes that states owe duties to their neighbors based on physical proximity. For example, states that share a river, in particular upstream and downstream states, must respect the concept of “equitable and reasonable utilization,” a rather loose standard under which each must take the other's interests into account in using it.69
Convention on the Law of Non-Navigational Uses of International Watercourses, art. 5, GA Res. 51/229, U.N. GAOR, 51st Sess., Supp. No. 49, at 7, 9, U.N. Doc. A/51/49 (Vol. III) (1997).
United Nations Convention on the Law of the Sea, Dec. 10, 1982, arts. 15, 83, 1833 U.N.T.S. 3, 403, 431.
In this case, the physical accident of geography creates a relationship between the states giving rise to special duties. Two states so close to each other will inevitably need to cooperate on various issues regarding utilization of the shared resource; and each may well have a bona fide territorial claim to water used by its neighbor, for example, in the case of two states, normally entitled to a twelve-mile territorial sea, who stand on opposite sides of a twenty-mile strait. If its neighbor were not there, each state would have a property right to the water, but no duty at all; the presence of its neighbor means it has a duty to that neighbor alone to take the latter's interests into account. They might become co-owners, they might split the water, or they might have a duty to cooperate, but all reflect special duties, in that only the neighbor has the corresponding right.
These special duties should be distinguished from a case that appears to be a special duty but in fact is not one. For many years, international environmental pollution was seen as a problem concerning neighboring states, for example, where pollutants from a power plant caused damage across a border. States were said to have duty not to seriously pollute other states, which meant their neighbors.71
E.g., Trail Smelter Case (U.S. v. Can.), 3 Rep. Int'l Arb. Awards 1938, 1965 (1941).
Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/CONF.48/14, princ. 21, 11 ILM 1416, 1420 (1972). I appreciate this point from John Deigh.
2. Duties Based on Territorial Control
International law recognizes a second set of special duties, those that require the state to act a certain way only to individuals on its territory or under its control. Most prominently, the duties of states to respect and protect human rights generally extend only to persons under their jurisdiction. For instance, State A has a duty to guarantee a fair trial only to all persons accused of crimes living in State A. Indeed, were it to provide a fair trial to those similarly situated in State B without State B's consent, it would violate other, general norms, including those banning extraterritorial assertion of sovereign powers; if it used forcible means, it would be committing aggression against State B.73
Even if international law accepted a right of humanitarian intervention, advocates of such a right propose it as a response to serious atrocities, not lesser abuses such as absence of due process rights at trial.
See EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), REPORT ON THE PREFERENTIAL TREATMENT OF NATIONAL MINORITIES BY THEIR KIN-STATE, Oct. 22, 2001, Council of Europe Doc. CDL-INF (2001) 19.
But is there a potential conflict here with my statement above that some international human rights give rise to general duties by states—that the state has a duty not to torture anyone, regardless of where they are? On the one hand, the key global and regional human rights treaties state explicitly that their obligations (and presumably those under customary law) extend only to those within a state's territory or (or and) subject to its jurisdiction.75
International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 2, 999 U.N.T.S. 171, 173 (“all individuals within its territory and subject to its jurisdiction”) [hereinafter ICCPR]; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 1, 213 U.N.T.S. 221, 224; American Convention on Human Rights, Nov. 22, 1969, art. 1, 1144 U.N.T.S. 123, 145.
Banković and Others v. Belgium and Others, 2001-XII Eur. Ct. H.R. 333. The suit was against the 17 NATO states party to the European Convention on Human Rights. See also Ilascu and Others v. Moldova and Russia, No. 48787/99, July 8, 2004, paras. 313–319.
Moreover, the European Court of Human Rights long ago enunciated the doctrine of the “margin of appreciation,” under which each state is given some discretion in interpreting certain provisions of the European Convention to reflect local cultural and political realities.77
See, e.g., Handyside Case, 1976 ECHR Ser. A, No. 24.
On the other hand, the UN's Human Rights Committee, set up under the International Covenant on Civil and Political Rights (ICCPR), the key global human rights treaty, to monitor states' compliance with that treaty, has issued rulings holding that Uruguay violated the ICCPR when its agents engaged in extraterritorial kidnapping (in Argentina) in the 1970s. The committee held that it would be “unconscionable” to interpret the spatial limitation of the duties “to permit a State party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.”78
Celiberti de Casariego v. Uruguay, in Report of the Human Rights Committee, supra note 52, at 185, 188; see also General Comment 31, supra note 40, para. 10, at 177. (extending ICCPR's scope to activities of a state's contingent in a multinational peacekeeping operation).
The tension between general and special duties with respect to human rights can be addressed—and perhaps resolved—in a number of ways.
First, one might dispute my initial assertion that some key human rights duties are general duties. One might assert that they are all special duties, so that a state owes no human rights obligations—even core duties such as the duty not to torture—to those outside its jurisdiction.79
The European Court hints at this in Banković, paras. 59, 65, and 75, 2001-XII Eur. Ct. H.R. at 351–353, 356–357.
Second, one might choose to see them as both special and general duties.80
I owe this insight to Eyal Benvenisti.
This is particularly true with respect to erga omnes obligations, supra note 57.
Third, one might say that states have certain human rights obligations to all people, wherever situated—general duties—but that the global and regional treaties put only some of those obligations in a treaty form as special duties to those under a state's jurisdiction. Under this view, the European Court did not address the broader question of NATO states' duties to those in other states because its competence is limited to alleged violations of the European Convention.
Fourth, and not inconsistent with the previous idea, one might stick with the initial position that at least some human rights duties are general duties but that they are general duties like the duty not to pollute, in that they can be discharged only in certain circumstances, namely when the state has jurisdiction over the individual. At other times, the duty is still there, but the state lacks capacity either to carry it out or to violate it. The difficulty with this position, however, is that international law does not merely limit a state's duties to those under its jurisdiction because the state cannot protect others but because it must not protect others (absent the permissibility of humanitarian intervention, lawful at best under highly limited circumstances). In other words, State A is legally prohibited, not physically precluded, from securing human rights for people in State B. This leads to a fifth possible reconciliation.
Fifth, the duty of a state to protect certain human rights can be seen as a general duty, but one that is overridden by another duty in extraterritorial situations, namely, a duty not to engage in governmental acts on another state's territory without its permission. Under such a view, the duties of states regarding human rights law are special duties that result from the clash of two general duties—to protect human rights generally, flowing from the notion of human rights, and to refrain from exercising extraterritorial jurisdiction. Those general duties are similar to what Pettit and Goodin call “non-conclusive duties” in that nonfulfillment of them is not itself wrong;82
Pettit & Goodin, supra note 13, at 654–655.
If governmental obligations in the area of human rights are special duties as a matter of custom or only under the treaties, this still leaves open the range of special right-holders, or how far the jurisdiction of the state extends. The European Court found a narrow scope, and the Human Rights Committee found a broad scope, namely, that once a state exercises some authority in another state, it thereby puts certain people in that other state under its jurisdiction and has duties toward them. The latter position is troubling in that it suggests, for instance, that NATO states might have had other obligations—such as the right to guarantee a fair trial—once they used force against Serbia, an obligation they were in no position to carry out from military aircraft in the skies above Serbia. This objection could be overcome by a final reconciliation.
Sixth, one could distinguish among certain duties regarding human rights. Some duties might be special and limited to those on a state's territory; others might be general. Scholars have sought to distinguish between positive duties, for example, the duty to provide food, and negative duties, for example, the duty not to torture. One might say that only the former are special, whereas the latter are general.83
Hart suggests a notion to this effect when he talks of general rights being those possessed by all people against unwarranted interference in their autonomy. HART, supra note 10, at 187–188.
General Comment 12, para. 36, in Committee on Economic, Social and Cultural Rights: Report of the Twentieth and Twenty-First Sessions, U.N. ESCOR, 2000, Supp. No. 2, at 102, 109, U.N. Doc. E/2000/22 (2000). For a sophisticated attempt to link jurisdiction to the rights violated, see Orna Ben-Naftali & Yuval Shany, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 ISR. L. REV. 17 (2004).
If one adopts the notion that at least some of a state's duties to residents in the area of human rights are special duties (consistent with the second to sixth explanations above), can one ethically defend this position? Several persuasive, impartial, reductionist accounts are available. At a rather simple level, a utilitarian calculation would weigh the good of requiring states to guarantee many human rights abroad against the costs. It would likely find the costs overwhelming—in terms of increased tensions as states involve themselves in issues that other states consider domestic or in terms of neglect of other priorities. Likewise, the benefits might be relatively small for overall welfare; for example, how welfare-enhancing is full realization of the right of those accused of crimes to a fair trial through investment in effective judiciaries—given that most people never are so accused? Indeed, this utilitarian calculation undergirds the opposition of international law to the exercise of jurisdiction by one state on another state's territory. A utilitarian might find the benefits outweighing the costs with respect to some duties related to human rights, for example, the duty to provide food to the needy.85
See International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 11, 993 U.N.T.S. 3, 7 (right to “adequate food”) [hereinafter ICESCR]; General Comment 12, supra note 84, para. 15, at 105 (interpreting ICESCR to require provision of food to those unable to obtain it on their own).
A richer explanation for the special duty of a state to its residents would rely on Goodin's notion of efficiency.86
See Goodin, supra note 13.
Wellman makes a similar criticism and offers his own appealing impartialist account to show why rich citizens of a state might owe more to their poor compatriots than to poorer foreigners. Wellman, supra note 23, at 545–549.
Statute of the International Criminal Court, art. 17, available at http://www.un.org/law/icc/statute/romefra.htm
A third possible justification for these special duties is sketched out briefly by Michael Walzer in Spheres of Justice. He argues, based on an individual's “right to place,” that “the state owes something to inhabitants simply, without reference to their collective or national identity.”89
WALZER, supra note 26, at 43.
Id. at 44.
Id. at 51.
A partialist, on the other hand, would need to argue in terms of a special bond between the state and those on its territory—a relationship special enough alone, and without recourse to other universalist goals like utility or freedom, to justify duties to them only. The argument would have to define that special bond in terms of territory—not citizenship or ethnicity—because, as a general matter (subject to a few exceptions discussed below), the state may not discriminate on these ground in protecting human rights of those on its territory.92
ICCPR, supra note 75, art. 2, 999 U.N.T.S. at 173; General Comment 31, supra note 40, para. 10, at 177. International law defines some special duties based on ethnicity, but the right-holders are persons of a different ethnicity from the majority. Thus states have special duties to allow minorities to speak their own language and to send their children to the school of their choice. See, e.g., Conference on Security and Cooperation in Europe, Document of the Copenhagen Meeting of the Conference on the Human Dimension, June 29, 1990, 29 ILM 1305 (1990).
Andrew Mason addresses this problem in the course of his effort to justify an individual's special duties to fellow citizens (not residents). Mason seeks to demonstrate the shortcomings of various impartialist and partialist accounts of such duties and then to offer his own partialist version based on the idea of citizenship as an intrinsically valuable good. Mason demonstrates the difficulty of justifying special ties to co-citizens; he finds that impartialist stances (in particular those of Goodin and Gewirth) justify duties only to residents, and partialist stances justify one's duties only to members of the nation, both of which are distinct from citizens. Put another way, in Mason's view, most partialist theories can justify ties at best to nationals; his partialist theory can justify ties to co-citizens; but impartialist theories are more persuasive at justifying ties to residents, our goal here.93
Andrew Mason, Special Obligations to Compatriots, 107 ETHICS 427 (1997).
3. Duties Based on Citizenship
Yet Mason may be right with regard to a limited set of duties, for the territorial nature of special duties is subject to some interesting exceptions: (1) a state's duty to allow individuals to participate in public affairs is limited to citizens; (2) its duty to allow guaranteed entry to the state is also limited to citizens;94
ICCPR, supra note 75, art. 25, 999 U.N.T.S. at 179 (“Every citizen…”).
ICESCR, supra note 85, art. 2, para. 3, 999 U.N.T.S. at 5.
How might these special duties be defended? The partialist arguments regarding special duties to fellow countrymen and women are stronger here than they are for other human rights, in that at least they seek to ground special duties in citizenship rather than residency. But impartialist accounts are not difficult to imagine. Goodin's efficiency rationale is an appealing justification for the special duty to citizens regarding immigration; it would say that because states are efficient at granting certain benefits to individuals, a system that permits the state to set the basic rules of participation is ethically acceptable. To allow any foreigner to enter the state risks undermining the efficiencies states create.96
See also WALZER, supra note 26, at 39 (“The distinctiveness of cultures and groups depends on closure…. [T]he sovereign state must… claim the authority to make its own admissions policy, to control and sometimes restrain the flow of immigrants.”)
D. Corporate Special Duties
My analysis above is taken principally through the example of states' duties, but it is worth at least brief mention that the framework sheds light on current debates over the duties of corporations regarding human rights. One of the major questions among international organizations, NGOs, corporations, and scholars is how to conceive of the universe of right-holders corresponding to a corporation's duties to protect human rights (assuming such duties exist). Various commentators have posited that the corporation has special duties to those within its spheres of influence, with the spheres enlarging from employees, to citizens of a locality, to even larger populations.97
See U.N. Comm'n on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, Aug. 26, 2003, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2; Ratner, supra note 33, at 506–111.
The above analysis helps ground the justification for such special duties. First, some special duties will turn out to be in the relatively unproblematic categories noted above. Thus some duties to employees will stem from contractual relationships, akin to the treaties in Section III.B above—if the contract says the employee gets x days off, then the corporation must grant it. And many apparently special duties of the sort advocated by NGOs are akin to those noted in Section III.C.1 above—they are really just general duties that are discharged only when the potential victim is within physical range of being harmed by the corporation. The universe of beneficiaries might be those harmed by toxic emissions of the company or consumers harmed by dangers in its products.
Yet some of the corporation's duties are genuinely special. Two obvious candidates are duties to employees that are not based on the terms of the contract but on some special relationship between employer and employee; and duties to those living in the neighborhood of the company that are not based on any potential of the company to harm those neighbors. Here advocates of corporate responsibilities would hold that those ties justify special duties on the corporation.
Yet these special duties can be derived quite persuasively from an impartial stance. For example, the relationship between an employer and an employee is indeed intimate in some sense, but assigning to employers a special responsibility to care for employees flows quite quickly from a utilitarian calculation about the best way to protect workers. (It is in some way analogous to Goodin's views on a state's duties to its residents.) It is also easily consistent with a broadly contractarian notion of what workers and companies would agree on from the original position. Indeed, it seems odd to suggest that the mere fact that someone is a company's employee (regardless of the actual work they do) entitles him or her to special benefits in the way partialists make this argument about familial relationships. The same point can be made about a corporation's ties to the community irrespective of its actual harm to it. One could derive a set of responsibilities to the community not from the ties per se but from the corporation's relative power and access to resources in the community. Thus while I remain an advocate of the idea of special responsibilities of corporations to those specially affected by their activities, it turns out that this sort of stance does not require any partial favoritism toward those groups.
IV. IMPLICATIONS FOR THEORIES OF INTERNATIONAL ETHICS
My analysis so far has made four broad points: First, international law recognizes various rights and duties that respond to the claims of the six major actors in the international legal process. Second, the law can be productively viewed as a set of general and special duties. Third, each duty on an actor (I have focused on duties of states) creates a sphere around that actor composed of the right-holders; for general duties those right-holders are all other states, peoples, or individuals, and for special duties they are a smaller category. Fourth, the major duties can be justified from an impartialist stance, that is, without recourse to arguments based only on some special tie between duty-holder and right-holder. These propositions aim both to correct current misconceptions among philosophers about international law and to construct a new conception for them.
I now consider the implications of these propositions for two sorts of theories of international justice: first, theories that distinguish between liberal and nonliberal states; and second, the stronger forms of cosmopolitanism.
A. Rawls and the Liberal/Illiberal Divide
The most significant example of the former is Rawls's Law of Peoples, though similar critiques could be made of international law scholarship to this effect.98
See, e.g., Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT'L L. 503 (1995); and the effective response in Jose E. Alvarez, Do Liberal States Behave Better?: A Critique of Slaughter's Liberal Theory, 12 EUR. J. INT'l L. 183 (2001).
Allen Buchanan has raised similar concerns. See Allen Buchanan, Rawls's Law of Peoples: Rules for a Vanished Westphalian World, 100 ETHICS 697, 716–720 (2000).
Second, and compounding this error, Rawls's law of peoples does not encompass principles acceptable only to what he calls liberal or decent peoples. His original statement of the law describes these principles as “familiar and traditional principles of justice among free and democratic peoples.”100
RAWLS, supra note 3, at 37.
I concede that they are not uniformly practiced, though the distinction is not along liberal/illiberal lines. Alvarez, supra note 99, at 194–210.
RAWLS, supra note 3, at 41 (“These familiar and largely traditional principles I take from the history and usages of international law and practice.”)
Id. at 65.
Thus, insofar as Rawls circumscribes certain rights and duties, his theory strays far from the supposed “international political world as we see it.”104
Id. at 83.
Id. at 91–92.
More important for his or any other theory of international justice, it is difficult to see why the world would be better off if states such as Burma or North Korea (presumably what Rawls would consider “outlaw states”) or Honduras, Sri Lanka, or Laos (presumably what he would consider “burdened”) could simply be invaded for whatever reason and not be allowed to defend themselves. Is the assumption that an invasion will make the victims of nondecent governments per se better off? Or that it will make the world better off? The impartiality of the general duties such as the ban on aggression serves a purpose of public order that Rawls seems to downplay.
Lastly, while mischaracterizing certain general duties as special duties, he simultaneously neglects—or at least glosses over—the key special duty I have outlined above—the duty of states to protect at least some human rights only vis-à-vis individuals on their territory or under their jurisdiction. The scope of the duty to protect human rights seems ripe for any theory of international justice, especially one such as Rawls's, which he claims is focused on “the foreign policy of a reasonably just liberal people.”106
Id. at 10 (italics omitted).
On the other hand, his derivation (or at least acceptance) of a clear duty on well-ordered peoples to assist burdened societies suggests he sees some duties in the area of human rights as extraterritorial. Although that special duty is not, I think, yet recognized in current international law, it has the virtue of being consistent with some general trends in international law suggesting that wealthier states—though not just liberal ones—should help out the less fortunate. Rawls properly points out that this special duty is not partial in the sense of being grounded in any special relations of affinity; rather, he calls for “mutual caring” whereby the decent peoples see a connection with the burdened ones.107
Id. at 112–113.
B. Strong Cosmopolitanism's Challenge to the Status Quo
Cosmopolitans were disappointed with Rawls for his refusal in The Law of Peoples to rely upon the individual as the unit of concern and derive a global difference principle from an original position populated by individuals. Though I share their concern that Rawls downplays the need for a theory of international justice that takes account of the claims of individuals, my critique and construct suggest some problems with current cosmopolitan arguments as well.
First, international law clearly grapples with the claims of more than just individuals. It does not countenance a cosmopolitan view of the world insofar as that term means that the individual is the sole unit of concern and all individuals, regardless of location or nationality, are treated equally. As Mapel and Nardin write, the tradition of international law is quite different from those moral theories that focus solely on the rights and duties of individuals in its “weight to the claims of particular communities.”108
David R. Mapel & Terry Nardin, Convergence and Divergence in International Ethics, in INTERNATIONAL SOCIETY, supra note 1, at 297, 298.
See CANE, supra note 29, at 42–43.
Second, an appreciation for international law undermines some of the reasoning for proposals to fix what they regard as flaws in the international system. For instance, Wellman, Barry, and Daniel Philpott have derived various rights to secession without carefully considering the existing norms on this issue. Wellman uses an efficiency model of the functions of the state to conclude that “[i]f both the seceding group and the remainder state would be able to perform the functions a state must, then the secessionist party has the right to the territory and the remainder state has a duty not to interfere with the political divorce.”110
Christopher H. Wellman, A Defense of Secession and Political Self-Determination, 24 PHIL. & PUB. AFF. 142, 164 (1995).
Barry, supra note 31, at 56; see also id. at 25–26 (equating international law with “statism” as “endors[ing] the status quo among states, almost regardless of what that is” as well as with “blood and soil nationalism,” in that they share “a kind of moral collectivism”).
Both cosmopolitan positions are clearly more prosecession than is international law, which generally permits secession from existing states only where a territorially confined group is facing severe persecution that prevents the state from being representative of all peoples in it.112
Friendly Relations Declaration, supra note 41, at 124; ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 119–120 (1995). I leave aside the possibility that states will, in the end, accept a secession that does not meet these criteria. If these post hoc acts of recognition have a legal valence, then the law is even more favorable to secession that these critics admit.
Philpott, to his credit, has undertaken a more careful review, so although he begins with a defense of self-determination as a matter of justice, he ends up, after considering all the risks, with a multifactored formula in which “secession… truly becomes a last resort; it should be endorsed only when a people would remain exposed to great cruelty if left with a weaker form of self-determination [e.g., autonomy within the state].”113
Daniel Philpott, In Defense of Self-Determination, 105 ETHICS 352, 382 (1995).
Id. at 385.
Even Barry's position ends up being fairly timid insofar as the prospects of the whole population of a territory supporting secession are virtually zero, and Barry himself uses numerous examples to show the dangers of secession in the real world.
Daniel Philpott, Should Self-Determination be Legalized? 12 TERRORISM & POL. VIOLENCE 106, 118–119 (2000).
Third, my concept of international law as comprising general and special duties challenges the cosmopolitan tendency to see the world in terms of equal obligations to peoples no matter where they are located. With regard to self-determination, international law places a special duty on a state to grant peoples within its own territory (and only those peoples) self-determination, which, as noted, typically means a representative and nondiscriminatory government within the state. Other states have a general duty to accept these arrangements; they cannot seek to dismember such states even if that seems to be what some of the peoples within it may want.117
Friendly Relations Declaration, supra note 41, at 124 (no authorization to dismember states respecting self-determination of peoples).
Whether the general/special duty dichotomy helps us resolve the most vexing issue in the self-determination debate—namely exactly what groups constitute “peoples” and at what point the state's failure to grant them their right to self-determination triggers a right to secede—I will leave for another day. The idea of special duties may do more legwork in some areas of international law than others. For now, it would seem that the critical task is to define the people (ethnically? territorially? self-identification?) and the special duty of the state toward the people in a way that can be justified from an impartial perspective.
Lastly, to the extent others may share Barry's strong cosmopolitan attack on international law, the position is troublesome; he is essentially opposing both the general and special duties in international law: the general duties are immoral because they treat all states equally when their populations or economic status demand different treatment (for the weak and poor); the special duties are immoral because they are driven by atavistic nationalism. This approach is flawed in at least two respects. First, the special duties are clearly defensible from a second-order impartialist stance. Indeed, special duties arising out of the territorial nature of human rights law are not, in my view, inconsistent with a cosmopolitan structure of the world. Cosmopolitans who favor greater duties abroad will need to demonstrate why their impartialist account is better than the ones just offered; they will not be able to dismiss is as merely a partialist account that relies on bonds of nationality.118
Barry, supra note 31, at 41 (“my complaint is that those sympathetic to nationalism, while talking a different language, are in fact acting as a front for blood and soil nationalism”).
Barry is right in his unexceptionable assertion that “the possibility that some alternative [to statism] could do better can scarcely be ruled out.”119
Id. at 38.
For defenses of sovereign equality from a decidedly non-“statist” perspective, see Kingsbury, supra note 56; Martti Koskenniemi & Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT'L L. 553, 578–579 (2002).
A better course of conduct for cosmopolitans, one taken by both Allen Buchanan and David Held, is to examine the existing structure and carefully consider whether each of the general and special norms promotes or undercuts individual welfare or freedom, rather than to assume—often based on a few spectacular cases convenient to one's own view of world politics—that they do not. Held, for instance, argues for a “political cosmopolitanism” where the state system is complemented by political organization at both lower (substate) and higher (multinational) levels—a concept that international lawyers who study domestic autonomy regimes and international organizations (regional and global) would find quite familiar.121
Held, supra note 35, at 34–35. Held also recognizes that his basic principles of cosmopolitanism need to be interpreted in real-life contexts that give weight to “special ties and other practical-political issues.” Id. at 31.
V. CONCLUSION
To prescribe an individual's duties to others at home and abroad and develop institutions to promote them, we need to understand the world order we have. My argument shows that states, individuals, and peoples have a broad range of duties composed of general duties and special duties. States have some obligations to all other states, all other individuals, or all other peoples, but they also have many obligations limited to particular categories of states, individuals, or peoples. Thus, although international law presumes the juridical equality of states, it in no way requires states to have only equal duties to all other states.
Both sets of duties are best viewed as fundamentally impartial. The general duties are first-order impartial and easily justifiable from a utilitarian, deontological, or contractarian perspective. As for the special duties, one of these—treaty-based obligations—turns out to be relatively unproblematic ethically. The more challenging categories are special duties a state owes to its own residents and nationals—cases where the law recognizes first-order partiality. Yet the analysis above shows that these special duties can be defended far more convincingly from a second-order impartial stance.
Wellman's insights about special duties in the personal arena apply at the international plane as well: only certain special relationships justify special duties, and those duties vary in important ways.122
Wellman, supra note 23, at 552.
Id. at 539.
Whether this state of affairs is good for international law or bad for it depends on one's views of impartiality. As an international lawyer and not a philosopher, I find it a more persuasive basis for justifying special duties—not just those in international law, for sophisticated impartialist accounts, of whatever variety, have a clear advantage. Without having to deny that certain relationships are valuable or good, they do a far better job at answering the more important question for ethics: whether the goodness from those relationships is a sufficient condition for special duties among those in the relationship—duties in the obvious sense that the agent must perform a certain way for the benefit of someone, and special, in the sense that the agent performs that way for some but not all. Their answer is that special duties are better justified from more universalist notions, whether individual autonomy or overall utility. As Wellman has pointed out, those partialist accounts most faithful to partiality risk becoming excuses for all sorts of injustices, while those most convincing at answering the core ethical question above fall into the trap of making quite impartialist claims.124
Id. at 552–555.
At the same time, I do not seek in this paper to defend a single impartialist theory, and further work will be needed to see which theory of second-order impartiality best justifies various aspects of the international legal order and, if necessary, how other orders may be more impartial overall. I recognize that this may lend a certain formalism to my construct without putting the true ethical meat on the bones of the international legal order. I tend to favor a conception of impartiality that combines the efficiency rationale elaborated by Goodin with a notion of justice centered on respect for basic human dignity.
Finally, the construct of general and special duties is inextricably linked with the question of borders. To talk about the duties of one international actor to another is to assume that the identities of those actors are fixed. In the case of states, identities are fixed in terms of borders; but that still begs the questions of whether the borders of a state are just ones, and whether other borders might better advance the interests of various actors.125
See Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 AM. J. INT'L L. 590 (1996) (arguing against automatic conversion of intrastate borders to international borders after secessions and dissolutions of states).
See, e.g., Cavallero, supra note 8, at 193–198.
The future will bring more claims for general and special duties, whether they are owed by states, individuals, peoples, corporations, or others. For international actors to make the right decisions, they will need to examine the ethical basis of each of these claims. It is hoped that the analysis offered here will provide a framework for the ethical and legal evaluation of those claims.
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