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International law and the limits of global justice

Published online by Cambridge University Press:  14 October 2011

SALADIN MECKLED-GARCIA
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Abstract

There are two central theses to this article, the first is that a special kind of governance authority is needed for principles of distributive social justice (‘social justice’ from now on) to be applicable to any sphere of human action. The second is that international law does not and cannot represent that kind of governance authority. It is not ‘social justice-apt’, in my terminology. This is due to the limits inherent in the statist character of international law, a character that underlies the point and purpose of international law in the first place. Putting these together, one can conclude that international law cannot be used to govern the global order according to those principles of social justice that liberal theorists typically defend in the domestic context. This shows that if the cosmopolitan project of extending social justice to the global arena does not find an alternative form of governance for the international order (the problem of ‘cosmopolitan coordination’) it ceases to be a viable project.

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Type
Research Article
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Review of International Studies , Volume 37 , Issue 5 , December 2011, pp. 2073 - 2088
Copyright
Copyright © British International Studies Association 2011

Introduction

Is international law an institution of governance, and more importantly is it an institution that can be used to govern the global order according to principles of social justice? In this article I propose an analysis of the distinctive nature of international law, an inherent nature due to its point and purpose as a practice. If that analysis is true, it represents a challenge to the idea that international law can be used to govern the global order according to egalitarian principles of social justice of the kind proposed for domestic societies.

There are two central theses to the article, the first is that a special kind of governance authority is needed in order to achieve full distributive social justice (‘social justice’ from now on). The second is that international law does not and cannot represent that kind of governance authority. It is not ‘social justice-apt’, in my terminology. Putting these together one can conclude that international law cannot be used to govern the global order according to principles of social justice. I am here relying on a distinction made in the political philosophy literature between distributive social justice, human rights standards, and legal justice. By distributive (social) justice I mean justified moral principles to guide the distribution of social goods and costs, burdens and benefits amongst persons according to cooperative values such as fairness or equal concern for citizens. These include basic social protections and freedoms, but extend to fair distribution and redistribution of social goods and costs in a scheme of productive cooperation. Human rights standards, on the other hand, are those protections and provisions that any one state owes to any individual person, irrespective of that person's contribution to a social scheme. Both contrast with legal justice, by which I mean correct doctrines employed in interpreting legal provisions. There are different theories of social justice, of which principles apply to institutions of distribution, but this article focuses on those committed to liberal egalitarian aims, which I outline below.

If the two theses I am proposing are true, this poses a problem for ‘cosmopolitan’ global justice theories. There are different types of theory one could characterise as cosmopolitan. Just to mention three: (1) accounts of how states should deal fairly with each other, as societies,Footnote 1 Cosmopolitanismi; (2) accounts of responsibilities of assistance that individuals and societies owe to persons outside of their own political communities, Cosmopolitanismii; (3) accounts of the human rights standards that imply obligations to persons in other societies,Footnote 2 Cosmopolitanismiii; and (4) those theorists who think that, as a matter of consistency, the same principles of domestic social justice should apply to the international institutional and economic order.Footnote 3 I have no criticism of the general aims of cosmopolitanism in i–iii. In this article I only address my comments to the latter version of cosmopolitanism (Cosmopolitanismiv from now on), building on a critique of that theory in an earlier work.Footnote 4 The problem that my two theses, if true, set up for this version of cosmopolitanism is what I call the problem of ‘cosmopolitan coordination’. For distributive social justice to be applicable to a sphere, that sphere must have certain features. First amongst these is the existence of an agent or group of agents capable of coordinating the distribution of goods and costs on a continuous basis, so as to maintain patterns of social distributive fairness.Footnote 5 In the absence of the ‘global state’ rejected by most liberal theorists and a good number of cosmopolitans, what entity is to be the agent of principles of distributive justice? Continuously maintaining a fair pattern of distribution across the persons of the world will require continuous coordination of the actions of various and varied international actors, including corporations, states, and individuals. Without an agent to govern that coordination how can any actions on the part of any non-coordinating agent be characterised as just or unjust (in the sense proposed by Cosmopolitanismiv)? I have argued elsewhere that the language of distributive justice is, because of this general problem for Cosmopolitanismiv, not applicable to the international sphere.Footnote 6 This is principally because the obligations of individual states to establish social justice amongst and between their citizens cannot be reconciled with a general obligation to establish and perpetually maintain patterns of global distributive justice across all persons. There is no clear instruction those agents can follow that fulfils both aims. An agent, then, is needed whose legitimate responsibilities would not be, in this way, radically vague. In that earlier work I argued that there is no such agent at the international level. Here, however, I only focus on one possible response to that argument: that the institutions of international law are justice-apt, in the sense of being the focus of judgements of social justice and injustice based on the same principles of distributive fairness applicable to a domestic society. If these institutions can act as a source of cosmopolitan coordination, then the problem is solved. I shall argue they cannot.

Before proceeding I should highlight the method I employ. In order to establish whether or not international law is justice-apt one must have clear idea of the nature of both social justice and the nature of international law and its limits. The method I employ is to offer an account of the role served by specific principles in terms of values those principles distinctively express: the distinctive point and purpose of regulating a given sphere of human relationships. How we understand international law and its appropriate reach must relate to its special role amongst other human relationships: which agents it applies to, what key values it distinctively serves, and so forth. This account must both explain and justify the existing doctrines used in international law and at the same time help explain its limits.Footnote 7

In the case of social justice, the point of social justice as opposed to penal justice, or interpersonal morality, or medical ethics, say, must be a distinctive one: an account of its distinctiveness needs to illuminate the special role that it plays in our judgements compared to other areas of morality and ethics. In the case of international law, I propose that a view of how to interpret its doctrines and their limits will depend on an account of its distinctive role or function in contrast to, say, domestic legal standards. That account must give international law a role which illuminates the extent and limits of its jurisdiction in terms of a specific function it can be seen to serve. If we arrived at an order, a world state say, where there was no specific function for international law, then talking of international law would be redundant. That is, international law must be characterised not by its scale or reach, but by its function. Whether any convincing account of the distinctive roles of social justice or international law can be given is controversial. The accounts I give below are offered as candidates for those distinctive roles, and the plausibility of the argument of this article depends on the plausibility of those accounts. The sections on the nature of social justice and international law which follow can be taken as illustrations of this methodology, as well as part of my general argument.Footnote 8

In the second section, I identify what I take to be the point of applying principles of social justice, and from this I derive characteristics which make certain institutions social justice-apt. In the third section, I propose a functional analysis of international law (IL from now on) according to which it is characterised by four functions that make sense of its distinctive role as a practice. In summary these functions restrict the legitimate operation of IL in ways that prevent it from being a justice-apt institution. In the fourth section, I consider whether IL could be reformed so as to alter its function. I argue not only that it could not, but also that in a world of states and a plurality of political communities, there is value in preserving this distinctive function of IL, which is to say there is a value in preserving IL.

Social justice

For the purposes of this article I shall take principles of social justice, of the kind applicable to domestic societies, to have the following features. They focus on an appropriate distribution of social benefits and social burdens in a society (human goods requiring human costs for their provision, which provision is affected by social behaviour). These distributions, as social distributions, are achieved through the assignment of specific rights and duties to people in a scheme of distribution (rights like the right to certain property or goods and duties such as the duty to pay taxes). Principles of justice apply to any agent with the moral power to assign rights and duties in this way, for that agent is subject to the injunction to distribute rights and duties in a way that produces and maintains a just distribution of benefits and burdens in a society. I am assuming that acceptable theories of social justice will be egalitarian, given that this article aims to contribute to a debate in which the main camps (cosmopolitans and others) are egalitarian that assumption is not too controversial.

It is very important that such an agent should exist, as in all the myriad of interactions, long and short term effects, and chains of causation which have distributive effects, some agent must stand apart from these ‘horizontal impacts’ to adjust and readjust distributions. That way, this agent can adjust for accumulated inequalities and unfairness that might have been no one's explicit fault. In doing so, an agent charged with the adjustment activity can be said to maintain a ‘pattern of distribution’.

The existence of such an agent also helps to separate two moral social roles. The role of agency responsibility: the agent which has the duty to act to adjust for accumulated inequalities, and the role of costs/contributions responsibility: the duty of other agents to contribute to a fair scheme by carrying out their socially assigned duties (such as paying taxes or abiding by the law). The distribution of social rights and duties must itself be according to an important and appropriate master value, which defines a just relationship of cooperation in such a scheme. Famously, candidates that have been offered for such a regulative master value have included reciprocity, fairness and equal concern. The authors offering specific theories of justice in terms of these values (John Rawls and Ronald Dworkin being among the most famous) express their theories in the form of principles by which social institutions must abide when establishing and maintaining a pattern of distribution.

The important point is that if this is what social justice is about: the assignment of rights and duties according to principles expressing a master value, then an agent subject to those principles must be able to carry out that kind of distribution. That is, such an agent must be able to assign social rights and social duties. This, in other words, means such an agent must have a special kind of social authority, which we can call ‘assignment authority’ and have it exclusively over specific persons, or their associations, as ‘assignment jurisdiction’. Without such an agent, then, a given social practice cannot be said to be justice-apt: principles of social justice, reflecting appropriate master values, are not appropriate to that specific practice (although other types of principle might be).

Cosmopolitaniv theorists of justice are distinguished by their insistence that the fundamental concerns of social justice are, at least in principle, as applicable to judging international relations as they are to domestic schemes. On the view I have just sketched, this would mean holding that international relations are just as social justice-apt as domestic ones. We can highlight this contrast by saying that cosmopolitan theorists believe in framing principles of global justice, justice as a relationship between all persons on the globe, rather than international justice which implies special principles for justice between states (Cosmopolitanismi, above).

The question before us, then, is whether any institution exists in the international domain that can be said to be justice-apt. In particular, we can focus in on a chief candidate institution which seems to assign rights and duties in the international sphere: IL. If it can be shown that IL is social justice-apt, exercising a governance function, then we have at least one institution that cosmopolitan theory can point to as the agent of global justice, charged with clear obligations as a guide to its actions. If, on the other hand, IL cannot serve this function, is not social justice-apt, then this leaves us with the problem of the applicability of social justice on the domestic model to the international sphere.

The cosmopolitan theorist can reject my characterisation of justice-aptness in terms of assignment authority. To do so, however, she has to show how international distributive patterns can be maintained across all persons without a distinct type of agent charged with this role. That is what I have called the problem of ‘cosmopolitan coordination’ above. Showing that international legal institutions are social justice-apt, however, would sidestep this problem.

So, are the institutions and provisions of IL justice-apt in the appropriate sense? Can IL provide the basis for a governance authority? This requires a theory of the role and limits of IL.

International law: a functional analysis

Before supplying an analysis of the substantive nature of IL, I propose the following formal definition to focus us on a particular kind of practice:

IL: IL describes those institutional provisions that assign obligations to specified agents that cannot be automatically invalidated by domestic legal decisions.Footnote 9

This may seem a strange way to define the practice, but my aim is to set it apart as having a distinctive role. One part of the distinctiveness of its role must be that its obligations are of a different order to domestic ones in at least this regard. If domestic decisions could automatically annul international obligations, then IL would effectively merge with domestic or municipal law.

Now, many analyses of IL are available and they usually focus on the sources of IL, meaning the authoritative bases for evidence of valid legal norms (treaty, custom, judicial decisions of treaty bodies, and the findings of influential scholarship and recognised bodies).Footnote 10 At most they organise its norms according to areas of law (criminal; public; ‘jus cogens’ provisions; conflict of laws), and some policy aims (preservation of sovereignty; preservation of peace). The problem with these analyses is that they do not tell us about the deep structure of IL: why these different areas of law have the role they do, and so what their appropriate limits might be.

To give such an account of the proper limits of IL, then, one needs to identify the regulative values that make sense of the central doctrines of IL in terms of their distinctively valuable contribution. It is these values that explain (and justify) the specific doctrines. I call these values the ‘four functions of IL’, and the analysis I present below the ‘four functions analysis.’

IL understood in terms of these four functions is, in a special sense, fundamentally statist. But it does not just happen to be statist. It is normatively statist. The principles that make sense of international legal doctrines, giving them a distinctive point and role, do so for good reason, which I shall outline below. It is because of this statism, and its justified basis, that IL cannot serve a supra-state governance function.

To specify the form of statism I have in mind, I shall use the analytical tool of ‘assignment jurisdiction’ introduced above: the exclusive authority to assign rights and duties over a specific group of persons. Governance, understood as assignment jurisdiction, in IL is not only based on state governance, but presupposes state governance, and is achieved through state governance. That is, assignment jurisdiction in IL is statist in that it exists as either:

  1. a) a power of state authorities;

  2. b) derivative of a power of state authorities; or

  3. c) for the sake of facilitating the exercise of that power by state authorities.

Furthermore, governance is ‘Civic’, in that:

  1. d) The constituency over whom the jurisdiction is exercised is defined by reference to the territories of states.

The claim that assignment authority is distributed in this state-bound way is what I call the ‘Statist Thesis’. This statism is inherently reflected in the functions of international legal doctrines or principles, which I identify as four: (1) to enable substantive cooperation between states (principles for creating new duties in IL); (2) to adjudicate over duties deriving from substantive cooperation (settling disputes about the duties falling on states); (3) to define agency in IL (defining what kind of agent is empowered to engage in substantive cooperation, and so in duty creation/assignment: states); (4) to maintain international public order (maintaining the background conditions which make substantive cooperation between states possible).

To go through every element, treaty, custom, case, and body of IL and its functions is impossible within the confines of an article. Instead, I propose to identify the chief functions, sketching central legal doctrines and where necessary giving examples. My focus will be on those areas that have the highest likelihood of challenging the statist thesis, where assignment jurisdiction might be thought to go beyond statism. I shall take the most permissive available (legal) readings of the specific doctrines; given that my aim is to show that even in those cases they nevertheless exemplify the statist thesis. In this respect the biggest challenges, deserving the most attention are those doctrines falling under the international criminal law regime, the requirements of international humanitarian law, and the principles of jus cogens, which will be discussed in the section Public order below.

Substantive cooperation

The international legal order exists as an order that explicitly facilitates cooperation between states, by which I mean the undertaking of obligations through voluntary agreement. The agents that can legitimately create international obligations in this sense are states (see the third section below). The central method by which they cooperate legally is through explicit agreements, either bilaterally, multilaterally, regionally, or through conventions which are intended to attract universal subscription, and thereby set standards. These agreements and the regimes they establish impose obligations on the states that subscribe to them. Each legal regime, however, is constrained by its mandate defining its agreed area of operation. Whilst some regimes, like the EU, provide for the creation of new laws, and so new obligations which are binding on its members, the authority to assign duties is derivative, resting on state-bound authority (and its agreement). That it is derivative is signalled by the fact that states can end their membership, along with its obligations. Similarly, the power of international organisations to enter into international agreements derives from their character as intergovernmental organisations (interstate bodies) themselves created by and deriving their powers from substantive cooperative agreements.Footnote 11

The practice of entering into treaties, within limits to be specified in the fourth section, effectively allows states and state-derivative bodies to create obligations that are internationally recognised.Footnote 12 The principal feature of this for duty creation, however, is that it is voluntary, and the agents whose volition creates the obligations, as internationally recognised obligations, are states. Even where a treaty might impose duties on individual citizens of a state it is because states permit it to be the case.

Even where the aims of the agreements are universal in aspiration, they do not provide for governance beyond that legitimised by the agreement itself. The conventions collectively known as the International Bill of Rights, for example, are agreements by which states undertake obligations with regard to those persons in their jurisdiction.Footnote 13 States are not obliged to undertake such agreements in the first place, nor obliged to their terms before they do. Treaties and agreements are, in this sense, the specific moves that can be made in the game of agreement that defines the point of IL.Footnote 14

Another way in which international legal provisions come into existence is through custom (customary IL). But this presents no challenge to the statist thesis, given that it is the habitual action, practice, and evidence of an understanding of the custom, by states which is taken as evidence for customary law obligations.Footnote 15 Neither explicit agreement nor custom can create forms of assignment authority that are free from state legitimation or which challenge state's assignment jurisdiction.

Even at its most universal, in the UN Charter, international cooperation focuses on substantive cooperative aims as well as creating the background for that cooperation.Footnote 16 In summary, then, we see that the substantive cooperative function of IL does not challenge statism (subject to an account of the accepted agents of substantive cooperation in the fourth section). Challenges to the statist thesis, then, must fall under the other functions of IL.

Adjudication and regulation of duties

In order for the international legal order to facilitate cooperation between the agents of IL there must be both general accepted principles of law that inform how agreements are to be interpreted, and there must be bodies which adjudicate disputes over the agreements. Take for example the most basic principle that permits substantive cooperation: pacta sunt servanda (agreements must be kept).Footnote 17 Without that principle no notion of treaty or treaty obligation would hold. So whilst this idea might be codified, it cannot itself have the same status as the products of substantive cooperation: it is a background condition for that cooperation.

Similarly, when determining what obligations actually arise from substantive cooperative agreements, adjudicative bodies will make the resolution of disputes possible. These adjudicative bodies will appeal to the terms of the agreements. However, they must also appeal to general principles that make it possible to properly interpret those agreements. These include the rule of law, equality before the law, and the hierarchy of laws where more specific provisions have priority over more general principles. There are principles found in most legal systems such as the principle that no one should benefit from their own wrong (Nullus Commodum Capere De Sua Injuria Propria); that fair behaviour must be shown in bringing arguments to adjudication (‘estoppel’); as well as principles of equity.Footnote 18

International adjudicative organs, such as the International Court of Justice (ICJ), are mandated to adjudicate disputes between states (including multi-state organisations).Footnote 19 However, international adjudicative bodies make states subject only to obligations arising from agreement to the jurisdiction of the body and its particular mandate. No adjudicative bodies exist with a non-voluntary mandate. The principles that adjudicative bodies apply, then, are limited either to the mandate of the treaties themselves, their substantive content, or any general principles of law needed in order to adjudicate those treaties. They adjudicate substantive cooperation with no mandate in their explicit jurisdiction to govern by assignment authority. The adjudicative function thereby conforms fully to the statist thesis.

Status and agency

According to the principal adjudicative and interpretative instruments of IL only states are the juridical agents of IL (those whose decisions are counted as relevant to establishing obligations).Footnote 20 So clearly, it is states that are legally recognised as the agents of substantive cooperation. No convention or custom exists legitimising the creation of internationally valid treaties without state participation.

A set of objective qualities of statehood was codified in the Montevideo Convention that stipulates the characteristics (the de facto powers) of statehood.Footnote 21 The convention is also explicit that having these qualities and powers is fundamentally distinct from being recognised by other states (Art. 3). The stipulated objective qualities, and the idea of personality in IL, can only be understood as stipulations necessary for the functioning of substantive cooperation.Footnote 22 The qualities cited are: (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with the other states.Footnote 23 These are objective qualities that fit perfectly into place given a central aim of international law is substantive cooperation. In order for political communities to cooperate, they must clearly constitute distinctive groups: identifiable, with the capacity to bind their members in relation to activities affected by the agreements. Without those features, agreements count for nothing. Authority in international affairs (international personality) then must derive from domestic authority. The requirements that there be a government, a population, a territory, and a capacity to enter into agreements can be seen to emanate from the cooperative aim for that is effectively to require of states that they have a jurisdiction over which they can enter into agreement. If the world were not separated into distinct jurisdictions of political authority over populations, substantive cooperation as a key value of IL would not make sense.Footnote 24

Furthermore, the territorial element of statehood also identifies the form of jurisdiction states have over persons.Footnote 25 The principal basis for state jurisdiction over persons is nationality.Footnote 26 The ICJ raised the test of ‘effective nationality’, previously used in cases of conflicting nationality claims, to the status of a principle (the Nottebohm principle). This states that nationality requires showing meaningful connection to the state in question.Footnote 27 The principal way of showing meaningful connection is habitual residence. For the purposes of being subject to legislative, executive and judicial jurisdiction, then, the primary test is the effective nationality test. For the purpose of domestic criminal jurisdiction, the test is more directly territorial.Footnote 28 Even where states use a parentage criterion (jus sanguinis) to give non-residents certain rights, parentage is itself linked to territory.

It is worth entering one caveat in the description of state agency. One could interpret state agency as based on legitimate exercise of state power, rather than the bare description I have given. That would, for example, include conditions of respecting basic human rights, not engaging in mass murder, torture, disappearances, repression, as well as having a working legal system that obeys the rule of law. To some extent these basics of state legitimacy have become an ideal in international law and relations, with some of the activities of UN Security Council and the International Criminal Court bearing witness to limits on legitimacy (namely, Sudan and Libya resolutions). Whether or not this has or is becoming a condition on international agency, it is important to note it does not affect the statist interpretation of IL I have given here. Indeed one could make a case that at least the rule of law is a minimum requirement for being the kind of entity that can make agreements and keep them, given these must bind citizens. Nevertheless, the fact that there are some minimum requirements for legitimacy does not mean that any other entity can legitimately create binding rights and duties in international law through substantive cooperation, or guarantee the binding nature of those provisions for citizens.

In summary, then, on either interpretation, agency for the purposes of substantive cooperation in IL is both statist and civic in nature.

Public order

The fourth function of IL can be described as its public order function.Footnote 29 This area of IL seems to challenge the statist thesis. It includes: international criminal law, the peremptory norms known as jus cogens norms, and principles of mutual peace and security, as well as the special organs which act on these principles. Most interestingly this is an area in which non-state-bound jurisdiction is rife.

Now, it may appear that the notion of international crime implies a jurisdiction over individual persons that challenges state-bound jurisdiction. Yet, those actions that can count as international crimes are not unlimited, or in the hands of any specific authority to extend or reduce. What counts as an international (or transnational) crime is limited to a specific kind of purpose. The list of currently recognised international crimes (and I am including ‘transnational crimes’ which are private criminal acts of international repercussion) includes: piracy, genocide, crimes against humanity, war crimes, torture, the slave trade, the international crime of aggression, and apartheid.Footnote 30 It is clear from this list that what defines an international crime is not purely its effect on individual persons. Rather, it is the effect of such actions on the function of international property regimes, states ability to regulate their own citizens, and interstate relations such as with the slave trade that makes all the difference. With Genocide, crimes against humanity, torture and apartheid, for example, whilst the actions may not directly impact on states other than those in which they occur, the potential effects of these crimes makes them internationally sensitive. Attacks against minorities can impinge on other states, where the populations involved have affiliations with populations in other states, or refugee flows are caused by their persecutions spill over into the territories of states not directly involved, or simply where other states will not stand by and permit mass atrocities. The standards effectively relate to uses of state power that are provocative to other members of the community of states, and consequently which challenge international peace and security (because of a propensity to intervene in or react to such events). There is no necessary connection between the nature of an action in terms of its effect on an individual person and it featuring in the list of internationally proscribed crimes (otherwise the list would feature simple murder, for example). The decisive element is what consequences that action has for international public order.

International criminal courts have specific mandates listing specific international crimes, with limits on how they can exercise jurisdiction for the sake of enforcement (limited to specific territories, persons or states). No judicial enforcement institutions, however, have assignment jurisdiction to introduce new crimes or remove old ones from the list of recognised offences.

Jus cogens norms are distinguished by their power to: (a) render some treaty provisions as non-derogable; and (b) to nullify a treaty which violates these norms. The list of what comprises these norms is short but controversial. Nevertheless, no body has the power to create such standards by a decision (although international courts can adjudicate and enforce them), and in each case, as in the case of international criminal provisions, it is the public order element of norms that elevates them so highly.

The public order function also extends to specific organs, such as the Security Council of the United Nations (UNSC) which is charged with preserving peace and security for member states, and which can establish new obligations for states through its resolutions. It derives its mandate from the UN Charter itself, but interprets its mandate according to the public order aims of peace and security.Footnote 31 Whatever the political motivations of the UNSC at any one time, it remains unchallenged that its actual de jure mandate is limited to maintaining international peace and security.

The statist thesis might be especially challenged in relation to international institutions affecting economic distribution. If IL was to reach beyond statism and play a governance function for social justice, presumably these institutions would be the focus.Footnote 32 These organisations too operate against the background of state-bound political authority (jurisdiction). None of them has a form of assignment jurisdiction that challenges statism. They are all associations deriving their mandates either from the authority of those that consent to their terms (and those who constitute them), or from public order aims. The World Bank, for example, originated as a reconstruction organisation aiming at economically patching-up states whose post-war situation was precarious, and so shoring up stability. The Declaration on the Right to Development does not assign any specific obligations and certainly does not empower any authority with international redistributive powers, the work of the UNDP is fundamentally consensual, and the Millennium Development Goals are aspirations with no clear associated obligations assignable to any agent. Finally, the Committee of the ICESCR, does not have the authority to enforce aims beyond what signatory states have agreed. It treats implementation as state-bound and not as an inter-state idea It also leaves decisions on implementation in the hands of states themselves.

Justice within the limits of international law?

In summary, IL has an inherently statist character which underlies its defining principles and doctrines. This is a function of its raison d'être. Given the existence of a plurality of separate states, each with separate assignment jurisdiction, its point is the regulation of relationships between these political entities. However, that regulation does not take the form of a distinctive authority with just any power to assign rights and duties to persons, or for that matter even to states themselves. The authority of IL is limited to the obligations states develop voluntarily (substantive cooperation) or those forms of adjudication and decision-making necessary to maintain a system in which voluntary interactions and agreements can take place. Those are the limits of IL identifiable in its defining principles. Whether these principles can themselves be changed I will come to below. First, however, it is worth making the argument explicit in terms of what this analysis of IL means for cosmopolitanism. Cannot justice be served, somehow, within these limits?

If we recall, from the introduction, I defined four versions (i-iv) of cosmopolitanism, and limited my discussion to the plausibility of only version iv given the background of IL. My question was whether social justice of a standard egalitarian type, which involves the continuous maintenance of patterns of distribution across persons, can be achieved through IL. I argued that to do that one needs a special type of agency, one that can assign rights and duties across all agents including persons for the purposes of distributing social goods and costs. I have now argued that IL does not have that authoritative power and agency, given its statist nature: assignment of rights and duties across persons is primarily the prerogative of the state save in cases where adjudication of interstate disputes and public order in the states system justifies exceptions. The problem of cosmopolitan coordination therefore remains. That is, what clear and guiding obligations, falling on which specific agents, will maintain a continuous pattern of distribution across the globe? In earlier work I have argued that without a unified authority capable of imposing a system of rights and duties, that goal does not make sense. Without an agent with powers to control property rights, taxes, monetary policy, prices, municipal works, social benefits, product licensing, market regulation, and so forth, across the globe, the idea of continual adjustment for fairness makes no sense. If there are no clear rules or principles that any agent could follow towards that maintenance of patterns of distribution, then there is no coherent sense in which any act is a contribution to, or ‘promotion’ of, egalitarian global social justice in the way I have defined it.Footnote 33

Of course, this does not rule out the possibility that states can act together, in agreements, to coordinate fair relations between each other as political communities. Nor does it rule out the possibility of promoting humanitarian, assistance, and mutually beneficial ends and aims in the world. Principles of fair trade, reasonable assistance, mutual respect, and standards of humane treatment of persons can be designed, and indeed have.Footnote 34 The analysis presented, then, does not imply conformity with the status quo or giving up international relations to immorality. Versions i–iii of cosmopolitanism can be, and to some extent have been, pursued through IL. However, as I have said, my target in this article is Cosmopolitanismiv and its claims. Given my analysis, IL is not social justice-apt in the appropriate sense, and so the problem of cosmopolitan coordination has no obvious solution.

Conclusion: Is international law necessarily statist?

My analysis, however, might be challenged in that on it IL is descriptively statist. But why should accept it as prescriptive? Perhaps the statist doctrines and principles of IL might be challenged and altered, allowing the move to more of a governance type function for IL, and thereby for the possibility of global social justice.

The problem with this objection is that the analysis I have offered is not simply descriptive. IL, as a concept, is law for a states system (whether or not one thinks a states system is a good thing). That is, a system in which the primary agents of assignment of rights and duties are separate and formally independent authorities. If we accept states’ normative power to assign rights and duties across their communities, then international obligations can only derive from states exercising their normative power in some way: by signing a treaty for example, or from background needs of the states system.

Assignment jurisdiction can either exist as a state power or as the abolition of separate states and establishment of a universal power. There is no ‘in between’ option. If a group of states consent to federate that is just the formation of another, larger, separate state. If one state arrogates the power to itself to impose duties on citizens of another territory, again that is just the (claimed) extension of that state's assignment jurisdiction. If, in the process of federating, states agree to give up some sovereign powers if not all (over some economic transactions, say), then we either have cooperation (if the consent can be withdrawn) or amalgamation into a larger body (if it cannot be withdrawn) with regard to those powers. Some theorists have talked of vertical and horizontal dispersals of sovereignty, or the nesting of different sovereignty regimes, as a possibility to challenge the states system.Footnote 35 The only sense in which this might be relevant to the present discussion would be where the assignment jurisdiction over persons was one of the elements of sovereignty that ceased to be concentrated in the hands of states. However, so long as the authority which governed this new assignment jurisdiction did not contain all political communities in the world then IL would still be pertinent because the values that give it its point would still apply: substantive cooperation and international order. If, on the other hand, dispersal means there is no separation of assignment jurisdictions across the globe, then the function of IL becomes redundant, at least in the areas in which assignment jurisdiction comes under a unified global power. We would have something akin to federal law for those areas (that is, not IL), and autonomous law for the rest. IL, however, given its point is based in cooperation and order, cannot be used to impose the giving up of assignment jurisdiction as an obligation.

So long as there are separate states with separate assignment jurisdictions, then the values of substantive cooperation, their limits and conditions would seem worth keeping: they are indeed a set of values, not just a set of rules. They would be the only routes to achieving any international ends. If states are not separate, then there is no need for IL.

This has consequences for the existing organs of IL. Those organs, such as adjudicative bodies, cannot act in ways that contravene the core functions of IL. To do so would be for those organs, a court say, to arrogate assignment authority.Footnote 36 Yet it is unclear where a court could derive the authority to act in such a way. It would be acting, as far as its mandate is concerned, ultra vires. Insofar as the states it sought to regulate are concerned it would be claiming governmental power over them, and over their individual citizens, and so usurping their jurisdiction. Yet there is no clear and legitimate basis for the claim as a claim of law. It would be, de jure, arbitrary. Even if it could have some success de facto it would be outside of the limits of IL.

In summary, whilst the states system is accepted, with its model of jurisdiction, interstate cooperation will be the value that informs the adjudicative powers of a system of IL. This is because de jure issues cannot be established or settled without that cooperation. That is why the value that is reflected in the states system is not self-determination in some democratic, participatory, or representative kind. Self-determination is respected as a condition for cooperation, not as an ideal in itself. Thus the only self-determination that matters for the purposes of agency, for substantive cooperation, in IL is the normative power of assignment jurisdiction. Trying to introduce agency conditions in a way that advances different aims or ends (such as egalitarian goals) would be orthogonal to the aims of substantive cooperation, and potentially threatening to the aims of international public order.

I do not propose to discuss the possibility of a world state, or whether the route to such a universal authority could go through legal steps. My sole focus has been to consider whether IL as it is can be social justice-apt, given the conditions that give it a distinctive point and purpose. The states system, I have argued, is one of those conditions. It seems reasonable to conclude, then, that given the states system, the institutions of IL do not have a non-derivative power to assign rights and duties. If justice-aptness requires an institution with a governance function and governance requires the de jure and non-derivative power to assign rights and duties to persons, IL is not an institution that is social justice-apt.

A Cosmopolitaniv who accepts my analysis is faced with the problem of cosmopolitan coordination mentioned in the introduction: how social justice can be said to apply to the globe without the existence of a global governance institution that is its agent. The Cosmopolitaniv enterprise cannot look to IL as its instrument, nor can it judge IL as just or unjust with regard to this standard: it is just not that kind of institution. That is not the consequence of regrettable factual constraints in IL that might be easily reformed. Rather, it follows from honouring the very values that give IL its point and purpose.

References

1 Rawls, J., The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 35 ffGoogle Scholar .

2 Although, I have argued, human rights standards have a very specific function which sets limits to what ends they can serve. See Meckled-Garcia, S.‘Do transnational economic effects violate human rights?’, Ethics and Global Politics, 2:3 (2009), pp. 259–276CrossRefGoogle Scholar .

3 See, for example, Pogge, Thomas, World Poverty and Human Rights (Cambridge: Polity, 2002)Google Scholar , §§ 4.7 and 4.8. Pogge believes that consistency requires the same principles of domestic justice apply to the international order, or at least our judgement of it (pp. 39 and 105 ff.), yet he focuses on human rights rather than distributive justice for strategic reasons to do with the acceptance of his view (ref. 169–70). Even if the notion of justice employed is ‘minimal’ this requires a clear set of principles for specific agents to follow. See Meckled-Garcia, S.‘On the very idea of cosmopolitan justice: constructivism and international agency’, Journal of Political Philosophy, 16:3 (2008), p. 245CrossRefGoogle Scholar .

4 Other examples of Cosmopolitanismiv: Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), pp. 195–200Google Scholar ; Caney, S. ‘Cosmopolitanism and equalising opportunities’, in Pogge, T. (ed.), Goblal Justice (Oxford: Blackwell, 2001)Google Scholar .

5 See arguments for this at S. Meckled-Garcia, ‘On the very idea of cosmopolitan justice’, pp. 252 ff.

6 See, for example, S. Meckled-Garcia, ‘On the very idea’, pp. 263 ff.

7 This is not a ‘practice-dependent’ view. That type of view is mistakenly attributed to me at Ronzoni, M., Philosophy & Public Affairs, 37:3, p. 230, fn. 5Google Scholar . I explicitly reject that approach at ‘On the very idea of cosmopolitan justice’, p. 251.

8 Cf. also Meckled-Garcia, ‘On the very idea,’ pp. 247 ff. and 252 ff.

9 Note that I am not assuming anything about the reality or existence of such provisions. My argument proceeds conditionally: if any such valid provisions do exist, then those are the provisions of international law. Alternatively one could say: if international law can be said to exist, then at least one such provision must be said to exist.

10 See, for example, The International Law Commission. See Statute of the International Court of Justice (1945) Art 38(d)Google Scholar .

11 This is clearly expressed in Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (Vienna, 21 March 1986) (not yet in force), Art 1 (i) & (j).

12 Vienna Convention on the Law of Treaties, (Vienna, 23 May 1969) (27 Jan 1980) [VCLT from now].

13 Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966) (1976), International Covenant on Economic, Social and Cultural Rights (1966) (1976).

14 Whilst it has been argued that other types of agent are involved in law making processes, see Christine Chinkin, Alan Boyle, The Making of International Law (New York: Oxford University Press, 2007)Google Scholar , esp. chap. 2, decision-making rights are nevertheless the monopoly of states, just as in domestic law making, lobbies and pressure groups can influence legislative decisions, legislative sovereignty nevertheless lies with the members of the legislature. See Pronto, Arnold N., ‘Some thoughts on the making of international law’, European Journal of International Law, 19 (2008), pp. 601–616, 606 ffCrossRefGoogle Scholar .

15 The rule or practice comprises the actions of states, together with opinio juris, in the international law jargon. See Yearbook of the International Law Commission, vol. II (1950), pp. 368–372Google Scholar .

16 Art. 1 (3) refers to cooperation in the solving of economic, social, cultural, or humanitarian problems and encouraging respect for human rights and fundamental freedoms.

17 VCLT, Art 26.

18 Statute of ICJ, Art 38; For other general principles see Cheng, Bin, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 1953/2006)Google Scholar .

19 Art. 34(1). Note that jurisdiction is decided by state consent, Art. 36(2) and Art. 59 read together.

20 ‘Only states may be parties in cases before the Court’, Statute of the ICJ, Article 34.1; ‘Every State possesses the capacity to conclude treaties’, VCLT, Art. 6.

21 Montevideo Convention on the Rights and Duties of States, Uruguay (1933) (1934), Article 1 of which is arguably part of customary international law, also Art. 2; also Grant, T. D., ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37, Columbia Journal of Transnational Law (1999)Google Scholar .

22 In spite of attempts at reinterpreting international legal personality, see, for example, Nijman, J. E., The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law (The Hague: T. M. C. Asser Press, 2004), esp. pp. 455–456 and 473Google Scholar .

23 These conditions were echoed in the European Economic Community's Badinter Arbitration Committee (Opinions) (16 December 1991), charged with determining the status of the republic of Croatia, Macedonia, and Slovenia, which had sought European Community recognition: ‘the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority …’ (Opinion 1).

24 Whilst only states can have international legal personality in this sense, they are not the only entities which can be a subject of international law in the sense of having duties under it. Natural persons can also be subject to international legal obligations. Cf. Orakhelashvili, Alexander, ‘The Position of the Individual in International Law’, California Western International Law Journal, 31 (2001), pp. 241–276Google Scholar .

25 Judge Huber, in USA v. Netherlands, Island of Palmas case of 1928, vol. II, Reports of International Arbitration Award, pp. 829–71, 838, identifies sovereignty over ‘a portion of the surface of the globe’ as necessary condition for including that portion in the territory of any particular state.

26 European Convention on Nationality (1997), Art. 1.

27 Nottebohm (Lichtenstein v. Guatemala) case, ICJ Reports (1955).

28 Ahlstrom Osakeyhtio and Others v. Commission (Wood Pulp) case, European Court of Justice (1988): ‘the two undisputed bases on which state jurisdiction is founded in international law are territoriality and nationality’, Common Market Law Reports, 4 (1988), p. 901Google Scholar ; International Law Reports, 96 (October 1994), p. 148Google Scholar . Furthermore, the territoriality of criminal law principle is exclusive, for example, Separate Opinion of Guillaume, Judge, Congo v. Belgium, ICJ Reports, 5 (2002), pp. 3, 36Google Scholar . See also VCLT, Art. 1, (a), (b), and (g), and esp. Art. 29.

29 On ‘International Public Order’, see Mosler, Hermann, The International Society as a Legal Community (Alphen ann den Rijn: Sijthoff & Nordhoff, 1980), pp. 17 ffGoogle Scholar ; Orakhelashvili, Alexander, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006), pp. 11 ffGoogle Scholar .

30 On the crime of ‘aggression’ see Resolution RC/Res.6, ‘The crime of aggression’, adopted at the Review Conference of the Rome Statute, Kampala (11 June 2010).

31 Even UNSC Resolution 1593 referring the case of Darfur, Sudan, to the public prosecutor of the International Criminal Court, was worded explicitly in terms of peace and security.

32 For example, The World Bank, IMF, WTO, The International Labour Organisation, International Covenant on Economic, Social and Cultural Rights and its Committee, the UN Development Programme and the UN General Assembly with its Declaration on the Right to Development and the Millennium Development Goals.

33 Cf., authors who propose that in lieu of clear principles and obligations agents can still ‘promote’ global egalitarian aims, for example. Barry, C. and Valentini, L., ‘Egalitarian challenges to global egalitarianism: a critique’, Review of International Studies, 35:3 (2009), pp. 485–512, 15CrossRefGoogle Scholar .

34 J. Rawls, The Law of Peoples.

35 Kuper, Andrew, ‘Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons’, Political Theory, 28:5 (2000), pp. 640–674 esp. 646 ffCrossRefGoogle Scholar . Also T. Pogge, World Poverty, § 7.3.

36 Consider a proposal (sometimes scouted in the literature) to use the ICJ to hold states to account for failure to uphold Article 2.1 of the International Covenant on Economic Social and Cultural Rights: the duty of signatory states to assist other states in achieving economic and social rights thresholds as much as they can. Proposals have included remedy or compensation by signatories that have not done this, for a breach of obligation. Unfortunately, those making the proposal, ignore the cooperative nature of that provision (and the explicit statement of ‘free consent’ in Art. 11), and they also ignore that to set up a system of compulsory redistribution for this purpose would require a system of international fair burdens and benefits that in itself requires a governance body to determine and impose. Without that there is no sense of what explicit and strict obligations states are under to contribute. Many of the statements of the CESCR bear this out, as they add no specific notion of contribution and in fact sound like the obligations are, to a large extent, imperfect duties. Stretching the mandate of a cooperative provision such as 2.1 to mandate economic governance, then is clearly ultra vires given the point of the treaty, and the context of the basis of specific and specified obligations as requiring substantive cooperation.