DRAFT – NOT FOR CIRCULATION OR CITATION WITHOUT AUTHOR’S PERMISSION
Chapter 4
The Contours of International Law’s Thin Justice
With the overall structure of international law now set forth, I now offer my case for the
basic justice of contemporary international law. To make this case it is necessary to offer a
vision of justice – and global justice in particular – that meets two criteria: (1) it must be
ethically acceptable; (2) and it must be generally prevalent in the international legal system.
Only if I demonstrate both have I shown that international law as it currently exists conforms to
an ethically acceptable notion of justice. This chapter provides the ethical justification of the
vision of global justice to which international law currently in the main conforms. The
remainder of the book seeks to demonstrate that overall conformity as well as areas where
international law does not live up to this vision. My notion of “generally prevalent” is best
explained by an analogy to a regression line or curve. I envision the norms of international law
as data points, and my idea of justice is the line that best fits the pattern of dots. Some points
will be on the line, but others will be below the line – still unjust; and others will be above it –
meeting a higher standard of justice than the thin version described here.
This approach might be said to be putting the cart before the horse, insofar as one could
choose to derive the vision of justice of the international legal order inductively by examining
that order. Indeed, the vision described in this chapter is in many ways influenced by that legal
structure. Yet two points respond to such a concern. First, as pointed out in the first chapter, the
vision of justice offered here is not only derived and derivable based on looking at the rules of
international law. It stands – and needs to be defended – on its own right. Only if I can show
2
that this notion of justice is morally defensible will the appraisal that follows mean something.
Second, a purely inductive method will prove cumbersome as a presentational matter. Thus, I
first offer and defend my understanding of justice and then show its workings through
international law.
In speaking about an ethically acceptable vision of global justice, I choose the word
“acceptable” quite deliberately. For this understanding of justice must be more than merely
plausible or defensible; it must be one that gives us good reasons to respect, and want states and
other actors to obey, the basic rules of international law that are in conformity with it. That is,
we want actors to follow the rules of international law not simply because they are law, but
because they are just. As Mathias Risse writes, “For each principle, there is some individual or
institution or other agent that has an obligation to do what it can, within limits, to bring about
that sort of just distribution.”1To do so, it must meet the two key tests of any view of justice: it
must be grounded in concepts that are necessary and sufficient to any theory of justice, and its
content must encompass the key ideas and ends that we can associate with justice. Such a notion
is not meant to be some kind of ethical minimum; as will be seen, one could offer a notion of
justice that would place far fewer demands on international law. Yet, at the same time, such a
notion is less than the best possible justice that might be achieved in human society (even as we
can disagree as to what that might entail). Rather, it is a justice that in a broad sense builds upon
the realities of the international system of states (and other actors), though without endorsing all
of those realities (e.g., the prevalence of torture and poverty).
Before beginning, two brief observations are required. First, the motivations of the actors
who created international law are irrelevant to the justice of, or ethical justification of, that law.
1
Mathias Risse, On Global Justice 5 (2012)
3
Even if states have always created international law by acting in a narrowly self-interested mode
according to a realist vision of international law – an assumption that seems highly simplistic if
not downright laughable – the results need to be judged on their own merits for their conformity
with a vision of justice. While Kant believed the nature impels individuals to act in a way that
eventually leads to perpetual peace,2 I can remain agnostic as to why states act the way they do,
and simply judge the merits of the law that they have created. Those motivations will, however,
prove quite relevant to the possibilities for making the law more just than it is (under either a thin
or thick vision).
Second, I am offering here a vision of global justice, not a fully argued ideal theory of
global justice. My vision derives from observing international law, as it is, and finding within it
a justice that is worthy of that term. I develop that vision within existing frameworks for
deriving justice, but as I am not arguing for an ideal conception of global justice, I do not seek to
start with the most basic principles. Certain assumptions, notably the existence of states, will be
made that a fuller theory might wish to question.
I. Grounding a Vision of Global Justice
For justice to be worthy of its name, its precepts must be derived through a certain form
of reasoning. In this section, I consider the basic frameworks for developing principles of
justice have been involved and the possibilities and limitations of building on them for deriving
principles of global justice.
A. Justice as impartiality, not mutual advantage
2
Immanuel Kant, “Perpetual Peace,” in Kant: Political Writings, 2d ed., Reiss ed., at. 112.
4
With the benefit of forty years of scholarship since John Rawls’ A Theory of Justice, we
may now today speak of certain basic fault lines in theories of justice. In one camp lies the idea
of justice as mutual advantage and its champion Thomas Hobbes. Hobbes argued that justice is
the performance of a covenant, in particular a covenant whereby men agree, for their own selfinterest, to transfer certain of their rights which they enjoy in the state of nature to a sovereign or
commonwealth. Such covenants are only meaningful, and the duties to follow them required by
justice, if there is a civil power that can force compliance.3 Most important for this concept is
that justice requires compliance with any such contract, regardless of the bargaining power of the
various sides that agreed upon it and the contents of the bargain. With few exceptions, whatever
the parties believed was in their mutual advantage and have put into their covenant – and thus
authorized the state to enforce -- is obligatory, and justice requires that it be followed.4 If that
bargain perpetuates or exacerbates inequalities, or creates significant harm to the dignity of
particular individuals, the parties must still follow it.
Needless to say, some would say this is not justice at all. Rawls termed such a bargain a
mere modus vivendi, lacking the overlapping consensus necessary for a political conception for
justice; indeed, he considered a treaty between two belligerents ending a war as a paradigmatic
modus vivendi.5 Moreover, the underlying relationship among the parties was based on mere
mutual advantage and not the reciprocity required for a society to which principles of justice
could apply.6 Barry went even further to say that any theory of justice that brought in mutual
advantage was not really about justice at all. Even if one conceded that a bargain based on
mutual advantage might improve the situation of the parties compared to pure anarchy, or limit
3
4
5
6
Thomas Hobbes, Leviathan, chs. XIV-XV.
Id. ch. XIV, p. 198.
John Rawls, Political Liberalism 144-50 (2005).
Id. 15-18.
5
the extent to which they pursue their self-interest, it still “fails egregiously to . . . provide some
moral basis for the claims of the relatively powerless.”7
Accepting the Hobbesian position would make the inquiry at the heart of this book a very
simple one. For since most international law is the product of agreement, whether through treaty
or custom, the justice of international law would depend entirely on the extent to which there is a
coercive power behind the agreement. Treaties with real sanctions for noncompliance,
regardless of their content, would be just. That group would include the 1938 Munich agreement
dividing up Czechoslovakia (for which noncompliance by France might have meant earlier
invasion by Germany) or the Warsaw Pact treaty (for which noncompliance by the Eastern bloc
would have meant invasion by the Soviet Union). Treaties with little or no coercive force behind
them, such as the United Nations Charter or human rights treaties, would not themselves be
unjust, but there would certain be no duty based on justice to follow them. Such an inquiry
would really not be one about the justice of international law at all. It would fail to do what Neil
MacCormick has noted is essential to the task of inquiries regarding justice: to “ask about the
justice of the law, not only about justice in its administration and its observance by citizens.”8
Rejecting a Hobbesian conception of justice does not require rejecting all his premises.
Indeed, agreements among persons – or states – that create stability of expectations have a
significant value for the actors concerned, even if they might be so superficial in their
commitments that they are ready to break them when circumstances changes. The state of nature
is awful, and stability has many advantages for improving human welfare and dignity.
Brian Barry, Justice as Impartiality 39-46 (1995). See also Will Kymlicka, “The social
contract tradition,” in A Companion to Ethics (Peter Singer ed.) 186, 189-95 (1993).
8
Neil MacCormick, Practical Reasoning in Law and Morality 135 (2008).
7
6
The alternative view to justice based on a search for mutual advantage is the subject of
some disagreement, with Rawls saying that principles can be derived in a society where
individuals act based on reciprocity, while others have criticized reciprocity as still privileging
powerful individuals.9 For my purposes here, I will adopt Barry’s alternative organizing
principle of justice, though not in all its details. That view may be termed justice as impartiality.
At its most fundamental level, impartiality describes a way that individuals and institutions
decide and act, one based on disinterestedness, consistency, and fairness and not merely personal
motives.10 It is, at its most fundamental, about not playing favorites. In deriving duties of
justice, impartial reasoning requires a commitment to equal treatment of individuals. Equal
treatment does not mean equal outcomes. But any unequal outcomes, including special duties to
certain people or states, must be justifiable from an impartial perspective.11 As Thomas Hill
wrote, “All the impartiality thesis says is that, if and when one raises questions about
fundamental moral standards, the court of appeal that one addresses is a court in which no
particular individual, group, or country has special standing.”12 In earlier work, I asked whether
some of the basic duties that international law recognizes as special – duties by one state to only
some other states or individuals – could be justified as impartial.13
See Barry, supra, Allen Gibbard, “Constructing Justice,” 20 Phil. Pub Aff. 264 (1991)
(reviewing Brian Barry, Theories of Justice (1989)); Allen Buchanan, “Justice as Reciprocity,”
19 Phil. Pub. Aff. 227 (1991).
10
It is in this sense that Barry and Terry Nardin define justice as impartiality. See Barry, supra,
at 20-27; Terry Nardin, Law, Morality, and the Relations of States 258-59, 265 (1983).
11
Barry, John Deigh, and Marcia Baron have deployed the notion of “second-order
impartiality” to describe this approach. See, e.g., Barry, supra, at 191-95; Marcia Baron,
“Impartiality and Friendship,” 101 Ethics 836 (1991); see also Susan Mendus, Impartiality in
Moral and Political Philosophy (2002).
12
Quoted in Barry, supra, at 226.
13
Steven R. Ratner, “Is International Law Impartial?, 11 Legal Theory 39 (2005)
9
7
Yet as David Miller has pointed out, invocation of impartiality has its drawbacks,
because we must still have an underlying theory for deciding which differences count and which
ones do not.14 Impartial moral reasoning about the justice of international law may be
undertaken under the terms of any one of the major approaches of ethics. Thus, utilitarianism
works from the impartial standpoint to derive principles of justice based on the idea of
maximizing total individual welfare. Peter Singer remains its most prominent advocate,
adopting what he calls a “two-level view of utilitarianism” that sees some relationships – our
most intimate ones – as guided by intuition but most big questions, including those concerning
global justice, as best answered by asking which of various schemes and duties will maximize
overall utility.15 From the deontological starting point, under Kant’s vision of international
society, practical reason compels people to act according to the categorical imperative; the result
is states based on freedom and individual equality and, eventually, relations among states that
will pursue perpetual peace.16 Finally, a contractarian position would seek to ground global
justice on what an actual or hypothetical group of equal individuals would agree upon. As Barry
writes, “just rules are those that can be freely endorsed by people on a footing of equality.” 17
Thomas Pogge took a Rawlsian contractarian approach and derived a vision of global justice
characterized by universalization of the difference principle.18
B. Choosing among impartialist conceptions of justice
14
David Miller, On Nationality 53-55 (1995).
Peter Singer, One World 162-67 (2002).
16
Kant, “On the Common Saying, ‘This May be True in Theory, but it does not Apply in
Practice,” in Kant: Political Writings, supra, at 74-77, and “Perpetual Peace.” Allen Buchanan
has grounded his own impartial deontological view in what he calls a “natural duty of justice,”
which commands individuals to “help create structures that provide all persons with access to
just institutions.” Allen Buchanan, Justice, Legitimacy, and Self-Determination 86-88 (2004).
17
Barry, supra, at 52.
18
Thomas Pogge, Realizing Rawls (1989).
15
8
Deciding which of the three impartialist perspectives to adopt in offering a vision of
global justice is a great challenge, and each scholar’s perspective is doubtless informed by
certain pre-theoretical intuitions as to what sorts of considerations should go into moral thinking.
Ever since Rawls, the contractarian approach to justice has garnered the most serious scholarly
attention; indeed, for Barry it seems to be the only sort of model that deserves the name
impartial. Yet it must be utilized with great caution on matters of global justice.
The key source of this hazard is a notion that is central to the Rawlsian construction of
justice, and distributive justice in particular: the basic structure as the realm of justice. In
Rawls’ view, the basic structure is “a society’s main political, social, and economic institutions,
and how they fit together into one unified system of social cooperation from one generation to
the next.”19 That fair system of cooperation was, to him, one of reciprocity, in which “all who
are engaged in cooperation and who do their part as the rules and procedures require, are to
benefit in an appropriate way as assessed by a suitable benchmark of comparison.”20 By the time
Rawls considered issues of global justice, the basic structure had changed quite a bit: it was now
essential to include in it a “mutual respect among peoples,” including those both in liberal and
decent hierarchical societies.21
1. Philosophical Responses
Rawls’s conception of the basic structure set off a generation of scholarship as to whether
international society indeed had one. Much of that debate focuses on the implications for
distributive justice, in particular between cosmopolitans urging strong forms of global
19
20
21
Rawls, Political Liberalism, supra, at 11.
Id. at 16.
Rawls, The Law of Peoples 62 (1999).
9
distributive justice and nationalists seeking to confine distributive justice to the state.22 Some,
like Pogge, insist that the interactions across boundaries characterized by the world today are
sufficient to create the sort of cooperation required for a basic structure, and that that structure is
composed of individuals at the global level.23 Another strain has emphasized the necessity of
coercion for a basic structure, with Thomas Nagel finding that the absence of significant
coercion at the global level makes global justice simply impossible.24 Yet Nagel’s view is
simplistic as a description of the international system and wrong in its emphasis on coercion, as
the international system has indeed many features that resemble enough of a global structure so
as to apply principles of justice to it.25 I share Joshua Cohen and Charles Sabel’s view that the
world today currently has “a mix of precisely the conditions of interdependence, cooperation,
and institutions that have justice-generating implications. . . .”26 They go on to point out the
implications of the decisions of international institutions, such as the World Trade Organization
or the International Labor Organization, for ordinary citizens. Indeed, international law is not
merely the output of these relationships, but constitutive of them. That is, as states have built
international relations, they have created something resembling a realm in which principles of
justice (including distributive justice) should apply.27
22
See the discussion of the positions in Risse, supra, at 7-10.
Pogge, supra note -- (RR).
24
Thomas Nagel, “The Problem of Global Justice,” 33 Phil. Pub. Aff. 113 (2005); see also
Andrea Sangiovanni, “Global Justice, Reciprocity, and the State,” 35 Phil. Pub. Aff. 3 (2007).
25
Joshua Cohen and Charles Sabel, “Extra Rempublicam Nulla Justitia?,” 34 Phil. Pub. Aff.
147 (2006); A.J. Julius, “Nagel’s Atlas,” 34 Phil. Pub. Aff. 176 (2006). For an argument for
distributive justice taking Nagel at his word, see Lea Ypi, Robert Goodin, and Christian Barry,
“Associative Duties, Global Justice, and the Colonies,” 37 Phil. Pub. Aff. 103 (2009).
26
Cohen and Sabel, supra, at 166.
27
See Andreas Follesdal, “The Distributive Justice of a Global Basic Structure: A Category
Mistake?” , 10 Politics, Philosophy, and Economics 46 (2011).
23
10
Yet it is equally true that there is something distinct about the realm of justice at the
international level compared to that within the state. The English School of international
relations has termed the international system a society, but has also remarked on its differences
to domestic societies. Robert Jackson has aptly said that the “universal societas of states . . .
centered on the UN and . . . defined by operative standards of conduct by the charter . . . is a
noticeably thin community. . . .”28 He contrasts it with regional organizations that share more
goals; as for a “community of humankind,” it is “contingent on the prior existence of sovereign
states that agree to recognize human rights.”29 Even a strong cosmopolitan like David Held
refers not to one global community, but “overlapping communities of fate, where the trajectories
of countries are heavily enmeshed with each other.”30
2. Responses from International Law
Despite the spilling of much ink about the existence of an international community
among international lawyers, legal scholarship cannot help us too much on this problem. In at
least three ways, the international community is the pre-eminent example of a faux ami31
between ethics and international law.
First, the community concept that international lawyers accept is, insofar as they describe
the status quo, a community of states.32 In that sense, if one believes in a contractualist
understanding of global justice, those making the contract are quite different from individuals or
even peoples. Second, and more fundamentally, international lawyers do not generally regard it
28
Robert Jackson, The Global Covenant: Human Conduct in a World of States 344.
Id.
30
David Held, Cosmopolitanism: Ideals and Realities 119 (2010).
31
A word whose cognate in another language means something different.
32
Bruno Simma and Philip Alston, “The Sources of Human Rights Law: Custom, Jus Cogens,
and General Principles’” 12 Australian Ybk Int’l L. 46 (1989) (“[T]he international legal
community [is] a community which is—and will for a long time in the future be—composed of
(sovereign) States”).
29
11
as part of their mandate to argue systematically for (or against) the existence of an international
community, even if they may use the term in their work. A small number of such scholars have
looked in depth at the criteria for a community,33 but they remain the exception. Bruno Simma,
for instance, accepts the idea of a “sense of community” as a key criterion for an international
community, but it is frankly hard to know what this idea means—how, for instance, should it
relate to the many national senses of community?—or how we should determine its presence.34
Thomas Franck, for his part, found “emergent sense of global community” characterized as one
of states and of individuals.35 For the most part, international lawyers in essence assume the
existence of an international community of states that needs to, and is competent to, make rules
to govern itself. They seem satisfied that either the juridical equality of states, the universality
of membership of the UN, or the need for or presence of global cooperation on certain issues
itself means that states now form an international community.36 Such an assumption (or at best a
thin understanding of the term community) will not work for our purposes. We need an
See, e.g., Hersch Lauterpacht, “Professor Carr on International Morality’” in E Lauterpacht
(ed), International Law: Being the Collected Papers of Hersch Lauterpacht 67, 84–92 (1975);
Rene-Jean Dupuy, “Communauté Internationale et Disparités de Développement’”169 Recueil
des Cours 9 (1979); J.L. Brierly, “The Rule of Law in International Society,” in H Lauterpacht
and CHM Waldock eds., The Basis of Obligation in International Law and Other Papers by the
Late James Leslie Brierly 250 (1958); Charles de Visscher, Théories et Réalités en Droit
International Public 117–31 (2nd edn 1955).
34
See Bruno Simma and Andreas Paulus, “The ‘International Community’: Facing the
Challenge of Globalization,” 9 EJIL 266, 276 (1998). See also Antonio Cassese, “Soliloquy,” in
P Gaeta and S Zappalà (eds), The Human Dimension of International Law: Selected Papers
(2008) lviv, lxxvi–lxxx,( “community sentiment”).
35
Thomas M. Franck, Fairness in International Law and Institutions, at 13. In a trenchant
critique, Dino Kritsiotis questioned whether such a community exists except in the rhetorical
sense and, equally significant, whether international law needs an idea of community to
accomplish its ends. Dino Kritsiotis, “Imagining the International Community,” 12 EJIL 961
(2002).
33
See, e.g., Georges Abi-Saab, “Cours Général de Droit International Public,” 207 Recueil des
Cours 9, 91–100 (1987); Manfred Lachs, “Quelques Réflexions sur la Communauté
Internationale,” in M Virally, Le Droit International au Service de la Paix, de la Justice et du
Développement 349 (1991).
36
12
argument for an international community if it is to be, as Rawls insists, a necessary condition for
global justice.
Thirdly, the concept of the community serves different functions for the cosmopolitan
philosopher and the international lawyer. For the cosmopolitans (whatever their precise
theoretical orientation), it justifies a notion of global justice that encompasses significant limits
on diversity across states, since the fundamental community in which individuals organize
themselves is the planet, not the state. The community, for instance, is an essential construct for
the strong cosmopolitan’s call for distributive justice across states. For the international lawyer,
the international community is at worst a rhetorical shorthand for a group of powerful states; or
at best a tool for solving common problems among states that all agree must be handled jointly,
whether concerning the environment, human rights, or prevention of armed conflict. To him or
her, the tension between a global community and diversity across states is less troublesome—
although clearly international lawyers endorse many limits on diversity. In Rawlsian terms, this
community is completely consistent with inter-state relations based on a mere modus vivendi,
without much of an overlapping consensus on a political conception of justice. As a result of the
need to cooperate, states and other actors accept duties toward each other, enter into agreements,
and prescribe law.37
3. Shifting the Ground of Argument
Given the possibility of describing the international system as one community, no
community, and multiple or layered communities, I would choose all three. It is easy to say we
have multiple communities of different densities and characteristics – one need only look at the
EU vs. the UN to make such a claim -- but it does not help to identify such communities if one
37
See Rawls and Kelly (eds), Justice as Fairness: A Restatement 192–95 (2001).
13
wishes to apply a contractarian view of global justice based on the idea of a single global
community. So on that issue, I would argue that we have both one community and no community
at the same time. The international community – the basic structure of global justice – is
analogous to the concept in quantum physics that light is both a particle and wave
simultaneously. In terms of both cooperation and coercion, in some ways we interact closely,
feeling the influence of each other’s lives and the global institutions we have created to enforce
rules. Think of all of us at a large international airport, mixing as we pass and board flights, all
subject to rules set by ICAO, the EU, or other international bodies. But at times we are very
much nationally oriented, and the community almost seems to dissipate. Again, think of many of
us on our national holiday, or thinking about an upcoming major election. Just as Peter Singer
has criticized the notion of an imagined community as a basis for special obligations to the
nation-state, one cannot simply imagine an international community for purposes of applying a
contractarian model.38
The difference between the international community and the domestic community is not a
sufficient reason to discard the contractarian view of justice, and in particular the distributive
component. But the project of asking what a global community would or would not agree to,
given the complexities of interactions, expectations, and world views, is just too difficult, and
will always elicit a counter-claim that it is based on a vision of community that does not conform
to reality. It thus seems far more promising to sidestep these debates. Allen Buchanan has
38
Singer, supra, at 170-71. To be fair, Singer does urge us to imagine an international
community, but he says we should do that based on consequentialist grounds because it will
improve the lives of people everywhere.
14
made a similar move when he grounds his obligations of global justice in both a basic structure
and a deontological natural duty of justice, but ultimately prefers the second.39
In light of the evanescence of the global community – related to its “thinness” as Jackson
points out – I will ground the principles of global justice against which international law should
be assessed in consequentialist terms, with certain deontological concepts superimposed on that
model. These arguments for deriving justice do not require the construct of a basic structure or
international community. Consequentialism does not demand (although it does not preclude)
that we limit justice to certain spheres; it is by its nature a global approach to ethics, even if
individual philosophers might choose to consider only the utility of those within a particular
jurisdiction. And deontological forms of argument can also be indifferent to such spheres; they
are principles of right for all relevantly similar situations, universally.40 At the same time, by
preferring these two approaches to contractarianism, I am not surrendering the fundamental
principle of impartiality. The consequentialism I endorse treats all individuals’ utility equally;
and the sense of right in the deontological theory again works from the assumptions that all
persons are equal. Neither approach plays favorites, even if they may endorse principles of
justice that treat differently situated persons differently.
The decision to ground global justice in a moral theory that does not require the existence
of a community does not make the concept of community irrelevant for international law.
Indeed, in many ways, the norms and institutions of international law help constitute a global
community – one united by shared rules, expectations, forms of acceptable argumentation,
Buchanan, supra, at 83-98. See also Noah Feldman, “Cosmopolitan Law”?, 116 Yale L.J.
1022, 1056-51 (2007) (grounding cosmopolitan legal duties in natural duties and duties based on
association).
40
Kant, “Groundwork,” supra, at 42.
39
15
institutions, and practices.41 Particular rules and institutions within a subfield might constitute
more confined global communities, as with those who focus on international trade or human
rights.42 Yet that community is formed by the rules; it cannot be used to justify the rules.
C. Additional components of a vision of global justice
Beyond justice based on impartiality, two additional constructs inform my view of an
ethically acceptable vision of international justice. The first idea addresses the earlier point that
an ethically acceptable theory must reflect the realities of the international system; it is not an
ideal theory built from scratch. Acceptance of certain realities is fundamentally a pragmatic
notion, which steps outside the realm of morality or impartiality. It is essential because the
subject of my ethical inquiry is the international legal system, and there are certain basic positive
criteria of a legal system. As Hart wrote, the minimum criteria for such a system are general
obedience of valid rules by private citizens and acceptance of the basic rules of recognition by
public officials.43 A legal system deserving of the name must command obedience by those said
to be bound by the rules (which, in international law, includes states more than private citizens).
However much we might have legal rules validated by rules of recognition, the existence of a
legal system turns upon certain realities about society’s attitude toward the rules of recognition.44
In that light, any vision of justice must not place demands on international law such that
the rules that pass muster under it would not command such general obedience. We can call this
the obedience condition. Conceptions of justice must be realistic in the sense of taking into
For one argument to this effect within law, see Adeno Addis, “Imagining the International
Community: The Constitutive Dimension of Universal Jurisdiction,” 31 Human Rights
Quarterly 129 (2009).
42
See, e.g., Andrew Lang and Joanne Scott, “The Hidden World of WTO Governance,” 20
European Journal of International Law 575 (2009).
43
H.L.A. Hart, The Concept of Law 113 (1961).
44
Id. at 100-01.
41
16
account prospects for obedience. For example, a vision of justice that ignores the lessened
chances of compliance with the law when powerful states do not accept certain rules would be
highly unrealistic. Those states do not merely refrain from complying with rules they regard as
placing excessive demands on them, but they have the power to block the compliance of others
by obstruction.
This practical limitation on my vision of justice does not mean that it must simply accept
all of international law as it currently stands, nor is it meant to provide a sort of moral cover to
international actors who oppose rules that are more morally appealing than the status quo and
thereby make them harder to be obeyed. Even as prospects for obedience must be part of our
theorizing about law today and in the future, ideas for morally important rules should not be
abandoned simply because they will not command immediate acceptance by all. As David
Estlund writes, “A requirement of general acceptability cannot plausibly count just any objection
as decisive.”45 Certainly many areas of progress in international law overcame arguments by
opponents that the underlying ideas would never be accepted by states. So it must be deployed
with care. While I cannot claim to offer some complete theory of this concept, the chapters
below will deploy it contextually, to question those changes in the law that are so at odds with
the motivations and claims of key international actors that we will simply want to rule them out
except as a matter of ideal theory. Clearly, these are judgment calls – perhaps even
pretheoretical hunches -- in which some readers will be tempted to impose the condition where I
do not and others will reject my own use of it. This process seems to me quite similar in the
care with which the axiom that ought implies can should be deployed in non-legal moral
theorizing.
45
David Estlund, Democratic Authority (2008), at 39; see also id. at 40-52.
17
Second, and relatedly, for any legal system to earn its name, its rules must create a
minimal degree of predictability while not impeding positive changes. We might call this the
stability of expectations condition. Modern jurisprudence has developed many ideas about what
sort of certainty and stability is required for a legal system.46 At a minimum, rules that allow
parties unfettered auto-interpretation as to their meaning, or easily allow international actors to
renege on agreements that they have freely made, will merit special scrutiny. We will not want
to insist that the rules of international law preclude peaceful change – on the contrary – but there
will be certain times in which the costs to predictability are more than the system should bear.
II. The Two Pillars of International Justice
The vision of global justice that I offer here posits that international law rules are just if
and only if they (a) further, or at least do not diminish, international peace and stability and (b)
respect basic human dignity.47 Justice is viewed largely in consequentialist terms, for its
contribution to a particular state of affairs about both peace and human dignity, although the
second prong may also be grounded in deontological reasoning insofar as it includes the idea of
not crossing certain lines regarding what is right.48 In this section, I seek to justify this vision of
justice. As noted earlier, it is not claimed that this vision would be arrived at by individuals or
states acting behind some veil of ignorance. Rather, I am adopting an alternative strategy for
what should be regarded as just.
46
See, e.g., Hart, supra.
These two pillars owe much to the ideas of minimum order (i.e., minimization of coercion)
and optimum public (i.e., advancement of all the values linked with human dignity) inherent in
the policy-oriented approach to international law discussed in Chapter 2. However, unlike that
approach, my vision directly confronts the question of the relationship between these two
concepts.
48
In this sense I adopt Allen Buchanan’s useful point that one can engage in teleological reason
without being fully consequentialist. See Buchanan, supra, at 75. See also David O. Brink,
“Utilitarian Morality and the Personal Point of View,” 83 J. Phil. 417, 420 (1986).
47
18
A. Peace
1. The Instrumental Claim
A common starting point for all visions of global justice is the centrality of international
peace. Hobbes regarded man’s search for peace as grounded in nature, while Kant saw it as
grounded in a duty, but both agreed on the advantages for human welfare of peace among
nations. The term I employ is broad in one sense, and yet narrow in another. It is broad in that it
encompasses the idea of not merely peace between states, but peace within them. A just world is
one where states, peoples, and individuals settle their differences without recourse to physical
coercion. At the same time, it is narrow in the sense that it does not regard peace as the absence
of conflict where the lion lies down with the lamb. A fortiori it is not the robust notion of
“positive peace” advanced by Johan Galtung and followed by many cosmopolitan scholars -- the
absence not merely of personal violence, but of structural violence as well, by which he means
effectively the incorporation of social justice within the notion of peace.49 International law
must ideally advance this goal, but a conception of justice that insists upon an end to tensions
between states, communities, and individuals over money, territory, or other resources is far too
demanding. Rather, as Hersch Lauterpacht wrote in a seminal volume on international law from
the inter-war period, “The first function of the legal organization of the community is the
preservation of peace. Its fundamental precept is ‘there shall be no violence.’”50
The initial appeal of the consequentialist pillar of global justice comes from
contemporary world history, and in particular the events of the twentieth century. War has
unparalleled catastrophic consequences for overall human welfare. More than any other activity
See Johan Galtung, “Violence, Peace, and Peace Research,” 6 J. Peace Res. 167 (1969); see
also Iain Atack, The Ethics of Peace and War: From State Security to Human Community
(2008).
50
Hersch Lauterpacht, The Function of Law in the International Community 64 (1933).
49
19
over which humans have control, war undermines the possibility of people to live decent lives. It
kills; it wounds; it devastates property; it damages the environment; it destroys cultural heritage;
and its consequences are long lasting, not merely in physical terms but in psychological ones.
(Natural disasters may kill more people than wars, but they do not engender the same long-term
mistrust of neighbor against neighbor as wars; indeed they quite likely do the opposite.) While
some former combatants quickly reconcile (e.g., Germany and Japan with the Allies after World
War II), far more common is extended animosity that takes generations to conquer. The
resultant mistrust makes the everyday negotiation of human conflicts, large and small, that much
harder, and drives societies and individuals into despair.
Chris Hedges, one of the most
perceptive commentators on modern warfare, writes:
The cost of war is often measured in the physical destruction of a country’s
infrastructure, in the blasted buildings, factories, and bridges, and in the number
of dead. But probably worse is the psychological and spiritual toll. This cost
takes generations to heal. It cripples and perverts whole societies . . . . In the
beginning war looks and feels like love. But unlike love it gives nothing in
return but an ever-depressing dependence. . . on the road to self-destruction. The
world we once understood and longed to return to stands before us as alien,
strange, and beyond our grasp.51
Or, as Elizabeth Neuffer quotes a Rwandan survivor whose family was murdered in the
1994 genocide, “’We have all lost something. We even have an expression for it:
bapfuye buhagazi. It means the walking dead. This is the land of the walking dead.”52
In his remarkable book Bloodlands, Timothy Snyder catalogues the destruction wrought upon
those parts of Europe that shifted between Nazi and Soviet control in the years from 1939 to
51
Chris Hedges, War is a Force that Gives Us Meaning 162 (2002).
Elizabeth Neuffer, The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda
251 (2001).
52
20
1945. Even as he emphasizes how Stalin’s policy of mass murder began long before the war, he
writes:
During the Second World War, the bloodlands were subjected not to one
invasion but to two or three, not to one occupation regime but to two or three.
The mass murder of Jews began as the Germans crossed into lands that the
Soviets had just annexed for themselves a matter of months before [from
Poland], from which they had deported tens of thousands of people just weeks
before, and in which they had shot thousands of prisoners just days before. . . .
This sort of accumulation could also affect, and indeed end, the lives of millions
of people who were thousands of miles away from the bloodlands. . .53
These claims are backed by quantitative measures as well. [To be added] War is not the
chief cause of poverty, but the mitigation of armed conflict is supremely important to alleviating
poverty. Indeed, to the extent that efforts to eradicate poverty in certain situations will contribute
to the elimination of armed conflict, then advancing those efforts is imperative as a matter of
consequentialist reasoning.
Among states and national groups, the differences between those who tolerate (or even
settle) their disputes – even deep-seated ones – without warfare and those that choose to fight,
even where there is an obvious winner, is significant. Once ethnic groups or states cross the
Rubicon to armed conflict, there is simply no going back to the status quo. Mistrust is seeded for
generations. Economic and political development generally suffers as pre-war cooperation
between groups or states dissipates and rebuilds only slowly. Even private interpersonal
violence is directly related ongoing conflict or the legacy thereof as individuals settle private
scores through the worst means. This realization is what has prompted some far-minded leaders
of both states and civil society to emphasize prevention of conflict above all. Thus, the
Organization for Security in Cooperation in Europe drew from the disaster of the war in
Yugoslavia to create a High Commissioner on National Minorities, a mechanism to negotiate
53
Timothy Snyder, Bloodlands: Europe between Hitler and Stalin 392-94 (2010).
21
differences between governments and ethnic minorities in former Eastern European states before
they become violent;54 and leading members of civil society formed institutions like the
International Crisis Group to draw attention to international conflicts before they turn bloody.55
Setting the preservation of peace as the supreme goal of justice does not imply
preservation of the status quo, in two senses. First, to the extent that international law rules
undermine peace, they will require adjustment. Second, when individual welfare can be
improved through peaceful change, consequentialism demands nothing less. Indeed, much of the
international lawmaking over the last century has been to create institutions that advance
individual welfare in a way that does not upset the peace.56 Those who assume a conflict
between peace and progress often neglect the possibility of global change through those
processes. Moreover, as the second prong of my conception of global justice makes clear, I do
not rule out situations where international law can be defended even if it detracts from peace
because there is some other duty that must be carried out or right that needs to be defended.
This consequentialist argument is completely impartial in the sense discussed earlier. It
treats all persons equally and is oblivious to personal ties and circumstances. It is a simple claim
that the preservation of peace advances overall human welfare. At the same time,
consequentialism has, as it were, consequences that rattle its critics. In the claim I am making
here, it means that international rules under which some individuals suffer but whose overall
consequences are to reduce the prospect of war, so that overall welfare is maximized, are just, up
to the point where they run into the second principle discussed below. Certain key norms, such
See Steven R. Ratner, “Does International Law Matter in Preventing Ethnic Conflict?,” 32
NYU J. Int’l L. and Pol. 591 (2000).
55
See www.crisisgroup.org.
56
See generally Hisashi Owada, “Peaceful Change,” in Max Planck Encyclopedia of Public
International Law, www.mpepil.org.
54
22
as the stability of international borders, or the near-ban on humanitarian intervention, will prove
justifiable on this ground.
A vision of global justice that morally validates rules and institutions in terms of the
extent to which they promote international peace is thus strongly grounded in consequentialist
morality. Indeed, it is somewhat remarkable that most scholars of the cosmopolitan outlook
who emphasize human dignity as a central tenet of their view of global justice place so little
weight on the importance of avoidance of armed conflict.57
2. Peace before, or in conflict with, justice?
The result, then, is that the preservation of peace is the foremost purpose of global
justice. But other relationships are possible (not merely semantically but substantively). Those
advocating other relationships ultimately advance a different conception of justice, so in
responding to those views I am seeking to defend my own vision of justice. First, it might be
asked whether peace is better viewed as a precondition for global justice rather than a component
of it. Such a view would seem to follow from two strands of political theory – one that sees
justice as in the distributive terms discussed earlier, such that it is focuses on distributing things,
and maybe even rights or duties, rather than a value like peace;58 and another, following a line
from Hobbes to Rawls, that assumes or proposes that humans can and should discuss and agree
upon matters of justice only once they have exited the state of nature and achieved some basic
A rare exception is Singer, who argues that “a consequentialist should support the rule of
international law because of its potential to reduce the likelihood of war.” Singer, supra, at 132.
58
See Gardner, supra at 6 (“living in a peaceful world” is “not assignable” so not part of
questions of justice).
57
23
stability. Second, one might go further, as have some critical approaches to international law, to
suggest that global order is in fact opposed to, global justice.59
Several responses are in order. First, even if justice is about fundamentally about
allocation, that allocation must still serve a purpose, and the allocative conception does not
preclude a proposal that peace is the foremost purpose. Second, we might also think of peace not
merely as a goal of allocative justice, but as a value which itself needs to be allocated. Justice is
not just about allocating rights or goods, but about deciding how much stability and peace we
wish to advance – or how much we wish to sacrifice – as part of the allocative mix. The result of
my analysis might well be an endorsement of rules that some would call unjust one allocative
sense, but that actually are just insofar as they take peace into account.
As for the argument that justice requires the peace that comes from leaving the state of
nature, the response turns on a critical the difference between domestic societies and the
international realm. While it may be possible to isolate peace as a mere precondition for
discussing justice in the case of domestic societies, in the international sphere, we do not have
that luxury if we want a view of justice that is relevant for today’s challenges. The persistence of
war and the threat of renewed war are such a constant feature of the landscape that a vision of
global justice that neglects the necessity of ending war seems quite impoverished. It assumes
away some of the hardest questions and defines justice based on an ideal peaceful world that
remains very elusive. I realize that domestic theories of justice have flourished despite the
existence of domestic strife within such states, and I am not arguing that such theories are
irrelevant because they assume a peaceful setting – indeed they may offer useful ideas for the
Martti Koskenniemi, “The Police in the Temple: Order, Justice, and the UN: A Dialectical
View,” 6 EJIL 325 (1995). I leave aside Galtung’s equation of peace with justice because, as
noted, it relies on a notion of peace that cannot bear that weight.
59
24
post-conflict situation. But for a theory of global justice – for what it means to have a just order
on the planet as a whole – peace (even within states) deserves to be part of and not merely
antecedent to the vision of justice.
This conclusion also puts an interesting twist on debates regarding peace vs. justice.
Scholars, activists, and officials have argued about whether a society emerging from a national
trauma like a civil war or a brutal regime should focus on domestic tranquility or criminal justice
against the perpetrators. The positions usually boil down to the arguments that (a) peace is often
incompatible with, and ultimately more important than, justice vs. (b) justice is necessary (or at
least very important) to secure peace.60 My argument, however, is quite different: it is that, with
respect to justice writ large -- as opposed to merely criminal justice – the advancement of peace
is the first purpose of justice.
3. What Kind of Consequentialism?
Finally, I should make two clarifications regarding the type of consequentialist analysis
that I will pursue. First, as an epistemological matter, what counts is the consequences of the
international law rules in terms of necessary or at least likely outcomes for the preservation of
peace, not the subjective viewpoints or motivations of those who make the rules as to those
outcomes. My consequentialist prong is, in the terminology of Peter Railton, an “objectivist”
one.61 However, consistent with Brad Hooker’s view, it does not insist on certainty in its
predictions, but only a reasonably expected outcome.62
60
See, e.g., Steven R. Ratner, Jason S. Abrams, and James L. Bischoff, Accountability for
Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 167-76 (3d ed.
2009); Jon Elster, Closing the Books: Transitional Justice in Historical Perspective (2004).
61
Peter Railton, “Alienation, Consequentialism, and the Demands of Morality,” 13 Phil. And
Pub. Aff. 134, 152 (1984).
62
Brad Hooker, Ideal Code, Real World 72-75 (2000).
25
Second, it should be clear by now that the consequentialist analysis fits in the mold of
rule-consequentialism (or more precisely, indirect consequentialism) rather than actconsequentialism. My project is to appraise the consequences of international law having certain
rules on certain topics, not to examine individually whether a particular action by a particular
international actor is just. To take one example discussed in Chapter 5 below, with respect to
economic sanctions, my inquiry will not be “Are the EU’s sanctions against this or that
repressive government just?” but rather “Is the norm of international law that permits the EU to
impose economic sanctions against Burma just?” This will require that I (a) identify what the
rule actually requires, permits, or prohibits of states (a task that may be difficult when rules are
in flux); and (b) assess the consequences of the rule, not merely with respect to the EU’s
embargo on Burma, but with respect to all other conduct either permitted, prohibited, or required
under the rule.
Once I have assessed the justice of the rules, we could then, as an additional project,
evaluate the morality or justice of individual acts of states or other global actors. If we adopt
Hooker’s persuasive view of rule consequentialism, then those acts would be unjust or immoral
if and only if they violate the rules we have determined are just based on their consequences.63
Under this view, acts that do not violate rules are right or at least not wrong. Hooker’s approach
works well with the framework I have set out in the prior chapter where international law is
conceived in terms of duties, for in those cases we can identify those acts that violate a particular
duty, and classify those acts as wrong. But it may be the case that some of the underlying rules
of international law are only permissions; in those situations, unless we can find another duty in
international law by which to judge the act, we may find that the idea of “violating a rule” does
63
Id. at 32-33.
26
not make much sense, and we will not have any guidance as to whether an act is wrong. I need
not delve into these questions here because my focus is indeed on the underlying rules, and I can
assess their consequences without worrying too much about whether they are obligations or
merely permissions.
B. Respect for Basic Human Dignity
Justice cannot, however, be grounded solely on the priority of eliminating war for two
reasons. First, as a consequentialist matter, justice also needs to be concerned with the welfare
of individuals. On a consequentialist account, if peace comes at the cost of significant loss of
life – or if, contrariwise, many lives can be saved but only at the cost of peace – a rule that only
advances peace is morally defective. Second, and more fundamentally, consequentialist
reasoning seems insufficient to ground a conception of global justice. Consequentialism
tolerates some very serious harms committed to certain individuals as long as they can be
justified for the greater good. A just outcome must also be one that respects certain fundamental
values regarding the way we treat people – that we, and thus the law, must treat individuals the
right way, with a certain degree of basic respect.
1. What Kind of Pillar?
These two concerns leave us with two possibilities for a second pillar of global justice.
One would be that the rules of international law are just only if they also advance, or at least do
not seriously damage human dignity. This position incorporates a concern with human dignity
into the consequentialist calculation. A second idea is to treat non-interference with human
dignity as a deontological trump on the consequentialist goal of advancing peace. Under this
view, efforts to advance the first pillar must be constrained by a moral duty on human
institutions, including law and its implementation processes and structures, to respect basic
27
human dignity. This choice is basically the same one faced in ethics between rights as goals and
rights as side-constraints. Under the first view, we adopt a holistic balancing of the
consequences, but we face extraordinarily difficult questions about the utility to be assigned to
certain horrendous violations that may only be against one person (e.g., torture.) The second
view, advanced by Robert Nozick as central to his theory of justice,64 has two opposite potential
flaws – that it does not give dignity enough of an impact on morality, and that it gives it too
much by simply negating any possible rules or outcomes that violate basic dignity. This may be
too demanding and is contrary to commonsense morality that actually balances the rights
violations with the advantages from it.65
In the end, I opt for the most part for the consequentialist view of the role for human
dignity; thus, when my second prong argues that international law rules must respect human
dignity, I mean it in terms of the outcomes of the rules on individuals as a whole. My choice is
ultimately grounded in the reasons that Robert Goodin offered for his defense of utilitarianism as
a mode of moral reasoning with respect to public policy. Consequentialist morality is adaptable
to multiple situations, in particular the uncertainties inherent in policymaking, without forcing us
to engage in difficult and highly personal debates about our moral duties. 66 In that sense, it is
suited for guiding and evaluating the rules for governance of a society better than morality based
on duties. The same holds true a fortiori in the international arena given cultural differences
about our duties to one another.
Yet I am not quite prepared to shed the idea of dignity as a side-constraint. For I believe
that each of us, and the institutions that we create, has certain duties regarding human dignity
64
Robert Nozick, Anarchy, State, and Utopia (1974), at 30-34.
See, e.g., Peter Singer, 9 “Ethics and Institutions,” J. Ethics 331 (2005); Theresa Lopez et al,
“Side Constraints and the structure of commonsense ethics,” 23 Phil. Perspectives 305 (2009).
66
Robert E. Goodin, Utilitarianism as a Public Philosophy (1995),
65
28
that should prevent us from labeling a legal norm as just even if it advances peace and even if it
otherwise advances human welfare. Bans on torture, slavery, or arbitrary killing might fall into
this category, although whether these norms are actually in play to act as side-constraints on the
first pillar will need to wait until we examine the specific norms. Side-constraints need not be
the absolute trumps that upset our commonsense morality (though international law treats some
of those jus cogens norms precisely that way). Rather, they can serve as a set of alarm bells that
bring human rights considerations to the fore more than they would be through consequentialist
reasoning. Moreover, as Goodin observed, the difference between the rules that result from a
utilitarian reasoning focused on responsibilities (for better outcomes) as opposed to duties
(regardless of outcome) may well turn out to be quite small.67
2. A meaning for basic human dignity
Christopher McCrudden’s account of both the historical origins of the concept and the
attempts of political and judicial bodies to give it legal form highlights the plasticity of the term
in contemporary discourse.68 McCrudden identifies a minimum core or convergence of ideas of
the concept – one that stretches from antiquity, through Kant’s focus on autonomy, through the
drafting of modern constitutions and human rights instruments -- characterized by the intrinsic
worth of the individual, the need for others to recognize and respect that worth, and the priority
of the individual over the state.69
Yet the concept of inherent worth seems too general for an understanding of human
dignity for my pillar. I thus turn to two related concepts, human rights and human security. As
for the former, the identification of certain basic or inherent human rights has occupied both
67
Id. at 81-87.
Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” 19
EJIL 1 (2008).
69
McCrudden, supra, at 679.
68
29
legal scholars and philosophers.70 Lawyers have been divided between those who identify a
certain hierarchy of human rights – perhaps defined in terms of the non-derogable rights under
the ICCPR – and those who regard all human rights as of equal weight.71 Doctrine gives an
edge to the former approach, as some human rights are jus cogens insofar as no treaty or norm of
customary international law can override them, 72 though states have emphasized that all human
rights are linked.73 Among philosophical inquiry as to what rights are really human rights, views
range from James Griffin’s focus on rights as securing autonomy, to James Nickel’s emphasis on
rights as satisfying minimal human requirements, to Beitz’s and Raz’s view of rights as
determined by political practices.74 I do not wish to wade too far into these rich debates. But I
take one key point from the law and one from ethics: first, consistent with the idea behind jus
cogens, some aspects of dignity rights are more foundational than others; and, second, as
emphasized by Griffin and Nickel (I need not choose between them for my purposes here),
dignity must capture the idea of both autonomy and satisfaction of minimal human needs.
Indeed, that idea of minimal needs is central to the other concept connected to human
dignity – human security. Most authoritatively defined in the 2003 report of the UN
70
My focus here is on the meaning of human rights, so I will not address definitional questions
about the meaning of rights per se. For an excellent compendium of views, see Jeremy Waldron
ed., Theories of Rights (OUP, 1984).
71
Compare, e.g., Theo van Boven, “Distinguishing Criteria of Human Rights,” in 1 Vasak and
Alston, eds., The International Dimension of Human Rights 43 (1982) with Theodor Meron, “On
a Hierarchy of International Human Rights,” 80 AJIL 1, 21, (1986).
72
This list probably includes the bans on torture, slavery, genocide, and crimes against
humanity. International Law Commission, Articles on State Responsibility (2001), commentary
to Article 40.
73
World Conference on Human Rights, Vienna Declaration and Program of Action, June 25,
1993, para. 5 (no priority between civil and political, on the one hand, and economic, social, and
cultural rights, on the other hand).
74
Compare James Griffin, On Human Rights (2008); James Nickel, Making Sense of Human
Rights, Second edition (2006); Charles Beitz, The Idea of Human Rights (2009); and Joseph
Raz, “Human Rights Without Foundations,” in Tasioulas and Besson, The Philosophy of
International Law 321.
30
Commission on Human Security, that term refers to the protection of “the vital core of all human
lives in ways that enhance human freedoms and human fulfilment.”75 In particular, “It means
protecting people from critical (severe) and pervasive (widespread) threats and situations[,] using
processes that build on people’s strengths and aspirations [,] and creating political, social,
environmental, economic, military and cultural systems that together give people the building
blocks of survival, livelihood and dignity.”76 Human security is a thus a huge concept
encompassing many ways to improve the welfare of people, and indeed its advocates represent it
as a completely new paradigm meant to stand alongside the idea of national security.
Its key value, in my view, to a concept of human dignity is that it captures the imperative
of law and institutions to respond to the greatest vulnerabilities of people, whether those are
caused by states, non-state actors, or even natural disasters. This focus on the vulnerable can
itself form the basis for a set of individual and institutional moral responsibilities.77 My notion
of human dignity includes this need to respond to the greatest of human vulnerabilities. In that
light, when I refer to basic human dignity, I refer to a life free of external intrusion on the
fundamental autonomy of the individual, coupled with the basic material goods necessary to a
minimally flourishing life and thus addressing each individual’s most important vulnerabilities.
While the term “dignity” might suggest a deontological concept, I believe it can equally be
deployed with consequentialist reasoning. Finally, I deliberately avoid the term “basic human
rights” because I see rights as identified with legal rights, and legal rights under a corpus of law
accepted by states, so it strikes me as somewhat circular to seek to appraise the justice of
international law rules by reference to other rules.
75
Commission on Human Security, Human Security Now (2003), at 4
Id.
77
See, e.g., Robert E. Goodin, Protecting the Vulnerable; Singer, “Affluence, Famine, and
Morality,” PPA.
76
31
3. Respect as non-interference
My notion of respect is also quite specific and one I adopt from international law –
although it owes its origin to a philosopher. Respect is one of the three duties of states (and
perhaps other international actors as well) to protect human rights originally developed by Henry
Shue but are now well accepted among bodies interpreting human rights instruments.78 When a
state respects human rights, it avoids violating those rights directly by its own actors. The other
two duties on states are to protect rights, by which the state must take reasonable measures to
prevent their violations by other actors, notably private parties; and to provide for the
achievement of certain rights, by which the state must spend material resources to achieve those
rights (such as economic, social, and cultural rights).79 Respect for rights is not merely about
the state refraining from action; it may also require investment of resources, e.g., in training
police or equipping courts so that rights are not violated by the state. And such respect is not
limited to so-called negative rights, which are said to be freedoms from certain government
abuse. Even for so-called positive rights, such as the right to education, the government has a
duty to respect that right by, for instance, not preventing students from attending school based on
their religion.
When the two concepts of “respect” and “basic human dignity” are combined, the result
is a second set of pillar for conceptualizing global justice. It means that norms that interfere with
basic human dignity will be prima facie unjust, even if they advance peace. Like the first pillar,
78
Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy 52 (2d
ed. 1996).
79
General Comment 12 of ESC Committee; Report of the Special Representative of the
Secretary-General on the issue of human rights and transnational corporations and other business
enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the
United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31, Mar. 21,
2011.
32
the second prong is also impartialist in the sense outlined earlier. It sees all individuals as
possessed of a certain inherent worth, or needing certain freedoms or material goods, regardless
of any special ties between the maker or applier of law and the object of the law, the latter’s
station in life (e.g., wealth, education, intelligence, power), and the consequences of the former’s
actions for overall utility.
C. The interaction of the two prongs
The interaction between the two pillars will be demonstrated throughout this study. We
can sketch out the general methodology as follows, though I do not mean to suggest a precise
flow-chart: (1) If a norm or proposed norm passes the first prong by advancing or failing to
undermine peace, it is presumptively just. At that point, the second prong is then considered as
we ask whether the norm serious interferes with basic human dignity. The norm or proposed
norm will survive scrutiny if is passes that test, but will be considered unjust if it does not. (2) If
the latter, it will be necessary to explore alternatives that satisfy the second pillar but do so in a
way that causes minimal disruption to the first pillar. (3) If, on the other hand, a norm fails the
first prong by undermining peace, it is presumptively unjust; it can only be defensible if the norm
is needed to protect human dignity and even in that case must do so with minimal disruption to
peace. As will be shown, the diversity of norms means that not every one even triggers both
tests. These two pillars also leave open many possibilities for the content of international law.
But this construct does provide a baseline for appraising the rules and institutions that we do
have. Moreover, these pillars do not represent a rigid formula, where we can identify exactly ab
initio what constitutes peace or human dignity and then reach a binary conclusion that a
particular norm is either just or unjust. Rather, these two pillars are general principles. As I
33
approach each fundamental norm and institution of international law, it will become necessary to
provide some greater specificity to the notions of both peace and basic human dignity.
D. Additional Elements [or Assumptions] of Global Justice
Beyond positing the two pillars for global justice, the analysis that follows will make two
additional assumptions. These are not inconsistent with the basic test but they affect the way that
it will be applied.
1. In determining the justice of particular legal arrangements, the interests and
claims of states (and, to a certain extent, other political communities at a substate level) deserve
serious consideration alongside the interests and claims of individuals.
Although my vision for international justice is impartialist in counting all individuals
equally, it does not seek to defend rules solely by reference to their effect upon individuals. This
position can be justified on numerous grounds. The strongest grounds would argue that states
possess moral standing, though not the same sort of moral standing of individuals. States
possess that standing for different reasons, including because (a) they somehow legitimately
express the interests or will of their population,80 (b) they are vessels in which individual identity
is created,81 or (c) the state system is in fact the best available structure to advance individual
welfare or dignity. Each of these position offers a different defense of the state, one more or less
Kantian (but one which cannot be used to defend all states, but only some), one communitarian,
and the third more consequentialist.
I happen endorse the last of these – what Liam Murphy has called the instrumentalist
justification for the state system, a view that Robert Goodin has invoked as a justification for
80
Kant, Metaphysics of Morals, supra, secs. 45-46; Buchanan, supra, at 232-49
See the argument in Kor-Chok Tan, Justice Without Borders: Cosmopolitanism, Nationalism,
and Patriotism 90-93 (2004).
81
34
special duties towards compatriots.82 Under this view, the state system may not be the best
system in all conceivable worlds, but it is probably the best we can given humankind’s history
and the various alternatives we have seen, whether they be empires or failed states riveted by
anarchy. But for purposes of defending the need to consider state interests, I really do not need
to adopt any of those three arguments. Indeed, the position above can be defended on more
economical grounds, such as Risse’s position – namely, given the impossibility of imagining
how alternatives to the state (e.g., a world state or no states) would work or of feasibly getting to
them, theories of global justice need to accept states both morally and pragmatically. I also agree
with Onora O’Neill that the state system alone hardly suffices to prevent anarchy and that we
need international institutions as well.83
The instrumental justification also recognizes that the state system appears to be a fixed
attribute of the international system, so we limit the role of moral reasoning if we ignore the
interests of states. As a practical matter, they remain the primary and indispensable agents of
individuals, and so we must work with a system of international law that gives them rights and
duties.84 I realize of course that the same might be said of organized crime, terrorist groups, and
polluters. But states are different. Relationships among states are the key to the ultimate value
Liam Murphy, “International Responsibility, in John Tasioulas and Samantha Besson, eds.,
The Philosophy of International Law 299, 304 (2010); Robert E. Goodin, “What is So Special
About our Fellow Countrymen?,” 98 Ethics 663 (1998). For a defense of the sovereign states as
bulwark against inequalities within and between states, see Benedict Kingsbury, “Sovereignty
and Inequality,” 9 EJIL 599 (1998).
83
Onora O’Neill, Bounds of Justice 181-85 (2000). The choice is not, however, as Simon
Caney puts it between states and supra-state institutions. Simon Caney, Justice Beyond Borders
156-82 (2005).
84
I appreciate this insight from Elizabeth Anderson. See Toni Erskine, “Locating
Responsibility: The Problem of Moral Agency in International Relations,” in Oxford Handbook
of International Relations at 705 (“A moral agent can only reasonably be assigned a duty, or
blamed for its evasion, if it enjoys the conditions that would make discharging the duty
possible.”). It may well be the case that under these conditions such agents must be assigned
duties.
82
35
of global justice, world peace. Those states can undertake action, alone or in concert with others,
that decrease the chance of war or increase it.
2. As a corollary to the above, the claims of states cannot be conceived as simply
the sum of the claims of the individuals in them.
Whatever our justification for considering state interests, those interests are distinctive
from the sum of individual interests for at least three reasons. First, as a practical matter,
determining individual interests is extraordinarily difficult: individuals may not be aware of the
facts in a particular issue, interests may change over time, and polling is often impossible.
Second, if state interests were simply the sum of individual interests, then states with larger
populations would have a greater say in the contours of global justice than small states simply
because they are large. Such a view would lead to significant tensions among states, severely
undercutting the utilitarian goal of global justice, namely world peace.
Third, and most important, once individuals form a state, that state may well need to
make claims that cannot easily – although they could be with some difficulty perhaps – be
defended by reference to the interests of the citizens or residents. The state needs certain powers,
notably territorial control, the capacity to enter into foreign relations, and, in extreme cases, the
power to use force that enable it to maintain its integrity and ultimately protect its citizens. A
concept like diplomatic immunity, essential to interstate relations, could conceivably be traced
back to its advancement of individual interests, but the argument is so attenuated as to not be
worth the trouble.
At the same time, this idea of autonomous state interests should not be confused with
some antiquated notion of sovereignty that suggests that states do not exist to serve the interests
of their citizens or residents and that governments are free to ignore those interests. Indeed, as
36
stated earlier, states do exist for this reason– although they also exist to serve the interests of
those outside their borders insofar as the state system itself promotes a kind of stability that
benefits all. But the purpose of the state – the protection of its residents – does not equate with
an easy ability to justify all state interests in terms of individual interests.
E. The Result: Thin Justice
The vision of justice explained above is one deserving of the name, but it is also one
requiring a modifier, and the qualification I have chosen is “thin.” I take that idea from Walzer’s
distinction between thick and thin morality.85 Walzer argues that the former, “maximalist”
morality governs relations within a community, where duties of individuals and institutions are
multifarious – covering many aspects of human conduct – and strong out of a sense of special
concern by the community for its members. Principles of distributive justice are part of the
moral maximum. Thin morality, on the other hand is a “moral minimum” -- universal in scope,
reflecting values shared across cultures that are a baseline from which thicker, community-based
morality may be developed. Substantively they are abstracted from common social practices
across states and cultures but also reflecting some procedural requirements (like noncoercion).86
In these terms, the justice that I argue is reflected within much of international law is a
thin in the sense that it is less dense, and certainly less demanding on individuals, than the justice
needed for the governance of domestic societies. It is thus, for example, thin compared to the
Rawlsian conception, the great contemporary vision for justice within a community. Formally, it
is not allocating rights, duties, or resources among individuals alone, and it recognizes the
interests of states as independent actors. And substantively, even before holding it up to the
85
86
See Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (1994).
Id. at 4-19.
37
current rules of international law, it is clear that it is not mandating the sort of distributive justice
that Rawls develops.
Yet while endorsing Walzer’s terms and basic distinction, I do not accept his exact
definition of thin justice, nor the normative argument that follows. Global justice is and should
be about more than a “minimal” set of understandings among global actors. It is thus not
communitarian insofar as that approach would see global justice at most about allowing
communities, which define individual identity, to flourish. A fortiori, my thin justice does not
deny the relevance of justice at the international level completely, as does Nagel.87
III. Alternative Visions
The vision of thin justice defended above will clearly face detractors. These challenges
come from a number of directions; I defend my vision against four alternatives below.
A. A Pillar of Human Dignity Alone?
The choice to ground global justice first in the need to advance peace and may seem odd
for those scholars, principally cosmopolitan, who make individual dignity the core construct of
international justice. Thus, for instance, Held emphasizes a view of justice “which sets out the
terms of reference for the recognition of people’s equal moral worth, their active agency and
what is required for their autonomy and development.”88 Advocates of such a defense might
argue that (a) justice should be grounded solely in advancing human rights (either as a matter of
consequences or duties) because peace is merely instrumental to human dignity, or, more
appealingly (b) justice should be grounded solely in human dignity because its fulfillment
advances peace.
87
88
Nagel, supra, at 133.
Held, supra (2010) at 49.
38
As for argument (a), I simply reject the idea that justice should be blind to the goal of
peace between peoples and nations. Just as I argued earlier that peace should not be viewed
merely as a precondition for justice, so I do not believe it should be viewed as merely a
precondition for human rights. Peace has numerous other advantages for the flourishing of the
planet, in terms of human, animal, and planetary welfare. Peace gives individuals the space they
need for flourishing in all ways (not just in achieve their basic dignity.) If we defined justice
merely in terms of the extent to which it promoted basic human rights, we would be left with a
thinner notion of justice than I have proposed. And if we expand human rights to include all
these other advantages that flow from peace, we end up with a rather loose theory to the effect
that rules are just if they promote everyone’s welfare.
Argument (b) accepts the importance of peace to justice, and indeed might even accept
that peace is the purpose of justice. But it assumes that the best – indeed, the only moral – way
to achieve that goal is through unmitigated advancement of individual welfare and dignity. It
may well turn out to be the case that certain norms of international law both advance peace and
further human dignity. In this case, the second prong is not acting as a constraint on the first
prong. Yet it is clearly not the case that the fulfillment of duties in the area of human rights
necessarily promotes peace. Although a glance at the map of the globe shows that those states
with the best practices for the protection of human rights are also at peace internally and with
their neighbors, the direction of causation is hardly obviously one-way. Did those states
operationalize a robust version of human rights first, and then achieve peace, or was their desire
for, and efforts to create, civil and interstate peace the linchpin that enabled them to advance
protection of human dignity? Securing internal peace may well involve a tradeoff with the
advancement of some human rights. [Consolidation of power in France and Germany?] To pick
39
a rather banal example, the hopes of the Swedish community of the Aland Islands after World
War I for advancement of their dignity through either independence or union with Sweden were
resisted by Finland and ultimately rejected by the League of Nations, all in the name of creating
a united Finland and avoiding precedents for future secessions.89 Today, the high standard of
human rights within both Sweden and Finland seems to be a beneficiary of the avoidance of war
(and indeed most tensions at all) between those two states.
More recently, it hardly seems to be the case that respect for human rights would alone
have ended the conflict in Northern Ireland or Bosnia. Rather, a solution had to include
governance structures in which all sides felt some certainty that they would be involved in the
state’s future. As a result, mediators devised institutions to guarantee the participation of certain
ethnic groups, a result that does not simply emerge from a starting point of the need to protect
individual human rights. Indeed, on their face, they were discriminatory as concerns individual
rights,90 but they were clearly justifiable in these circumstances (even if they have proved more
successful in the former case than in the latter). The same can be said of the 2004 unratified UN
peace plan for Cyprus, which provides for representation to specific ethnic communities.91
A focus on one pillar thus skews our vision as to what is just and underplays the benefits
of peace for humankind. Beyond these historical examples, even human rights law itself
recognizes the tension between human rights protection and internal peace by granting states the
ability to derogate from some human rights in the event of a national emergency threatening the
89
See, e.g., The Aaland Islands Question: Report Submitted to the Council of the League of
Nations by the Commission of Rapporteurs, League of Nations Doc. B7/21/68/106 (1921).
90
For the European Court of Human Rights’ finding that certain aspects of the Bosnian
constitution are discriminatory, see Sejdic and Finci v. Bosnia and Herzegovina, Dec. 22, 2009.
91
See, e.g., The Comprehensive Settlement of the Cyprus Problem, Mar. 31, 2004,
http://www.zypern.cc/extras/annan-plan-for-cyprus-2004.pdf.
40
life of the nation, such as a civil war or natural calamity.92 Even if we limited the one pillar
concept to respect for the most basic of human rights, such a single standard does not do enough
work to evaluate the justice of international law. For norms and institutions could protect those
basic rights and still detract from or fail to advance the fundamental goal of peace.
B. A Pillar of Peace Alone?
An alternative, parallel argument would suggest that the first prong of justice is
sufficient, either because (a) peace is more important than respect for basic human dignity; or,
more appealingly, (b) the achievement of peace will result in respect for basic human rights.
Nico Krisch, for example, in endorsing a complete ban on humanitarian intervention, has written
that “the protection of peace is more precious to individuals than the preservation of their human
rights in all circumstances.”93 But as with the earlier claim, these arguments fail. As for (a), it
seems wholly inadequate to ground justice in a utilitarian ethic that would permit severe
violations of human rights in the name of the greater good. Certainly peace is the priority, but
even under a consequentialist view, it is far too broad a generalization to say, as Krisch does, that
situations of gross violations of human rights must always be tolerated for the sake of peace. As
for (b), the evidence from world history does not suggest that peace necessarily leads to the
achievement of basic human dignity. The peace of the conquest, or of the occupier, or of the
brutally effective regime, is common and obviously highly deleterious to human dignity. Even
if, in some cases, pacification of territory may pave the way for the government eventually to
respect human rights, the corpses and shattered lives along the way suggest that human rights can
easily suffer significantly in the short and medium term, and even the long term.
92
ICCPR, article 4.
Nico Krisch, “Legality, Morality and the Dilemma of Humanitarian Intervention after
Kosovo,” 13 EJIL 323, 332 (2002) (emphasis added).
93
41
To recap, one pillar alone cannot support an ethically acceptable vision of international
justice. Peace and human dignity are equally critical components of justice; as a matter of
causation, peace does not necessarily achieve the fulfillment of human rights, nor does human
rights necessarily achieve domestic or international peace. The result is that international law
meets a standard of global justice if, or to the extent that, it advances peace among individuals,
states, and other global actors, while not interfering with the basic dignity of individuals.
C. Reversing the Prongs
A third alternative is the reverse of my vision -- namely that advancement of human
rights is the core aim of global justice, subject to a constraint or trump that the rules advancing
that goal not disrupt peace too much. This is indeed an appealing vision of what world order
should be. As I will explain later in the book, it is a direction I favor in principle for
international law. Yet my claim here is that international law already conforms – incompletely,
but significantly -- to a bona fide vision of justice, and I have described here what that is. I hope
to demonstrate in subsequent chapters that this vision, as carried out through many of the rules of
international law, is worth preserving and that efforts to improve upon it need to take account of
what it has to offer. But it does not suggest that a thicker version, reversing my two pillars,
should be abandoned.
D. Equality instead of dignity? – TO BE ADDED (Maybe)
E. A lower standard for human dignity?
Lastly, from a very different direction, it is plausible to adopt a lower standard regarding
human dignity. Avishai Margalit, in his important volume On Compromise and Rotten
Compromises, argues that peace agreements are morally acceptable and should be observed even
if they contain certain injustices, but that they should not be concluded or observed if they result
42
in “humiliation combined with cruelty,” which he calls “humiliation as a loss of human
dignity.”94 He later equates this notion with crimes against humanity, a systematic violation of
core human rights that attacks the very idea of shared humanity.95 Margalit identifies certain
agreements that are “rotten” for that reason, including Yalta’s provisions that the parties knew
contemplated forced repatriation (and likely execution) of Soviet POWs and Soviet domination
of Eastern Europe (though he accepts the possibility of a necessity defense if such agreements
had truly been absolutely imperative to win the war, which he argues they were not).
While Margalit’s construct works to evaluate the sorts of compromises that we might find
morally acceptable for peace agreements, I believe it sets too low a bar for appraising the justice
of international law’s rules as a whole. Peace agreements are one-off accords aimed at ending a
particularly awful state of affairs, and it would make sense for a philosopher to insist that we can
enter them, and later should respect them, except if they include provisions that actually cause
severe harm to human dignity. But my project is not limited to such extraordinary situations;
rather, it sees to evaluate a wide variety of rules, most of which govern states already at peace. If
those rules are prima facie just because they help preserve the peace, they nonetheless could
cause significant harm to human dignity without crossing the line to crimes against humanity.
For instance, rules of trade law that contained no safeguard for the basic human needs of the
global poor could well be called unjust, even though those agreements do not themselves
guarantee cruel treatment in the way Yalta did for Soviet POWs. In the normal situation where
ending war is not a special imperative, we can, as it were, afford a higher standard for the rules
of international law. The result of this standard could well be that international law would
condemn peace agreements that Margalit would endorse.
94
95
Avishai Margalit, On Compromises and Rotten Compromises 10 (2010).
Id. at 61-63
43
IV. Situating the Result: Thin Justice as Weakly Cosmopolitan
The conception of global justice described above in terms of its basic pillars and
additional elements is not unknown within moral or political philosophy. Rather, it fits broadly
within the mantle of cosmopolitanism, but only within a certain variant of it.
A. Cosmopolitan Variations
Samuel Scheffler usefully distinguishes between cosmopolitanism about culture and
cosmopolitanism about justice, where the former focuses upon – and, in his view, ultimately
rejects -- group identity as relevant for conceptions of individual identity, while the latter focuses
upon – and equally rejects -- limiting justice to national borders.96 My vision is cosmopolitan in
the latter sense, one that can be traced back to Kant, who prophesized a “universal community . .
. where a violation of rights in one part of the world is felt everywhere.”97 Cosmopolitanism
about justice starts from the idea that the individual, wherever situated, is the ultimate unit of
moral concern, and each individual is equal as the object of moral concern. Human beings qua
individuals, not as members of communities, are the sole or at least fundamental unit of moral
concern. As Scheffler writes, it means that “norms of justice must be seen as governing the
relations of all human beings to each other, and not merely as applying within individual
societies or bounded groups of other kinds.”98
Within cosmopolitanism about justice, philosophers have distinguished between
cosmopolitanism (or other theories of global justice) as prescribing a set of relations among
Samuel Scheffler, “Conceptions of Cosmopolitanism,” in Boundaries and Allegiances:
Problems of Justice and Responsibility in Liberal Thought 112 (2001). For a view of cultural
cosmopolitanism that does not reject group identity, see Kwame Anthony Appiah,
Cosmopolitanism: Ethics in a World of Strangers (2006)
97
Kant, “Perpetual Peace,” in Kant: Political Writings (Hans Reiss ed. 2d ed. 1991) 93, 107-08.
98
Id. at 114.
96
44
individuals – an interactional conception -- and cosmopolitanism as describing structures for and
relations among institutions – an institutional conception.99 My vision of global justice is
cosmopolitan in the latter sense, in that it tells us how we should construct institutions and how
they should relate to each other.100 I am not claiming that all personal decisions should be made
according to those pillars, and indeed recognize that that deontological considerations should
have a much greater say in those situations.101
B. Thin Justice as Cosmopolitan Justice
In what sense is my thin justice cosmopolitan? Fundamentally, it is so because it
embraces the notion of the individual, wherever situated, as the ultimate unit of moral concern.
The consequentialist reasoning places world peace as the supreme goal of justice precisely
because peace is the linchpin to advancing the welfare of individuals, wherever situated. And
the second pillar is based upon putting the individual’s basic dignity first in situations where
advancement of world peace may conflict with that goal. It thus stands in sharp contrast to a
Thomas Pogge, “Cosmopolitanism and Sovereignty,” 103 Ethics 48, 50–52 (1992); Brian
Barry, “International Society from a Cosmopolitan Perspective,” in David R. Mapel & Terry
Nardin eds, International Society: Diverse Ethical Perspectives 144 (1998). Charles Beitz,
“Cosmopolitanism and Global Justice,” 9 J. Ethics 11, 17-19 (2005).
100
Beitz, Barry, and Tan define institutional cosmopolitanism somewhat differently than I do,
as a moral view that dictates a particular institutional structure, i.e., a global state (a view that
Pogge calls legal cosmopolitanism and Miller calls political cosmopolitanism). My
cosmopolitan vision is not institutional in their sense, in that it is open to a variety of governance
structures that can advance cosmopolitan values.
101
See, e.g., Michael Moore, Patrolling the Borders of Consequentialist Justifications: The
Scope of Agent-Relative Obligations,” 27 Law & Phil. 35 (2008). At the same time, I endorse
Miller’s view that at times when appraising the justice of international institutions, including
international law, we may need to ask questions about personal or interactional ethics. David
Miller, National Responsibility and Global Justice 10-12 (2007).
99
45
“statist” or “morality of states” position in which states alone are the moral actors and order
among them is the only value.102
Yet thin global justice is also in tension with cosmopolitanism. It makes advancement of
basic human dignity only one of two considerations. And the corollary concepts argue that the
claims of states should also be treated seriously in determining whether the rules of international
law are just. Insofar as states (and peoples) are treated not merely as the sum total of various
individuals, but as entities capable of making claims on their own behalf—claims that may not
correspond to what individual members would seek independently – my view seems a somewhat
watered down version of cosmopolitanism. It seems to go against what Simon Caney identified
within cosmopolitan as the “universalist conception of moral personality according to which
persons’ entitlements should not be determined by their nationality or citizenship.”103 Indeed,
were I to adopt a view of global justice based on considering only the claims of individuals and
ignoring the role of states, I would probably need to give up on the entire project of international
law, for clearly it does address claims beyond those of the individual.
Yet thin justice is, in the end, cosmopolitan because cosmopolitanism is not so narrow as
to suggest that rules must result in equal treatment for all individuals regardless of the existence
and claims of states, peoples, or other groups. Rather, cosmopolitan scholars have distinguished
between different strains of cosmopolitanism about justice. Strong cosmopolitans believe in
equal regard for all persons in determining all duties; any special treatment we give to those in
special relationships with us (for example, co-nationals) is derivative of that equal worth. But
weak or moderate cosmopolitans argue that we have both general duties to all persons on the
102
For an excellent review of this position, as well as others, see R.J. Vincent, Human Rights
and International Relations (CUP 1986), at 113-19.
103
Simon Caney, Justice Beyond Borders at 122.
46
planet and special duties to those in certain relationships to us that are of independent moral
significance; the latter, towards families or co-nationals, need not be derivative of general
duties.104
I see thin justice as broadly consistent with a weak form of cosmopolitanism for the
reasons suggested under corollary (1) and (2), namely, that we must consider the claims of states
in addition to the claims of individuals. States have moral standing based on an instrumentalist
justification, namely that the state system and statehood, realistically, in the feasible models of
world order, best advance individual welfare and dignity (even if certain states may not do
that).105 Thus, my acceptance of states, while maintaining the individual as the ultimate unit of
moral concern, makes my vision weakly cosmopolitanism insofar as it is ultimately based on the
idea that the state is not just a random group of individuals. Just as weak cosmopolitanism sees
the state as the locus of special duties by individuals -- without neglecting general duties that
individuals may have -- I argue that the state may advance its own independent claims, without
neglecting claims that individuals may have in addition to those of the state.
Yet some may say my view is actually strongly cosmopolitan. As Scheffler points out,
my vision could be said to be strongly cosmopolitan insofar as it sees the state, and any special
claims it might have, as justifiable solely by reference to the interests of all individuals. It is first
104
Scheffler, supra, at 111, 114–16. For a somewhat different definition of strong vs. weak
cosmopolitanism, see Miller, supra, at 27–31 (distinguishing between insistence on equal
treatment of all persons and equal value to all persons).
105
Mapping these two versions of cosmopolitanism about justice onto my position is not
completely apparent insofar as these two are versions of the interactional conception of
cosmopolitanism – about how individuals ought to act – rather than of the institutional
conception – how institutions ought to be structured and then act. This is because most
philosophers have written off institutional cosmopolitanism as limited to the idea of world
government.
47
and foremost an argument of efficiency.106 Caney has argued that certain defenses of the state,
such as those of Mervyn Frost, actually collapse into a strong form of cosmopolitanism.107 An
instrumental justification for states, and thus special duties to them or rights by them, might be
seen as part of strong cosmopolitanism rather than weak versions, as Goodin’s defense suggests.
Put another way, as recognized by international lawyers, the state itself should not be
seen as just a threat to cosmopolitan values. Rather, it can serve as a guardian of cosmopolitan
values—not merely in the obvious sense where a liberal democracy advances the values of its
individual members on the international stage; but because the state itself has the authority and
control to make the law meaningful and not just a piece of paper. The ability of states to, for
example, protect the weak against the strong, to protect future generations against the present
generation, and to distribute wealth (see below) advances strong cosmopolitan values. Weak or
failed states—just look at Congo, Afghanistan, and other places—are today far more of a threat
to these values than are strong states.108 As Nigel Dower writes, “The last thing a cosmopolitan
wants in the world as it is are weak or failed states.”109
Yet when we actually face real-world situations and need to decide what states must, can,
or cannot do to each other or to individuals – the ambit of international law -- we are entering a
second phase of moral reasoning. In this phase, as stated in the diplomatic immunity example
earlier, we no longer need to or really can trace each obligation, permission, or prohibition of the
state to individual interests. We have accepted the state system as the currently optimal method
to guarantee individual interests and thus conferred on the state moral standing; we need not
106
Scheffler, supra, at 115.
Caney, supra , at 274.
108
See Steven R. Ratner and Gerald Helman, “Saving Failed States,” 89 Foreign Policy
(1992).
109
Nigel Dower, The Ethics of War and Peace 171 (2009).
107
48
defend, in each and every instance, the rules for those states solely in terms of individual
interests. I thus agree with Jean Cohen’s criticism of strong cosmopolitanism (what she labels
“cosmopolitan liberalism”) that its flaw is the move from seeing the individual as the ultimate
unit of moral concern to the idea that respect for human dignity is “the sole criterion for
assessing the legitimacy [of] states and supranational institutions.”110
This position nonetheless remains far from statism, which looks at international justice
solely through the prism of state interests and cooperation. Consideration of the interests of
states does not preclude consideration of the claims of individuals. In evaluating the rules of
international law, we are still considering individuals’ welfare through the first pillar’s emphasis
on the preservation of peace and the second pillar’s emphasis on human dignity. In the end, my
approach resembles that of R.J. Vincent, whose compelling account of the role of human rights
in international relations seeks a balance between strong cosmopolitanism and the morality of
states position, arguing:
From the morality of states we keep the cautious awareness that political power is
concentrated at the level of the state, and that any scheme for moral improvement has to
find its way in this world of states. . . . From the [strong] cosmopolitan morality we keep
the sense of direction [i.e., toward realizing a global community]. . . And from Realism
we keep the suspicion of any purportedly universalist doctrine. . . .111
In the end, my vision of international justice does not insist that every rule of
international law be justifiable in terms of its advancement of equal human dignity along the
lines of moral or interactional cosmopolitanism. Rather, it embraces a utilitarian logic that
includes the Hobbesian search for order in global relations, a logic that may well give
prominence to borders and special duties and rights that cannot always be derivable from moral
Jean L. Cohen, “Sovereign Equality vs. Imperial Right: The Battle over the ‘New World
Order,’ 13 Constellations 485 (2006) (emphasis in original; “[of]” replaces the original “for”,
which I assume is an error).
111
Vincent, supra , at 118-19.
110
49
cosmopolitan starting point. Proper respect for Hobbes’ emphasis on order, when combined
with a respect for basic human dignity, can justify robust international law and institutions.112
112
See Barry, supra (International Society), at 145.