Jump to ContentJump to Main Navigation
The Thin Justice of International LawA Moral Reckoning of the Law of Nations$

Steven R. Ratner

Print publication date: 2015

Print ISBN-13: 9780198704041

Published to Oxford Scholarship Online: August 2015

DOI: 10.1093/acprof:oso/9780198704041.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 29 March 2020

Legal and Ethical Approaches to Global Justice

Legal and Ethical Approaches to Global Justice

The Dialogue of the (Near-)Deaf

Chapter:
(p.19) 1 Legal and Ethical Approaches to Global Justice
Source:
The Thin Justice of International Law
Author(s):

Steven R. Ratner

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198704041.003.0002

Abstract and Keywords

This chapter provides the context and underlying rationale for the concept of thin justice and its application to international law by elaborating on the forms, causes, and consequences of the gaps between the disciplines. It also considers briefly the contributions of international relations theory, which while generally descriptive in orientation has nonetheless waded into debates on global justice. Once that tri-disciplinary landscape is carefully mapped, both the imperative of and challenges to the project of thin justice become evident.

Keywords:   thin justice, international law, international relations theory, global justice

The project of examining the justice of core international law norms proceeds against a background of mutual ignorance and suspicion between the two academic disciplines with the most to contribute to our understanding of global justice—international law and philosophical ethics. The gaps between the distinct approaches of the two fields have resulted in significant shortcomings to theory on global justice, and any interdisciplinary approach to global justice needs to take account of the nuances of that separation. To provide the context and underlying rationale for the concept of thin justice and its application to international law, this chapter elaborates on the forms, causes, and consequences of the gaps between the disciplines. I will also consider briefly the contributions of international relations theory, which, while generally descriptive in orientation, has nonetheless waded into debates on global justice. Once that tri-disciplinary landscape is carefully mapped, we can see both the imperative of and challenges to the project of thin justice.

A few caveats before beginning are needed. First, law and philosophical ethics do and should ask different questions about global justice. Neither the critique in this chapter nor my own independent approach seeks to blunt those inquiries or merge them into one giant field of ‘global justice’. Second, each field is characterized by diverse perspectives, and so it is important not to overgeneralize across and within fields. Third, and relatedly, this chapter is necessarily selective, focusing on contemporary work in the field, leaving aside ancient, classical, and indeed many recognizably modern scholars, and even then does not purport to be comprehensive.

I. International Legal Scholarship and its Distance from Ethics

Even as international law is by its nature normative, most international law scholarship is empty or thin on questions of moral reasoning or ethical theory. It is descriptive or doctrinal, seeking to accurately portray the state of the law, advocate an interpretation of the law, or bring coherence to an area of law characterized by (p.20) competing interpretations. This starting point is hardly surprising given the dominance of the positivist method within international law, but it nonetheless has so far limited possibilities of collaboration with ethics. To international lawyers, positivism is a two-pronged conception, to wit: (a) as with legal positivism generally, what we consider as law is a matter of social fact, making lex lata (the law as it is) and lex ferenda (the law as it should be) distinct issues; and (b) the fundamental formal criterion for law to be valid is the consent of states, particularly through the prescriptive processes of treaty and custom—though many scholars who call themselves positivists accept the importance of other sources, such as decisions of international organizations and courts. Positivism remains the lingua franca of international law and even its detractors know how to play the good positivist when the situation warrants it.1

As a consequence, many scholars write for an imagined audience, in particular a judicial one, that would consider moral arguments ultra vires.2 They often move beyond description—what is the content of the law—to prescribe and advocate legal norms and institutions that we should support, but they generally do the latter within a methodology that relies on accepted practices regarding sources and interpretation, with perhaps the occasional nod to political realities, or efficiency, to guide among competing choices.3 My sense is that, as much as scholars may have strongly held views on morality or justice, many or even most take it as a point of pride to divorce these concerns from their scholarship, or at least hide them well. For many positivists, the emphasis on these formal sources is a way of accommodating the diversity of national systems across the planet (avoiding the one-size-fits-all approach of natural law), as a result of which they may well see discussions of global justice as simply beside the point. Jean d’Aspremont voices this strain in insisting that international law is about accommodating national interests, not furthering global values, a project he regards as antithetical to legal scholarship.4 From a more practical perspective, lawyers see themselves as problem-solvers for clients, so at times issues of morality or justice may seem too far from their everyday work.

Yet the lawyer’s imperative to identify norms through formal sources does not make appraisal of those norms ethically beyond his or her writ, let alone threatening to it. And even if norms come about as a result of overlapping national interests, they can still correspond to global values. One can still endorse—or criticize—certain norms as reflecting certain values without conceding a degree of moral consciousness to states that they may well not deserve. (p.21) As for the broader question of whether scholars can engage in interpretive techniques and recommendations for future decisions that do not entail moral or ethical choices, this remains a great methodological question for all of law.5 But the point is not whether legal scholars and decisionmakers can avoid moral reasoning, but whether they actually do so, and here I believe international law must accept that they do. In the end, many scholars are simply missing an opportunity to consider the ethical underpinnings of their positions as well as to contribute their expertise on legal structures to debates on a more just world order.

Yet even within the positivist tradition, issues of morality can never be completely avoided, as doctrine itself seems to find a place for it. In particular, scholarly treatment of jus cogens norms—peremptory norms that override even treaties—and some obligations erga omnes—duties extending to the community of states as a whole and not merely to individual states—generally assumes that part of the rationale for the distinctiveness of these norms is that states have recognized that some rules are, in a sense, more fundamental than others because they reflect important moral positions.6 Scholars will argue about which norms fall into one category, or both, as well as the consequences of a breach of them. In determining the state of the law, the actual moral views of states become a relevant consideration.7 Moreover, proposals for new norms could take into account moral views held by states and individuals.8 And when states violate these norms, legal scholars should think more broadly about which states should take corrective measures and why.9 Such an inquiry resonates with, but would also benefit from more engagement with, the work of philosophers regarding the division of global duties into national responsibilities.10

Looking beyond jus cogens and erga omnes duties, legal scholarship evinces three encounters with ethics, even as it remains at a distance from philosophical debates on global justice.

A. Mainstream methodologies and the back door of morality

Two prominent contemporary methodologies have found a place for ethics, even while skirting many key issues of global justice.

(p.22) 1. ‘Enlightened’ positivism and community interests

First, a strand of positivist thinking that calls itself enlightened, highly influential in continental scholarship, seeks to soften positivism’s formalistic light through subtle recourse to moral argumentation. Bruno Simma, one of its leading proponents, is eager to see the positivist lawyer engage with morality, as long as this does not threaten positivism’s reliance upon formal sources to determine the validity of a claimed norm. His scholarship suggests that international law should serve certain ends of justice, in particular the advancement of human rights; and that the lawyer has a responsibility to recognize which rules do or do not further those goals.11 His position on the role of morality thus resembles that of Neil MacCormick, for whom ‘laws we judge unjust or detrimental to the public good are…deficient examples of that genus to which they belong, even though we may also judge them to belong validly to that genus’.12 This position extends to the recognition that it may be morally required to disobey international law.13

Yet, as a good positivist, Simma emphasizes less the ideal goals of international law than the norms on which there is state consent. Indeed, he offers up a sociological observation in asserting that states and other actors are, in fact, acting as if they had some agreement on these moral ends.14 He posits that international law has moved from a set of bilateral relations among states, each advancing its own interest, to one of community interest.15 The idea of community interests has become conventional wisdom among international lawyers, although it is precisely the positivists’ need to ground community interests in state consent that represents the great limitation of their methodology, however enlightened. Yet this notion is also an opportunity for input from philosophers who develop notions of justice with reference to some kind of political community.16

2. Policy-oriented jurisprudence, base values, and public order goals

On the other side of the Atlantic, one strand of scholarship, the policy-oriented approach to international law, developed its own approach to morality within the law. The New Haven School conceptualizes law as a process for advancing policy goals in an authoritative and controlling manner; so once lawyers and other participants can identify the relevant goals of the community, we can begin a process (p.23) of prescribing legal norms to accomplish these goals.17 Minimum and optimum public orders are the chief policy goals of the international legal process.18 The basic content of these two concepts was grounded in sociology (Harold Lasswell’s contribution to the endeavor) and instantiated in law. Minimum public order refers to the global state of affairs with limited recourse to unauthorized violence to solve disputes and authoritative procedures for deploying force in exceptional situations.19 Optimum public order is synonymous with a world in which human dignity is maximally protected. It was said to be the state of affairs allowing for maximal enjoyment by individuals of eight ‘base values’.20

The move from elaborating the processes for promoting minimum public order to elaborating those for advancing optimum public order entailed a great focus on the importance of those base values; how they had been used or abused by governments and non-state actors to deprive individuals of their enjoyment; and how international law could be a vehicle for their deployment and their fulfillment. The result was a fountain of scholarship on a range of international law issues, including topics of great interest to philosophers such as humanitarian intervention, secession, and human rights, each considered in a highly fact-dependent methodology.

The identification of minimum and optimum public order—based on preservation of peace and protection of human rights—is highly significant, yet the New Haven School’s engagement with ethics has always been constrained. Although never denying the role of morality in international law—certainly human dignity is a moral concept—it sees morality through an anthropological lens. International law reflects morality because it reflects the demands of the community as determined by their base values. Any other theorizing was defective because it lacked social context. Thus, McDougal and his associates attacked Rawls in particular for his lack of empiricism.21 Yet philosophers would find this position equally frustrating for its failure to recognize that the content of these base values is often contested by different communities and that moral argumentation is inherent in the process of evaluating claims and ultimately identifying base values.22

As a result, the New Haven School’s emphasis on context in gauging the expectations of international actors and projecting future policies leaves us wondering (p.24) whether more general recommendations can be made. For example, in the work of its leading scholar, Michael Reisman, the emphasis on human rights translated into support for humanitarian intervention to protect the Ibos in Nigeria, but not for secession in Bosnia.23 The inherently sociological approach of the New Haven School—one might call it ‘fact-based international law’—that is its great strength can be a shortcoming for finding generalized guidance on the tradeoff between minimum and optimum public order. The standard of justice based on two pillars that I develop in this book takes the observations and public order goals of the New Haven School to heart, but it goes beyond them by situating peace and human rights within the framework of theories of ethics and justice so that we can assess the balance between those goals.

B. Critical approaches: giving a voice to the marginalized

For the past two to three decades, various critical methodologies have not merely engaged with morality, but in many ways have put it at the center of their agenda. These approaches seek to identify hidden agendas and biases within international law—including its norms, institutions, practitioners, and methodologies—and reform it. Critical legal scholars, who now prefer the appellation ‘New Stream’, built their methodology of deconstruction from literary theory and linguistics to identify myriad tensions within international law. Where positivists saw consent and acceptance, critical legal scholars saw power and hegemony;24 where positivists saw international law as a language of communication, critical scholars saw lawyers seeking to preserve their own relevance in a changing world.25 Feminist scholars saw international law as dominated by male views of society and individuals. Looking to the building blocks of the international system, they found certain assumptions made by positivism to reflect the biases of male statesmen and scholars who developed and promoted them.26 And Third World Approaches to International Law (TWAIL) took a similar path with regard to the legacy of colonialism within international law.27 Some works not self-identified as within the critical legal methodology place concern about international law as benefiting the powerful at the center of their concern.28

(p.25) In one sense, ethics and global justice is the agenda of these critical methodologies. Each sees power as having both constituted and corrupted international law and argues for reform that takes into account voices marginalized for centuries. Critical legal studies is more catholic in its identifications of the defects of international law. The solution for Martti Koskenniemi, the most influential of the critical scholars, is a return to formalism; for international legal scholarship that has incorporated approaches from other disciplines—whether sociology (the New Haven School) or international relations—has yielded descriptions and prescriptions that serve the interests of the most powerful voices (typically American). He fears that calls for global governance subject to a standard of legitimacy will simply erode the standards within law into mere interest-balancing that benefits the powerful.29 So in their view, their goal is surely a more just world order, one where international law is made through a process in which all voices are given their due weight.

Yet the ethics seems to end with this agenda. Critical scholars generally do not make a significant effort to engage with contemporary ethical theory by philosophers. Some scholarship is based mainly on the fear that too much power in the hands of one state in the no-longer-bipolar world will be damaging to everyone, using the record of the Bush years as Exhibit 1. Critical legal studies, in particular, often vacillates between a skepticism, even cynicism, of ethical inquiry as somehow hegemonic at worst, or at least a subterfuge for advancing each side’s power, on the one hand, and a generally unarticulated commitment to egalitarianism, on the other.30 It is not that these works lack theory—on the contrary. It is just typically not theory about justice or ethics. They are all far better at identifying what is wrong with international law than at providing a theoretical grounding for the way forward; and ethics offers such a foundation that would also make their criticisms far more powerful—as well as more nuanced.

C. Direct engagement with ethics

A final approach among legal scholarship is to integrate philosophical ethics directly into its work—the generally rare receptivity by legal scholars to cross-disciplinary dialogue.31 The most influential work in this genre has been (p.26) Thomas Franck’s Fairness in International Law and Institutions, a comprehensive attempt by an international lawyer to measure international law against a standard of justice. Franck posited that ‘fairness’ encompassed two notions—legitimacy, i.e. a procedural fairness based on a norm’s development through a right process, and distributive justice, which he equated with a norm’s substantive justice. Distributive justice meant compliance with Rawls’ difference principle of maximin. Franck then worked through key norms and institutions to see if they met these two criteria.32

Yet the ambition of Franck’s reach was severely compromised by the narrowness of his criteria for substantive justice. As John Tasioulas wrote, ‘a distributive principle cannot be the sole substantive principle in a theory of international law’, noting that Rawls’ more fundamental principle was equal rights.33 This flawed starting point not only limited Franck’s inquiry into the justice of institutions, but it forced him to squeeze odd topics—such as humanitarian intervention or self-determination—into the box of distributive justice when they should instead be evaluated according to other elements of substantive justice, for example respect for individual rights or the importance of peace. The result was an expansive scope of topics coupled with a highly undertheorized and incomplete notion of justice.34 At the same time, the difference principle does matter with respect to some aspects of the international legal order, in particular the distribution of wealth and the role of international trade and investment law, issues discussed further in Chapters 10 and 11.35

Other legal scholars have offered less comprehensive, and sometimes idiosyncratic, visions of justice. In his 1990 book Eunomia, Philip Allot offered a highly original, but also frustratingly abstract, attack on international law for failing to take into account the interests of humanity as a whole.36 Yet the work remains mostly isolated from debates among philosophers as to the makeup of that new international society. Fernando Tesón offers a critique of the legal order grounded in Kantian justice, in which democratic legitimacy should (p.27) be the lodestar of international legitimacy.37 Tesón deserves credit for bringing Kant back into the scholarship of international law, though his later work claimed that states that do not meet Kantian standards of legitimacy are proper targets of unilateral intervention, a view quite at odds with the justice of some of the law’s core norms on the use of force.38 Partly in response to Tesón and other cosmopolitans, Brad Roth offers a robust defense of interstate diversity, arguing that, in a world of deep moral disagreement, law must remain tolerant of different moral visions. This makes him skeptical about the project of global justice (as well as about US-based ideas of refashioning the world according to American democracy).39

Lastly, certain topics of international law have been more open to ethical inquiry even in the absence of some general engagement with morality, as seen in the works just mentioned. Human rights scholarship is replete with discussions of utilitarian versus deontological justifications for international norms and the translation of rights into duties, although even much of that scholarship is still fairly divorced from contemporary ethical scholarship about global justice.40 International environmental law has done a better job of reckoning with moral concepts such as intergenerational equity and the proper distribution of burdens to prevent and remediate environmental harm.41

D. A missing link: distributive justice

A more glaring gap between international lawyers’ engagement with global justice and that of philosophers is on the importance of global distributive justice. Philosophers’ fascination with this issue is seen in the four decades-long debates over extending Rawls’ difference principle to the international realm. International lawyers far less frequently directly engage with distributive justice. Although lawyers talk and write about aspects of distributive justice, for example the place of economic rights within the pantheon of human rights, or the (p.28) balance between the rights of the foreign investor and those of the host-state international investment law, most shy away from scholarship or concrete proposals to alter radically the global distribution of wealth. The notable exceptions here are some scholars in international economic and environmental law and scholars associated with TWAIL.42

Why this reluctance by legal scholarship? First, for positivists, even of the enlightened variety, distributive justice is a risky subject because the gap between the expectations of states as determined through recourse to formal sources and the demands of distributive justice is enormous. An examination of UN documents simply does not suggest that states have generally recognized distributive justice in the sense of wealth transfer between North and South as a goal, let alone an obligation (even of conduct). The International Court of Justice (ICJ) has rejected it as a rationale for determining maritime boundaries.43 At the same time, for those seeking to make new law, particularly in the environmental area where burden-sharing is so central, ethical ideas of distributive justice may provide an important source of ideas and arguments to convince states to endorse a new consensus.

Second, international law is still dominated by Northern governments and scholars, who see wealth inequities as one of many global issues to be addressed, but not morally or politically more imperative than the others, such as the improvement of basic human rights, the resolution of festering conflicts, and nuclear non-proliferation. As this volume makes clear, these other issues are, in my view, all morally compelling, and some more so than certain claims for distributive justice.

Third, international law and lawyers value solving problems through existing structures and institutions. During the heyday of international attention to distributive justice in the 1970s and 1980s—including the Brandt and Palme Commissions and various North–South conferences—it seemed that such institutions were developing. But the end of the Cold War halted that process, as developing countries that had benefited from the largesse of the other superpower now vied for Northern investment. As they have sought to play in the institutions established by the North—in a word, to switch, rather than fight—the focus of attention has shifted to the WTO, the World Bank, and the IMF. As a result, as long as international law lacks a single mechanism or institution for addressing global economic inequities comprehensively, international lawyers will think about distributive justice in only a piecemeal manner. The practical focus of lawyers makes sense at a certain level, but it strikes me as giving up too soon on the lessons of the ideal theory, and some interaction with philosophers handling global justice questions would improve the work of both.

(p.29) II. Moral and Political Philosophy: Global Justice and the Suspicion of Law

Contemporary moral and political philosophy has left a vast imprint on questions of global justice. Much of it falls within debates between communitarians and cosmopolitans over the territorial scope of individual and state duties and, relatedly, the permissible limits of diversity among territorial units globally. These works all ask, as Brian Barry put it, ‘given a world that is made up of states, what is the morally permissible range of diversity among them?’44 Some of these debates originate in questions of interpersonal ethics and then extend in many directions, from the justice of existing interstate borders, to the distribution of economic wealth, to the design of international institutions. Philosophical engagement with international law has varied significantly, and in reviewing the landscape, it is useful to adopt a broad understanding of philosophy here to include political theorists who have engaged with global justice.45

A. Ethical scholarship about international norms

One strand of moral and political philosophy makes its subject, or at least a central part of it, the morality of the rules of international law. That is, the inquiry itself, and any theory resulting from it, seems in significant part to be generated by a need to understand, justify, or challenge the existing law. Thus, Michael Walzer’s Just and Unjust Wars sees as a significant part of its project the holding up of legal norms of jus ad bellum and jus in bello to ethical scrutiny.46 Others continue to examine the rules of war.47 And human rights norms have received (p.30) significant attention to determine their ethical grounding.48 Thus, some within ethics regard these norms as mattering enough in international relations, or the ways that we think about international relations, to merit serious appraisal. At the same time, this scholarship is not typically connected with the literature on global justice because the latter derives mostly from Rawls’ seminal works, including A Theory of Justice, which gave little consideration to human rights.

B. General theory first, application to norms second

A more common practice within ethics is to hold international law up to scrutiny, but only after presenting a more general argument about some aspect of global justice. Charles Beitz’s Political Theory and International Relations offered a normative account of the international order that called for a morality of states based on a link between state autonomy and just domestic institutions, as well as a deep form of distributive justice. After presenting his vision, he provided an ethical appraisal of certain international law norms, for example defending the right of colonial self-determination by conceptualizing it as a claim to rectify social injustice.49 From a very different standpoint, Mervyn Frost argued that the system of sovereign states itself helps constitute the individual and promote his or her flourishing, thereby justifying many of the basic rules of international law.50

A great deal of the communitarian/cosmopolitan debate falls into this category, with theories that provide blueprints for key aspects of a just world order and then some testing of extant legal norms and institutions. David Held and others sharing his outlook present a comprehensive conception of a cosmopolitan world order, emphasizing its legal components, assessing, for example, the structure of the EU and the UN.51 Jürgen Habermas has stepped into these debates by arguing that international law is now becoming a constitution for Kantian-based international community, even though certain improvements will still need to be made. Although preferring constitutionalization to cosmopolitanism as the goal, he, like Held, sees positive trends from the trajectory of international law since 1945.52 In the course of this work, they propose radical reorganization of the UN organs, based on a need to dilute the influence of powerful states, ensuring (p.31) a greater role for individual voices and relying on judicial mechanisms for resolving disputes (including, for example, advocating for the compulsory jurisdiction of the International Court of Justice (ICJ)).53 Although the project helps us see the big picture of the global order, its utopianism as well as skepticism about the morality of international law invites the response I offer in this book.54

These general theories can, to their credit, give prominence to institutions. As noted in the Introduction, Allen Buchanan persuasively argues that moral questions about the duties of individuals or states can be answered only with careful consideration of the institutions currently capable of allowing those duties to be carried out. Substantively, he argues that a state’s legitimacy turns fundamentally on its observance of human rights and democratic participation, and institutional legitimacy turns on similar factors.55 For Thomas Pogge, the focus is on institutions that should mete out distributive justice. At first arguing for the globalization of Rawls’ difference principle and later asserting a more robust view of equality, Pogge claims not only that the rules of international trade and intellectual property are unjust, but also that individuals in the North are violating duties not to harm those in the South by participating in that system.56 This view will be considered in Chapter 10. On the other hand, Rawls derived his theory of global justice with virtually no consideration of the role of global or regional organizations.57

C. Ethical arguments built on law

Ethical claims can incorporate the law in a further respect, by building an argument on international norms themselves. Terry Nardin took an early significant (p.32) step with his call for a limited vision of interstate justice based on a traditional positivistic notion of international law.58

Held constructs his model of cosmopolitan democracy (and Habermas his idea of constitutionalization) in part on the significant changes within the international legal order, notably the development of human rights, limitations on state immunity, the notion of common economic heritage, and the increased powers of international organizations.59 Thomas Mertens supports Rawls against cosmopolitan criticism in part by noting that Rawls is closer to the view of toleration expressed in the United Nations’ universal membership.60 And Peter Singer has relied upon the UN Charter and actions of the Security Council to endorse limits on a state’s domestic jurisdiction regarding human rights abuses.61

International law can also be used defensively in ethical reasoning. Robert Goodin, in his pioneering article justifying a state’s special duties to its own nationals on utilitarian grounds, pointed out situations where, under international law, a state’s duties to foreigners are actually greater than its duties to its citizens (for example with respect to the protection of private property and the ability to draft people into an army).62 He uses these examples to rebut the strong nationalist claim that states should always owe greater duties to their own citizens than to foreigners, thereby assuming that these rules count as ethical arguments for rebutting the strong nationalist position. Kok-Chor Tan uses the presence of institutional coercion at the level of international law as one argument against the view that reciprocity limits duties of justice to the domestic level.63 And arguing against much ethical theorizing about human rights, Beitz and Cohen effectively take human rights as they appear in legal instruments and generate arguments against a top-down derivation of such rights.64

D. Getting the law wrong

Despite the prior examples, philosophers mentioning international law sometimes get it wrong. Most notably, in The Law of Peoples, Rawls cites as support, (p.33) or perhaps recognition, of his basic principles of mutual respect between peoples James L Brierly’s 1963 treatise The Law of Nations.65 On the positive side, Rawls seems to have accepted that international law already embodies certain ethical principles. For Rawls, those principles are defensible from a contractarian perspective, as he claims—though does not really prove—that they would be agreed to by democratic peoples in an original position and then supported by so-called decent peoples.66 But Rawls cited and endorses an outdated restatement of international law that, most glaringly, does not reflect the developments in human rights law that limit a state’s freedom to govern itself however it chooses (as well as its immunity from external, non-military interference).67

From a different perspective, we witness philosophers challenging the notion of cosmopolitan justice in part by arguing that there is no global basic structure because no international power can assign rights and duties equally to all agents.68 Setting aside whether a basic structure indeed requires such an authority, and whether that authority must be able to assign individual duties and rights as opposed to states’ duties and rights, it is highly formalistic, if not simply wrong, to say that no international institution has such authority. In the most obvious cases, the Security Council may effectively assign duties to individuals (for example not to export certain items to a target state); and the International Criminal Court can throw (or order a state to throw) someone in jail.69 At the other extreme, the optimism of some cosmopolitans for compulsory ICJ jurisdiction seems based on a misunderstanding of that Court’s actual functioning. The ICJ is actually a highly conservative tribunal, whether in avoiding politically contentious cases, as it did concerning France’s nuclear testing in the 1970s, NATO’s bombing of Serbia in 1999, and Kosovo’s 2008 declaration of independence; or in its overt disdain for distributive justice.70 As discussed in the following chapters, the nature of these institutions needs to play a significant role in one’s moral appraisal of the existing international law on numerous issues.

(p.34) E. Law as the passing stranger: causes and consequences

Notwithstanding some examples cited earlier, most ethical scholarship regarding global justice operates parallel to, rather than with a serious understanding of, international norms and scholarship about them.

1. An attempted explanation for philosophical distance from international law

Several factors seem to account for the disconnect. First, some theory in global justice addresses foundational questions where the state of international law seems beside the point. Some scholarship is about interpersonal ethics, for example what each of us owes individually to those within and outside national borders. As Pogge has noted, this sort of interactional morality is quite distinct from institutional morality.71 Thus, a line of scholarship has focused on the identities, roles, and responsibilities of individuals, not institutions.72 In this case, the lack of engagement with law can be justified on the ground that the content of norms that, at least in the first instance, regulate the activities of states is not relevant to the duties of individuals. But this reason cannot shield scholarship on global institutional ethics that shies away from international law and institutions. Much scholarship argues for duties states should have at the global level, yet with little regard to the rules that states have in fact derived and enforced.

This omission suggests a second explanation, namely that the practical arrangements that humans have derived for their global interactions—including legal norms—should not get in the way of good theorizing about ideal arrangements.73 Ideal theory surely has its place in ethics, and indeed there is nothing wrong with postponing the ‘ought implies can’ questions until certain basic principles are derived. Yet the avoidance of international law by philosophers seems to go much deeper. Much of it seems based on the notion that: (a) because much or most law emerges from a political process, it can neither ground nor undercut an ethical argument; and (b) that because law inevitably involves compromises, either in its creation or enforcement, its content is marginal to principled ethical argumentation. Either way, law becomes simply an instrument for delivering, institutionalizing, or enforcing a previously derived ethical position.74 It is not that the law is morally wrong, but simply that it is irrelevant. But the first of these confuses the (p.35) origin of a claim with its moral validity; and the second suggests that ethical reasoning does not involve compromise, whereas it typically includes the weighing of competing considerations, maybe not at first but at some stage.75

A further nuance is the possibility that philosophers see law and institutions as irrelevant to global justice because they regard them as making no difference to how global actors will ultimately behave, a skepticism invented by some political realists.76 Under this view, ethical theory should devise solutions, but those solutions will be realized through non-legal avenues. Yet if philosophers have this view, it is simply wrong descriptively. As a generation of international relations and legal scholarship and the lived experiences of international actors—states, non-governmental organizations (NGOs), corporations, international organizations, and even criminal syndicates—has demonstrated, international law and institutions both constrain the behaviour of international actors and channel and frame discussions for international cooperation.77 International law is a fundamental institution for the advancement of moral claims beyond borders.

A third potential justification might explain the distance between international law and one area of global justice scholarship, distributive justice—namely, that international law has generally had little to say about that topic. Yet this argument fails for two reasons. First, although distributive justice has certainly dominated the field of global justice, that would seem to be a shortcoming in the ethical scholarship, not a reason to ignore international law. As other philosophers have recognized, global justice involves manifold other issues, from the use of force, to self-determination and statehood, to human rights. Just as Tasioulas criticized Franck for using the distributive justice lens for examining all of international law, one can criticize philosophers for focusing on distributive justice to the exclusion of other components of global justice. It is, at times, as if some philosophers have neglected Rawls’ first principle of justice, namely, the equality of individuals, attention to which could push global justice discussions in a different direction.

Second, even if one wishes to focus on distributive justice, the legal landscape is not so barren. Although, as noted, international law lacks strong norms in favor of the global distribution of wealth, it does have norms worthy of ethical inquiry—in international environmental law (through the core principle of common but differentiated responsibilities); economic and social human rights (weakly in favor of distributive justice); the law of the sea (weakly in favor with respect to exploitation of the continental shelf); and international trade and intellectual property (p.36) law (probably weakly against it). More importantly, it has institutions that could, or already do, implement some form of distributive justice.78

2. Consequences of ethical suspicion

Avoidance of engagement with rules and institutions results in distinct gaps in ethical scholarship:

  • First and most generally, is a general impoverishment of ethical theory for producing prescriptions that do not contribute to the project of a more just world order. As Buchanan writes, failure to understand global institutions means that philosophers derive ‘principles…not suitable for institutionalization because they are inconsistent with existing institutional arrangements whose abandonment would be morally prohibitive…or because institutionalizing them would generate incentives that undermine the realization of other important principles’.79

  • Second, is a dismissive attitude to the moral justification of key norms of international law. Although this point will be reinforced throughout this volume as I examine individual norms, at this stage one might cite a particularly flagrant case. In a pioneering essay, Brian Barry found, with little argument, that the principle of national sovereignty over natural resources, a core norm of international law, ‘is without any rational foundation’.80 Such a position would strike a lawyer as astonishing, if only because of the notion of ownership to avoid the tragedy of the commons seems like such a basic idea, one easily justified on utilitarian grounds, a point I will explore in Chapter 10.81 (Perhaps Barry was just being hyperbolic and meant that other ways of dividing up national resources are also valid.) Ethical scrutiny of international law will not and should not result in uniformly upholding its morality, but it explores a certain set of arguments not sufficiently discussed in philosophical circles. More generally, international law shows that these issues are not as simple as philosophers may conceive by highlighting contrary positions widely accepted by states that philosophers may have ignored.

  • (p.37) Third, much philosophy zeroes in on issues and develops proposals that seem unconcerned with rather clear strictures of international law. For example, as discussed in Chapters 5 and 9, two remedies for oppressed people abroad—secession and humanitarian intervention—have elicited significant philosophical attention, particularly among cosmopolitan scholars, despite international law’s overall stance against them. Philosophers’ response to this lack of concern with international law’s limits on these two remedies might simply be: ‘So what? Change the law. We are in the business of ideal theory.’ But that is only a partial answer. Philosophers should recognize that international law’s aversion to these remedies still leaves open numerous possibilities for influencing the way a state treats its people. If philosophers are concerned with responses to a state’s abuse of its own people, then they should not leave out of the discussion the main methods that other states actually deploy in these situations—dialogue, capacity-building, diplomatic protest, naming and shaming, linkage of foreign assistance, and sanctions. Yet they receive less attention precisely because the more drastic remedy is left on the table.82

Philosophers might reply that they recognize these other options and are trying to focus on the hardest question—when has a state so lost its legitimacy that it can be dismembered or invaded?83 This is a valid project. But this disproportionate attention ignores two points: first, the other options, including diplomatic repercussions or sanctions, raise difficult moral issues as well, for example whether sanctions should be used given uncertainties over their efficacy; and second, careful institutional scholarship on global justice should consider methods actually attempted by states. Otherwise, the scholar shortchanges the opportunities for progressive change toward global justice.

  • A final consequence is the derivation of prescriptions for aspects of global justice that are close to that recognized in international law, without any acknowledgment of the similarity. As discussed in Chapter 5, a number of philosophical proposals regarding self-determination resemble that of international law, though the connection goes unrecognized by their proponents.

Again, one might ask why this omission of the coincidence with law matters to the philosopher’s task. Perhaps the question should be reversed: Is a philosopher deriving principles of justice ready to assert that it is irrelevant to her argument that her seemingly original vision is one that states have already accepted through international law? On the positive side, the existence of these rules suggests that the philosopher’s position is indeed feasible, lending support to that position from those who believe that ought implies can. On the other hand, it could also suggest that the philosopher’s position may not be quite as original as he or she thought, as statesmen and women devising these rules indeed have been thinking along the same lines. All these consequences, then, suggest that global justice scholarship would benefit from closer attention to law and legal structures.

(p.38) III. International Relations Theory and the Role of Descriptive Scholarship

A discussion of the landscape of global justice would be incomplete without consideration of the work of international relations theory. As an initial matter, within the international relations box of political science, realist scholars, who have dominated much thinking in the field, have been generally dismissive of law and ethics, even though two of realism’s founders, Hans Morgenthau (an international lawyer) and E.H. Carr, engaged with morality and justice and recognized that both of them, as well as international law, do and should matter to some extent to international politics.84 As an alternative to the realists, rationalist institutional scholarship, constructivist scholarship, and the English School have delved directly into questions concerning international norms.

Yet the line between description and prescription nonetheless remains thick.85 The rational institutionalists have for the most part sacrificed consideration of morality for the sake of a positive description of the effect of law and legalization on international politics. The most recent stage of work has been a burgeoning of quantitative studies that seek to predict the design of law and institutions as the outputs of political processes and the impact of legal norms and institutions on state behavior.86 Some have turned their attention to a concept related to international justice, namely legitimacy in the international order.87 Yet for political scientists concerned with legitimacy, legitimacy is about a belief by actors that a norm or institution should be obeyed, not about some actual trait of the norm or institution.88 Although a focus on this form of legitimacy is an improvement over realist conceptions that states obey rules only out of immediate self-interest or coercion, it is not a substitute for an overt examination of objective notions of legitimacy.89 As a result, the justice of existing rules and institutions is often considered only implicitly.90

(p.39) Constructivists are intensely interested in norms, which they see as helping to form the identity of states rather than merely emanating from the interactions of states expressing predetermined interests. They have traced how international norms spread—‘cascade’—through networks of norm entrepreneurs, for example in the case of the proliferation and development of international human rights norms.91 Their inquiry indirectly contributes to discussions of global justice, as they have demonstrated the possibility of diffusion of norms independent of power politics to create an international consciousness about global justice. Yet their work is mostly limited to specific norms, a tactic that seems methodologically driven, and their research agenda seems tilted toward examples where the cosmopolitan prevails over the statist. They have not made the move to demonstrating the possibilities for and consequences of those identities to build a more just world. More fundamentally, although their work highlights the possibilities of a global moral consensus, they remain unwilling to engage in a deep normative appraisal of the developments they study.92

Lastly, the English School has overtly embraced questions of global justice. From its origins in the work of Hedley Bull and Martin Wight, it conceives of the world in terms of an international society,93 a sort of mid-point between a Hobbesian state of nature and a Kantian federation of states. Bull described that society as Grotian in that international law reflects certain notions of the right, just as Grotius saw international law as incorporating natural law. Wight usefully developed the idea of a political morality, in which states owe duties not only to their own people, but to other states as well.94 The school’s adherents have long been divided between those who see the current world order as corresponding to or tolerating a pluralist society and others who see a liberal solidarism of states.95 The English School’s vision is not a theory of a future world, but a thick description of the world as it exists. Its adherents make a link between ethics and international law in seeing states as having expressed, through the law that they have prescribed, a certain ethical vision of a society of states. Thus, the pluralist group sees a communitarian morality in the practices of current society, while the (p.40) solidarist camp sees a cosmopolitan morality in certain respects, with more on the horizon. The law is thus not only an expression of policy and shared interests, but has its own morality.96

Yet the School has still fallen short on offering a true ethical appraisal of the international legal order. It recognizes the relevance of ethical theory to constructing an international society and indeed emphasizes the critical role of international law in promoting communication among international actors.97 But thus far, while embracing the concept that the challenge for the international society is justice, it fails to offer a view as to how just the current international order is and whether and how it can become more so. It maintains a type of moral skepticism that prevents it from appraising the order’s morality not only in terms of practices (including law), but in terms of moral theory. Although recognizing that ethics and interests are not mutually exclusive, it still focuses on ‘the monitoring of international consensus and what it can support’, thereby analyzing the international moral community in terms of ‘measurement rather than judgment’.98

The result, then, for the English School, is that international law is the independent variable to determine the extent to which society is pluralist or solidarist. Although this approach has it advantages, it is still quite a different inquiry from asking whether international law itself corresponds to a view of morality based on moral theory. Nonetheless, unlike the rest of international relations theory, its adherents remain aware of moral debates about global justice and have an empirical interest in gauging how international law actually matters.99

IV. Conclusion

The project of holding international law up for its contribution to global justice thus works from a scholarly landscape of missed opportunities by two core disciplines that should be giving us the greatest insights into how to construct a more just world order. We have seen how legal scholarship fails to consider the extent to which our judgments of existing law and our proposals for future law turn on ethical choices. If agreement among the parties is the only concern of international law, it will isolate itself from debates about what a just world under law will look like. And we have seen how philosophical work on global justice gives short shrift to both the moral underpinnings of existing international law and the (p.41) extent to which institutional constraints and opportunities are integral to sound moral evaluation and prescription.

In the case of the latter field, existing work can undermine the project of global justice in two opposite ways. First, it can offer ideas for a more just world order that neglect or even imperil some of the significant accomplishments that international lawmaking has achieved over the past century—a trait seen in much cosmopolitan thinking. Second, it can assume that justice has only a small role to play in the international order because of the state of international law and institutions, an attribute evidenced by Rawls and others who draw the wrong conclusions form the differences between the domestic and global spheres. International relations scholarship helps to give us a sense of the possibilities for law to make a difference in the behaviour of states, which is a crucial part of seeing the role for that law in making for a more just world, but it has not itself seen offering a moral compass as being part of its mission.

The following chapters will offer an approach to global justice and international law that directly responds to these shortcomings. In the remainder of this part of the book, I will develop, propose, and defend a standard of global justice, that of thin justice. In the subsequent parts, I will evaluate the content of the core norms of international law against that standard. In so doing, I hope to move beyond legal scholarship by showing that such an inquiry is hardly ultra vires and simultaneously challenge much philosophical scholarship by demonstrating that international law, and certain institutions as well, are neither fatally flawed nor irrelevant in moral terms. In appraising the law’s core norms, we will find out that many are just or mostly just, even though some are unjust and require reform. We will also see how international law can build on its existing body of norms to attain a higher standard of global justice. It is now time to turn to that inquiry.

Notes:

(1) Steven R. Ratner and Anne-Marie Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, in Steven R. Ratner and Anne-Marie Slaughter (eds.), The Methods of International Law (Washington DC: American Society of International Law, 2004) 1, 5.

(2) Cf. Daniel Bodansky, The Art and Craft of International Environmental Law (Cambridge, MA: Harvard University Press, 2011).

(3) See Martti Koskenniemi, ‘Methodology of International Law’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, online edition (Oxford: Oxford University Press, 2008–) <http://opil.ouplaw.com/home/EPIL>.

(4) Jean d’Aspremont, ‘The Foundations of the International Legal Order’, Finn YBIL 18 (2007): 219.

(5) See Scott J. Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’, in Arthur Ripstein (ed.), Ronald Dworkin (Cambridge: Cambridge University Press, 2007) 22.

(6) See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide [2007] ICJ Rep 43, paras. 161–162 (26 February).

(7) Cf. H.L.A. Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012) 203–4.

(8) Robert E. Goodin and Steven R. Ratner, ‘Democratizing International Law’, Global Policy 2 (2011): 241.

(9) See, e.g., Christian J. Tams, ‘Individual States as Guardians of Community Interests’, in Ulrich Fasternath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford: Oxford University Press, 2011) 379 (in responding to breaches of obligations erga omnes, states should consider a division of responsibilities so those in the best position to act take a leadership role).

(10) See, e.g., David Miller, ‘Distributing Responsibilities’ J Pol Phil 9 (2001): 453.

(11) See, e.g., Bruno Simma, ‘From Bilateralism to Community Interest in International Law’, Recueil des Cours 250 (1994): 217, 229, 292.

(12) Neil MacCormick, ‘Natural Law and the Separation of Law and Morals’, in Robert P. George (ed.), Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1992) 105, 113.

(13) Bruno Simma, ‘NATO, the UN, and the Use of Force: Legal Aspects’, EJIL 10 (1999): 1, 22.

(14) Simma, ‘Bilateralism’, supra note 11, at 233–4 (‘worldwide social consciousness’).

(15) Ibid.

(16) One scholar in the European tradition who has managed to move beyond the community concept is Anne Peters. See Anne Peters, ‘Humanity as the A and Ω of Sovereignty’, EJIL 20 (2009): 513.

(17) Myres S. McDougal and W. Michael Reisman, ‘The Prescribing Function in the World Constitutive Process: How International Law is Made’, in Myres S. McDougal and W. Michael Reisman (eds.), International Law Essays (Mineola, N.Y.: Foundation Press, 1981) 355, 368–9.

(18) Siegfried Wiessner and Andrew R. Willard, ‘Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity’, in Steven R. Ratner and Anne-Marie Slaughter (eds.), The Methods of International Law (Washington D.C.: American Society of International Law, 2004) 47, 61.

(19) See UN Charter, Arts. 2(4), 42, and 51.

(20) These are respect, power, wealth, skill, enlightenment, rectitude, affection, and well-being.

(21) See, e.g., Myres S. McDougal, Harold D. Lasswell, and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (New Haven, CT: Yale University Press, 1980) 454 n.9, 459–60 n.23.

(22) See W.B. Gallie, ‘Essentially Contested Concepts’, Proc Aris Soc 56 (1956): 167.

(23) Compare W. Michael Reisman, ‘Humanitarian Intervention to Protect the Ibos’, in Richard B. Lillich, Humanitarian Intervention and the United Nations (Charlottesville, VA: University of Virginia Press, 1973) 167, with Remarks by W. Michael Reisman, ASIL Proc 87 (1993), 258–9.

(24) See generally Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Finnish Lawyers Publishing Co., 1989).

(25) David Kennedy, ‘When Renewal Repeats: Thinking Against the Box’, NYU JIL & Pol 32 (2000): 355.

(26) Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Huntington, NY: Juris Publishing, 2000).

(27) See, e.g., James Thuo Gathii, ‘TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography’, Trade, Law, and Development 3 (2011): 26. For a ‘post-colonial’ approach that both builds on and challenges TWAIL, see Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011).

(28) See, e.g., Benedict Kingsbury, ‘Sovereignty and Inequality’, EJIL 9 (1998): 599; Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004); José E. Alvarez, ‘Hegemonic International Law Revisited’, AJIL 97 (2003): 873. See also Michael Byers and Georg Nolte (eds.), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press, 2003).

(29) Martti Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations’, in Michael Byers (ed.), The Role of Law in International Politics (Oxford: Oxford University Press, 2000) 17; Martti Koskenniemi, ‘Global Governance and Public International Law’, Kritische Justiz 37 (2004): 241. See also David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press, 2004). These scholars are interdisciplinary in embracing history, anthropology, and other perspectives.

(30) See, e.g., Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001) 489–94.

(31) I am excluding scholars of an earlier generation who grappled with international law’s ability to promote justice, for example Julius Stone, ‘Approaches to the Notion of International Justice’ in Cyril E. Black and Richard A. Falk (eds.), The Future of the International Legal Order, Vol. 1 (Princeton, NJ: Princeton University Press, 1969) 372.

(32) Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Oxford University Press, 1995). In an earlier important book, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990), Franck (at 208–46) set forth a theory that states comply with international rules because of certain traits internal to those norms; but he bypassed matters of global justice, arguing that justice is done to persons alone and is a concept confined to the nation-state.

(33) John Tasioulas, ‘International Law and the Limits of Fairness’, EJIL 13 (2002): 993, 1008.

(34) See Gerry J. Simpson, ‘Is International Law Fair?’, Mich JIL 17 (1996): 615.

(35) See, e.g., Frank J. Garcia, ‘Global Justice and the Bretton Woods Institutions’, JIEL 10 (2007): 461; and the essays in Chios Carmody, Frank J. Garcia, and John Linarelli (eds.), Global Justice and International Economic Law: Opportunities and Prospects (Cambridge: Cambridge University Press, 2012).

(36) Philip Allott, Eunomia: A New Order for a New World (New York: Oxford University Press, 1990).

(37) Fernando R. Tesón, ‘The Kantian Theory of International Law’, Colum L Rev 92 (1992): 53; Fernando R. Tesón, A Philosophy of International Law (Boulder, CO: Westview Press, 1998).

(38) Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality (Ardsley, NY: Transnational Publishers, 2005) 144–67; Fernando R. Tesón, ‘Ending Tyranny in Iraq’, Ethics & Intl Aff 19 (2005): 1, 1.

(39) Brad R. Roth, Sovereign Equality and Moral Disagreement: Premises of a Plurality International Legal Order (New York: Oxford University Press, 2011). For an approach that (despite its title) relies solely on domestic legal analogies to appraise certain aspects of the justice of international law, see Lea Brilmayer, ‘International Justice and International Law’, W Va L Rev 98 (1996): 611.

(40) See, e.g., Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca, NY: Cornell University Press, 2003); Abdullahi An-Na’im, Islam and Human Rights: Selected Essays of Abdullahi An-Na’im, Mashood Baderin (ed.) (Burlington, VT: Ashgate Publishing, 2010).

(41) See the excellent review in Christopher Stone, ‘Ethics and International Environmental Law’, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007) 291.

(42) See sources cited in notes 35 and 41 and the works cited in Antony Anghie and B.S. Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ in Steven R. Ratner and Anne-Marie Slaughter (eds.), The Methods of International Law (Washington DC: American Society of International Law, 2004) 185, 187.

(43) Continental Shelf (Libya v Malta) (Judgment) [1985] ICJ Rep 13, para. 46 (3 June).

(44) Brian Barry, ‘International Society from a Cosmopolitan Perspective’, in David R. Mapel and Terry Nardin (eds.), International Society: Diverse Ethical Perspectives (Princeton, NJ: Princeton University Press, 1998) 144, 154.

(45) See, e.g., Terry Nardin, ‘International Ethics’, in Christian Reus-Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations (Oxford: Oxford University Press, 2009) 594, section 1 (the need to preserve international ethics as a part of international politics). As noted in the Introduction, I do not address jurisprudential approaches. For some of the recent scholarship see, e.g., John Tasioulas, ‘Customary International Law and the Quest for Global Justice’, in Amanda Perreau-Saussine and James Bernard Murphy (eds.), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge: Cambridge University Press, 2007) 307; Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, EJIL 22 (2011): 315; Ronald Dworkin, ‘A New Philosophy for International Law’, Phil & Pub Aff 41 (2013): 2. See generally Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010) (containing ethical and jurisprudential works).

(46) Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed. (New York: Basic Books, 2006) 45–6.

(47) David Luban, ‘A Theory of Crimes Against Humanity’, Yale JIL 29 (2004): 85; Jeff McMahan, Killing in War (Oxford: Clarendon Press, 2009); Larry May, Aggression and Crimes Against Peace (Cambridge: Cambridge University Press, 2008); David Rodin, War and Self-Defense (Oxford: Clarendon Press, 2002); Henry Shue and David Wippman, ‘Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions’, Corn ILJ 35 (2002): 559.

(48) See, e.g., James W. Nickel, Making Sense of Human Rights, 2nd ed. (Malden, MA: Blackwell Publishing, 2006); Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009); Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton, NJ: Princeton University Press, 1996); William J. Talbot, Which Rights Should be Universal? (Oxford: Oxford University Press, 2005).

(49) Charles R. Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979) 92–105.

(50) Mervyn Frost, Ethics in International Relations: A Constitutive Theory (Cambridge: Cambridge University Press, 1996) chs. 4–5.

(51) See, e.g., David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, CA: Stanford University Press, 1995) 267–83; David Held, ‘Law of States, Law of Peoples: Three Models of Sovereignty’, Legal Theory 8 (2002): 1; Daniele Archibugi, David Held, and Martin Köhler (eds.), Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge: Polity Press, 1998).

(52) Jürgen Habermas, The Divided West (Cambridge: Polity Press, 2006) 115–93.

(53) Held, Democracy, supra, note 51, at 279; Daniele Archibugi, ‘Principles of Cosmopolitan Democracy’, in Daniele Archibugi, David Held, and Martin Köhler (eds.), Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge: Polity Press, 1998) 198, 221.

(54) For applications of cosmopolitan thinking to international norms, see, e.g., David Beetham, ‘Human Rights and Cosmopolitan Democracy’, in Daniele Archibugi, David Held, and Martin Köhler (eds.), Re-imagining Political Community: Studies in Cosmopolitan Democracy (Cambridge: Polity Press, 1998) 58; Pierre Hassner, ‘Refugees: a Special Case for Cosmopolitan Citizenship?’ in Re-imagining Political Community (supra) 273; Edward A. Page, ‘Cosmopolitanism, Climate Change, and Greenhouse Emissions Trading’, International Theory 3 (2011): 37. See also Roland Pierek and Wouter Werner (eds.), Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge: Cambridge University Press, 2010); Christian Barry and Thomas W. Pogge (eds.), Global Institutions and Responsibilities: Achieving Global Justice (Malden, MA: Blackwell Publishing, 2005).

(55) Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004) 331–400.

(56) See, e.g., Thomas W. Pogge, Realizing Rawls (Ithaca, NY: Cornell University Press, 1989); Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, 2nd ed. (Cambridge: Polity Press, 2008); Thomas W. Pogge, ‘Recognized and Violated by International Law: The Human Rights of the Global Poor’, LJIL 18 (2005): 717.

(57) John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999).

(58) Terry Nardin, ‘Legal Positivism as a Theory of International Society’, in David R. Mapel and Terry Nardin (eds.), International Society: Diverse Ethical Perspectives (Princeton, NJ: Princeton University Press, 1998) 17.

(59) Held, Democracy, supra note 51, at 101–11.

(60) Thomas Mertens, ‘Defending the Rawlsian League of Peoples: A Critical Comment on Tan’, LJIL 18 (2005): 711, 713–14.

(61) Peter Singer, One World: The Ethics of Globalization (New Haven, CT: Yale University Press, 2002) 127–35.

(62) Robert E. Goodin, ‘What is So Special About Our Fellow Countrymen?’, Ethics 98 (1988): 663.

(63) Kok-Chor Tan, Justice Without Borders: Cosmopolitanism, Nationalism, and Patriotism (Cambridge: Cambridge University Press, 2004) 175–7. See also Joshua Cohen and Charles Sabel, ‘Extra Rempublicam Nulla Justitia?’, Phil & Pub Aff 34(2) (2006): 147 (making a similar argument to reject Thomas Nagel’s view about the territorial limitations of justice).

(64) Joshua Cohen, ‘Minimalism About Human Rights: The Most We Can Hope For?’, J Pol Phil 12 (2004): 190, 194–9; Charles R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009); see also Joseph Raz, ‘Human Rights Without Foundations’, in Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010) 321.

(65) J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th ed. (Oxford: Oxford University Press, 1963).

(66) Rawls, Law of Peoples, supra note 57, at 37 (identifying Brierly’s principles as ‘familiar and traditional principles of justice among free and democratic peoples’).

(67) See, e.g., Allen Buchanan, ‘Rawls’s Law of Peoples: Rules for a Vanished Westphalian World’, Ethics 110 (2000): 697.

(68) Saladin Meckled-Garcia, ‘On the Very Idea of Cosmopolitan Justice: Constructivism and International Agency’, J Pol Phil 16 (2008): 245, 261; see also Michael Blake, ‘Distributive Justice, State Coercion, and Autonomy’, Phil & Pub Aff 30 (2001): 257, 280.

(69) For a philosophical argument showing this effect, see Cohen and Sabel, ‘Extra Rempublicam Nulla Justitia?’, supra note 63.

(70) See, e.g., Legality of the Use of Force (Serbia v Belgium) [2004] ICJ Rep 279 (15 December); Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo [2010] ICJ Rep 403 (Advisory Opinion of 22 July); Continental Shelf, supra note 43, para 46.

(71) Thomas W. Pogge, ‘Cosmopolitanism and Sovereignty’, Ethics 103 (1992): 48, 50–2.

(72) See, e.g., Peter Singer, ‘Famine, Affluence, and Morality’, Phil & Pub Aff 1 (1972): 229; most of the essays in Robert McKim and Jeff McMahan (eds.), The Morality of Nationalism (New York: Oxford University Press, 1997); Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (New York: Oxford University Press, 2001).

(73) This position has many nuances. One extreme might be G.A. Cohen’s view that ethical principles cannot be grounded in facts at all. G.A. Cohen, Rescuing Justice and Equality (Cambridge, MA: Harvard University Press, 2008) 229–73.

(74) For one of many examples, see David Copp, ‘International Law and Morality in the Theory of Secession’, J Ethics 2 (1998): 219, 222 (‘the question whether there is a moral right of secession is morally prior to the question about international law’).

(75) I appreciate this point from Robert Goodin at a 2010 workshop at the University of Michigan Law School as well as James Nickel’s paper ‘On Ideal Normative Theory’ presented at that workshop.

(76) See Allen Buchanan and David Golove, ‘Philosophy of International Law’, in Jules Coleman and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002).

(77) For a review of different perspectives on effectiveness, see Steven Ratner, ‘Persuading to Comply: On the Deployment and Avoidance of Legal Argumentation’ in Jeffrey L. Dunoff and Mark A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations (Cambridge: Cambridge University Press, 2013) 568.

(78) Pogge and Held appraise these institutions (and generally find them woefully lacking); and others invoke them in arguments over whether the international order of today includes the basic structure necessary to the application of Rawls’ principles of justice. See, e.g., Charles R. Beitz, ‘Cosmopolitan Ideals and National Sentiment’, J Phil 80 (1983): 591; Cohen and Sabel, ‘Extra Rempublicam Nulla Justitia?’, supra note 63; Andrea Sangiovanni, ‘Global Justice, Reciprocity, and the State’, Phil & Pub Aff 35 (2007): 3.

(79) Buchanan and Golove, ‘Philosophy of International Law’, supra note 76, at 868, 870; see also Andrew Hurrell, ‘Norms and Ethics in International Relations’, in Walter Carlsnaes, Thomas Risse, and Beth A. Simmons (eds.), Handbook of International Relations (New York: Sage Publications, 2002) 137, 139–41.

(80) Brian Barry, ‘Do Countries Have Moral Obligations? The Case of World Poverty’, in The Tanner Lectures on Human Values, Vol. 2 (Salt Lake City, UT: University of Utah Press, 1981) 25, 36.

(81) Permanent Sovereignty over Natural Resources, GA Res. 1803 (XVII), 14 December 1962; UNCLOS, Pts. V, VI (regimes on exclusive economic zone and continental shelf); Garrett Hardin, ‘The Tragedy of the Commons’, Science 162 (1968): 243.

(82) For a recognition of these options among philosophers, see Kok-Chor Tan, ‘International Toleration: Rawlsian versus Cosmopolitan’, LJIL 18 (2005): 685, 703–4.

(83) See, e.g., Rawls, The Law of Peoples, supra note 57, at 79–81.

(84) See, e.g., Hans J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 7th ed., Kenneth W. Thompson and W. David Clinton (eds.) (Boston, MA: McGraw-Hill Higher Education, 2006) 240–69, 283–92; Edward H. Carr, The Twenty Years Crisis, 1919–1939: An Introduction to the Study of International Relations, rev. ed. (Houndmills: Palgrave Macmillan, 2001) 135–55.

(85) For a fuller account of the ethical approaches within international relations, see Christian Reus-Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations (Oxford: Oxford University Press, 2008).

(86) For one example among hundreds, see Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009). For a review of the state of play, see Jeffrey L. Dunoff and Mark A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations (Cambridge: Cambridge University Press, 2013).

(87) See Ian Hurd, ‘Legitimacy and Authority in International Politics’, Intl Org 53 (1999): 379.

(88) Ibid., at 381.

(89) Cf. Daniel Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, AJIL 93 (1999): 596 (sociological versus normative dimensions of legitimacy).

(90) A key exception is Robert Keohane, who, in work with Buchanan, has offered criteria for legitimate international institutions. See Allen Buchanan and Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’, Ethics & Intl Aff 10 (2006): 405; Allen Buchanan and Robert O. Keohane, ‘Precommitment Regimes for Intervention: Supplementing the Security Council’, Ethics & Intl Aff 25 (2011): 41.

(91) See, e.g., Ellen L. Lutz and Kathryn Sikkink, ‘International Human Rights Law in Practice: The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’, Chicago JIL 2 (2001): 1.

(92) Richard Price, ‘The Ethics of Constructivism’, in Christian Reus-Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations (Oxford: Oxford University Press, 2009) 317.

(93) Among Bull’s key works, see Hedley Bull, The Anarchical Society: A Study of Order in World Politics, 3rd ed. (New York: Columbia University Press, 2002).

(94) Martin Wight, ‘Western values in international relations’, in Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (Cambridge, MA: Harvard University Press, 1966) 89, 127–8.

(95) Compare Robert Jackson, The Global Covenant: Human Conduct in a World of States (Oxford: Oxford University Press, 2000), with Andrew Hurrell, On Global Order (Oxford: Oxford University Press, 2007) 57–94; see also R.J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986).

(96) See Andrew Hurrell, ‘International Law and the Making and Unmaking of Boundaries’, in Margaret Moore and Allen Buchanan (eds.), States, Nations, and Borders: The Ethics of Making Boundaries (Cambridge: Cambridge University Press, 2003) 275.

(97) Hurrell, On Global Order, supra note 95, at 84–6, 312–14; Jackson, Global Covenant, supra note 95, at 16–22, 416–19.

(98) Molly Cochrane, ‘The Ethics of the English School’, in Christian Reus-Smit and Duncan Snidal (eds.), The Oxford Handbook of International Relations (Oxford: Oxford University Press, 2008) 286, 293.

(99) See Christian Reus-Smit, ‘Imagining society: constructivism and the English School’, BJPIR 4 (2002): 487.