Confronting the Pathologies of International Law
Confronting the Pathologies of International Law
From Neoliberalism to Justice
Abstract and Keywords
This chapter offers an argument on why the international law on trade, investment, and finance is subject to the demands of justice. It also looks at how those demands are greater than the basic minimums often suggested as applicable outside the state. International law is subject to the demands of justice because of its role as an institution essential to global cooperation, because it affects how people live their lives, because of its historic role in perpetuating and legitimizing moral wrongs, and because it can lead to domination and the deprivation of freedom. After elaborating these grounds, this chapter proceeds to a theory of justice for international law. International law must meet a standard of respect and ‘justification to’ each person, particularly those in weaker positions. International law cannot treat any person as only a passive recipient or supplicant to rules that benefit those in power or stronger positions.
In his dialogue with Socrates in Plato’s Republic, Thrasymachus argues, ‘justice is nothing other than the advantage of the stronger’.1 He elaborates that the various kinds of rulers for the city states of ancient Greece, regardless of the form of government, tyrannical, democratic, or other, make laws to their own advantage. ‘Democracy makes democratic laws, tyranny makes tyrannical laws, and so on with the others. And they declare what they have made—what is to their own advantage—to be just for their subjects, and to punish anyone who goes against this as lawless and unjust.’2 So too the Athenians argued to the Melians during the Peloponnesian War about relationships between city states, to persuade the Melians to accede to Athenian domination.3 From Thucydides’ Melian Dialogue in his History of the Peloponnesian War comes ‘[t]he strong do what they can and the weak suffer what they must’.4
The Thrasymachian idea of justice found its way into the work of one of the most important philosophers writing at the beginning of the modern state, Thomas Hobbes. John Rawls tells us that ‘[i]t is useful to think of modern moral and political philosophy as beginning with Hobbes, and the reaction to Hobbes’.5 A broad consensus in political philosophy, however, rejects the Hobbesian power-based understanding of justice, as does human rights theory and practice. The rhetoric if not the practice of ‘real world’ politics rejects it as well. With the rise of Kantian-influenced theories, political philosophy has moved away from accounts of justice based in power and interest toward accounts based in principles of right and the good, with the power of the state transforming from a force to be imposed to a (p.39) politics to be justified to each person, regardless of power. Hobbes wrote in the historical context in which order, not justice, was the primary subject of justification, when states were in early stages of evolution, when peace was confronted by fundamental religious disagreement, and when religion was central to official authority in Europe. A Kantian-influenced justification of state power now flourishes, which censors power through the constraints of impartiality and respect for each person. In the past several decades, a considerable body of philosophical work has proliferated on global justice in this tradition.6
These moves in philosophy have made few inroads into the practices of states as reflected in international law. International law is in what could be characterized as a Thrasymachian trap. It is structured to serve power and interest. Throughout its history, international law has privileged the power of Europe and the West. Start with Hugo Grotius, credited rightly or wrongly with bringing the idea of an international society governed by rules to modern states.7 Consider, for example, his principle of natural right that in the absence of a state, any private individual has the right to punish. This principle was a justification to permit the Dutch to wage offensive wars to open trade routes in South East Asia and elsewhere.8 Grotius claimed this principle could be logically deduced but it is difficult not to see it actually as a piece of advocacy to support Dutch power at the time. When international law made its positivist turn in the nineteenth century, it distinguished between civilized and uncivilized nations, with only the former forming a ‘family of nations’ deserving to be governed by international law.9
The result is that international law suffers from serious moral disorder. As Andrew Hurrell explains, the aspirations of international society ‘remain deeply contaminated by the interests and values of powerful states and of the private actors that they may represent’.10 International law is a normative order perpetuated by powerful states to serve as an instrument of their power rather than as a restraint upon it.11 In a legal order structured around neoliberal ideologies rather than principles of justice, every state can and does grab what it can in the economic sphere on the basis of power and interest, legally so and under colour of law. International law cannot (p.40) meet a basic standard of justification to humans as moral deliberators—of justification to each person for whom international law has consequences.
Markets serve important roles. But markets require institutions. Institutions are human-created social practices. They are not natural entities like comets or trees. They do not exist in a state of nature. Their structure is not inevitable, existing outside the reach of law. They require law to exist. Injustice that comes from markets is within our control. A market is determined by a set of human-constructed rules about who owns what and on what conditions, what is a public versus a private function, and how to pay for things. So, a ‘free market’ is not something the government intrudes upon with regulation. Rather, it is government regulation, in the form of law that makes markets of any sufficient scale possible.12 How we design markets is up to us, based on what we value in whatever community is doing the valuing and depending on what values get voiced. Both market and justice norms are constitutive of rules of the game. The moral disorder in international law comes from its failure to internalize these basic features of just law.
The moral disorder of international law contradicts what we expect from international law. The Thrasymachian structure of international law would be rejected by an overwhelming majority of international lawyers if they were asked to consider what principles of justice would be acceptable as a normative foundation for international law. Let us engage very briefly in the sort of thought experiment common in both law and philosophy and ask hypothetically about what values international lawyers would expect international law to uphold.13 What would we learn if we were to survey international lawyers on the normative standards supporting international law’s claim to our fidelity? The international lawyers in our survey would be those in practice representing their governments, lawyers who work for intergovernmental organizations, those who work for nongovernmental organizations, those who represent private interests and multinational companies, and international legal scholars in academia. We would, of course, not limit our survey only to international lawyers situated in the West or in rich countries. We would likely find that most of these international lawyers hold some basic shared conception about the role of justice in international law, though, given value pluralism, they may differ on the particulars. Even if we accept the existence of value pluralism across the world,14 it would be difficult for international law even to (p.41) exist if states, intergovernmental organizations, and their officials were to accept that international law fails to achieve some basic threshold of approximate or ‘real-world’ justice that most people could agree about.15 Why would those actors justify their actions on international law grounds if they could not claim that international law treats its subjects fairly, justly, with respect, or according to some principle of right or common good? Justification of state action has been one of international law’s primary purposes throughout the ages. International law is the main avenue by which states and their lawyers argue that they are not engaging in power play. It is difficult for an international lawyer to be a realist as that idea is employed in international relations theory, seeing international law only as an argument about power and as epiphenomenal when push comes to shove.16 It is a contradiction that no government could reasonably maintain that international law has powers to direct us or states on our behalf to do particular things, yet we do not expect it to conform in its main applications to basic principles of justice. A basic claim to justice is one that the authors of international law must make to each person subject to international law if they are to reasonably expect these persons to accept international law’s authority. It is well accepted, now axiomatic, that power fails to offer the right kind of reasons for action for law.17
The aim of this chapter is to offer a philosophically influenced argument on why the international law on trade, investment, and finance is subject to the demands of justice and on how those demands are greater than the basic minimums often suggested as applicable outside the state. Though international law remains trapped in a power-based notion of justice, political philosophy has done little to remedy the moral disorder. Theories about what is known in the literature as global justice bloomed mainly in response to Rawls’ Law of Peoples.18 Many consider Rawls’ Law of Peoples to be deeply flawed, offering only a limited humanitarianism and basic human rights for international relations among liberal and decent peoples, but no duties of justice among these peoples at the global level. Opposing Rawls, cosmopolitans have argued that membership in a people or some form of political community like a state is not morally relevant but being human is, and therefore the full panoply of principles of justice apply across the globe and to each person regardless of nationality. These two camps—the liberal nationalists and the cosmopolitans—form major schools of contemporary philosophical thought about justice beyond state borders. Neither have had much influence in the actual making and (p.42) application of international law.19 In too many theories about justice, international law is mysterious, a ‘black box’. Charles Mills’s lamentation on the relevance of theories about justice within state borders holds for theories of justice for beyond state borders as well:
[W]e need to ask how it came about, and has come to seem normal, that ‘social justice’ as a philosophical concept has become so detached from the concerns of actual social justice movements. Certainly it’s not the case that if people in the civil rights community were planning a conference on racial justice next month that they would be heatedly debating which philosophers to invite! Rather, mainstream political philosophy is seen as irrelevant to such forums because of the bizarre way it has developed since Rawls (a bizarreness not recognized as such by its practitioners because of the … norms of disciplinary socialization). Social justice theory should be reconnected with its real-world roots, the correction of injustices, which means that rectificatory justice in non-ideal societies should be the theoretical priority, not distributive justice in ideal societies. Political philosophy needs to exit Rawlsland—a fantasy world in the same extraterrestrial league as Wonderland, Oz and Middle-earth (if not as much fun)—and return to planet Earth.20
This chapter takes a step towards a correction. It argues that international law is subject to the demands of justice in a way that is sensitive to how international law operates. The argument might be understood in some respects as falling within what political philosophers call the ‘non-ideal’ but no claims are made that it fits neatly in what appears to be a subject of some contestability and ongoing attention in philosophy.21
(p.43) It is essential that the connection of international law to theories of justice be established, otherwise lawyers and government officials will continue to consider these theories to be unrealistically utopian exercises serving only to engage the minds of philosophers. A suggestion to the global economic policy elite in any major capital that trade and investment agreements, or the regulation of global finance, should be governed by a principle of justice would likely might be met with a platitude about how the world should be fair, that the agreements under their purview are indeed fair, or worse, a blank stare. Walk into a mainstream conference on international law and the global economy, and the unexamined assumptions for any evaluation of the law or recommendations for its reform are progressive liberalization for international trade, open and minimally regulated borders for foreign direct investment, and the free flow of capital for international finance. When these assumptions are challenged, the challenger is often seen as engaging in fanciful and ‘unrealistic’ argument or essentially tolerated then ignored. To help make these challenges stick, a place to start is with an institutionally sensitive account of justice for international law.
1. The Thrasymachian Trap
International law is trapped in a notion of justice as the will of the stronger for two reasons. These reasons relate to the traditional division of responsibilities between international and domestic law. They are identified in this chapter as the ‘practical association’ and the ‘domain of politics’ arguments. These arguments are related, with ‘practical association’ referring to the features of a state’s external relations with other states and ‘domain of politics’ referring to the features of a state’s internal relations with its citizens. They support differentiated approaches to justice for international and domestic law, with practical association requiring only moral minimums outside the state and the domain of politics requiring full-blown justice inside the state. In the practical association argument, international law is primarily a set of norms for the coexistence of states with diverse and often conflicting ends. So, the argument goes, international law lacks something undergirding municipal law, a political community, whose purposes serve the ends of states grounded in (p.44) politics, with a shared conception of justice. The domain of politics tells us what justice is for states and their ‘internal’ law.
The consequences of the practical association and domain of politics arguments are significant. Together, they inform us that it is morally permissible, indeed, even morally required, that states and their representatives wield whatever power they possess to the advantage of their citizens, regardless of the consequences to other states and vulnerable persons in those other states. International law relevant to the global economy can be designed around whatever agendas powerful states may have with little concern for the moral legitimacy of the resulting rules and institutional structure governing the global economy. We should have few moral qualms, save those relating to the very limited moral considerations of humanitarianism and extraterritorial obligations of international cooperation based on human rights principles, in cutting short the life expectancies and causing the death of persons in poor countries through the force of power relations in structuring markets to support powerful states.22
If international law could be said to exist, says Martti Koskenniemi, it is a ‘practical association’ with no common end other than to coordinate the diverse ends of political communities known as states.23 As Koskenniemi explains:
In accordance with the founding myth of the system, the Peace of Westphalia in 1648 laid the basis for an agnostic, procedural international law whose merit consisted in its refraining from imposing any external normative ideal on the international society. The objectives of that society would now arise from itself and not from any religious, moral or political notions of the good given externally to it. If there is an ‘international community’, it is a practical association not designed to realize ultimate ends but to coordinate action to further the objectives of existing communities. Sovereign equality builds on this: because there are no natural ends, every member of the international society is free to decide on its own ends, and to that extent, they are all equal. The law that governs them is not natural but artificial, created by the sovereigns through the processes that are acceptable because neutral (see, eg, Nardin, 1983). To say international law is for ‘peace’, ‘security’, and ‘justice’ is to say that it is for peace, security, and justice as agreed and understood between the members of the system.24
Koskenniemi makes an analytical and not a normative claim about international law as practical association.
Antonio Cassese similarly argues in his textbook, International Law. After explaining that most states have written constitutions setting forth ‘fundamental principles regulating social intercourse’ constituting ‘the pinnacle of the [domestic] legal system and are intended to serve as basic guidelines for the life of the whole community’,25 Cassese goes on to explain as follows for international law:
The situation is different in the world community. When this community came into existence, no State or other authority set forth any fundamental principles for regulating international dealings: no State had enough power to impose standards of behaviour on all members. A body of law gradually evolved under the impulse of convergent interests and exigencies of States, but no general, overarching principle was agreed upon.26
Cassese goes on to say that a few principles to govern international relations between states evolved, based on what he calls postulates of freedom of states, including a formal notion of sovereign equality. These underlie what he characterizes as the ‘laissez faire approach’ of classic international law.27
These descriptions reflect the historical path of international law grounded in a Westphalian conception of international law as a law only to support the coexistence of states, with states as the only agents to be recognized in an appeal to the authority of international law and with the highest level norms of sovereign equality and pacta sunt servanda blocking any possibility of these appeals going beyond a stripped down notion of international law as in substance a law of contract for formally equal entities. The conception of international law as practical association requires a strong version of formal sovereign equality,28 leading to rationales for the non-application or irrelevance of justice based on a notion of non-intervention in the internal affairs of states.29 The post 1945 international order was built on claims of international cooperation in the areas of peace and security, human rights, and development. But these ideals are underpinned by the animating principles of international law as practical association.
In explicating the practical association argument, Koskenniemi cites from Terry Nardin’s 1983 book, Law, Morality and the Relations of States.30 Legal and political theory have worked in tandem in this analytical project. As we shall learn, Rawls also relied on Nardin for the domain of politics argument.
Nardin distinguished between a practical association and a purposive association. A practical association, according to Nardin, is based on an ‘authoritative practice’, in which the actors within the association ‘are related in terms of constraints they are all expected to observe whatever their individual purposes may be’.31 Often in a practical association ‘there is no shared purpose uniting those whose conduct is governed by an authoritative practice such as a morality or system of laws, and in such cases there is no basis of association other than these common constraints’.32 Practical association is a relationship among those who are engaged in the pursuit of different and possibly incompatible purposes, and who are associated with one another, if at all, only in respecting certain restrictions on how each may pursue his own purpose. It is not a common goal but the authority of the common constraints (p.46) that bind members of a practical association. According to Nardin, for a practical association, the common good ‘is not a set of aims to be achieved through cooperation’ but ‘a set of values defined by common laws’.33
To be distinguished from practical association in Nardin’s account is a purposive association. In a purposive association, ‘the authority of the rules governing the relations among the associates is derived from the shared purposes that the association exists to promote’.34 Association members pursue a common end in a purposive association, and the rules of the purposive association have authority only because they are instrumental to realizing the shared common ends of the members. Nardin does say that some international law reflects purposive association, and he states but does not elaborate that states engage in cooperation through purposive associations in trade and mutual defence, a contention that fails once the substance of contemporary trade agreements are explored, as in Chapter 4 (‘International Trade’).35
Nardin at least partially connects the practical–purposive distinction to differing kinds of moral theorizing relevant to each type of association. According to Nardin, a purposive association is consequentialist in aims. A purposive association gets its authority from the consequences or outcomes the rules of the association produces in achieving some purpose. In contrast, the authority of the rules of the practical association derives from conformity to the rules of the practical association. Says Nardin, ‘[w]hereas purposive theories hold that activities should be judged in relation to the contribution they make to producing the greatest happiness or some other end, the practical perspective postulates no such ends. On the contrary, it assumes the existence of individuals or groups pursuing ends of their own, and judges their actions according to the rules of conduct that constitute the normative order within which they are related.’36
Nardin denies distributive justice a role in the international order. For Nardin, justice in international law is formal justice: conformity of conduct to authoritative practices comprising the common rules of international society. Nardin uses the practice–purpose distinction to deal with the question ‘whether a just international order is one in which the conduct of states conforms to the common rules of an international society, or one in which wealth and power are more evenly distributed’.37 He concludes: ‘The concept of distributive justice is tied to a purposive conception of society and government and has no place in discourse concerning practical association.’38 Nardin argues that distributive justice can enter into the realm of formal justice only indirectly, as when formal justice requires policies to benefit particular members of society not to serve egalitarian ends but to assist persons who are unable to participate in society from the standpoint of formal equality.
In 1979, four years before Nardin’s Law, Morality and the Relations of States was published, Charles Beitz, in his book Political Theory and International Relations offered a cosmopolitan account, arguing that duties of distributive justice apply globally, regardless of state borders. Beitz’s work was published eight years after (p.47) the unrevised edition of Rawls’ A Theory of Justice was published in 1971. Beitz’s work comes squarely within the Rawlsian tradition, though he rejected Rawlsian limits on distributive justice as applicable only to domestic societies and argued for a global basic structure of an international society to which the moral demands of distributive justice have full force. Says Beitz:
[I]f evidence of global economic and political interdependence shows the existence of a global scheme of social cooperation, we should not view national boundaries as having fundamental moral significance. Since boundaries are not coextensive with the scope of social cooperation, they do not mark the limits of social obligation. Thus the parties to the original position cannot be assumed to know that they are members of a particular national society, choosing principles of justice primarily for that society. The veil of ignorance must extend to all matters of national citizenship, and the principles chosen will therefore apply globally.39
Rawls’ Law of Peoples, published in 1999, at least implicitly rejected Beitz’s argument of twenty years earlier that a global basic structure existed which required the application of Rawls’ principles of justice at the global level. Rawls instead accepted Nardin’s practical association argument. This is not the place for a full exegetical account of Rawls’ Law of Peoples but a summary is in order because it reflects the domain of the political and practical association arguments in the fullest manifestation. Rawls argued that at the international level, liberal and decent peoples should pursue a foreign policy based on principles familiar for the most part to international lawyers. These included principles respecting the independence of peoples, pact sunt servanda-type principles, a duty of non-intervention, a right of self-defence, laws of war, respect for human rights, and a duty to assist peoples living in unfavourable conditions preventing them from having ‘a just or decent political and social regime’.40 Rawls’ list of human rights, moreover, was very basic and truncated. In addition, Rawls’ duty to assist is a minimal form of humanitarianism or beneficence distinct from justice. So, unlike Beitz, Rawls specified an international basic structure but not a global one. And he relied on Nardin’s Law, Morality and the Relations of States for the above principles, characterizing them as ‘familiar and traditional principles of justice among free and democratic peoples’.41 He also relied on JL Brierly’s traditional international law text for these principles.42 Rawls’ Law of Peoples made an influential but controversial step in political philosophy in the twentieth century. It maintained a link between contemporary political philosophy and traditional Westphalian notions of international law, at a time when those Westphalian notions were under considerable attack. Many have argued this was a move in the wrong direction.43
(p.48) For Rawls, his two principles of justice, including his difference and equality of opportunity principles, form part of a political conception of justice applicable only to what he calls a ‘closed’ or ‘self-contained’ society in the form of a modern constitutional democracy.44 At some point, this closed society must deal with relationships between peoples, but that is a different matter entirely for Rawls, one in which, as explained above, no robust principles of justice will apply. With this division between the domestic and the international clear in Rawls’ work, the concept of the political entails a number of limiting principles for Rawls. First, though liberal democratic societies are likely required to comply with Rawls’ principles of justice, it is not necessarily the case that all societies must do so. There will be ‘decent peoples’ and other forms of social organization that may have different conceptions of justice, particularly conceptions that are located in some comprehensive doctrine of the good, which would have to be respected by other peoples according to a just law of peoples, so long as the human rights in Rawls’s basic list of human rights are not violated. Second, no people (effectively a state) is required to seek or even promote distributive justice at the international level. Third, it is entirely proper and legitimate for states to use their power to promote their interests to the detriment of other states, so long as they do not violate Rawls’s basic list of minimum principles. Fourth, and most fundamentally, the very concept of the political itself is something that applies only within state borders. States are organized politically. The world is not. And so, we have the domains of the domestic or political and the international clearly separated. Equality, says Thomas Nagel, as a demand of justice ‘is a specifically political demand, which applies to the basic structure of the nation-state’.45 This is politics with a capital P, with a particular philosophical meaning.
The demarcation of the political in this way has become fundamental in normative political theory. It marks the divisions between cosmopolitans on one side and liberal nationalists and communitarians on the other.46 It is among the most (p.49) important insights in political theory in the post-Rawlsian age. And, as shown, it shares a connection to the demarcation between domestic and international in law.
Thomas Nagel’s Storrs lecture represents a somewhat more recent and influential argument for the practical association and domain of the political arguments. At the centre of the discussion is the application of principles of justice, in the form of distributive or egalitarian justice, beyond state borders. Nagel, argues: ‘[e]galitarian justice is a requirement of the internal political, economic, and social structure of nation-states and cannot be extrapolated to different contexts, which require different standards’.47 For Nagel, egalitarian justice has no role without a sovereign. Nagel distinguishes between two conceptions of justice, the political and cosmopolitan.48 In Nagel’s political conception of justice, the existence of sovereign states ‘is precisely what gives the value of justice its application, by putting the fellow citizens of a sovereign state into a relation they do not have with the rest of humanity, an institutional relation which must then be evaluated by the special standards of fairness and equality that fill out the content of justice’.49 Nagel tells us no justice without sovereignty, so we really cannot have justice in international law until we either divorce notions of justice from sovereignty in a way that has widespread acceptance, move sovereignty elsewhere, beyond the state, or eliminate sovereignty as a relevant concept altogether.
Though Nagel does not explicitly argue that international law is a practical association, to be distinguished from the political association of the state, he argues:
Current rules and international institutions … lack something that according to the political conception is crucial for the application and implementation of standards of justice: They are not collectively enacted and coercively imposed in the name of all individuals whose lives they affect; and they do not ask for the kind of authorization by individuals that carries with it a responsibility to treat all those individuals in some sense equally.50
(p.50) Rather, ‘they are set up by bargaining among mutually self-interested sovereign parties’.51 They act ‘not in the name of individuals, but in the name of the states or state instruments or agencies that have created them’ and their responsibility to individuals ‘is filtered through states that represent and bear primary responsibility for those individuals’.52 So Nagel concludes:
The absence of sovereign authority over participant states and their members not only makes it practically infeasible for such institutions to pursue justice but also makes them, under the political conception, an inappropriate site for claims of justice. For such claims to become applicable it is not enough that a number of individuals or groups be engaged in a collective activity that serves their mutual advantage. Mere economic interaction does not trigger the heightened standards of socioeconomic justice.53
In Nagel’s conception, states come to agreement on international law and institutions with their own ends, representing their own citizens, to reach practical accommodation to further the ends of their own governments and the interest of their own citizens. This is international law as practical association.
The practical association and domain of politics arguments are about order as the normative foundation for international law, not justice. These arguments combine to tell us that order and not justice is what gives international law its legitimacy or practical authority. In the opening paragraph of A Theory of Justice, which concerns closed political societies formed by states, Rawls says: ‘justice is the first virtue of social institutions, as truth is of systems of thought’.54 Though not writing about the international, Bernard Williams captures the spirit of what seems to be at play in what he called global political theory: ‘I identify the “first” political question in Hobbesian terms as the securing of order, protection, safety, trust, and the conditions of cooperation. It is “first” because solving it is the condition of solving, indeed posing, any others.’55 Going back to Hobbes once more is instructive. Hobbes argued that political rights and duties come not from nature but from sovereigns. We thus have the origins of the modern state set forth by Hobbes as cooperation in the form of a state, with social practices forming a social contract. Hobbes torn asunder predecessor scholastic philosophy on the natural sociability of persons and argued that the law of nature comes down to a single natural right: ‘The Right of nature, which Writers commonly call the jus naturale is the Liberty each man hath, to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life, and consequently of doing anything, which in his own Judgement and Reason, he shall conceive to be the aptest means thereunto.’56 States, to both Hobbes and Grotius writing in the seventeenth century, were no different from individuals. For Hobbes, people form states because of self-interest. They determine that they are better off being ruled by a sovereign than having constantly to deal with the conflict that will be inevitable as each person exercises his right of self-preservation. But (p.51) what about relations between states? The state of nature persists, with no sovereign to bring order to interstate relations. As for relations between states, for Hobbes, ‘In all times’ states are ‘in continual jealousies, and in the state and postures of Gladiators’.57 In the stripped-down version of natural law that Hobbes offered, the right of self-preservation becomes ever more important in relations between states. Grotius, more well known to international lawyers, argues similarly.58 Certainly, order is a natural focus in a world of substantial value pluralism, in which it is difficult to agree on a theory of justice of a global scale. Hobbes, Grotius, and others were writing at a time when that pluralism was making itself known to Europeans, in their early interactions with non-westerners and European attempts to justify the conquest of the New World. The persistence of thinking about international law as a system of order, not justice, despite some superficial claims to the contrary, prevails still today.
2. A Way Out
The practical association and domain of politics arguments fail. This section elucidates at least four reasons why, which should be considered in combination as a set of plausible balance of reasons for holding international law accountable to the demands of justice. The significance of international law to normative ordering of the economic sphere across the globe means there may be additional reasons. Section 3 addresses what it means to hold international law accountable to the demands of justice. It also articulates principles of justice that international law should comply with if it is going to meet these demands. For now, let us move on to the reasons in support this exercise.
First, the reasons for holding international law unaccountable to the demands of justice rely on a version of liberalism which in turn relies on an approach to associative duties and membership that is both unrealistic and lacking in relevance to the way social and economic arrangements operate today. Relationships exist of sufficient kind and intensity to put in serious doubt the notion that international law is a practical association concerned only with order or coexistence. The description of international law as a practical association and no more, divorced from some artificial realm of politics, cannot hold, with international law forming essential roles of complex regulation in the realm of what are typically understood as the domestic affairs of states. International law now intrudes into what once was the domestic sphere even of the most powerful states. International law involves a pervasive and necessary kind of interaction between states, affecting the welfare and conditions for respect of people within states, which no state can ignore or abrogate away. International economic law affects human flourishing within states in profound ways, sometimes in substantially more profound ways than domestic law. International economic law is at work in the most fundamental sites of distribution within the state.
(p.52) Second, the structural features of international law are compelling in their normative consequences.59 The combination of international economic law in its present form and substance along with circumstances created by history, and the choices of governments and other agents historically and in the present, combine to produce a structure vulnerable to the perpetuation of injustice in the global economy. The result can be systematic injustice, requiring the corrective of an international law conforming to principles of justice.
Third, the worst predations, in the form of domination, occur as transborder phenomena. Domination can be understood along republican lines as the capacity to interfere on an arbitrary basis in the choices of another. This chapter does not make a case for a republican approach to evaluating international law but the lessons from republicanism seem apt when it comes to understanding the circumstances for creating the conditions for obligations of justice to be required for international law.60 Domination comes in two main forms, coercion and manipulation. Internationally, states and multinational enterprises apply power in unaccountable ways with far fewer constraints than they can domestically. It is well understood that multinational enterprises, for example, operate with legal impunity in foreign countries in ways that would be intolerable and plainly illegal in their home countries.61 Liberal political theorists rely on the ‘black letter law’ coercion of formal legal systems to argue for full-blown duties of justice at the domestic but not the international level. That literature usually proceeds by looking either for relationships, with common nationality or humanity serving as a basis for finding duties of justice, or by looking for coercion in the form that has traditionally taken place within a state, such as in its legal system, in the finding that ‘shared liability in a coercive state’ has moral relevance.62 A compelling case exists for application of the demands of justice in a global context, however, precisely because coercion at the international level does not occur as part of a domestic legal system. At the international level, coercion is disordered and has in many cases evolved from historically unjust practices.
Finally, historic wrongdoing has played a substantial part in giving international law the structure that it has today. Turning to history, much of the international law governing the global economy was formed in conditions of what Sven Beckert calls war capitalism: the use of the force of the state, either directly or outsourced to the multinational enterprises of their time, to acquire economic gains in the form of violent reorganizations of markets, confiscation of resources, and involuntary exchange to benefit the aggressor with superior weaponry at the expense of the vulnerable who lacked such force of arms.63 There was no ideal just starting point for (p.53) international law. Historic wrongdoing relates to structural injustice but merits a distinct ground to capture features of injustice that might go missing if the focus is only in the present.
2.1 The ties that bind
At bottom, the domain of politics and practical association arguments articulate a zone for an associative obligation owed by citizens of a state to each other through a set of shared institutions.64 It is one kind of special obligation tied to group membership, in this case the group being the state. This membership argument is too narrow. It makes mysterious a significant set of rules that states share and that intrude deeply into the domestic legal systems and social and economic structures of states. The necessary move must be either to discard the notion of associative duty when it comes to working out which institutions are subject to the demands of justice or to relax it to refer broadly to relationships and the domain of cooperation rather than narrowly to membership. This section argues for the latter. The argument to follow connects to how international law operates in practice in substantial respects. We need not go as far as the cosmopolitans and simply deny association has any role. But, as we shall see, membership cannot do the work that needs to be done to understand how justice ought to operate within the state because too much happens from an institutional context outside of the state that affects the conditions for justice both inside and outside the state. The creators or authors of international law must be accountable to persons whose lives they affect, often very substantially and negatively, through international law. The inside–outside or member–not member distinction cannot do the work of informing us about justice inside the state because institutions that play a large part in bringing justice to one state’s citizens and the citizens of other states alike are simply no longer inside the state.
International law should be understood as a necessary institution within the panoply of institutions that are needed for states and their peoples to flourish. Associative theory makes what can be characterized as the ‘no plausible alternative’ mistake: it mistakenly relies on an unrealistic distinction between community in the form of an institutionally ordered state versus all of humanity outside of any community. This reflects the classic distinction between liberal nationalism and cosmopolitanism. Michael Walzer, for example, argues that ‘the only plausible alternative to the political community is humanity itself, the society of nations, the entire globe’.65 Walzer conflates ‘humanity itself’ with the ‘society of nations’ and ‘the entire globe’. These arguments are unconvincing because they ignore the existence of international law or treat it as epiphenomenal. They are stuck in an outdated empirical understanding of a world comprised of Hobbesian gladiators.
International law is a shared institution constitutive of important parts of the legal systems of states. Its contemporary manifestations are in the form of a (p.54) pervasive public law of regulation. This may seem uncontroversial for states with legal traditions that have tended to classify international law as a category of public law,66 but what we want to deal with here is not with international law’s formal categorization as law but with how it actually operates. The regulatory character of international law has more to do with the basic structure of a domestic society than even some core areas of domestic law and regulation. It forms a fundamental part of the contemporary regulatory state. The state, according to Saskia Sassen, is denationalizing.67 The law of the WTO, with its substantial beyond the border reach in areas of environmental law, health and safety law, intellectual property law, and in the setting of standards for product quality, intrudes far into the basic structure of a domestic society.68 So too does international investment law, with its focus almost wholly on how foreign investors are treated within the state as a matter of property, tax, regulation, dispute resolution, and the like. International financial law is substantially intrusive into the core into basic redistributive institutions in domestic society. The International Monetary Fund (IMF), for example, imposes conditions on countries that go to the centre of domestic economic policy, requiring countries to transfer public funds destined for their citizens to external creditors in rich countries.69 We can see this phenomenon in action by looking at the lawyers who are expert in the fields that are subject to the areas of regulatory international law, for example, the experts on TRIPs will not be international lawyers of the conventional sort. Rather, they will be intellectual property lawyers. In sum, much of international law of any importance is regulatory, law of the kind traditionally reserved for state agencies or substantially determining the law these agencies apply or produce. Its subject is about the governing of a domestic society, not, or at least not only, the association between states external to domestic society.
Aaron James characterizes the global economy as ‘organised by a distinctive kind of international social practice, a social practice in which countries mutually rely on common markets’.70 According to James, the burdens and benefits of the global (p.55) economy come from a distinctive and pervasive form of social cooperation, a ‘joint product of the social practice of mutual market reliance’.71 Following on James’s lead, with such a pervasive form of cooperation linking states and communities, rules are needed to constitute this shared market practice. These are the rules of international law. States cannot do what they do for domestic constituencies without international law. There is a shared agency of states in areas that were once typically reserved for domestic law only. Moreover, international law allocates and distributes. It deals with fundamental legal issues of property and entitlements. But as we describe below, international law deals with these issues in fragmented and differentiated ways to produce moral quandaries.
Wolfgang Friedmann, in his 1964 book, The Changing Structure of International Law, was prescient in his coverage of these issues in his distinction between a classical international law of coexistence and a new international law of cooperation. His often-quoted passage:
In international law it is today of both theoretical and practical importance to distinguish between the international law of ‘coexistence’, governing essentially diplomatic inter-state relations, and the international law of cooperation, expressed in the growing structure of international organisation and the pursuit of common human interests.72
Of course, these distinctions do not tell us whether international law achieves justice. But from a descriptive standpoint, the relationships formed in an international law of cooperation are representative of relationships that go beyond the practical association limitations discussed earlier. In The Future of International Law, Joel Trachtman builds on Friedmann and describes the function of international law as a ‘system of transnational political linkage’.73 Trachtman writes:
The future of international law is a set of functional, nuanced, differentiated, and organic links between the political systems of different states. As these links grow in terms of their mandatory character, specificity, and institutional support, they will increasingly ascend the scale from a more contractual type of international law to mechanisms that appear to have more of the characteristics of government.74
The normative consequences of these linkages are that the practical association and domain of politics arguments dissolve away. The international legal system is directly constitutive of both domestic and international communities.
That international law ought to be understood as a law of cooperation does not mean that it functions well as a law of cooperation in its current form and substance. The argument here is that because international law governs cooperation and regulates inside the state it must comply with normative principles for such a (p.56) law and that means it must meet the demands of justice. Pathologies in a relationship do not call into question that the relationship exists or its normative significance, but directs us to how those pathologies need to be addressed in line with what the relationship requires.
International law might be serving cooperative ends only for some states (or their successors) that formulated the classical international law of coexistence, with some new additions of states whose significance to the global economy cannot be ignored.75 Friedmann argued that the ‘active agents and participants’ in formulating classic international law were a ‘small club of European nations, joined in the nineteenth century by the newly emerging nations of the American Continent’.76 It appears that a similar division of states continues, with a possible change in membership and configuration with the rise of BRICS, even as international law has transformed to a much denser form of governance of the global economy. Anne-Marie Slaughter identifies the ‘ineradicability’ of power and asks whether the trans-governmental networks she examines ‘either replicate or even magnify asymmetries of power in the existing international system’.77
A distinction may be possible between ‘rule takers’, a phrased offered by Andrew Hurrell, and ‘rule makers’. Hurrell explains: ‘[t]here is deformity … in terms of who sets the rules of international society. Institutions are not, as liberal theory often suggests, neutral arenas for the solution of common problems but rather sites of power and dominance. The clear majority of weaker actors are increasingly “rule takers” over a whole range of issues that affect all aspects of social, economic, and political life.’78 Similarly, Rainer Forst argues that the global poor are not ‘agents’ in the global order but mere ‘passive recipients’ of its dictates.79
It is widely understood that some states and persons continue in central instances of international lawmaking to be mere recipients but not active agents in the making (p.57) of international law. The rule takers or passive recipients of international law often are in a position of domination by the rule makers or agents of international law. Passive recipient states often ratify international economic agreements on a take it or leave it basis, entering these agreements based on pressure from powerful states to set the rules for markets not in a principled way to promote a normative goal of economic efficiency towards shared benefits, but to carve up markets to benefit the constituents of these rich states, which are often multinational enterprises. The mandatory multilateral structure of global economic arrangements such as the WTO makes opting out impossible.80 Many international economic arrangements make it practically impossible for states not to participate. The leaders of weaker states may uncritically assume that economic agreements are beneficial (an increasingly less likely occurrence), often because they have no or inadequate capacity for evaluating the evidence.81 Or, they enter into trade and investment agreements in the hope of benefiting from the reputational signals of being ‘open for business’ based on advice they receive from or conditionalities imposed by international financial institutions or aid agencies as to what is needed to reap the benefits of the global economy.82 Good evidence exists of what is known as international policy diffusion, where policy decisions by a state are ‘systematically conditioned’ by prior policy decisions of other states.83 Finally, in some cases elites in weaker states profit both in political power and in enriching themselves materially from continuing the status quo.84
Interaction among states which may have normative significance for imposing duties of justice on states may sometimes come in two forms: de jure and de facto. De jure cooperation refers to explicit policy decisions by states to engage in particular forms of cooperation that take on legal form, such as in a binding trade or investment agreement, or in soft law that results in domestic law in compliance with that soft law. Cooperation on financial regulation sometimes comes in the latter soft law form.85 De facto cooperation is a looser form of policy coordination, (p.58) which may not rise to the level of binding international law, but which is important for distributing resources or welfare among states, and for which substantial levels of compliance are evident.86 This is not, of course, to imply that this ‘cooperation’ is among equals, but it reflects a level of interaction that gives rise to legitimate demands of justice.
International lawyers well understand de jure cooperation. A substantial and multilayered formal regulatory system has emerged mainly among powerful states.87 The United States and the European Union engage in perhaps more regulatory cooperation than any other ensemble of states and international organizations. Discussions about regulatory cooperation between the United States and the European Union as part of the Transatlantic Trade and Investment Partnership (TTIP) negotiations have indicated a substantial ramping up of already significant regulatory cooperation,88 though the future of these negotiations is uncertain with the change of administration in the United States. The European Union itself is a form of regulatory cooperation among states. Slaughter argues that the European Union ‘has emerged as a regulatory state, exercising power through rulemaking rather than taxing and spending’.89 The global financial architecture (Chapter 6 (‘Global Finance’)) is an example of shared institutions. International soft law and domestic law operate together to on a common purpose of financial stability.
An example of de facto cooperation is found in the cuddly versus cut-throat capitalism research conducted by Daron Acemoglu and colleagues.90 This research examines the effects of technological interdependence of states with differing varieties of capitalist economies. The research takes into account that encouraging technological innovation requires incentives for workers and entrepreneurs and that this results in greater inequality and poverty. But the global economy is characterized by technological interdependence, and when a small number of states contribute disproportionately to technological advancement, the incentives for other states to contribute will be weaker. So, some economies will produce more growth by advancing technology, while others will benefit from higher incomes from the technology innovation, and hence be able to invest that income in welfare for its population. For such a state of affairs to occur, the technologically leading states have to opt for so-called ‘cut-throat’ capitalist institutions with more powerful incentives for its populace to innovate, relatively less social insurance and higher income inequality, while states benefiting from the innovation opt for ‘cuddly’ capitalist institutions as a best response to the technology leader’s innovations and are therefore able to provide better social insurance to their population and greater (p.59) equality. The result comes out that the cutthroat capitalist country is richer but the cuddly capitalist country, while poorer, is able to provide more welfare to its people. This research might explain how, for example, the Scandinavian countries and the United States engage in a form of de facto cooperation. De facto cooperation may not tell us much directly about international law but it does tell us that it may be implausible to try to neatly differentiate the domestic from the international. It supports the relational argument made here.
Another way to understand the relational argument is from the perspective of sovereignty. Sovereignty is purportedly about the power states have over their territories and to govern within their borders. Moreover, sovereign equality is a kind of formal as opposed to material or substantive equality. Sovereign equality tells us that each state is equal to any other state based on a single characteristic: statehood. No other investigations into material conditions are warranted to determine if states are in fact equal along other variables. Sovereign equality has features similar to the individualism of classical liberal thought or in libertarianism. In associative accounts, sovereignty and sovereign equality form an impenetrable barrier for norms of justice. As Friedmann explains, classical international law ‘did not purport to penetrate beyond the shell of diplomatic intercourse into the economic and social aspects of the polities that dealt with each other as units’ and ‘had little concern with matters of welfare, of economic conditions of nations whose sovereigns entered into mutual diplomatic and legal relations’.91 Norms of justice therefore applied within states but not beyond or across them.
But contemporary international law does in fact ‘penetrate beyond the shell of diplomatic intercourse’ and into the ‘economic and social aspects’ of states, and has substantial relevance to ‘matters of welfare, of economic conditions of nations’. To the extent that it fails to perform these functions fairly it is subject to critique on the grounds of justice. If we overlook the sharing of international law by states and their peoples, we will mistakenly accept the moral disorder that sovereignty arguments are prone to produce.
Behind the veneer of sovereignty as formal equality of states is a substantial substantive inequality. Poor and weak states have very little of sovereignty while rich and powerful ones have plenty. Sovereignty can be understood along two lines—durable or permeable. Poor states tend to have permeable sovereignty. Rich states tend to have durable sovereignty. States with permeable sovereignty are takers and not makers of international law. They are not the authors of international law, but passive recipients of it. The permeable condition of their sovereignty often has an imperial or colonial legacy.92 The makers and real agents in the international legal system are states with durable sovereignty. The relational argument for justice may require that we discard the notion of sovereignty in some important respects to the (p.60) extent that it is a euphemism for state power that masks rather than clarifies how international law operates and what is required from the standpoint of justice.
2.2 Structural vulnerabilities
International law is accountable to the demands of justice because its structure has been prone to exploitative and dominating conditions in the global economy. To rely on Aaron James’s framing of the issue, international law fails to achieve ‘structural equity’ to the extent that it would be reasonable for some state or class of persons to reject the way it affects it or them, in favour of some feasible alternative set of rules.93 For Iris Marion Young, structural injustice exists ‘when social processes put large categories of persons under a systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time as these processes enable others to dominate or have a wide range of opportunities for developing and exercising their capacities’.94 If international law has the potential to produce such injustice, it is subject to the demands of justice.
A separate ground of justice dealing with the global structure is necessary to cover all the potential sources of injustice that may be operating in the global economy. A structural argument allows for the distinction between three sources of injustice: (1) moral wrongs attributable to the choices or actions of states or persons, acting individually or in combination; (2) moral wrongs attributable to particular laws and other institutions; and (3) choices or actions by many states, persons, and entities pursuing their self-interest, within the limits of law and other socially produced rules, but which when taken together produce circumstances that bring about substantial harm. Market norms formed around neoliberal ideology can form a central part of this structure. To use a metaphor developed by Charles Lindblom, they operate like a prison. They form a ‘change repressing system’ and individual attempts to deviate trigger something like a punishment.95 International law is unjust to the extent that it produces or contributes to producing such wrongs, if it could feasibly prevent wrongs associated with structure from occurring, or if it fails to rectify such wrongs if and when they occur.
A potentially serious form of structural vulnerability may arise from what we characterize as the disorder in international law. This disorder results from its fragmented structure. It is morally disordered by design.96 Add to this the related (p.61) linkage problem,97 which identifies vertical disconnections between international law and a state’s regulatory architecture. These features of the global legal order are prone to producing legal rules privileging economic considerations to the exclusion or detriment of other more pressing values that should be either overriding or at least taken into account in the content of international law or in dispute settlement.
Someone dominates another when: (1) they have the capacity to interfere in (2) choices of the other and (3) they can exercise that capacity arbitrarily.98 This is the standard understanding of domination as found in the republican literature but domination might be unreasonable for persons to accept from the standpoint of liberal political theory as well.99 Domination is a moral wrong because it deprives us of freedom.100 For international law to be morally legitimate, it must comply with moral principles that prevent or eliminate domination in the domains in which it applies.101
Two canonical forms of domination, coercion and manipulation, affect the formation and interpretation of international law.102 Coercion can be understood as (p.62) credible threats to which a person succumbs103 or from the context of power: ‘A has power over B to the extent that he can get B to do something that B would not otherwise do’.104 Coercion can be ‘of the will’ and need not be as a result of the use of physical force or the threat of it.105 Coercion can be understood as a threat by someone who indicates that if his demand is rejected, he will make the recipient worse off, usually in the form of some abrogation of the recipient’s rights.106 The republican literature includes an explicit ‘arbitrary’ component: when someone is in a position to choose or not choose at their pleasure; they can choose or reject without reference to the interests or opinions of those affected.107 Power is used arbitrarily if, in republican theory, ‘not externally constrained by effective rules, procedures, or goals that are common knowledge to all persons or groups concerned’.108 Power exercised through law is arbitrary if it supports factions or interests and not overall ‘welfare or world view’.109 Domination can occur as a result of dependency, such as where substantial exit costs are a barrier.110 Manipulation usually threatens choice in covert and indirect ways, such as in deception or, common (p.63) in institutional contexts, the fixing of agendas to lock in agents to particular courses of action that are against their interests.111
In the context of international relations between states and the diffusion of neoliberal policies, ‘[i]nternational coercion occurs when powerful actors influence the policy choices of governments directly or when such actors alter the outcome of a domestic policy struggle by favouring the domestic coalition supporting a given policy’.112 Harold Lasswell and Abraham Kaplan similarly argue that coercion involves a ‘high degree of constraint and/or inducement’.113 Moreover, for participation in the international law of the global economy, no possibility of exit exists. There is simply no exit at all.
In far too many instances, powerful actors dominate to get what they want into international law.114 The concern is with the morally problematic exercise of power to produce legal rules that institutionalize or make legally permissible domination by high-income states over low-income states, or domination by transnational corporations over low-income states and their citizens. The reasons for states to commit to neoliberal policies in international treaties can fall into several categories and the categories are not mutually exclusive.115 Subtle forms of coercion need to be identified and understood. Poor states might accede to treaties that promote neoliberalism because they have limited or no real options and are desperate for capital.116 Ratifying BITs, for example, may be a strategy by a poor state to defect as an individual prisoner in a prisoners dilemma game from the common positions taken by similarly situated states about the New International Economic Order (NIEO) but with no intention to undermine the NIEO agenda.117 States (through their officials) may fear exclusion and loss of opportunity to join a legal regime at a time more appropriate for their economic conditions, a problem that Greece may have faced in the most recent eurozone crisis. The power disparities between the active agents of international treaty making and the mere passive recipients likely means a substantial bias in the content of the treaties in favour of the agents.118 Once a state commits to neoliberal policies, and other states reinforce these choices, neoliberal market norms repress change and attempts to alter the norms trigger negative consequences.119
(p.64) Once it is established that coercion may in some instances occur in the making of international economic agreements, we would then be in a position to critique the effects of that coercion on particular states. It was something of a common critique in earlier waves of legal scholarship about the Uruguay Round that the WTO and its agreements placed considerable constraints on the ability of states to regulate the environment, health and safety, and consumer protection in accordance with the widely held moral convictions of the citizens of the affected states.120 Before the Uruguay Round, the GATT primarily regulated border measures such as tariffs. The Uruguay Round brought non-tariff barriers into the WTO’s fullest purview, striking at the core of the regulatory state. Similar arguments can be made about intrusions by BITs. And, the global financial order as it is presently constructed likewise could be said to make substantial incursions into deciding national economic policy, the regulation of banks, and the distribution of burdens and benefits in the regulation of the banking and financial sectors. Neoliberal international arrangements have a way of replacing democratic deliberation. All of this forms part of the structural coercion coming from what is essentially mandatory participation in the global economy. It is doubtful that many weaker states really have a choice in whether to conform to the neoliberal agenda that has been at work in international law.
Some irony is in order when we see how coercion did not make it into the Vienna Convention on the Law of Treaties as a ground to void a treaty. Article 52 of the Vienna Convention provides that ‘[a] treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’.121 In the Vienna Convention negotiations of the late 1960s, there was considerable debate on whether Article 52 included economic and political forms of coercion.122 A proposal to include ‘economic and political pressure’ in Article 52 was introduced by former colonies that had recently acquired statehood at the time. The amendment could well have carried if put to a formal vote. As the American representatives record of the negotiations:
The course of the debate had made it clear that if the amendment were put to the vote it would carry by quite a substantial majority. On the other hand, in private discussions it had been made quite clear to the proponents that adoption could wreck the conference because states concerned with the stability of treaties found the proposal intolerable.123
(p.65) Olivier Corten explains in his commentary on Article 52 that ‘after several particularly powerful states had insinuated that the adoption of this amendment would jeopardize their signature of the Convention, the amendment was removed before being put to a vote’.124 The result was that the amendment has been characterized as ‘defeated’125 and the alternative was a non-binding ‘Declaration on the Prohibition of Military, Political or Economic Coercion’ condemning the threat or use of economic and political pressure.126 The position of powerful states to walk away from the Convention negotiations if they did not get their way on Article 52 is an example of coercion actually practised by states.
Finally, the moral disorder in international law identified in section 2.2 makes the coercion brought out in international treaty making ever more problematic. Unlike the coercive features of domestic law, international law takes on a far more arbitrary constellation of coercive features with no or insufficient connections to democratic deliberation, legislative processes in which legislators have an opportunity to balance competing interests, and in which the give and take of political accountability plays a role in mediating those interests. In short, power and coercion are much rawer and more immediate when exercised in international law.127
2.4 Historic wrongdoing
History has moral significance.128 We should not ignore the ‘violence, ruthlessness, and arrogance’ accompanying the disseminating of a European vision of international law, which effectively destroyed other forms of law and norms in the process.129 If we are to critique or justify principles of international law from a moral point of view, then we need to account for the wrongdoing that international law and its predecessors has justified for several centuries in the form of colonialism and imperialism or in what historian Sven Beckert calls ‘war capitalism’—international law’s historic wrongdoing—particularly when these wrongs do appear to continue to be reflected in international law. The focus is not only on the disadvantages that may or may not have resulted but also on the way international law has been on the wrong side of what is right, for the most part, and that international economic law continues to reflect that moral failure. To ignore the history of international law is to overlook how the past is reflected in present day international law. Ignoring history would put us at risk of masking deep-rooted problems that stubbornly persist into the present time, lead us to promoting a guise of neutrality (p.66) in the face of histories that have given peoples impaired starting points, and putting too much focus on simple fixes without an accounting for the past.
It is well accepted that historic wrongdoing is at least a contributing cause to global poverty and inequality and to difficulties that some states have in developing societies that give their citizens opportunities to realize their potential. Historic wrongdoing has detrimentally affected the qualities of institutions in a society, which in turn affects wealth, resources, opportunities, and life chances in a society.130 This is an argument that goes beyond endowment arguments in economics. Rather, it is that states may have differing endowments because of historic wrongdoing and that historic wrongdoing has been supported and facilitated by international law and its predecessors. As the chapters to follow show, international law continues to place undue priorities on the commercial interests of the powerful, carving up the world to their greater advantage, and feigning mutual gain as it did in the past.
As elaborated in section 2.1, historic wrongdoing has also contributed to an agency problem in international law. Some peoples have not been represented at the table in the formative stages of international law. Some of these were former colonies, who, with independence in post-war twentieth century, began to pursue the development of alternative legal principles, but these principles were rejected. This development is discussed in Chapter 3 (‘The End of Empire and the Search for Justice: NIEO and Beyond’).
There are two ways to understand historic wrongdoing, prospectively or retrospectively. To focus retrospectively is to focus on redress and rectification. Historic wrongdoing has brought about claims for redress, though these have had low levels of success in domestic societies and very limited success at the international level. Some of the principal difficulties in dealing with redress are causal and empirical and have to do with the allocations of moral and legal responsibilities on current generations for wrongs committed by or inflicted upon prior generations.131 To focus prospectively is to focus on the relationship of historic wrongdoing to international law today and to seek to change the law, so that its historical effects no longer maintain their normative force. These two ways of understanding the effects of historic wrongdoing are related in so far as a causal relationship exists between the development of international law and wealth and poverty through the ages. But that causal link aside, international law is implicated in a morally problematic history of gain by the powerful of the day and indeed, as studies have ably shown, has been shaped by past interventions. In significant ways, we have not shaken off that history. This book has a prospective focus, looking to history not to establish a legal mechanism for reparations but to critique international law for what it continues to be and for possible future reform.
The prior section offered reasons why international law is subject to the demands of justice. International law has no ‘out’ based on a claim that because it is not domestic law or governs what goes on inside national communities, it is excused from the requirements of justice. These claims have been shown to be untenable on both empirical and conceptual grounds. No sound reasons for a differentiated structure or an ‘inside–outside distinction’ requiring states to mandate justice only for its citizens and permitting the infliction of misery for everyone else outside its borders. This section will deal with the way forward: what the demands of justice require of international law. It moves justification of international law from one of interest and expedience based on order and power to one of morality based in justice. Rejected are the morally minimalist approaches the practical association conception entails for international law, effectively exempting state conduct from moral evaluation when it comes to markets and economics.
This section offers a brief sketch on how states have duties to improve the moral legitimacy of international law, originating in a right of justification that persons affected by international law hold. Agents to whom international law applies (usually and predominantly states) have what philosopher Stephen Darwall calls a second personal obligation to recognize and respect each person as a participant in the making, application, and enforcement of international law.132 ‘Second personal’ refers to a basic moral idea that legal rules must comply with moral duties owed between moral agents if they are to be morally legitimate. This right of justification exists because of the above relational, structural, dominating, and historic wrongdoing features of international law. These obligations lead to a set of moral principles, grounded in notions of impartiality and reasonable rejection, obligating states to improve the moral legitimacy of international law.
3.1 International law and ‘justification to’
International law as it currently stands is a moral failure. By its own structure and content, international law creates and maintains relationships with significant moral consequences. It is a shared institution affecting the life prospects of many, creating rights and liabilities, benefits, and burdens. It is no less consequential in doing these things than domestic law and in some cases more so. But as Forst, Hurrell, and Slaughter help us understand, there are in fact both makers and takers, agents and passive recipients of international law. These facts cast doubt on international law’s moral authority as it is made and practised. They infuse moral inequality into the structure of international law. The result is a failure of accountability of international law, a moral failure.
(p.68) These facts on the ground are the conditions we need to work with. The remedy is to get clear on how to make normative claims about these facts, in the form of moral claims relating to justice. Section 2 leads to the conclusion that persons affected by international law have a right of justification for the rights, liabilities, burdens, and benefits it allocates. These persons affected by international law therefore stand in an authority or accountability relation to the makers of international law. ‘Justification to’ is necessary to ensure that persons receive respect as agents in the international legal system, and not merely passive recipients of international law. Let us dissect the core claims at work here: right of justification, to each person, requiring respect as agents in the international legal system.
As for the right to justification, states have what is known in moral theory as a second personal obligation, resulting in a right of justification held by others.133 This move is necessary to understand international law as a system of governance supported by a right to govern. The right of justification requires that states justify the international legal rules they create and apply to persons affected by them. States are not in a position to reject the claim that the grounds elaborated in the previous section (relation, structure, domination, historical wrong) create the conditions for accountability between the creators of international law and those affected by international law. Those with substantial powers to generate social practices affecting and sometimes harming numerous others must justify these social practices to those affected or harmed. This is not about accountability in a domestic constitutional order within a state as in, for example, democratic accountability of government to citizens, but about moral accountability of the makers of international law to persons who are the subjects of regulation or affected by international law.
What is meant by second personal? Think of it as the circumstances in which a state is bound to accept a claim or demand for it to conduct its affairs in a certain way, based on an authority or accountability relationship between the state and the claimant. The state as addressee must accept the authority of the person making the claim or demand for second person obligations to work. An addressee who accepts that the addresser can make these second personal demands must also accept that the addresser has grounds to complain or to engage in some other accountability seeking action if the addressee fails to accept the demands. The addresser–addressee relationship is not limited to state and citizen. And it would be too simple to limit moral claims to state-to-state interaction, though our focus here is on the accountability of states, and indirectly, intergovernmental organizations, which are effectively agents of states. A proper addresser of moral claims might be a vulnerable population, group of persons, or community within a state, or the state itself, such (p.69) as in the case of a poor state suffering injustice because of predations by a former colonizing state.134
The second personal features of moral responsibility mean that each person is an agent deserving of respect. Duties are owed first and foremost to individual persons. All moral theory of whatever kind starts with the conception of the person and how persons are conceived determines the aims and methods of a moral theory. This is a feature that makes a theory a moral one. By ‘each person’ we refer to a standard moral understanding of a person not motivated only by their own concerns, but who as moral agents exercise capacities to be reasonable and not only capacities associated with means–ends rationality. An important feature of moral argument is that of impartiality, the notion that morally motivated persons, when engaged in moral reasoning, must necessarily do so from an impartial standpoint.135 To promote moral equality, this justification runs to each person affected by international law; it respects a basic ‘separateness of persons’ requirement common to contractualist and deontological forms of moral reasoning.136 It mandates no unreasonable burdens that persons should be required to accept when international law promotes economic globalization.
The separateness of persons requirements means that persons cannot be treated as means to ends that deviate from supporting their humanity. Each person is an end and are not to be treated as a means to some broader end or to serve the interests of the whole or a larger community. In moral theory, this means that aggregation is impermissible except in rare cases. This chapter does not offer a welfare-based account such as that found in normative welfare economics, but a contractualist account in which principles of justice might bar placing great burdens on a few to benefit the many. Aggregation is at the core of approaches to economic growth that can cause or contributed to the moral failures condemned in this book.
These requirements are not as demanding as they might seem at first blush. The ‘each person’ feature of moral deliberation must be brought to its logical conclusion. It also requires that persons not make unreasonable demands on states and other international actors. Properly articulated demands for justice, however, are not unreasonable. When the move is made to the non-ideal or legal context, in many cases the impacts of legal arrangements on classes or groups of similarly situated persons, such as farmers, steelworkers, debtors, households, and local communities, can be evaluated.
(p.70) Think of the respect owed to persons affected by international law along the lines of a categorical or master principle found in contractualism about the structure of moral argument.137 International law should reflect general principles for the regulation of the behaviour of states and others who are subject to international law’s reach that no one could reasonably reject.138 If some person could reasonably reject an international legal rule or set of rules intended to regulate trade, investment, or finance, then that rule or set of rules is unreasonable and should not be put in place or implemented. This standard gives primacy to impartiality, which becomes a standard also for the evaluation and development of law. As Mathew Adler explains, ‘[m]oral evaluation gives a central role (it not necessarily an exclusive role) to the interests of persons, more specifically human persons. Moral evaluation tries to achieve some kind of impartiality between persons.’139
How should states implement their responsibilities in meeting this basic right of justification? States with the requisite capacity have a duty to improve the moral legitimacy of international law. They need to deliver an international law which meets standards of moral justification, responsive to the grounds we have identified as generating claims of justice at the international level.
Various formulations of this basic duty of states have been developed. Dworkin offers a duty of states to improve the moral legitimacy of international law, to mitigate the moral defects in a system built around sovereign states, coupled with what he calls a principle of salience. Dworkin explains:
Coercive government (I include not just traditional ‘sovereign’ states but also any institution or organization claiming coercive authority) has a standing duty to improve its own legitimacy. Each traditional state therefore has a duty to pursue available means to mitigate the failures and risks of the sovereign-state system. That duty of mitigation provides the most general structural principle and interpretive background of international law.140
Dworkin’s principle of salience provides that if a number of states covering a significant population has reached agreement on some aspect of international law, other states have ‘at least a prima facie duty’ to agree to the development, subject to an ‘important proviso’ that the duty holds only if the development would improve the moral legitimacy of the subscribing state and the international order.141 Of course, Dworkin’s account presupposes a Westphalian system of sovereign states and as discussed in section 2, sovereignty can often mask serious moral problems for international law.
A potential problem with Dworkin’s account is that it may be too lax on demands on states. It is only a duty that specifies a procedure and not substantive rights or duties, and we are dealing with injustices of a very stark kind when it comes to international law. It tells us nothing about duties states and other international (p.71) actors may or may not have. It simply claims that states must pursue moral legitimacy in the development of international law.
Dworkin exempts the WTO and the European Union from these requirements, as he sees these institutions similar to ‘clubs’ with states expressly admitted to membership and ‘institutional procedures that cannot sensibly be used outside that club’.142 In other words, membership in these economic ‘clubs’ is voluntary. Dworkin’s exemptions are easily rejected. As argued throughout this book, the WTO and organizations like it are structurally coercive, offering a ‘take it or leave it’ structure for the basic international law of the global economy, which states cannot exempt themselves from without serious risk of being left out of the global economy. The mandatory features of membership, coupled with the substance of international economic agreements determined by the exercise of state power, require justification to those affected by these institutional features.
An example of second personal obligations at work can be found in Richard Miller’s account of advantage taking in the global economy. Miller has argued that governments, firms, and individuals in rich states take advantage of people in poor states in the processes of production, exchange, and finance and in the institutional framework regulating these processes. This advantage taking, says Miller, results in a duty of the rich to ‘give up consequent benefits’.143 To Miller, advantage taking occurs when the more well off derive benefits in advancing their own interests from the difficulties the less well-off encounter in interactions in which both participate, in a process showing inadequate regard for the equal moral importance of the other’s interests and their capacity for choice. According to Miller, in globalization contexts advantage taking arises in the presence of ‘bargaining weaknesses due to desperate neediness’.144 The concern here is in using another person’s weakness to get one’s way. Miller argues that these interactions requires justification but more than that the weaker party is simply better off. To bring this latter point home, consider a standard example of exploitation: A slave is better off if you increase her calorie count or provide better sleeping quarters, but she is still a slave. To deal with these moral failures, Miller offers a solution something like Dworkin’s though he makes no claims about the character of international law: the more well-off states should ‘support new measures that reasonable deliberations would yield’.145 For Miller, reasonable deliberations encompass ‘international responsibilities of good faith and domestic responsibility’.146 Good faith involves two kinds of reciprocity. First, ‘each must seek an arrangement that all can responsibly willingly accept, (p.72) provided that all of the others have corresponding commitments’.147 Second, ‘the representatives must observe reciprocity in their reasoning, backing their own proposals with morally relevant reason and giving weight, in proportion to seriousness, to relevantly similar reasons offered by others, so that the importance of a consideration is assessed by its strength rather than the identity of those affected by it’.148
The structure of both Dworkin’s salience and mitigation principles and Miller’s good faith reasonable deliberation principles are second personal, requiring those responsible for the making and enforcing of international law to treat all those affected by international law as agents.149 They and other similar accounts offer a framework in which to assess the conformity of international law to the moral requirements of ‘justification to’. They go to the reasons why international law may or may not have authority from a moral point of view to regulate the global economy.
What precisely are the demands of justice? Michael Walzer and Matthias Risse are right to argue that concepts of justice are pluralistic.150 Different principles of justice will apply in different contexts as they are presented in trade, investment, and finance contexts. That principles are pluralistic means that there might be different (p.73) principles at work in different contexts, not that no principles are at work at all or even anything as dogmatic that each situation requires a different principle. Some grouping of like contexts can be accomplished. Principles of justice can very generally be elucidated along lines consistent with the grounds for justice set forth in section 2, though applications should use those grounds as starting points and not as strict constraints.
In this book, there has been discussion of the misery that international law can and does inflict. Misery is a central organizing principle for the book. From the perspective of this chapter, an anti-misery principle could reflect a moral minimum. It is reasonable for a person to reject any legal arrangement for the global economy that would impose or perpetuate misery in her economic and social situation. What is misery? Our convictions might tell us that the concept might refer to impoverishment, great distress, discomfort, hardship, or suffering. An anti-misery principle would make morally objectionable any institutional arrangement that causes or contributes to these ills. To make an anti-misery principle sensible as a moral principle requires two restrictions. First, it would be too weak as a principle if it were the only moral principle relevant to the global economic order. Go back to the slave example. We can make a slave less miserable by increasing calorie intake or providing better sleeping quarters. These life improvements certainly do not eliminate misery or the moral wrong of slavery. Second, misery should be constrained by our master principle of reasonable rejection. Suppose a legal ordering causes hardship because it rectifies injustice, say of ill-gotten gains. Changes in the global financial architecture, for example, such as in the banning of particular kinds of speculation or leveraging in financial markets, might make people who have spent their lives as traders in capital markets suffer losses, or from their perspective make them miserable. But here we might argue that it is unreasonable to expect to profit from imposing misery on others and these traders have alternatives to making a good living in productive matters outside of these dangerous activities. In other words, it is unreasonable for these traders to believe they have been subjected to a form of misery in such cases.
Another basic principle of justice is Thomas Pogge’s negative duty not to harm principle.151 The basic idea behind Pogge’s anti-harm principle is that rich countries violate a negative duty not to harm by imposing a coercive institutional arrangement that systematically disadvantages poor countries and deprives persons in poor countries of security in access to the objects of their human rights.
Principles of justice that reflect relational or anti-domination rationales might reflect moral principles such as an equality promoting principle: international law should not create or perpetuate inequalities that cannot be morally justified. This principle could require a difference principle to apply to the making and interpretation of international agreements relating to the global economy.
What seems to be pervasively at work in the extreme version of capitalism operating in the global economy is a reverse difference principle. In practical politics, this has been referred to as a reverse Robin Hood principle.152 The reverse (p.74) difference principle in operation produces something like an accumulation by dispossession. David Harvey has argued that the international order has adhered to a neoliberal economic principle, which he calls accumulation by dispossession, the structuring of institutions so that the wealthy accumulate more wealth at the expense of the less well off.153 The result is a norm that is the opposite of a difference principle: a priority for the better off. It is an inequality aggravating principle. Trade agreements carve up markets; one of their primary features is that of distribution. They open markets for products for which powerful constituencies in powerful states have a comparative advantage, create comparative advantages for powerful constituencies, and protect markets in rich states from competition from producers in poor states. Investment agreements promote liberal investment protection regimes that alter the distribution of resources from poor host states to investors from rich states. Global finance offers examples of all sorts of accumulations by dispossession, with a global financial architecture that produces insecurity for millions yet producing few benefits. Human rights seek to protect people from the negative impacts of these regimes and the ideology that underpins them, but it is up against a ubiquitous foe.
Staggering inequalities in basic life chances are evident across and within countries. It is morally arbitrary that a person’s life chances are determined by the luck of being born in a particular country. To the extent that international law creates, exacerbates, or maintains such gross inequalities, it will need to be subject to an equality of opportunity principle. Such a principle might, for example, require that international law should neutralize bad brute luck, if that bad luck is best neutralized at the international and not the domestic level. For example, Chapter 4 describes a situation in which there are winners and losers in trade agreements. Trade agreements are good at compensating winners but bad at compensating losers. Their basic structure needs to change.
A freedom from domination or anti-alienation principle could be at work to evaluate international law from the standpoint of justice: international law should develop in a manner that does not challenge self-governance and self-determination of peoples and the autonomy of persons. Freedom from domination can serve as a complement to principles of equality, where persons can govern themselves based on principles and values they can reasonably endorse upon due reflection.154 The recent Greek referendum of 5 July 2015 is an example of a breach of this principle. In the referendum, Greek citizens overwhelmingly voted against economic austerity required by the bailout conditions proposed by the European Commission, the European Central Bank, and the IMF, yet these institutions insisted on them nevertheless, and the Greek government was left with little choice but to relent.155
(p.75) Closely related to a freedom from domination principle is an anti-coercion principle, which provides for the moral impermissibility of economic coercion by powerful states against weaker states in the making and interpretation of the international law governing the global economy. Coercion is a pervasive phenomenon that is core to the very structure of the international law governing the global economy.
The Introduction to this chapter quote’s Charles Mill’s argument that justice needs to be focused more on rectification in actual societies than on justice in ideal societies. Daniel Butt sets forth just such an argument, linking current generations in political communities to past wrongdoing by prior generations.156 Butt argues that three forms of connection are morally relevant for establishing a duty of rectification, running from developed to developing countries. The first connection is one of benefit: when a political community continues to benefit and another is burdened by historic injustice. The second connection is entitlement: when a community possesses property to which another is morally entitled. The third connection is responsibility, the case in which a political community is responsible for ongoing injustice that relates to a failure to comply with a duty of rectification over time. The history of trade and investment law show us that historic injustice is indeed at work in the global economy. And when we add the dire effects that historic injustices can have on the life chances of people, then it seems clear that international law must take rectification of historic injustice into account if it is to reflect basic precepts of moral accountability.
Ultimately the requirements for the moral acceptability of international law rests on the notion of whether international law supports the positive freedom of persons, which means a focus on whether international law contributes to or works toward eliminating poverty, alienation, exploitation, poor economic opportunities, deprivation, and other ills that are obstacles to human flourishing.157 It also requires that international human rights law play its role to prevent and redress harm and support civil and political participation.158 These matters require a focus not on economic growth, or at least not on economic growth alone, but on how economic growth is accomplished.
This book offers a critique of the structure and institutions of the global economy. Moving from critique to reform would lead to a focus on getting the law right in the first place rather than on leaving it in some morally unacceptable extreme capitalist form and attempting to redistribute through some sort of compensatory process, for which no adequate legal mechanisms in international sphere exist in any event. Critique of structure and institutions naturally lead to think about predistribution.159 The aim of predistribution is to make international law just in a structural sense, ex ante, so that the elements of international law relevant to the (p.76) global economy are designed to make it structurally impossible in a practical sense for injustice to exist in the global economy in any material sense. For example, if the focus is on domination in the global economy, the aim would be for international law to be structured to eliminate or, given the limitations of the law as an instrument to effectuate change, to make it exceedingly difficult for powerful actors to dominate in the global economy.160 The advantages of a predistribution approach are several. It supports a normative approach in which states and other global actors have duties to improve the moral legitimacy of international law. It deters agenda setting at the formative stage for international law, when powerful interests may attempt to grab whatever rents they can in the formulation of unjust international law. It eliminates the need for states to set up complex redistribution mechanisms. Tax and transfer mechanisms simply do not exist at the international level and they often work poorly even within states. It avoids the loss aversion problem, where people prefer to avoid losses than to acquire equivalent gains. Loss aversion reflects the insight that once something is given it is very difficult to take it away.161 Leaving in place an extreme version of capitalism and hoping for the best in some future redistribution is unrealistic at best. The bottom line is that dealing with justice at the level of international law naturally leads us to predistribution as the only feasible mode of change.
4. Concluding Remarks
This chapter sets forth a special kind of normative argument, a moral one, for why international law is subject to principles of justice when it operates in the areas of trade, investment, and finance. International law is subject to the demands of justice because of its role as an institution essential to global cooperation, because it intrudes far into the distributional issues linking closely to how people live their lives, because of its historic role in perpetuating and legitimizing moral wrongs, and because it can lead to domination and the deprivation of freedom if states and international organizations do not get it right. After elaborating these grounds, this chapter proceeds to a theory of justice for international law, based largely on the idea that these grounds produce moral accountability for international actors with the power and capacity to take corrective action and that this moral accountability must transpose into legal accountability for international law to make any legitimate appeal to those dictated by it to respect it. International law must meet (p.77) a standard of respect and ‘justification to’ each person, particularly those in weaker positions. International law cannot treat any person as only a passive recipient or supplicant to rules that benefit those in power or stronger positions. Justice is complex and different principles of justice apply in different contexts in the global economy. But as the following chapters will show, international law fails to comply with the demands of justice when it comes to international trade, foreign investment, and global finance, while the efforts of the human rights regime are bound up with this extreme capitalism, with grave consequences. Immiseration follows.
(1) Plato, ‘The Republic’ in JM Cooper (ed), Plato, Complete Works (Hackett 1997) 338c2–338c3.
(3) Thucydides, The History of the Peloponnesian War, ch XVII, the so-called ‘Melian Dialogue’. For a creative application of the Melian Dialogue to the Greek financial crisis in 2015, see R Zaretsky, ‘What Would Thucydides Say About the Crisis in Greece?’ New York Times (1 July 2015). Y Varoufakis made the phrase from Thucydides the title of his book on Greece and the eurozone Crisis, And The Weak Suffer What They Must?: Europe, Austerity and the Threat to Global Stability (Vintage 2017).
(5) J Rawls, Lectures on the History of Political Philosophy (Harvard UP 2007) 24.
(6) On the state of theories of global justice, see, eg, G Brock, ‘Theories of Global Justice’ in J Linarelli (ed), Research Handbook on Global Justice and International Economic Law (Edward Elgar 2013) 1.
(7) See H Bull, ‘The Importance of Grotius in the Study of International Relations’ in H Bull, B Kingsbury, and A Roberts (eds), Hugo Grotius and International Relations (OUP 1992) 65.
(8) R Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (OUP 2001) 82.
(9) See Chapter 3 (‘The End of Empire and the Search for Justice: NIEO and Beyond’), and for a discussion of these theories, see A Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2004) 35.
(10) A Hurrell, ‘International Law and the Changing Constitution of International Society’ in M Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (OUP 2001) 327, 334–36.
(11) M Sornarajah, ‘Power and Justice in International Law’ (1997) 1 Singapore Journal of International and Comparative Law 28; see also T Franck, The Power of Legitimacy Among Nations (OUP 1990); R Steinberg and JM Zasloff, ‘Power and International Law’ (2006) 100 AJIL 64.
(12) Much has been written on markets and institutions. For a compelling and recent explanation, see R Reich, Saving Capitalism: For the Many, Not the Few (Icon 2016) ch 1, ‘The Prevailing View’.
(13) Hypothetical thinking to develop normative standards is common in both law and philosophy. For examples in law, one only has to look to the substantial work on default rules. See, eg, I Ayres and R Gertner, ‘Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules’ (1989) 99 Yale Law Journal 87. In philosophy, hypothetical arguments are used in social contract theory, with a recent prominent example being Rawls’ use of the concept of the original position behind a veil of ignorance. J Rawls, A Theory of Justice (rev edn, Harvard UP 1999); J Rawls, The Law of Peoples (Harvard UP 2001) (international original position).
(14) When this pluralism is understood as claims about relativity and ethnocentricity, there is some reason to doubt its soundness. See J Griffin, On Human Rights (OUP 2008) ch 7.
(15) ‘Approximate justice’ is a phrase that philosopher George Sher has used to distinguish accounts of ideals about justice from accounts addressing problems of justice in non-ideal conditions of actual societies. G Sher, Approximate Justice: Studies in Ideal Theory (Rowman & Littlefield 1997).
(16) Though the constructivist approach to international relations is less hostile to international law. See SD Krasner, ‘International Law and International Relations: Together, Apart, Together?’ (2000) 1 Chicago Journal of International Law, Article 10.
(17) This proposition is reflected in the significant change in legal positivism from Austin’s sanction theory to Hart’s union of primary and secondary rules. See GJ Postema, Legal Philosophy in the Twentieth Century: The Common Law World, vol 11 (Springer 2011).
(19) This is so even though some cosmopolitans have sought to develop institutionally sensitive accounts. For more institutionally sensitive approaches, see C Barry and TW Pogge (eds), Global Institutions and Responsibilities (Blackwell 2005).
(20) G Yancy and C Mills, ‘Lost in Rawlsland’ New York Times (16 Nov 2014). Stanley Fish similarly argues:
But philosophy is not the name of, or the site of, thought generally; it is a special, insular form of thought and its propositions have weight and value only in the precincts of its game. Points are awarded in that game to the player who has the best argument going (‘best’ is a disciplinary judgment) for moral relativism or its opposite or some other position considered ‘major.’ When it’s not the game of philosophy that is being played, but some other—energy policy, trade policy, debt reduction, military strategy, domestic life—grand philosophical theses like ‘there are no moral absolutes’ or ‘yes there are’ will at best be rhetorical flourishes; they will not be genuine currency or do any decisive work.
In short, the conclusions reached in philosophical disquisitions do not travel. They do not travel into contexts that are not explicitly philosophical (as seminars, academic journals, and conferences are), and they do not even make their way into the non-philosophical lives of those who hold them.
S Fish, ‘Does Philosophy Matter?’ New York Times (1 Aug 2011).
(21) Rawls first made the ideal–non-ideal distinction in The Law of Peoples. Amartya Sen’s The Idea of Justice (Penguin 2010) is a substantial critique of ideal theory. See also J Tomasi, Free Market Fairness (Princeton UP 2012); D Estlund, ‘Just and Juster’ in D Sobel, P Vallentyne, and S Wall (eds), Oxford Studies in Political Philosophy Vol 2 (OUP 2016) 9; B Hendrix, ‘Where Should We Expect Social Change in Non-Ideal Theory?’ (2013) 41 Political Theory 116; P Gilabert, ‘Comparative Assessments of Justice, Political Feasibility, and Ideal Theory’ (2012) 15 Ethical Theory and Moral Practice 39; R Jubb, ‘Tragedies of Non-Ideal Theory’ (2012) 11 European Journal of Political Theory 229; D Wiens, ‘Prescribing Institutions without Ideal Theory’ (2012) 20 Journal of Political Philosophy 45; AJ Simmons, ‘Ideal and Nonideal Theory’ (2010) 38 Philosophy and Public Affairs 5; A Hamlin and Z Stemplowska, ‘Theory, Ideal Theory, and the Theory of Ideals’ (2012) 10 Political Studies Review 48; WA Galston, ‘Realism in Political Theory’ (2010) 9 European Journal of Political Theory 385; L Ypi, ‘On the Confusion between Ideal and Non-ideal in Recent Debates in Global Justice’ (2010) 58 Political Studies 536; L Valentini, ‘On the Apparent Paradox of Ideal Theory’ (2009) 17 Journal of Political Philosophy 332; P Gilabert, ‘Global Justice and Poverty Relief in Nonideal Circumstances’ (2008) 34 Social Theory and Practice 411; I Robeyns, ‘Ideal Theory in Theory and Practice’ (2008) 34 Social Theory and Practice 341; Z Stemplowska, ‘What’s Ideal about Ideal Theory?’ (2008) 34 Social Theory and Practice 319; A Swift, ‘The Value of Philosophy in Nonideal Circumstances’ (2008) 34 Social Theory and Practice 363; CW Mills, ‘ “Ideal Theory” as Ideology’ (2005) 20 Hyapatia 165; R Goodin, ‘Political Ideals and Political Practice’ (1995) 25 British Journal of Political Science 37; J Raikka, ‘The Feasibility Condition in Political Theory’ (1998) 6 Journal of Political Philosophy 27; O O’Neill, ‘Abstraction, Idealization and Ideology in Ethics’ (1987) 20 Royal Institute of Philosophy Series 55; M Phillips, ‘Reflections on the Transition from Ideal to Non-Ideal Theory’ (1985) 19 Nous 551.
(22) As explored in Chapter 7 (‘Human Rights’), obligations of international cooperation to the ends of socio-economic rights and people-centred development is a radical idea but it is precisely its radical prospects that have undermined its potential.
(23) M Koskenniemi, The Politics of International Law (Hart 2011) 209; see also ‘What Is International Law For?’ in MD Evans (ed), International Law (3rd edn, OUP 2010) 32–57, 33.
(25) A Cassese, International Law (OUP 2005) 46.
(28) See R Dworkin, ‘A New Philosophy for International Law’ (2013) 41 Philosophy and Public Affairs 2, 3–10.
(29) See B Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599.
(30) T Nardin, Law, Morality and the Relations of States (Princeton UP 1983); see also SR Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP 2015) 31.
(36) T Nardin, ‘International Ethics and International Law’ (1992) 18 Review of International Studies 19.
(39) CR Beitz, Political Theory and International Relations (Princeton UP 1979) 151.
(42) ibid. Frank Garcia draws our attention to this as well. FJ Garcia, Global Justice and International Economic Law: Three Takes (CUP 2013) 62. Ratner argues that 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)’ (n 30) 33. Ratner cites A Buchanan, ‘Rawls’s Law of Peoples: Rules for a Vanished Westphalian World’ (2000) 111 Ethics 697.
(44) J Rawls, Political Liberalism (2nd edn, Columbia UP 2005) 10–11.
(45) T Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113, 114.
(46) A stark example of the divide can be found in the work of Michael Walzer. He has argued that political theory must be grounded in the traditions and culture of particular societies and egalitarian forms of justice are morally relevant only within states. For Walzer:
The only plausible alternative to the political community is humanity itself, the society of nations, the entire globe. But were we able to take the globe as our setting, we would have to imagine what does not yet exist: a community that included all men and women everywhere. We would have to invent a set of common meanings for these people, avoiding if we could the stipulation of our own values. And we would have to ask the members of this hypothetical community (or their hypothetical representatives) to agree among themselves on what distributive arrangements and patterns of conversion are to count as just … But whatever the hypothetical agreement, it could not be enforced without breaking the political monopolies of existing states and centralizing power at the global level. Hence the agreement (or the enforcement) would make not for complex but for simple equality—if power was dominant and widely shared—or simply for tyranny—if power was seized, as it probably would be, by a set of international bureaucrats.
M Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic 1984) 29–30. He continues:
The idea of distributive justice presupposes a bounded world within which distribution takes place: a group of people committed to dividing, exchanging, and sharing social goods, first of all among themselves. That world … is a political community, whose members distribute power to one another and avoid, if they possibly can, sharing it with anyone else. When we think about distributive justice, we think about independent cities or countries capable of arranging their own patterns of division and exchange, justly or unjustly.
ibid 31. Walzer’s theory of complex equality provides that egalitarian justice cannot be determined by a single criterion or set of primary goods, but rather it demands that each good be distributed according to its social meaning. For Walzer, equality in political communities is complex, which means that it is about a diversity of social goods distributed through a number of different distributive procedures and that no good (like money or political power) should distort the distribution of goods in other spheres. See also C Kukathas, ‘The Mirage of Global Justice’ in E Frankel Paul, FD Miller, and J Paul (eds), Justice and Global Politics (CUP 2006).
(49) ibid. Nagel quotes Dworkin: ‘A political community that exercises dominion over its own citizens, and demands from them allegiance and obedience to its laws, must take up an impartial, objective attitude toward them all, and each of its citizens enact laws and for governmental policies, with that responsibility in mind. Equal concern … is the special and indispensable virtue of sovereigns.’ R Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard UP 2000) 120–21.
(55) B Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton UP 2005) 3.
(56) T Hobbes, Leviathan (CB McPherson ed, Penguin 1968) 189.
(59) IM Young, Responsibility for Justice (OUP 2011) 123.
(60) For republican-centred accounts about international law, see the contributions in section C on republican international law in S Besson and JL Martí (eds), Legal Republicanism: National and International Perspectives (OUP 2009).
(61) L Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (OUP 2016) offers a recent account of these practices.
(62) See M Blake, ‘Coercion and Egalitarian Justice’ (2011) 94 The Monist 555.
(66) M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP 2001) 209–10.
(67) S Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton UP 2006) 230–71.
(68) J Cohen and C Sabel, ‘Extra Rempublicam Nulla Justitia? (2006) 34 Philosophy and Public Affairs 147, 171 (‘But in fact the WTO anticipates that trade rules will frequently conflict with, and need to be modified to accommodate, a wide range of normative concerns embodied in the domestic laws and regulations of those trading in world markets’).
(69) See ME Salomon, ‘Of Austerity, Human Rights and International Institutions’ (2015) 21 European Law Journal 521; CD Zimmerman, A Contemporary Concept of Monetary Sovereignty (OUP 2013); CD Zimmerman, ‘The Concept of Monetary Sovereignty Revisited’ (2013) 24 EJIL 797; RP Buckley, ‘The Direct Contribution of the International Financial System to Global Poverty’ in KN Schefer (ed), Poverty in the International Economic Legal System (CUP 2013) 278; AF Lowenfeld, ‘The International Monetary System and the Erosion of Sovereignty: Essay in Honor of Cynthia Lichtenstein’ (2002) 25 Boston College International and Comparative Law Review 257.
(70) A James, Fairness in Practice: A Social Contract for a Global Economy (OUP 2012) 17; cf S Loriaux and A Herwig, ‘International Trade, Fairness, and Labour Migration’ (2014) 1 Moral Philosophy and Politics 1.
(72) W Friedmann, The Changing Structure of International Law (Columbia UP 1964) vii. Joel Trachtman brings Friedmann into the twenty-first century in The Future of International Law, examining areas of regulation that will need a denser, thicker international law of regulation to deal with complex problems demanding interstate cooperation. JP Trachtman, The Future of International Law: Global Government (CUP 2013).
(75) An example with potentially significant consequences for internal regulation within both the United States and the European Union is the proposed Transatlantic Trade and Investment Partnership. See SI Akhtar and VC Jones, Proposed Transatlantic Trade and Investment Partnership (TTIP): In Brief (Congressional Research Service 2014). The authors state:
Regulatory issues are widely regarded by many stakeholders as the core of the T-TIP negotiations, potentially ‘making or breaking’ the agreement. Key sectors of interest include automobiles, chemicals, cosmetics, information communication technologies, medical devices, pesticides, and pharmaceuticals. Economic gains from greater regulatory coherence and compatibility could be significant. At the same time, there is debate about whether a comprehensive agreement on regulatory issues can be reached. First, the United States and EU have been communicating on various regulatory differences for some time, and although many have been resolved, a number of seemingly intractable issues remain. Second, some of the regulatory differences relate to divergent public preferences and values. (p 7)
See also European Commission, Detailed Explanation on the EU Proposal for a Chapter on Regulatory Cooperation (6 May 2015). The EU’s Textual Proposal was tabled in negotiations with the United States on 2–6 Feb 2015. See generally D Vogel and JFM Swinnen, Transatlantic Regulatory Cooperation: The Shifting Roles of the EU, the US and California (Edward Elgar 2011).
(77) AM Slaughter, A New World Order (Princeton UP 2004) 227.
(79) R Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (Columbia UP 2007).
(81) M Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015) 13–14 (‘Developing states signed BITs and other investment treaties but ‘seldom understood the nuances of the treaties they adopted’); see also LN Skovegaard Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (CUP 2015).
(82) To the extent that the literature on signalling is in political economy and law and economics, it focuses mainly on treaty ‘compliance’ but this literature does not make a clear distinction between complying with a treaty and entering one. See AT Guzman, ‘Reputation and International Law’ (2006) 34 Georgia Journal of International and Comparative Law 379; AT Guzman, ‘A Compliance Based Theory of International Law’ (2002) 90 California Law Review 1823; GW Downs and MA Jones, ‘Reputation, Compliance, and International Law’ (2002) 31 Journal of Legal Studies S94. For relevant work not in political economy or law and economics, see G Van Harten, ‘Five Justifications for Investment Treaties: A Critical Discussion’ (2010) 2 Trade Law and Development 19.
(83) B Simmons, F Dobbin, and G Garrett (eds), The Global Diffusion of Markets and Democracy (CUP 2007).
(84) See AH Amsdan, A Di Caprio, and JA Robinson (eds), The Role of Elites in Economic Development (OUP 2012).
(85) C Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2nd edn, CUP 2015).
(88) See ‘The Transatlantic Trade and Investment Partnership (TTIP)—State of Play’ (27 Apr 2016), http://trade.ec.europa.eu/doclib/docs/2016/april/tradoc_154477.pdf.
(90) D Acemoglu, JA Robinson, and T Verdier, ‘Can’t We All Be More Like Scandinavians? Asymmetric Growth and Institutions in an Interdependent World’ National Bureau of Economic Research Working Paper No 18441 (Oct 2012), Massachusetts Institute of Technology Department of Economics Working Paper No 12–22 (Aug 2012). For a summary of some of the controversial issues this paper raises, see TB Edsall, ‘Why Can’t America Be Sweden?’ New York Times (29 May 2013).
(94) IM Young, ‘Responsibility and Global Justice: A Social Connection Model’ (2006) 23 Social Philosophy and Policy 102, 114. Young is perhaps the most influential source for theories of structural injustice. See IM Young (n 59).
(95) CE Lindblom, ‘The Market as Prison’ (1982) 44 Journal of Politics 324.
(96) See M Koskenniem et al, Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, International Law Commission, 58th session, General Assembly, A/CN.4/L.682, 13 Apr 2006. As Chin Lim and Bryan Mercurio explain:
As international economic lawyers know, this Bretton Woods ‘system’ evolved over several decades during the second half of the twentieth century, and in many ways is unrecognisable today from what had been envisaged during the post-war years. These changes, and others, have given rise to what we see now as a fragmented discipline of international economic law—a system whereby trade, investment, monetary and exchange rate cooperation, financial regulation, intellectual property (IP) protection, the regulation of trade in goods and the trade in services, and international development law have evolved away from an initially coherent Bretton Woods design. This, in turn, produced a multiplicity of norms which are not always easy bedfellows, a plurality of international institutions, and in some cases global norms of a different kind altogether—namely, certain norms which are characterised by the total absence of formal institutional anchorage.
CL Lim and B Mercurio, ‘The Fragmented Disciplines of International Economic Law After the Global Financial and Economic Crisis: An Introduction’ in CL Lim and B Mercurio (eds), International Economic Law After the Global Crisis: A Tale of Fragmented Disciplines (CUP 2015) 5.
(98) P Pettit, Republicanism (OUP 1997) 52.
(99) C Saenz, ‘Republicanism: An Unattractive Version of Liberalism’ (2008) 7 Ethics 267.
(101) Because we do not provide a full-blown republican account, no position is taken on whether domination is a moral wrong in a deontological or consequentialist sense. The most prominent proponents of republicanism offer a consequentialist version and hence seek to minimize domination. See ibid. What should be apparent is that the approach of this chapter is contractualist.
Frank Garcia refers to domination in the form of a lack of real consent to economic treaties by vulnerable states as ‘transactional’ as opposed to ‘relational’ and this characterization nicely distinguishes this ground for justice from the prior ground of shared practices and institutions. Garcia (n 42) 265–66.
(102) As covered briefly in section 1, some political philosophers have argued no duties of justice can exist only in the presence of a coercive legal system. They argue that domestic law is either more coercive than international law or that domestic law is coercive and international law is not. Nagel (n 45); Blake (n 62); M Blake, Justice and Foreign Policy (OUP 2013); M Blake, ‘Distributive Justice, State Coercion, and Autonomy’ (2001) 30 Philosophy and Public Affairs 257. They argue that the ‘shared liability’ of a system of coercive laws with courts of compulsory jurisdiction makes for the application of robust demands for distributive justice within states. Blake (n 102, Justice and Foreign Policy) 97; M Blake, ‘International Law and Global Justice’ in A Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012) 335. In effect, equality is the ‘price’ paid for the coercive features of domestic law, or in the language of philosophy, a justification of that coercion. Put simply, the coercive effects of domestic law either result in or contribute to socially produced inequalities or make worse natural inequalities, and these inequalities must be neutralized if society is to be just. They also argue that international law does not have these qualities. Rebutting these arguments is unnecessary in this chapter because more compelling grounds are present than looking to the formal coercive elements of a legal system. These arguments are, however, wrong. International law is coercive from a legal point of view. A mistake in analytical legal philosophy seems to have made its way into normative political philosophy. The argument seems to be that because international law lacks the particular institutional features of domestic law, it is somehow deficient or even lacks standing as law. J Waldron, ‘International Law: A “Relatively Small and Unimportant” Part of Jurisprudence?’ in L Duarte D’Almeida, J Edwards, and A Dolcetti (eds), Reading HLA Hart’s ‘The Concept of Law’ (Hart 2013) 209. These arguments look only to international law in the form of an old-fashioned classical international law of coexistence. Their focus is on the positive law features of coercion from the standpoint of a judicial process, the paradigmatic case of a domestic court with compulsory jurisdiction. It is an incomplete approach to understanding the law.
While international tribunals might not resemble domestic courts in many respects they certainly have evolved beyond the primitive stages when international law was primarily about coexistence and diplomacy was the order of the day. ICSID awards in international investment law are directly coercive. They can be enforced by domestic courts and grounds to overturn are extremely limited. Article 54(1) of the ICSID Convention requires contracting states to recognize an ICSID award ‘as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State’. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 17 UST 1270, TIAS 6090, 575 UNTS 159 (1965) (emphasis added). What was new in the Uruguay Round is now old news: the rules governing international trade, including those on dispute settlement, have moved from the norms of diplomats to the rules of lawyers, to what is known as ‘trade legalism’. GR Shell, ‘Trade Legalism and International Relations Theory’ (1995) 44 Duke Law Journal 829. The ultimate remedy in WTO dispute settlement, undertaken when the parties cannot agree compensation or other arrangement is suspension of concessions, which are put in place against the will of the respondent (and which poorer countries cannot avail themselves of). International tribunals both have and claim coercive authority in a way that matters for justice.
(103) See R Nozick, ‘Coercion’ in S Morganbesser, P Suppes, and M White (eds), Philosophy, Science, and Method: Essays in Honour of Ernst Nagel (St Martin’s Press 1969) 440.
(104) RA Dahl, ‘The Concept of Power’ (1957) 2 Behavioral Science 201, 202–03.
(106) A Wertheimer, Coercion (Princeton UP 2014).
(108) F Lovett, A General Theory of Domination and Justice (OUP 2010) 96.
(111) Manipulation is ‘usually covert and may take the form of agenda fixing, the deceptive or non-rational shaping of people’s beliefs or desires, or the rigging of the consequences of people’s actions’. Pettit (n 98) 53.
(112) WJ Henisz, BA Zelner, and MF Guillén, ‘International Coercion, Emulation and Policy Diffusion: Market-Oriented Infrastructure Reforms’ (2005) 70 American Sociological Review 871.
(113) HD Lasswell and A Kaplan, Power and Society: A Framework for Political Inquiry (Yale UP 1950) 97–98.
(114) These issues have also been discussed in section 2.1 in the context of makers versus takers or agents versus recipients.
(116) L Gruber, Ruling the World: Power Politics and the Rise of Supranational Institutions (Princeton UP 2000); AT Guzman, ‘Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties’ (1998) 38 Virginia Journal of International Law 639.
(120) See JP Trachtman, The International Economic Law Revolution and the Right to Regulate (Cameron May 2005); RH Wade, ‘What Strategies Are Viable for Developing Countries Today: The World Trade Organization and the Shrinking of “Development Space” ’ (2003) 10 Review of International Political Economy 621; R Howse, ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization’ (2000) 98 Michigan Law Review 2329.
(121) Vienna Convention on the Law of Treaties, Art 52, 1155 United Nations Treaty Series 331, entered into force 27 Jan 1980.
(122) See O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (OUP 2011).
(123) RD Kearney and RE Dalton ‘The Treaty on Treaties’ (1970) 64 AJIL 495, 533–35 (citations omitted).
(125) JE Alvarez, ‘A Bit on Custom’ (2009) 42 NYU Journal of International Law and Politics 17, 38 n 79.
(128) D Butt, Rectifying International Injustice: Principles of Compensation and Restitution Between Nations (OUP 2009).
(129) B Fassbender and A Peters, ‘Introduction: Towards a Global History of International Law’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) 2.
(130) These findings can be found in the law and development literature and in the literature on the role of institutions in development. See, eg, MJ Trebilcock and M Mota Prado, Advanced Introduction to Law and Development (Edward Elgar 2014); D Acemoglu and J Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (Profile 2013).
(132) S Darwall, The Second Person Standpoint (Harvard UP 2006).
(133) See Forst (n 79); Darwall (n 132). Darwall’s discussion of a second personal obligation does not address its relevance to law. It is meta-ethics; it is about the form of moral argument. This is what makes it important for us, because it informs us about how the basic structure of moral obligation operates. Darwall has himself developed some domestic legal applications. S Darwall, Morality, Authority, and Law: Essays in Second-Personal Ethics (OUP 2013). Moreover, Darwall claims the second personal is a foundation for contractualism and there are forms of contractualism that deal with law and institutions.
(134) Examining the issues from a positive law standpoint, international human rights law remains extremely limited in its ability to apply to issues of poverty, inequality, and immiseration when the source of the violation is a state other than the right-holders own. See ME Salomon, ‘Deprivation, Causation and the Law of International Cooperation’ in M Langford, M Scheinin, W van Genugten, and W Vandenhole (eds), Global Justice, State Duties: The Extra-Territorial Scope of Economic, Social and Cultural Rights in International Law (CUP 2013) 259, 288–95 and A Khalfan, ‘Accountability Mechanisms’ ibid 391. As for the human rights accountability of international organizations, it is inchoate, as it has been for decades.
(135) For discussions of the role of impartiality in moral reasoning, see B Barry, Justice as Impartiality (OUP 1995); MD Adler, Well-Being and Fair Distribution: Beyond Cost Benefit Analysis (OUP 2012) ch 1.
(137) TM Scanlon, What We Owe to Each Other (Harvard UP 1998).
(138) This is a well-understood contractualist form of moral argument, adapted to evaluate legal principles on moral grounds. See Darwall (n 133); TM Scanlon, The Difficulty of Tolerance: Essays in Political Philosophy (CUP 2009).
(143) RW Miller, Globalizing Justice: The Ethics of Poverty and Power (OUP 2010) 59.
In addition to their international responsibilities, states have domestic responsibilities. Says Miller: ‘the representatives have to fulfil their responsibilities to those they represent. They can only accept outcomes that they can justify to their own people in terms that those people can accept while regarding their interests and autonomy as no less important than others’ (ibid 72). There are two parallel sets of obligations at work—one of the state to its citizens and the other to agents outside of the state. This parallelism means that states have to take their domestic obligations into account when deliberating on their international obligations. They cannot, for example, impose unreasonable burdens on their own citizens in discharging their international obligations.
(149) We are beginning to see strategies for a moralized conception of international law at work, though we are in early stages, and it is up to governments to take the initiative. An example of how to get out of the Thrasymachian trap can be found in Lim’s recent work on global trade and monetary cooperation. Writing on the context of China’s currency manipulation and the range of responses the United States could take, Lim explains:
International economic lawyers have … tended to focus their writings on what the rules say. To the extent that they find the rules uncertain, these writings underscore the apparent permissibility of the PBC’s [People’s Bank of China’s] policies and also the fact that unilateral action by China’s trading partners may be permissible where such action doesn’t contravene the rules. International lawyers routinely ‘tolerate’ unilateral, sovereign action in such a manner where, as here, our fragmented legal regimes—the WTO and the IMF—are incapable of providing practical guidance. ‘Tolerance’ may not be the exact word. I use it here only to denote professional acceptance of the limits of legal rules, and—as I shall argue further below—acceptance that there are ‘gaps’ in the law where specific issues fall through the cracks between the fragmented, yet sometimes overlapping, regimes which characterize the discipline of international economic law.
CL Lim, ‘ “The Law Works Itself Pure”: The Fragmented Disciplines of Global Trade and Monetary Cooperation, and the Chinese Currency Problem’ in Lim and Mercurio (n 96) 134, 137. Lim argues that these gaps have to be filled using moral judgment. He says: ‘[F]ragmentation and the absence of adequate global rules do not mean a regulatory free-for-all’ (ibid 136). So, no Hobbesian gladiators but rather something in the character of a jus gentium, or perhaps more accurately a combination of moral judgment and positive law: ‘In this sense, the debate is as old as that between the natural lawyers who would not confine all that we would call “law” to that which may be traced to the voluntary consent of sovereigns to international rules, and so-called legal positivists, who would’ (ibid 137–38).
(153) D Harvey, The New Imperialism (OUP 2005) 137–82.
(154) See E Anderson, Value in Ethics and Economics (Harvard UP 1993) 142.
(157) While Amartya Sen does not deal with international law his work deals with these issues. A Sen, Development as Freedom (Anchor 1999).
(159) For what is probably the first book-length treatment of predistribution, see A Thomas, Republic of Equals: Predistribution and Property-Owning Democracy (OUP 2017). The origin of the concept has been credited to Jacob Hacker. See JS Hacker, Winner Take All Politics (Simon & Schuster 2011); JS Hacker, ‘The Institutional Foundations of Middle-Class Democracy’ (Progressive Governance conference, May 2011, Oslo).
(161) See D Kahneman and A Tversky, ‘Choices, Values, and Frames’ (1984) 34 American Psychologist 341.