法学资料集（英文）：国际法是否公平

Is International Law Impartial? Steven R. Ratner ? The last decade has seen a resurgence of interest among philosophers in the core questions of ethics and justice on the international plane. Issues once discussed primarily in the response to the major global debates of the 1960s and 1970s – the Vietnam War and the North-South economic imbalance – have returned to the domain of philosophers. This engagement has taken place in two distinct, but related, debates. First, philosophers have devoted considerable attention to the ethical significance of nationality and patriotism, asking whether an impartial morality permits some disparate treatment of an individual’s co-nationals. These questions are not new, of course, having been raised in important earlier works by Alisdair MacIntyre, Peter Singer, Andrew Oldenquist, and others. Second, scholars have revisited issues of international justice in great detail, including works on human rights as well as just war theory. These works ask, as Brian Barry put it, “given a world that is made up of states, what is the morally permissible range of diversity among them?” 1 One impetus for renewed work on these ideas – which again were the subject of major works by Charles Beitz, Terry Nardin, and others – was the publication of John Rawls’ The Law of Peoples. While in many ways asking and answering different questions, these two bodies of work are related in that they focus on what constitutes a just world, and what role the ? Professor of Law, University of Michigan Law School. I greatly appreciate comments from Eyal Benvenisti, Allen Buchanan, John Deigh, Brian Leiter, and David Wippman. 1 Brian Barry, International Society from a Cosmopolitan Perspective, in INTERNATIONAL SOCIETY: DIVERSE ETHICAL PERSPECTIVES 144, 154 (David R. Mapel & Terry Nardin eds, 1998). 2 individual should play in furthering it. They correspond, in rough terms, to the interactional vs. institutional conceptions of morality and justice identified by Thomas Pogge. 2 That is, works on the ethical significance of nationality tend to focus on moral conduct of the individual; works on international justice tend to focus on inter-state arrangements that promote a particular version of such moral conduct. Theorizing about transnational duties must, however, take proper account of the structure of the international legal order. As Rawls recognized, in order to propose a “realistic utopia” for the world, we must “proceed[] from the international political world as we see it.” 3 In other words, let us ask about the moral character of the existing legal order before we propose changes to it. International lawyers analyze and seek the construction of an international order with a normative component, and the norms and processes that they study and appraise, just like those of the domestic legal system, cannot be set aside in asking about personal duties and justice. Such attention is key not only to making international ethics stronger within philosophy, but equally important, to making it convincing to those concerned with operationalizing ethical theory -- political scientists, legal academics, governmental and non-governmental elites, and the educated public. As recently noted by Allen Buchanan and David Golove (a rare pairing of a philosopher and international lawyer): Too often it is assumed that the effects of attempting to institutionalize these principles [favored by philosophers] . . . are wholly irrelevant to the task of justifying them. The result . . . is that principles are endorsed which are not suitable for institutionalization because they are inconsistent with existing 2 Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 50-52 (1992); see also Barry, supra note 1, at 144-45. 3 JOHN RAWLS, THE LAW OF PEOPLES 83 (1999). 3 institutional arrangements whose abandonment would be morally prohibitive . . . or because institutionalizing them would generate incentives that undermine the realization of other important goals.” 4 The result can be seen in the predilection of cosmopolitan ethicists to condemn aspects of the international legal order without examining whether those aspects have an underlying moral basis. This shortcoming is apparent in works on redistributive justice (the bulk of work a generation ago) as well as on human rights (the more common concern recently). Even when political and moral philosophers purport to take account explicitly of the structure of the international legal order, their vision is often limited, misconceived, or anachronistic. In particular, customary international law, the law that emerges as states accept a repeated practice as legally required, is sometimes described as if nothing had happened in the field in the last 60 years. For instance, David Mapel has written that “under customary international law each state has a right to order its own domestic affairs as it sees fit,” 5 a position at odds with developments in international human rights, international environmental law, and even much older principles like a state’s responsibilities to protect aliens on its territory from mistreatment (unless Mapel is limiting the meaning of “domestic” to the point where the statement is a tautology). More recently, Eric Cavallero wrote in these pages that “states enjoy the sovereign power to undertake policies that can impose detrimental externalities on those outside their borders,” an assertion inconsistent with international environmental law as manifested in numerous 4 Allen Buchanan & David Golove, Philosophy of International Law in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 869, 870 (Jules Coleman and Scott Shapiro eds., 2002). See also Andrew Hurrell, Norms and Ethics in International Relations, in HANDBOOK OF INTERNATIONAL RELATIONS 137, 139-41 (Walter Calsnaes, Thomas Risse and Beth Simmons eds., 2002). 5 David R. Mapel, Justice, Diversity, and Law, in INTERNATIONAL SOCIETY, supra note 1, at 242, 250. 4 treaties on pollution as well as a bedrock principle of customary environmental law regarding transboundary activities. 6 Most tellingly, Rawls in The Law of Peoples grounds much of his work on an unargued summary of international law based on a selective reading of a 40-year old treatise. 7 These “familiar and traditional principles of justice among free and democratic peoples,” as he calls them, gloss over some of the most important issues in international law, including the centrality of states to the international legal order, the increased role of individuals as holders of rights and duties, and the norms for participation by “peoples” (his principal subject of the law) in international society. International law cannot be ignored or misconstrued by those engaging in international ethical discourse, whether interactional or institutional. As Andrew Hurrell has put it, “the ethical claims of international law rest on the contention that it is the only set of globally institutionalized processes by which norms can be negotiated on the basis of dialogue and consent, rather than being simply imposed by the powerful. . . . The unavoidability of process again separates law as an ethical enterprise from other forms of normative inquiry and debate.” 8 How to describe and appraise international law -- both its norms and its processes for resolving competing claims -- in a way that contributes to 6 Eric Cavallero, Popular Sovereignty and the Law of Peoples, 9 LEG. THEORY 181, 198 (2002). See also infra note 75 (on Stockholm Declaration principles). Later, he writes that international law “should recognize” a set of political freedoms meant to instantiate deliberativeness, such as freedom of speech, assembly, and mobility, id at 200, 192, when in fact nearly every international lawyer would say it already does. 7 See the critique of Rawls in FERNANDO TESON, A THEORY OF INTERNATIONAL LAW (1998). 8 Andrew Hurrell, International Law and the Making and Unmaking of Boundaries, in STATES, NATIONS, AND BORDERS: THE ETHICS OF MAKING BOUNDARIES 275, 277-78 (Allen Buchanan & Margaret Moore eds., 2003). 5 debates among philosophers presents a challenge for both the international lawyer and the philosopher. Indeed, the fault lies not only with moral and political philosophy. Relatively few in writing in international jurisprudence – Fernando Teson, Martti Koskenniemi, and Hurrell are among the handful – have sought to bridge the gap between the disciplines. This tendency remains despite the frequency with which international legal theorists write about legitimacy or justice. I hasten to add, with regret, that even fewer in mainstream jurisprudence have taken on this task. Instead, following Hart’s example in The Concept of Law, they have mostly confined themselves to the ontological questions about whether international law is “really law,” an issue fine for an introductory international law class but past which international law scholars (and practitioners) moved long ago. This paper thus offers one approach to bring international legal theory and moral and political philosophy together. It analyzes the ethics of international law by casting it as a system of general and special duties, with particular attention to the latter as understood in debates over impartiality in moral philosophy. It does so on the understanding that making a just world under law turns on (1) whether relevant international actors should owe the same or different duties to all other such actors and (2) whether the international system is constructed according to some coherent vision of this problem. What emerges is a set of spheres of general and special duties, and special duties to vastly different sets of actors. The patterns suggest that certain ways of morally justifying those special duties are more persuasive than others; indeed, I believe any special duties can and should be justified from an impartialist perspective. My goals, then, are three-fold: first, to place the basic norms of international law within a structure of 6 duties that is both meaningful to philosophers and fairly reflects contemporary developments in the field; second, to explain how those duties are consistent with an impartialist perspective on ethics (though not any particular impartialist theory); and third, to demonstrate the analytical advantages of this construct for the understanding of international ethics, including by demonstrating the shortcomings of other approaches to the subject. In Part I, I explain the advantages of constructing international law in terms of general and special duties by situating those duties within current debates among moral and political philosophers. In Part II, I rather quickly identify the principal actors in international law and the fundamental claims and counterclaims of each that the international legal process seeks to resolve. This task permits identification of the dutyholders and, as a general matter, to whom their duties extend. Part III then organizes the most significant obligations in international law into general duties and various sorts of special duties; it also offers a vision of these duties as impartial in nature. In Part IV, I offer a critique of two main approaches to international justice. I conclude with some reflections for further work in the area. I. Situating General and Special Duties Why view general vs. special duties as the most – or, at a minimum, a particularly - - significant organizing principle of international law? My justification lies in philosophical work on these questions that both highlights the importance of such concerns for ethics and demonstrates their relevance to international law. These debates, in turn, will benefit from an analysis of such duties. 7 Any discussion of general and special duties should begin with H.L.A. Hart’s 1955 essay, Are There Any Natural Rights? 9 Hart made two key insights relevant for my analysis. First, he distinguished between someone who holds a right corresponding to another’s duty and someone who is the beneficiary of that duty. Hart pointed out the obvious case of two people who agree that in exchange for a favor or payment by one to another, the latter will look after the first’s aged mother; the mother is the beneficiary of the second person’s duty, but does not herself have a right to the care. As Hart notes, “while the person who stands to benefit by the performance of the duty is discovered by considering what will happen if the duty is not performed, the person who has the right . . . is discovered by examining the transaction or antecedent situation or relations of the parties out of which the ‘duty’ arises.” 10 I will return later to this important distinction insofar as it helps us understand international legal duties. Second, and most pertinent for now, Hart introduced the notion of special and general rights. Special rights “arise out of special transactions between individuals or out of some special relationship in which they stand to each other;” thus “the persons who have the right and those who have the corresponding obligation are limited to the parties to the special transaction or relationship.” 11 General rights “are rights which all men capable of choice have in the absence of those special conditions which give rise to special rights [, with] correlative obligations . . . to which everyone else is subject and not merely the parties to some special relationship or transaction.” 12 Hart then sketches the sorts of 9 64 PHIL. REV. 175 (1955). 10 Id. at 181. 11 Id. at 183. 12 Id. at 188. 8 relationships or transactions that can create such duties. Robert Goodin relied on this distinction to define general and special duties as follows: In contrast to the universality of general moral law, some people have special duties that other people do not. In contract to the impartiality of the general moral law, we all have special duties to some people that we do not have to others. Special duties, in short, bind particular people to particular other people. 13 As Philip Pettit and Goodin note, these special duties can arise by virtue of agents’ “identities, relationships or histories.” 14 At least two significant debates within ethics generally, and international ethics in particular, point to the analytical payoff of distinguishing between general and special duties in international law. Those debates also show how any ethical theory of international law must be able to find a moral justification for special duties. 1. The Partiality Debate. First are debates between partialists and impartialists. 15 At its most fundamental level, impartiality describes a way that individuals and institutions decide and act, one based on disinterestedness, consistency, and fairness and not merely personal motives. 16 Lawrence Becker has categorized these debates as 13 Robert E. Goodin, What is So Special about Our Fellow Countrymen?, 98 ETHICS 663, 665 (1988). 14 Philip Pettit & Robert Goodin, The Possibility of Special Duties, 16 CANAD. J. PHIL. 651 (1986). 15 I am not here equating these terms with moral particularism and moral universalism. That debate concerns whether generalizeable moral rules are even possible or whether all ethics is situation-specific. The debate in this paper is among groups of moral universalists. For a clarification of terms, see Lawrence Blum, Against Deriving Particularity, in MORAL PARTICULARISM 205-11 (Brad Hooker & Margaret Little eds. 2000). 16 It is in this sense that Brian Barry and Terry Nardin define justice as impartiality. See BRIAN BARRY, JUSTICE AS IMPARTIALITY (1995); TERRY NARDIN, LAW, MORALITY, AND THE RELATIONS OF STATES 258-59, 265 (1983). See also MacIntyre’s notion of the “liberal 9 concerning three major questions: whether personal interests can play a role in determining moral duties; whether it is possible to adopt a standpoint for moral deliberation that is independent of ourselves; and whether we can take into account personal relationships in assessing moral duties. 17 Most of the impartiality debate, and certainly its analysis of special duties, concerns the last issue. In one rather simple sense of the term, partialists seek to morally justify these relationships (to family members, community, or country), while impartialists downplay them. Some of the differences between partialists and impartialists have been narrowed through the notion of orders (or levels) of impartiality. Under this view, one can remain impartial as an individual while accepting the morality of special duties long as one can justify those duties from an independent moral perspective such that all individuals owe those special duties to all persons in that special relationship to them. In other words, special duties are not violations of the principle of impartiality because that principle means treating all like cases alike, not simply all cases alike. This sort of reason undergirds the very impartialist defense of special duties put forth years ago by Pettit and Goodin, arguing that such duties derive from special responsibilities that an agent can have for a certain state of affairs. By virtue of those responsibilities, only certain agents (rather than all agents) have the duties; but others with those responsibilities (to a different state of affairs involving a different beneficiary) also have special duties. 18 An impartialist could thus defend an individual’s patriotic ties if he were convinced that there were a moral basis impersonal morality” in IS PATRIOTISM A VIRTUE? (Lindley Lecture, University of Kansas, 1984). 17 Lawrence C. Becker, Impartiality and Ethical Theory, 101 ETHICS 698 (1991). 18 Pettit & Goodin, supra note 14. 10 (utilitarian, Kantian, etc.) for all such ties. Barry, John Deigh, and Marcia Baron have deployed the notion of “second-order impartiality” to describe this approach. 19 Because international law is a regime prescribing the rights and duties of international actors (as described more fully below), any appraisal of the morality of that system must address its impartiality in Becker’s third sense. Just as the notion of special duties provides an important complement to the general duties so central to ethics, so too the notion of special duties helps complement the universalist notion in international law that all states are sovereign equals with identical rights and duties. 20 It is critically important to ask, for instance, with respect to states, “What duties do all states have to all others? Can states have duties to some states but not others? If special duties exist, how does nor should the law justify them? Do these justifications show that international law is not impartial as a first-order matter or second-order matter?” These questions need to be asked for international actors other than states too. Indeed, the gap in conceptualizing is not that international ethics has failed to address these issues, for it has in the debates over the duties we owe to our co-nationals as opposed to foreigners, including debates about special duties on the richest states with regard to economic redistribution. The problem is that those debates have not made sufficient reference to the extant system of rights and duties under international law. By asking these questions of international law, we can help to bridge this gap. I do not suggest that the divide between general and special duties is the only way to organize 19 See, e.g., BARRY, supra note 16, at 191-95; Marcia Baron, Impartiality and Friendship, 101 ETHICS 836 (1991); for a recent attempt at reconciliation, see SUSAN MENDUS, IMPARTIALITY IN MORAL AND POLITICAL PHILOSOPHY (2002). 20 UN CHARTER, art. 2(1). 11 international law for ethical analysis; one might, for instance, distinguish between traditional interstate-duties and those emanating from individual human rights. 21 But just as the impartiality debate has shown the general/special duty distinction to be particularly helpful for appraising interpersonal ethics, so that same divide has a payoff for international ethics. The partiality/impartiality debate has sometimes been cast in terms of whether special duties are morally justified based on the personal relationship per se – what Rawls calls “relations of affinity” 22 — or some other grounds. As David Miller writes, one position says that “only the general facts about other individuals can serve to determine my duties towards them”, while the other sees relations between individuals as so central to ethics that “fundamental principles may be attached directly to these relations.” 23 Christopher Wellman has characterized the different stances toward special duties as “reductionist” and “associativist” (or “nonreductionist”). Reductionists attempt to reduce the relationship to some other, morally significant tie justifying special duties; associativists find the relationship itself sufficient. 24 Within these two general outlooks are a variety of justifications for special duties, with the line between the two approaches -- and the extent to which the division between them maps onto the impartialist/partialist divide -- sometimes not very clear. Thus, Goodin offers a consequentialist account of special duties toward co-nationals under which states represent the most efficient means of allocating general duties among all 21 I appreciate this point from Allen Buchanan. 22 RAWLS, supra note 3, at 112. 23 DAVID MILLER, ON NATIONALITY 50 (1995). 24 Christopher Heath Wellman, Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My’?, 110 ETHICS 537 (2000). 12 individuals. 25 Alan Gewirth offers a Kantian perspective emphasizing individual autonomy as the ethical lodestar of special relationships, seemingly making him a reductionist, though he insists that his view serves to give intrinsic, rather than instrumental, value to the relationships. 26 Oldenquist and Samuel Scheffler defend the patriot whose allegiance is based on loyalties or special ties alone. 27 An inquiry into the morality of the international legal order should both incorporate and contribute to these debates as well. For if international law does have special duties, we need to ask if they are justified based on morally significant “relations of affinity” or on characteristics other than the relationship per se. Thus, for example, states are constantly confronted with whether and why their duties to their members, whether based on ethnicity, citizenship, or residency, might differ from their duties to non-members, whether ethnic minorities, aliens, or those abroad. 2. Cosmopolitanism and International Justice. Special duties are also at the heart of debates over international justice between cosmopolitans and non- cosmopolitans. Strong cosmopolitans see nations and national identities as morally irrelevant or nearly irrelevant for constructing a just world. The classic works of the earlier era, such as Beitz’s Political Theory and International Relations, Henry Shue’s Basic Rights, and Singer’s “Famine, Affluence, and Morality,” though different in much of their justification for cosmopolitanism, have seen recent defenses in the works of Teson, 25 ROBERT GOODIN, PROTECTING THE VULNERABLE (1985); Goodin, supra note 13. 26 Alan Gewirth, Ethical Universalism and Particularism, 85 J. PHIL. 283, 294-96 (1988). 27 Andrew Oldenquist, Loyalties, 74 J. PHIL. 173, 182-83, 176 (1982); Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFF. 189, 200 (1987); for other defenses of the moral significance of community, see MILLER, supra note 23, at 65-80; MICHAEL WALZER, SPHERES OF JUSTICE 33 (1983) (“People who do share a common life have much stronger duties.”); YAEL TAMIR, LIBERAL NATIONALISM 95-116 (1993). 13 Buchanan, and David Held. Many theorists sought to extend the ideas of Rawls’s A Theory of Justice into the international realm, e.g., through a global difference principle, though Rawls himself opted out of the strong cosmopolitan camp in A Law of Peoples. Nonetheless, as Barry points out, cosmopolitans need not deny that special duties by citizens to co-nationals are inconsistent with cosmopolitanism; they simply insist that proponents of such duties offer a defense from an impartialist perspective. 28 The questions asked in the cosmopolitanism debates further undergird the need for seeing international law in terms of general and special duties. The debates over cosmopolitanism are effectively debates over general and special duties to (and by) individuals. It is thus important to ask, in the context of international law, whether states and other international actors owe equal duties to all individuals or just to some. Indeed, these already reverberate in international law circles, both academic and policy-oriented. International lawyers who emphasize human rights and the impartial application thereof are making strong cosmopolitan arguments insofar as they focus on the worth of the individual regardless of nationality. Special duties based on national or other ties thus do not play a big role. They may also propose institutional models that include ways of putting individuals, wherever situated, first. Some international lawyers, like cosmopolitans, ask whether a state’s territorial integrity can be sacrificed to allow for humanitarian intervention to rescue oppressed peoples. 28 Barry, supra note 1, at 145. 14 II. Claims and Duties in International Law Before constructing my model of international law as based on general and special duties, it is first necessary to explain international law’s approach to duties generally. I do so by clarifying the nature of both the dutyholders and the targets of those duties. This brief exposition serves an additional purpose of showing that international law is a much richer and complex process than most contemporary moral and political philosophers have acknowledged. A. The Actors As a general matter, six major actors participate in the international legal process: states, individuals, peoples, international organizations, non-governmental organizations (NGOs), and business entities. I do not wish to offer here any sort of international law definition of each group; rather, I assume the reader can appreciate a generally shared meaning for them. Obviously, some of the terms are hard to define without wrongly excluding or including some entities; others overlap at the margins (e.g., NGOs and business entities). Moreover, the legal process includes other participants, such as organized religions, sports entities, and transnational organized crime or terrorist groups. Some traditional international legal scholars prefer to label these participants, or at least some of them, international “persons” based on the old concept of “legal personality,” i.e., the capacity to be subject to legal rights and duties. 29 My listing does not rely on this notion because I see it as either circular in its usage or unhelpful in contributing to any understanding of whether an entity has rights and duties. In a similar vein, Brent Fisse and 29 See, e.g., Nkambo Mugerwa, Subjects of International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 247, 249 ( Max S?renson ed. 1968). 15 John Braithwaite, as well as Peter Cane, have rejected the notion that an actor can only be blameworthy if it is previously determined to have “philosophical personality.” 30 I will also assume, without arguing, that the six classes of actors are not merely the principal legal participants, but that they are moral actors in that they can make moral claims and that one can prescribe appropriate ethical behavior for them. I ground this assumption in the sense, which others have argued better than I can, that if these entities are a legitimate way for persons to organize themselves and exhibit some cohesiveness in structure, they are also moral actors. Barry took a similar position long ago in his Tanner Lectures, and Rawls accepts the idea in calling peoples the actors in the society of peoples. 31 I recognize, however, that this is a contested notion, certainly among cosmopolitans. Barry’s more recent work and well as others’ evince a strong belief that only the claims of individuals should matter on the international (and domestic) plane. Part and parcel of this view is a deep-seated skepticism of international law. 32 The purpose of this paper, however, is to describe and evaluate some core aspects of international law. Although it is not an apologia for the existing international order, neither does it shirk from finding an ethical basis for aspects of that order, even if others may disagree with it and wish to reconstruct it. I cannot overcome the objections of those who embrace only the 30 Brent Fisse & John Braithwaite, The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability, 11 SYDNEY L. REV. 468, 483-88 (1988); ROBERT CANE, RESPONSIBILITY IN LAW AND MORALITY 143-150 (2002). 31 Brian Barry, Do Countries Have Moral Obligations?, THE TANNER LECTURES ON HUMAN VALUES 27, 41 (“Justice . . . is concerned with the way in which rights and powers are allocated. And rights, powers, or resources may be attributes of collectivities as well as individuals.”); RAWLS, supra note 3, at 23. But see Pogge, supra note 2, at 73-74. 32 Brian Barry, Statism and Nationalism: A Cosmopolitan Critique, in GLOBAL JUSTICE 12 (Nomos XLI, 1999). 16 claims and moral standing of individuals. Instead, the paper speaks to philosophers who are willing to use international law – at least its basic structure and norms – as part of an approach to both interactional and institutional morality and seek a normative assessment of it. It thus assumes the moral relevance of these six actors. B. Their Claims Having identified the most important international legal actors, I now sketch their principal claims and upon whom they are making them; I will then translate this set of claims into a simple matrix of duties and dutyholders. For the sake of space, I will focus on the three entities given the greatest consideration by philosophers – states, individuals, and peoples – though the analysis can be extended to the other three actors as well. 1. The State. The state’s fundamental claim in the international order is to its sovereignty, a mystical term encompassing several key concepts: territorial integrity -- the claim not to be invaded and conquered; political independence -- the claim not to be subservient to another state; and recognition -- the claim to be treated as an equal player on the international plane. It also has tended to include the claim to be left alone in a broad sense of opting out of emerging international norms or, more insidiously for international lawyers, of seeking to opt out of established international norms. 33 Against whom does the state make these sovereignty claims?: principally against other states – states seeking to dominate it through political or economic strong-arming, intervention, nonrecognition, or, rarely, aggression. But the state can make the claim against any of the other participants as well. Russia and China are making sovereignty 33 Compare, e.g., LOUIS HENKIN, INTERNATIONAL LAW: POLITICS AND VALUES 8-10 (1995) with STEPHEN KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999). 17 claims against peoples -- Chechen and Tibetans, respectively -- and Israel against Palestinians. The current United States opposition to the International Criminal Court is essentially a sovereignty claim against an organization of states as well as against pro-ICC NGOs around the world; the attempts by the developing world to regain control of their natural resources after decolonization were sovereignty claims in part against transnational business entities. 34 2. The Individual: The individual’s rise as a participant in the international legal process has ancient origins, but gained some momentum in the 19 th century in the anti-slavery movement; it stood on its own after World War I as states agreed to protect ethnic minorities in the new states emerging after the war and to protect some workers through international labor law. The era after World War II saw the rise of individual human rights and the codification of numerous treaties to advance them. 35 Any description of international law that does not consider human rights and the accompanying duties is, quite simply, fatally flawed. As David Held has noted, through these developments, “a bridge is created between morality and law where, at best, only stepping stones existed before.” 36 The individual’s fundamental claim is one of dignity, which encompasses negative claims (to be free of governmental abuse) and positive claims (to attain a certain 34 See generally Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 YALE L.J. 443 (2001). 35 As stated by the UN’s International Criminal Tribunal for the Former Yugoslavia, “A State-sovereignty-oriented approach has been gradually supplanted by a human-being- oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est . . . has gained a firm foothold in the international community . . . .” Tadic Interlocutory Appeal, 1995, para. 97. 36 David Held, Law of States, Law of Peoples: Three Models of Sovereignty, 8 LEG. THEORY 1, 13 (2002). Held’s grasp of international law, rare for a political theorist, is evident in id. as well as his DEMOCRACY AND THE GLOBAL ORDER: FROM MODERN STATE TO COSMOPOLITAN GOVERNANCE (1995). 18 standard of living for himself and his family). The individual principally makes these claims on the state, usually his own, for it generally has the readiest capacity to grant that which the claimant seeks. An individual can assert a claim against a people, as when a member of an indigenous group seeks to opt out of a practice that the group mandates; or against business entities, as when an individual accuses such entities of not providing proper conditions of labor. 3. Peoples: The Charter of the United Nations recognizes the principles of “equal rights and self-determination of peoples,” but each of those terms, including the definition of a people, is subject to disagreement. Many ethnic minorities often call themselves a people, but international law generally views peoples as having something beyond ethnic kinship – some sort of territorial affiliation or attachment (e.g., the Finnish, Corsican, or Sioux people). 37 Despite these definitional difficulties, the central claim of peoples is to self-government. This includes a claim to recognition as a distinct actor and not a mere loose group of individuals and, most significantly, claims to control its future through political arrangements ranging from self-administration within states up to creation of its own state. (Minority groups typically assert more modest claims, i.e., to assert their identity through the ability to continue various linguistic, educational, cultural, and other practices central to that identity.) The primary target of these claims is the state or, in some cases (as in claims related to secession), a community of states, as these entities have generally have the power to act on these claims. Peoples also make claims against their members, in seeking to constrain their behavior, including by seeking to prevent exit. 37 See ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 59- 62 (1995). 19 20 C. From Claims to Duties The resolution of claims through law is principally carried out through rules and processes that allocate to different persons, entities, and institutions various rights, duties, and powers, including the power to make the rules. The relationship between rights and duties is, of course, a source of great debate in both law and ethics. 38 For my purposes here, I need not take a position in favor of a rights-based or duty-based morality or legal order; I need only posit that much moral philosophy, like law, is about duties in a broad sense. The common language of duties makes a discussion of international legal duties relevant to understanding ethical questions of special duties and vice-versa. 39 What follows is what I see as the core duties that international law has recognized in response to the claims of the three actors above. 40 For purposes of this section, I identify the duty and the target of that duty. I will not ask or answer whether the particular duty is directed to all or only some of the targets in that class (e.g., does a state owe duty x to all individuals, or to all peoples); that issue will be addressed later. 1. States: States owe legal duties to other states, to peoples, and to individuals. Their principal duty to other states is the obligation under the United Nations 38 H.L.A. HART, THE CONCEPT OF LAW (1961); see the overview in Jeremy Waldron, Introduction, in THEORIES OF RIGHTS 8-14 (Jeremy Waldron ed. 1984). Also, compare JOSEPH RAZ, THE MORALITY OF FREEDOM 183-86, 210-16 (1986) with J.L. Mackie, Can There be A Right-Based Moral Theory?, in THEORIES OF RIGHTS at 168. 39 This view does not, of course, equate moral and legal duties, as Hart, Cane, and others have pointed out. I share Nardin’s view that law and ethics are “parallel but not identical ways of conceiving and judging international conduct.” NARDIN, supra note 16, at 250, 233-53. 40 I organize these duties in the same order as the discussion above, though obviously the duty of one actor emanates from the claims of other actors. 21 Charter not to use force against them. 41 But they have manifold other duties that they have accepted in customary international law, and countless more defined by treaties. Customary law duties include honoring treaties, respect for each other’s diplomats, immunity of a state and its officials from suit in other states’ courts for official acts, and aspects of the law of the sea. The state’s principal duty to individuals is to respect human rights. Some are accepted as custom (e.g., the duty not commit torture, slavery, or genocide) and others have been agreed only through treaty. States generally have fewer obligations to protect human rights during armed conflict, in which case the more minimal protections of international humanitarian law apply. States have duties not only to protect the individual from abuses by the state and its agents; and various UN and regional human rights bodies have found that states also must provide certain protections from, or responses to, abuses by private actors. 42 The state’s principal duty to peoples is to allow them self-determination. The scope of self-determination varies depending on the characteristics of a people, e.g., colonial peoples, indigenous peoples, or territorially concentrated groups within states. States have a duty to grant political independence to colonial peoples they control (if the people want it); duties towards groups within states are significant less. 43 As a general matter, with 41 UN CHARTER, art. 2, para. 4. 42 See, e.g., Velasquez Rodriguez Case, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988); D. v. United Kingdom, 1997-III Eur. Ct. H.R. 777; A. v. United Kingdom, 1998-VI Eur. Ct. H.R. 2692; UN Human Rights Committee, General Comment 31, para. 8 (2004). 43 Declaration on Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), UN GAOR, 25 th Sess., Supp. No. 28, at 21, UN Doc. A/8028 (1970) [hereinafter Friendly Relations Declaration]. 22 coerced colonialism effectively over, self-determination today entails participatory rights by the people within the state. 44 2. Individuals: International law does not recognize an expansive list of duties for individuals. This is historically contingent, in that the law’s focus on states until the early twentieth century made the notion of individual duty-holders as unlikely as the notion of individual right-holders. International law was a law of state responsibility – the state might be responsible for harms caused by individuals, even private ones, but the individuals themselves had no duties under international law. 45 The clearest duties on individuals today are those under international criminal law conventions that provide for individual criminal responsibility for certain harms. Thus, treaties address crimes such as genocide, torture, forced disappearances, slavery, harm to diplomats, war crimes, various offenses against aircraft, and drug trafficking. 46 Some treaties directly state that the offense is a crime; others require states to punish under domestic law individuals who commit the offense; both types of treaties, at least in my view, create duties on the individual under international law not to commit the act. 47 And 44 See, e.g., Reference re Secession of Quebec, [1998] S.C.R. 217. Although the Canadian court held, and I agree, that peoples living within states have a right to self- determination – which does not equate with a right to secession – some might simply identify such groups as ethnic minorities to whom self-determination does not even apply. 45 See, e.g., NYUGEN QUOC DINH, DROIT INTERNATIONAL PUBLIC 618 (Patrick Daillier & Alain Pellet 5th ed. 1994) (state as “screen” between individual and international law). 46 See generally STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW (2001). 47 RATNER & ABRAMS, supra, at 11-12. For a contrary view, see Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 AM. J. INT’L L. 302, 308 (1999). 23 in most cases, the individual has duties whether he is acting at the behest of a government or in a private capacity. 48 The full scope of individual duties may be larger in three senses. First, international courts are recognizing obligations on states to prevent and punish a range of abuses committed by individuals (beyond those mentioned immediately above); in doing so, they are, at least indirectly, recognizing duties on individuals not to commit them. Second, international law recognizes notions of complicity and vicarious responsibility. Thus, individuals are responsible for aiding and abetting the above crimes; and persons in authority are, under some circumstances, responsible for the offenses of subordinates. 49 Third, some NGOs have attempted to galvanize international attention to accepting numerous individual responsibilities, and not just rights, in international law. 50 To whom are these duties directed? International legal theory has generally not focused on the targets of duties beyond the duties of states. Again, much of the reason lies in the historic limitation of law to the duties of states. Even the advent of concepts of human rights and self-determination in the twentieth century only addressed two new permutations of dutyholders and targets – the duties of states to individuals (human rights) and the duties of states to peoples (self-determination). Nonetheless, the international criminalization of certain human rights abuses suggests that, for those offenses, an 48 Torture is an exception under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 1984, 1465 UNTS 85 (severe pain “by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity.”) 49 RATNER & ABRAMS, supra note 47, at 129-35. 50 See INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY: TAKING DUTIES SERIOUSLY: INDIVIDUAL DUTIES IN INTERNATIONAL HUMAN RIGHTS LAW (1999); INTER-ACTION COUNCIL, DRAFT UNIVERSAL DECLARATION ON HUMAN RESPONSIBILITIES (1997). 24 individual’s duties extend to other individuals, though in criminal cases it is the state or the United Nations that actually brings a case against the offender. 51 3. Peoples. Although peoples are the beneficiaries of the duty of states to provide for self-determination, the duties of peoples themselves are not much part of international law’s vocabulary (notwithstanding Rawls’ elaboration of such duties, which is incorrectly derived from the duties of states). Insofar as the norms of self-determination do not create a duty on states to grant all peoples the right to their own state – as noted above, only colonial peoples have this right – one might suggest that peoples living in, for instance, democratic states, have a duty not to secede. However, the absence of a right to secede on their part does not, as a matter of logic or positive law, equate with a duty not to secede. Indeed, when the question is posed that way, international law would be quite agnostic and not prohibit secession. 52 Peoples have two key sets of duties, both directed at individuals. First, under international humanitarian law, peoples fighting an armed conflict – whether a civil war against the state or a war of independence from it – must respect basic principles of humanity, including non-targeting of civilians, respect for combatants who are wounded, sick, or taken prisoner, and non-use of particularly deleterious weapons. 53 The state against (or in) which the people is engaged in conflict is also a beneficiary of these duties. 51 For an argument that duties of individuals to other individuals flow directly from human rights treaties, see ANDREW CLAPHAM, HUMAN RIGHTS IN THE PRIVATE SPHERE (1993). 52 JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 268 (1979). 53 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, December 12, 1977, 1125 UNTS 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, December 12, 1977, 1125 UNTS 609. 25 Second, there is an increasing sense that peoples have a duty to respect the human rights of their members, such as allowing them to express their identity (through choice of name, religion, use of language, means of education of their children). This is certainly true if a people gains statehood (for then it has the same duties as a state), but may even be true when they have not. 54 International law’s process for the resolution of claims among international actors has resulted in clear duties on them. The centrality of the state to the international political and legal order for most of the past 350 years has meant that the law recognizes the most elaborate set of duties as those of states toward other states, but states also have important duties in the area of human rights and self-determination toward individuals and peoples. The asymmetries among the nine possible permutations of duties of states, individuals, and peoples toward each other justify a shortcut that I will take from this point on. Without denying the importance of obligations of individuals and peoples, I will limit my inquiry here to duties of states toward other states, individuals, and peoples. This will permit a more streamlined analysis of the idea of special duties that nonetheless captures the bulk of such duties in international law; it also still takes account of the key transformations in international law by discussing duties of states to peoples and individuals. III. A Scheme of General and Special Duties I now offer a scheme of international legal obligations based on the distinction between general and special duties. The result of this conceptualization is a set of spheres 54 Lovelace v. Canada, UN Human Rights Committee, 1977. 26 of duties of different breadths and with different beneficiaries in each sphere. In each case, I believe these duties can be justified from an impartial perspective. Before beginning, it is worth pointing out that a duty’s characteristic as general or special is distinct from two of its other significant traits: First, it is different from its strength in terms its overall importance to the international legal order or the burden it places on the state. As will be clear below, a general duty, one owed to all states, may be strong or weak, just as may a duty to few. 55 Second, it is distinct from the norm’s “hardness” or “softness,” i.e., the extent to which it creates a true legal obligation on the state. Some norms are softer insofar as they may be less precise in terms of the action demanded of the dutyholder; they may emanate from processes whose lawmaking capability is open the question; or their enforcement may be less certain due to the unwillingness of those prescribing the norms to create effective compliance mechanisms. 56 A. General Norms: First-Order Impartiality in International Law Most of international law’s core state-to-state duties are general: they are held by all states and not merely some; and they are owed to all states and not merely some. 57 Among the most significant are: the norms on recourse to force (jus ad bellum) and the 55 A good example, emphasized by Walzer, is the global norm prohibiting states from sending refugees back to their place of persecution. However, and not remarked upon by Walzer, the international norm under the UN’s 1951 refugee convention does not require states to grant asylum to refugees. WALZER, supra note 27, at 48-51. 56 For more on this idea, see Michael Reisman, The Concept and Functions of Soft Law in International Politics, in ESSAYS IN HONOR OF JUDGE TASLIM OLAWALE ELIAS 135, 135-36 (E. Bello & Bola Ajibola eds. 1992); Frederick Schauer, Prescriptions in Three Dimensions, 82 IOWA L. REV. 911, 912-15 (1997). 57 I do not speculate here on the possibility of one-sided general norms, i.e., those held by all states towards only some, or by some states towards all. One possibility is the special obligations held by the five permanent members of the UN Security Council to all other states to exercise their membership on the Council in a responsible manner. 27 conduct of hostilities (jus in bello), treatment of another state’s diplomats, treatment of states based on juridical or sovereign equality, carrying out of treaties in good faith, immunity of other states and their officials in one’s courts for most official action, basic respect for aliens domiciled or setting up business in one’s territory, respect for other states’ permanent sovereignty over their natural resources, the non-return of refugees to their place or persecution (non-refoulement), and much of the law of the sea. Many of these norms resemble what Thomas Franck has called the “ultimate canon,” obligations that “attach to all states by virtue of their status as validated members of the international community.” 58 Indeed, the principle of sovereign equality might be said to be a sort of grundnorm for general norms in that it regards all states as juridically equal and thus equally entitled to be both duty-holders and beneficiaries. 59 The core duties upon states to individuals are also general duties: these include the ban on torture, slavery, and genocide, and other serious human rights abuses. 60 To say that someone has a human right not to be mistreated in these ways means that all states have a duty not to engage in such conduct against anyone. 58 THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 45 (1995). 59 For a defense, see Benedict Kingsbury, Sovereignty and Inequality, 9 EUR. J. INT’L L. 599 (1998). 60 International law recognizes one particular category of general norms as unique – those it calls erga omnes. Not only does the state have such an obligation to all other states, but all other states may invoke the obligation in the event of a breach, not merely those specially affected by it. See key decisions of the International Court of Justice in Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 ICJ 3 (Judgment of Feb. 5); Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4 (Judgment of Apr. 6). Under my definition of general duties, the set of general duties is broader than the set of erga omnes obligations, although some have used the term erga omnes more broadly in a way that essentially equates it with general duties. 28 These general duties create spheres or orbits around the states populated by all other states (or individuals). The breadth of these spheres is a function of the strength of the norm and its hardness. Core norms like the ban on the use of force result in dense spheres, where the pull between a state and those to which it has a duty is strong; weaker general norms create larger orbits, though still populated by all states. General norms easily fit within the basic notion of impartiality discussed above. All states have these duties to all other states regardless of size, location, age, domestic system of governance, or other differences. San Marino is just as obligated not to invade other states as is China; and each is obligated not to invade both Russia and Tonga. Most significant for purposes of impartiality debate, special relationships, such as historical or other ties between the states, are irrelevant to the duties. The United States is just as obligated not to invade Cote d’Ivoire or Burma as it is not to invade Canada or Britain, and it must treat the diplomats from those far away states just as it treats those from its closest allies. Which impartialist ethical theory justifies these general duties? I have no need to choose here. Utilitarianism is obviously the easiest grounding for these principles if the unit for utilitarian calculations is the state; a Kantian or Rawlsian contractualist justification centered on the state as moral actor could also yield some of these duties. Clearly, some Kantian or utilitarian calculations focusing on individuals as moral actors would reject some of these norms, as Kantian attempts to exempt humanitarian intervention from the ban on the use of force demonstrate. 61 61 See Allen Buchanan, From Nuremberg to Kosovo: The Morality of International Legal Reform, 111 ETHICS 673 (2001). 29 B. Special Duties: A Non-Problematic Case International law recognizes numerous duties akin to the special duties moral philosophers recognize. One situation raises no significant moral questions for purposes of impartiality analysis, so it is important to clear this ground first. When two or more states agree to a treaty, they create a set of special duties that apply only to them; they have explicitly agreed to treat each other differently from the way they treat other states. Hart recognized promises as “the most obvious cases of special rights.” 62 International law generally permits such disparate treatment provided (a) any general duties under customary international law dealing with the subject of the treaty are default rules rather than trumping (or “peremptory”) rules, i.e., they allow for this disparate treatment by treaty; (b) the treaty does not contravene the UN Charter, a treaty that trumps all others; and (c) the states are not violating any other treaties on the subject (unless the parties to the conflicting treaties are the same). 63 Thus, if two states divide a river to give one state most of it, this would be fine as long as no rule of customary law mandated division down the middle in all cases (there is no such rule) or the states had previously signed a treaty mandating such a division. It should be noted that as the number of states to such any treaty increases, it becomes increasingly difficult to label the duties under it special. Thus, for instance, the rules on treatment of diplomats under the Vienna Convention on Diplomatic Relations, which has 180 parties, are duties among the states parties, but the near universality of the treaty makes them for all intents and purposes general duties. They move from being 62 Hart, supra note 9, at 183-84. 63 Vienna Convention on the Law of Treaties, May 23, 1969, arts. 30, 53, 1155 UNTS 331. 30 merely contractual treaties creating special duties to something akin to a legislative treaty generating duties for all to all. 64 Indeed, widespread acceptance of a treaty is evidence that the duties in it are now part of customary international law, binding even non-ratifying states. The range of special duties created by treaties is enormous: states agree to treat each other specially with regard to economic ties; they establish mutual defense treaties like NATO; they cooperate in law enforcement or on scientific matters; and so on. In the sphere analogy, we might then picture each state surrounded by orbits of treaty partners, with the breadth of the orbit based on the importance of the treaty and the number of other states in the orbit a function of the scope of the treaty (and thus, of course, many states appearing in multiple orbits). The links between the states with these special duties can be equally varied – that is, the relations between the states range from thick to thin. 65 Yet these duties do not raise the difficult moral questions addressed in the debates over impartiality. Rather, they are prima facie morally justified on the basis of voluntarism, a ground accepted by both partialists and impartialists as a basis for special duties. Individuals can always take on special duties by choice; but the -- or at least one -- key issue over which partialists and impartialists differ on is whether there are special duties that are not based on choice. As for the idea, again accepted by impartialists and partialists, that not all voluntary obligations are morally justifiable – i.e., that voluntarism is only a prima facie justification – as noted, international law provides that some treaties are void if they violate peremptory norms. It also has various rules to invalidate treaties 64 I appreciate this insight from David Wippman. 65 AVISHAI MARGALIT, THE ETHICS OF MEMORY 7-8 (2002). 31 that are not based on a truly voluntary choice of states, though those grounds are rather limited. They do not, for instance, include unequal bargaining power by the sides, but only clearly egregious behavior such as fraud, corruption or coercion of the other state’s representative, or aggression; moreover, they do not include lack of participation of the population of the country into the making or ratification of the treaty. 66 Voluntarism and Customary International Law: If voluntarism provides a moral justification for treaties freely arrived at, one risks having proved too much. For not only is the treaty grounded in voluntarism, but to a certain extent all international law is so grounded. The other main form of international law, customary international law, is the law that develops over time as states act in a certain way out of a sense that the behavior is not merely good policy but legally required (the notion of opinio juris.) A rule requiring states to undertake a particular act “crystallizes” when some critical mass of states engage in the behavior with the sense of obligation – though the numbers and characteristics of states in the critical mass can vary across customary law norms. 67 The process of creating customary international law is voluntary in the sense that states may choose to opt out of an emerging rule by publicly and persistently objecting to it. 68 (For instance, the United States purports to be doing so regarding what many states believe is an emerging rule of custom against the death penalty for minors.) 66 Vienna Convention on the Law of Treaties, supra, arts. 26, 49-52; a treaty could conceivably be terminated by one side if the other engaged in material breach of it. 67 Thus the views of landlocked states over the width of a state’s territorial sea would not have counted for much when the law of the sea was solely a matter of customary law. 68 1 OPPENHEIM’S INTERNATIONAL LAW 29 (Robert Jennings & Arthur Watts 9 th ed. 1992). 32 Yet, at the same time, if a state has not engaged in this process of objection, the rule nonetheless binds it. Although this outcome might be viewed as merely a form of voluntarism – tacit consent -- in practice it can amount to a non-consensual obligation. First, in the case of former colonies, or states emerging from secessions (like Bangladesh or Eritrea) or the dissolution of states (like the former Soviet Union or Yugoslavia), the new state is bound by customary law even though it was not even a state when the rule emerged – and thus had no opportunity to object to the rule. 69 Second, most states have other, more pressing issues for their foreign ministry and thus lack the time or human resources to participate actively in the formation of customary law, whether by saying that a certain act is or is not legally required or by affirmatively objecting to it. As a result, custom emerges in a method quite distinct from the sort of overt voluntarism seen in the case of treaty. Third, some scholars and international judges have simply rejected voluntarism among states as a basis of obligation for international law. 70 Thus, if we discover that customary law recognizes some special duties, we will have to find some other justification other than voluntarism. While it may well be that some states formally consented to the formation of the norm during its evolution, typically many will not have done so. 71 69 Id. 70 See, e.g., Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 66 (Adv. Op. of July 6) (diss. op. Shahabudeen). 71 Beyond customary law, international law may be viewed as nonconsensual insofar as the UN Security Council can under the UN Charter to make decisions legally binding on states. Although this power originates in the consent of states in ratifying the Charter, the Council clearly exercises it today without the contemporaneous consent of states. 33 C. Special Duties Based on Non-Contractual Ties Having dispensed with one case of special duties as relatively unproblematic ethically, I now turn to several that raise the most important set of concerns. 1. Duties to States Based on Proximity International law also recognizes that states owe duties to their neighbors based on physical proximity. For example, states that share a river, in particular upstream and downstream states, must respect the concept of “equitable and reasonable utilization,” a rather loose standard under which each must take the other’s interests into account in using it. 72 In addition, the law of the sea creates duties on neighbors sharing waters and submerged offshore areas. States opposite each other (e.g., Spain and Morocco across the Straits of Gibraltar) are to divide any overlapping areas of their territorial sea -- the waters within 12 miles of shore – equally, with only a weaker obligation to negotiate over how to divide up the continental shelf off their shores. 73 In this case, the physical accident of geography creates a relationship between the states giving rise to special duties. That relationship stems from the geographic reality that two states so close to each other will inevitably need to cooperate on various issues regarding utilization of the shared resource; it also stems from a legal reality that each may well have a bona fide territorial claim to water that belongs to its neighbor, e.g., in the case of two states, normally entitled to a 12-mile territorial sea, who stand on opposite sides of a 20-mile strait. If its neighbor were not there, it would have a property right to the water, 72 UN Convention on the Law of Non-Navigational Uses of International Watercourses, GA Res. 51/229, GAOR, 51 st Sess., Supp. No. 49, at 9, UN Doc. A/51/49 (1997). 73 United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 15, 1833 UNTS 397. 34 but no duty at all; the presence of its neighbor means it has a duty – a special one, to that neighbor alone -- to take the latter’s interests into account in one way or another. They might become co-owners, they might split the water, or they might have a duty to cooperate, but all these are special duties in that only the neighbor has the corresponding right. These sorts of special duties should be distinguished from a case that appears like a special duty but in fact is not one. For many years, international environmental pollution was seen as a problem concerning neighboring states, e.g., where pollutants from a power plant caused damage across a border. As a result, states were said to have duty not pollute their neighbors. 74 Yet the only reason one state’s duty might be said to be limited to its neighbors was because it was assumed that other states were unaffected by the first state’s pollution. A comparable case would be my duty not to play loud music in my home at three in the morning. I clearly have this duty to my next-door neighbors and indeed to others on my street within earshot of the music. But in fact I have this duty even to those who cannot hear my music, whether a few blocks away or in Fiji. It is a general duty, but it is only are discharged in limited situations. In the case of international environmental law, as science has demonstrated that pollutants may travel to the other side of the planet, the targets of the state’s duties has expanded well beyond neighbors – there is now clear recognition of a general duty at play here. The contemporary embodiment of that understanding is the so-called Principle 21, adopted in a declaration concluding a 1972 UN conference in Stockholm, says that states have “the responsibility to ensure that activities 74 E.g., Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905 (1941). 35 within their jurisdiction or control do not cause damage to the environment of other States,” 75 without specifying any relationship of proximity. 2. Duties Based on Territorial Control International law recognizes a second set of special duties, those that require the state to act a certain way only to individuals on its territory or under its control. Most prominently, the duties of states regarding human rights under treaty and custom generally extend only to persons under their jurisdiction. For instance, State A has a duty to guarantee a fair trial to all persons accused of crimes living in State A; it has no duty to provide such a fair trial to those similarly situated in State B. Indeed, were it to do so without State B’s consent, it would violate other, general norms of international law, including those banning extraterritorial assertion of sovereign powers; if it used forcible means, it would be committing an act of aggression against State B. 76 Recently, for example, Hungary passed a law to provide educational and welfare benefits to ethnic kin in neighboring states and elicited criticism from international lawyers in Europe. 77 But is there a potential conflict here with my statement above to the effect that some international human rights give rise to general duties by states – that the state has a duty not to torture anyone, regardless of where they are? On the one hand, the key global and regional human rights treaties state explicitly that their obligations (and presumably 75 UN Conference on the Human Environment, Stockholm Declaration, June 16, 1972, UN Doc. A/CONF.48/14, princ. 21, 11 ILM 1416 (1972). 76 Even if international law accepted a right of humanitarian intervention, advocates of such a right propose it as a response to serious human rights atrocities, not lesser abuses such as absence of due process rights at trial. 77 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION), REPORT ON THE PREFERENTIAL TREATMENT OF NATIONAL MINORITIES BY THEIR KIN- STATE, Oct. 22, 2001, Council of Europe Doc. CDL-INF (2001) 19. 36 those under customary law) extend only to those within a state’s territory or (or and) subject to its jurisdiction. 78 Recently, for instance, the European Court of Human Rights rejected a suit by Serbian victims of NATO’s 1999 Kosovo war against some NATO states by asserting that the European Convention on Human Rights imposed duties on states parties only with respect to those under their jurisdiction, by which it meant the states’ effective control, and residents of Serbia were not under the jurisdiction of any party to the Convention. 79 This result clearly suggests that even the most core duties flowing from human rights, such as the right to life, extend only to those under a state’s effective control. Thus, only the state of territoriality has the duty, and it has that duty only toward those on their territory (or in foreign territory that it occupies). Moreover, the European Court of Human Rights long ago enunciated the doctrine of the “margin of appreciation,” under which each state is given some discretion in interpreting certain provisions of the European Convention to reflect local cultural and political realities. 80 These include most particularly duties regarding freedom of expression (e.g., with regard to laws against blasphemy) and privacy. Thus, the Convention does not create identical duties for all states parties to it, but only requires that each state act within the margin of appreciation and without discrimination to those under its jurisdiction; its neighbor may carry out the same textual duty in a very different way. 78 International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 2, 999 UNTS 171 (“all individuals within its territory and subject to its jurisdiction”) [hereinafter ICCPR]; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 1, 213 UNTS 221; American Convention on Human Rights, Nov. 22, 1969, art. 1, 1144 UNTS 123. 79 Bankovic v. Belgium and Others, No. 62207/99, Dec. 12, 2001. The suit was against the 17 NATO states that are also party to the European Convention on Human Rights. See also Ilascu and Others v. Moldova and Russia, No. 48787/99, July 8, 2004. 80 See, e.g., Handyside Case, 1976 ECHR Ser. A, No. 24. 37 On the other hand, the UN’s Human Rights Committee, set up under the International Covenant on Civil and Political Rights (the key global human rights treaty ) to monitor states’ compliance with that treaty, has issued rulings holding that Uruguay violated the ICCPR when its agents engaged in extraterritorial kidnapping (in Argentina) in the 1970s. The Committee held that it would be “unconscionable” to interpret the spatial limitation of the duties “to permit a State party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.” 81 The tension between general and special duties with respect to human rights can be addressed, and perhaps resolved, in a number of ways. ● First, one might dispute my initial assertion that some key human rights duties are general duties. One might assert that they are all special duties, so that a state owes no human rights obligations – even core duties such as the duty not to torture – to those outside its jurisdiction. 82 ● Second, one might choose to see them as both special and general duties. 83 They are special in that they benefit only those on a state’s territory, but they are general in that the states’ obligation is to all other states. 84 This solution could be grounded in Hart’s distinction between beneficiaries and rightholders – only individuals on the state’s territory are beneficiaries, while all other states are the rightholders. Analogizing from Hart has a 81 Celiberti de Casariego v. Uruguay, Communication No. 56/1979, July 29, 1981; see also General Comment 31, supra note 42, para. 10 (extending ICCPR’s scope to activities of a state’s contingent in a multinational peacekeeping operation). 82 The European Court hints at this in Bankovic, paras. 59, 65, and 75. 83 I owe this insight to Eyal Benvenisti. 84 This is particularly true with respect to erga omnes obligations, supra note 60. 38 shortcoming in the sense that individuals are today as seen as more than the case of the aging parent whom one person agrees to take care of in exchange for a payment from another, but rather as a bona rightholder vis-à-vis the state. Instead, the dual character could be grounded in the idea that there are essentially two sets of rightholders – the individuals on the state’s territory (who have special rights vis-à-vis the state) and other states (who have general rights vis-à-vis the state). ● Third, one might say that states have certain human rights obligations to all people, wherever situated – general duties -- but that the global and regional treaties put only some of those obligations in a treaty form as special duties to those under a state’s jurisdiction. Under this view, the European Court did not address the broader question of NATO states’ duties to those in other states because its competence is limited to alleged violations of the European Convention. ● Fourth, and not inconsistent with the previous idea, one might stick with the initial position that at least some human rights duties are general duties, but that they are general duties like the duty not to pollute in that they can only be discharged in certain circumstances, namely when the state has jurisdiction over the individual. At other times, the duty is still there, but the state simply lacks capacity either to carry it out or to violate it. The difficulty with this position, however, is that international law does not merely limit a state’s duties to those under its jurisdiction because it cannot protect others, but because it must not protect others (absent the permissibility of humanitarian intervention, lawful at best under only high limited circumstances). In other words, it is not that state A is always physically precluded form securing human rights for people in state B; it need 39 only send in its army to do so. Rather, the law prohibits it from doing so. This leads to a fifth possible reconciliation. ● Fifth, one might view the duty of a state to protect certain human rights as a general duty, but one that is overridden by another duty in extraterritorial situations, namely a duty not to engage in governmental acts on another state’s territory without its permission. Under such a view, the duties of states regarding human rights law are special duties that result from the clash of two general duties – to protect human rights generally, flowing from the notion of human rights, and to refrain from exercising extraterritorial jurisdiction. Under this scheme, those general duties are similar to what Pettit and Goodin call “non-conclusive duties” in that nonfulfilment of those duties is not itself wrong; 85 the special duties – duties only to those on a state’s territory or jurisdiction -- are the result of the balancing of those duties. (Of course, those special duties themselves might be nonconclusive if they in turn must be balanced against other duties, e.g., a state’s duty to preserve domestic public order.) I find this view appealing in that it captures the notion of general duties in the area of human rights while recognizing that the duties actually recognized by the law are special. If governmental obligations in the area of human rights are special duties, either as a matter of custom or only under the treaties, this still leaves open the range of special rightholders, or how far the jurisdiction of the state extends. The European Court found a narrow scope and the Human Rights Committee found a broad scope, namely that once a state exercises some authority in another state, it thereby puts certain people in that other state under its jurisdiction and has duties toward them. The latter position is troubling in 85 Pettit & Goodin, supra note 14, at 654-55. 40 that it suggests, for instance, that NATO states might have had other obligations – such as the right to guarantee a fair trial – once they used force against Serbia, an obligation they were in no position to carry out from military aircraft in the skies above Serbia. This objection could be overcome by a final reconciliation. ● Sixth, one could distinguish among certain duties regarding human rights. Some duties might be special and limited to those on a state’s territory; others might be general and extend to those abroad. Scholars have sought to distinguish, for instance, between positive duties, e.g., the duty to provide food, and negative duties, e.g., the duty not to torture. One might say that only the former are special, while the latter are general. 86 Thus, NATO states have a duty not to inflict certain harms on individuals anywhere, regardless of any question of jurisdiction or control; but they only have a duty to provide a fair trial to those on their territory. While appealing in one sense, this solution suffers from two flaws. First, the line between positive and negative obligations is not clear: the (positive) duty to provide a fair trial is part of a (negative) duty not to treat someone arbitrarily; and the (negative) duty not to torture requires for its effectiveness the carrying out of the (positive) duty to train police. Second, the correlation of one set of rights with territoriality and the other with universality is hardly clear, e.g., the (positive) duty to provide food has been said by at least one prominent UN body to extend to a duty to assist those in other states in need of food. 87 86 Hart suggests some notion to this effect when he talks of general rights being those possessed by all people against unwarranted interference in their autonomy. Hart, supra note 9, at 187-88. 87 UN Committee on Economic, Social and Cultural Rights, General Comment 12, para. 36, UN Doc. E/C.12/1999/5 (1999). For a sophisticated attempt to link jurisdiction to the rights allegedly violated, see Orna Ben-Naftali & Yuval Shany, Living in Denial: The 41 If one adopts the notion that at least some of a state’s duties to residents in the area of human rights are special duties (consistent with explanations 2-6 above), can one ethically defend this position? Several persuasive impartial, reductionist accounts are available. At a rather simple level, a utilitarian calculation would weigh the good of requiring states to guarantee many human rights abroad against the costs therefrom. It would likely find the costs overwhelming – in terms of increased tensions as states involve themselves in issues that other states consider domestic; or neglect of other important issues as diplomatic resources are focused on rectification of abuses abroad. Likewise, the benefits might be relatively small for overall welfare; for example, how welfare-enhancing is full realization of the right of those accused of crimes to a fair trial, through investment in effective judiciaries -- given that most people never are so accused? Indeed, this utilitarian calculation undergirds the opposition of international law to the exercise of jurisdiction by one state on another state’s territory. A utilitarian might find the benefits outweighing the costs with respect to some duties related to human rights, e.g., the duty to provide food to the needy. 88 But for many human rights, the benefits would seem small compared to the costs to all states of implementing policies to ensure them. A richer explanation for the special duty of a state to its residents would rely on Goodin’s notion of efficiency. 89 Humans created states because they represent an efficient Application of Human Rights in the Occupied Territories, 37 ISR. L. REV. (forthcoming 2004). 88 See International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, art. 11, 993 UNTS 3 (right to “adequate food”) [hereinafter ICESCR]; UN Economic, Social and Cultural Rights Committee, General Comment 12, para. 15, UN Doc. E/CN.12/1999/5 (opinion of UN body interpreting ICESCR to provide food to those unable to obtain it on their own). 89 Goodin, supra note 13. 42 way of dividing up the globe to provide certain benefits (or guarantee certain rights) to individuals. By placing the duties on states with effective control over the rightholders, rather than on some other state, we are putting it on the state in the best position to make it more likely that the rights can be granted. This position can also be contested; perhaps effective control over a population does not put the state in the best position to guarantee the right, e.g., in the case of impoverished states, where rich states on the other side of the globe might well be in the best position to guarantee the right to food. 90 In these cases, we might want to give other states a right to help the territorial state. But at least as an initial matter, we will place the human rights duties only on the territorial states. This approach finds further evidence in the approach of states in creating the new International Criminal Court, which will hear a case of human rights abuses only if the state that would normally prosecute is unwilling or unable to do so. 91 A third possible justification for these special duties is sketched out briefly by Michael Walzer in Spheres of Justice. He argues based on an individual’s “right to place” that “the state owes something to inhabitants simply, without reference to their collective or national identity.” 92 He claims to derive a theory of justice that accepts the reality of the territorial state. He echoes Goodin’s efficiency rationale in noting that “so many critical issues . . . can be resolved within geographic units.” 93 His emphasis on territoriality extends to a claim that the state has a duty to grant political asylum to oppressed people 90 Wellman makes a similar criticism and offers his own appealing impartialist account to show why rich citizens of a state might owe more to their poor compatriots than to poorer foreigners. Wellman, supra note 24. 91 ICC Statute, art. 17. 92 WALZER, supra note 27, at 43. 93 Id. at 44. 43 from other lands who make it to the state, though he cautions against extending this principle to requiring the grant of asylum to all those oppressed abroad as the state “might be overwhelmed.” 94 Walzer’s argument seems to derive from impartial principles; while the bond between a state and an individual is special, it is only special because it provides the individual with a place to develop himself or herself, and utilitarianism or efficiency grounds ultimately determine the scope of the state’s duty. A partialist, on the other hand, would need to argue in terms of a special bond between the state and those on its territory – a relationship special enough alone, and without recourse to other universalist goals like utility or freedom, to justify duties to them only. The argument would have to define that special bond in terms of territory -- not citizenship or ethnicity -- because, as a general matter (subject to a few exceptions discussed below), the state may not discriminate on these ground in protecting human rights of those on its territory. 95 The border of the state makes the duty special, not the nationality or ethnicity of the rightholder. In that sense, the state’s duties regarding human rights are not special in the sense of the preferential treatment often considered in the context of impartiality debates, i.e., benefiting only family, friends, or fellow citizens. Andrew Mason addresses this problem in the course of his effort to justify an individual’s special duties to fellow citizens (not residents). Mason seeks to demonstrate 94 Id. at 51. 95 ICCPR, supra note 78, art. 2; General Comment 31, supra note 42, para. 10 In some cases international law defines special human rights duties based on ethnicity, but the beneficiaries of those duties are persons of a different ethnicity from the majority. Thus, states have special duties to protect rights of minorities, e.g., the right to speak their own language and to send their children to the school of their choice. See, e.g., Conference on Security and Cooperation in Europe, Concluding Document of the Copenhagen Meeting of the Conference on the Human Dimension, June 29, 1990, 29 ILM 1305. 44 the shortcomings of various impartialist and partialist accounts of such duties and then to offer his own partialist version based on the idea of citizenship as an intrinsically valuable good. 96 Mason demonstrates the difficulty of justifying special ties to co-citizens; he finds that impartialist stances (in particular those of Goodin and Gewirth) justify only duties to residents and partialist ones only duties to members of the nation, both of which are distinct from citizens. Put another way, in Mason’s view, most partialist theories can justify at best ties to nationals; his partialist theory can justify ties to compatriots; but impartialist theories are more persuasive at justifying ties to residents, our goal here. 97 Mason’s partialist defense of duties to co-citizens ends up as an indictment of partiality for justifying duties to residents, which is, after all, the special duty recognized by international law. His and many others’ embrace of the need to justify special duties to compatriots is based on their perceived need to find a moral basis for a common-sense pull on citizenry; but presumably its only response to the existing legal order under international human rights law, which is territorially based, is to find it irrational or immoral. 3. Duties Based on Citizenship Yet Mason may be right with regard to a limited set of duties, for the territorial nature of special duties is subject to some interesting exceptions: (1) a state’s duty to allow individuals to participate in public affairs is limited to citizens; (2) its duty to allow guarantee entry to the state is also limited to citizens; 98 and (3) a state’s duties to respect an individual’s economic, social and cultural rights – duties that are rather weak in that they 97 Andrew Mason, Special Obligations to Compatriots, 107 ETHICS 427, 436, 443 (1997). 98 ICCPR, supra note 78, art. 25 (“Every citizen. . .”) 45 tend to require that states undertake efforts more than guarantee outcomes – allow developing countries to opt out of granting such rights to non-nationals. 99 International human rights law thus seems to accept in some sense the core membership of a state is not simply those living in a territory, but those sharing a bond of citizenship. Thus it recognizes special duties by the state toward community members. 100 How might these special duties be defended? The partialist arguments regarding special duties to fellow countrymen are stronger here than they are for other human rights, in that at least they seek to ground special duties in citizenship rather than residency. But impartialist accounts that ground these duties in universal moral principles are not difficult to imagine. Goodin’s efficiency rationale is an appealing justification for the special duty to citizens regarding immigration; it would say that because states are efficient at granting certain benefits to individuals, a system that permits the state to set the basic rules of participation is ethically acceptable. To allow any foreigner to enter the state risks undermining the efficiencies states create. 101 It is less effective at limiting the right to political participation to citizens unless one holds that such participation would somehow undermine those efficiencies; and it would also have some difficulty at justifying the exemption of non-nationals from the state’s duties to grant economic rights, in particular with respect to non-nationals who are unlikely to leave. But other impartialist perspectives might fill in any gaps. For example, if citizens alone incur certain obligations in a state, such as service in the military or paying of taxes even when resident abroad, then a view of 99 ICESCR, supra note 78, art. 2. 100 See Scheffler, supra note 27. 101 See also WALZER, supra note 27, at 39 (“The distinctiveness of culture and groups depends on closure. . . . [T]he sovereign state must . . . claim the authority to make its own admissions policy, to control and sometimes restrain the flow of immigrants.”) 46 the relationship between the citizen and the state as based on a social contract would justify the state’s granting only citizens the right to vote or run for office. D. Corporate Special Duties My analysis above is taken principally through the example of states’ duties, but it is worth at least brief mention that my framework sheds some light on the current debates over the duties of corporations regarding human rights. One of the major questions among international organizations, NGOs, corporations, and scholars addressing the issue is how to conceive of the universe of rightholders corresponding to a corporation’s duties to protect human rights (assuming such duties exist). Various commentators have adopted the notion that the corporation has special duties to those within its spheres of influence, with the spheres enlarging from employees, to citizens of a locality affected by their operation, to even larger populations. 102 The above analysis helps ground the justification for such special duties. First, some of the special duties will turn out to be in the relatively unproblematic categories noted above. Thus, some special duties to employees will stem from contractual relationships, akin to the treaties in section B above – if the contract says the employee gets x days off, then the corporation must grant it. And many apparently special duties of the sort advocated by NGOs are akin to those noted in section C.1 above – they are really just general duties that are only discharged when the potential victim is within physical 102 See UN Comm’n on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, Aug. 26, 2003, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2; INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, BEYOND VOLUNTARISM: HUMAN RIGHTS AND THE DEVELOPING INTERNATIONAL LEGAL OBLIGATIONS OF COMPANIES 146-39 (2002); Ratner, supra note 34, at 506-11. 47 range of being harmed by the corporation. 103 The universe of beneficiaries might refer to those actually harmed by toxic emissions of the company or consumers harmed by dangers in its products. Yet some of the corporation’s duties are genuinely special. Two obvious candidates are duties to employees that are not based on the terms of the contract but on some special relationship between employer and employee; and duties to those living in the neighborhood of the company that are not based on any potential of the company to harm those neighbors (and thus cannot be dismissed as merely general duties that are discharged only in certain circumstances). Here advocates of corporate responsibilities would hold that those ties justify special duties on the corporation. Yet these special duties can be derived quite persuasively from an impartial stance. For example, the relationship between an employer and an employee is indeed intimate in some sense, but assigning to employers a special responsibility to care for employees flows quite quickly from a utilitarian calculation about the best way to protect workers. (It is in some way analogous to Goodin’s views on a state’s duties to its residents.) It is also easily consistent with a broadly contractarian notion of what workers and companies would agree on from the original position. Indeed, it seems a bit odd to suggest that the mere fact that someone is a company’s employee (regardless of the actual work they do) entitles him or her to special benefits in the way partialists make this argument about familial relationships. The same point can be made about a corporation’s ties to the community irrespective of its actual harm to it. One could derive a set of responsibilities to the community not from the ties per se, but from the corporation’s relative power and access to 48 resources in the community. Thus, while I remain an advocate of the idea of special responsibilities of corporations to those specially affected by their activities, it turns out that this sort of stance does not require any partial favoritism toward those groups. IV. Implications for Theories of International Ethics My analysis thus far has made four broad points: First, international law recognizes various rights and duties that respond to the claims of the six major actors in the international legal process. Second, the law can be productively viewed as a set of both general and special duties on the various international actors. Third, each duty on an actor (I have focused on duties of states) creates a sphere around that actor composed of the rightholders; for general duties, those rightholders are all other states, peoples, or individuals, and for special duties they are a smaller category. Fourth, the major duties can be justified from an impartialist stance, i.e., without recourse to arguments based only on some special tie between dutyholder and rightholder. These propositions aim both to correct current misconceptions among philosophers about international law and to construct a new conception for them. I now consider the implications of these propositions for two sorts of theories of international justice: first, theories that distinguish between liberal and non-liberal states; and second, the stronger forms of cosmopolitanism. 49 A. Rawls and the Liberal/Illiberal Divide The most significant example of the former is Rawls’ Law of Peoples, though similar critiques could be made of international law scholarship to this effect. 104 As an initial matter, Rawls’ work begins from a flawed premise. As discussed above, the international legal process consists of interactions and claims by at least six different sets of actors; to talk about how law can advance a particular moral vision of international order means accepting that the law is prescribed by and directed at a variety of entities. Rawls instead attempts to derive a theory of international justice in a vision of international law dealing exclusively with the obligations of peoples to other peoples. In so doing he makes two critical errors: (1) he uses international law norms applying to states to advance a moral theory regarding a different entity, namely peoples, 105 when in fact these two entities are vastly different in terms of their claims, rights, and duties; and (2) by focusing on peoples alone (or by equating them with states), Rawls ignores the multiple entities – most importantly individuals -- that can and do have rights and duties. Second, and compounding this error, Rawls’ law of peoples does not encompass principles acceptable only to what he calls liberal or decent peoples. His original statement of the law describes them as “familiar and traditional principles of justice among free and democratic peoples.” 106 He is thus characterizing them as special duties insofar as they bind only certain peoples towards certain other peoples. But they are not: these principles 104 See, e.g., Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT’L L. 503 (1995), and the effective response in Jose E. Alvarez, Do Liberal States Behave Better?: A Critique of Slaughter’s Liberal Theory, 12 EUR. J. INT’L L. 183 (2001). 105 Allen Buchanan has raised similar concerns. See Allen Buchanan, Rawls’s Law of Peoples: Rules for A Vanished Westphalaian World, 100 ETHICS 697, 716-20 (2000). 106 RAWLS, supra note 3, at 37. 50 are not at all limited to free and democratic peoples and states. Six of the eight -- political independence, observation of treaties, sovereign equality, non-intervention, the ban on aggression coupled with the right to self-defense, and limitations on the conduct of war – are clearly accepted in principle by all states. 107 They are precisely part of the canon of general duties (first-order impartiality) discussed earlier. Indeed, Rawls himself states that his eight principles simply reflect customary international law, 108 but customary law regarding these principles derives from the practice of a great variety of states over time – liberal, illiberal, and worse – so it is very difficult to see why only liberal states would or do accept them. As for his requirement to “honor human rights,” Rawls admits that his construction of human rights is a very limited one, focusing on basic rights that are not “peculiarly liberal or special to the Western tradition.” 109 Such a conception is also one of a general duty rather than a special one. Thus, insofar as Rawls circumscribes certain rights and duties of two classes of peoples – liberal and decent, together which comprise “well-ordered peoples” – his theory strays far from the supposed “international political world as we see it.” 110 Rawls claims, for instance, that any society that is nonaggressive and honors human rights has the right of self-defense. 111 By this he includes the two sorts of well-ordered peoples as well as the (hypothetical) benevolent absolutist society, but excludes both the outlaw state and the burdened society. However, international law clearly gives all states, however brutal or 107 I concede that they are not uniformly practiced, though the distinction is not along liberal/illiberal lines. Alvarez, supra note 104, at 194-210. 108 Id. at 41 (“these familiar and largely traditional principles I take from the history and usages of international law and practice.”) 109 RAWLS, supra note 3, at 65. 110 Id. at 83. 111 Id. at 93. 51 poor, this right, and all other states are under a duty to respect it, so Rawls is describing a world quite far from the status quo. More important for his or any other theory of international justice, it is difficult to see why the world would be better off if states such as Burma or North Korea (presumably what Rawls would consider “outlaw states”) or Honduras, Sri Lanka, or Laos (presumably what he would consider “burdened”) could simply be invaded for whatever reason and not be allowed to defend themselves. Is the assumption that an invasion will make the victims of non-decent governments per se better off? Or that it will make the world better off? The impartiality of the general duties like the ban on aggression serves a purpose of public order that Rawls seems to downplay. 112 Lastly, while mischaracterizing certain general duties as special duties, he simultaneously neglects – or at least glosses over – the key special duty I have outlined above – the duty of states to protect at least some human rights only vis-à-vis individuals under their territory or jurisdiction. The scope of the duty to protect human rights seems ripe for any theory of international justice, especially one such as Rawls’, which he claims is focused on “the foreign policy of a reasonably just liberal people.” 113 Perhaps Rawls’ views on the need for states to respect the choices made by certain other peoples (liberal and decent ones) is a way of saying that the duties in human rights law ought to be territorially confined at least in some cases. If so, his failure to take proper account of extant international law only weakens his argument. On the other hand, his derivation (or 112 This concern is not inconsistent with those commentaries on Rawls who note that The Law of Peoples too quickly accepts the status quo of a Westphalian state order. See, e.g., Buchanan, supra note 105; Thomas Pogge, An Egalitarian Law of Peoples, 23 PHIL. & PUB. AFF. 195 (1994). 113 Rawls, supra note 3, at 10. 52 at least acceptance) of a clear duty on well-ordered peoples to assist burdened societies suggests he sees some duties in the area of human rights as extraterritorial. Although that special duty is not, I think, yet recognized in current international law, it has the virtue of being consistent with some general trends in international law suggesting that wealthier states -- though not just liberal ones -- should help out the less fortunate. Rawls properly points out that this special duty is not partial in the sense of being grounded in any special relations of affinity; rather, he calls for “mutual caring” whereby the decent peoples see a connection with the burdened ones. 114 For either of his key points, use of the framework of special duties would have made his arguments stronger. B. Strong Cosmopolitanism Cosmopolitans are disappointed with Rawls for his refusal in The Law of Peoples to rely upon the individual as the unit of concern and derive a global difference principle from an original position consisting of individuals. Though I share their concern that Rawls downplays the need for a theory of international justice that takes account of the claims of individuals, my critique and construct suggest some problems with current cosmopolitan arguments as well. First, international law clearly grapples with the claims of more than just individuals. It does not countenance a cosmopolitan view of the world insofar as that term means that the individual is the sole unit of concern and all individuals, regardless of location or nationality, are treated equally. As Mapel and Nardin write, the tradition of international law is quite different from those moral theories that focus solely on the rights and duties of individuals in its “weight to the claims of particular 114 Id. at 112-13. 53 communities.” 115 Attempts to ignore the claims of those other entities based on some additive theory of individual duties leave a gap between the two disciplines: international lawyers will find them unconvincing and ultimately marginal to their enterprise; and international ethicists will be shining their light of reason on only one set of critical international actors. 116 As noted earlier in the paper, I recognize that some moral philosophers will simply find this beside the point. Unlike Rawls, some make no claim to work within the realities of world politics or international law. But those cosmopolitans willing to engage in non-ideal theory will need to take account of this reality. Second, my construct undermines one of the ways in which they allege that it is flawed. Barry, for instance, has used the term “statism” more or less as a synonym for international law. He attacks statism in numerous ways, summarized in his characterization that it “endorses the status quo among states, almost regardless of what it is.” 117 He also basically equates it with what he views as an even more dangerous concept, “blood and soil nationalism,” in that they share “a kind of moral collectivism.” 118 He thus criticizes writers, like David Miller, who justify the existence of states based on the idea of a national identity. Barry is essentially opposing both the general and special duties in international law: the general duties are immoral because they treat all states equally when their populations or economic status demand different treatment (for the weak and poor); the special duties are immoral because they are driven by atavistic nationalism. 115 David R. Mapel & Terry Nardin, Convergence and Divergence in International Ethics, in INTERNATIONAL SOCIETY, supra note 1, at 297, 298. 116 See CANE, supra note 30, at 42-43. 117 Barry, supra note 32, at 25. 118 Id. at 26. 54 The discussion above shows that this approach is flawed in at least two respects. First, with respect to the special duties, they are clearly defensible from a second-order impartialist stance. Though partialist justifications are always possible, impartialist groundings for these special duties are equally strong, if not stronger. Indeed, the special duties arising out of the territorial nature of human rights law are not, in my view, inconsistent with a cosmopolitan structure of the world. Cosmopolitans who favor greater duties abroad will need to demonstrate why their impartialist account is better than the one I have just offered; they will not be able to dismiss is as merely a partialist or associativist account that relies exclusively on bonds of nationality. 119 Second, with regard to the general duties, to attack the entire system of states merely because some of the general duties seem inconsistent with the promotion of individual welfare above all seems to cut with far too dull a blade. In other words, the problem with cosmopolitanism is not its premises – indeed, I support its basic thrust. Rather, it is the speed with which some of its adherents assume that the existing international system demands fundamental transformation and the self- confidence with which they assume that the alternative order will better promote individual welfare or freedom. Of course, Barry is right in his rather unexceptionable assertion that “the possibility that some alternative [to statism] could do better can scarcely be ruled out.” 120 I would not presume to rule it out. My characterization and justification of a state’s duties regarding human rights as special does not preclude criticism of the existing 119 Id. at 41 (“my complaint is that those sympathetic to nationalism, while talking a different language, are in fact acting as a front for blood and soil nationalism.”). Despite complaints about statism, Barry endorses the possibility that states may be the best units for social insurance. 120 Id. at 38. 55 international legal order. The real question is why he is so willing to rule out so much of international law. Surely it is at least possible that the state system may well be the best system possible for advancing individual dignity, and that respect for the interests of states qua states, or peoples qua peoples, best advances individual well-being. 121 Barry’s call for “an international legal system that takes precedence over those of individual states” is thus wrong on two fronts as well: it assumes that the current system lacks that trait, whereas international law is replete with instances where the community of states rejects the claims of individual states through protest, sanction, and even military force; and it does not explain how that presumably impartial system will do a better job than the current one. Thus, Barry asserts that cosmopolitans should support secession by any group, assuming the outcome would make liberal institutions at least as easy as the status quo and if the move has the support of the whole population of the seceding territory. 122 As an initial matter, this position is a fairly timid one insofar as the prospects of the whole population of the seceding territory supporting secession are virtually zero. (Barry himself uses numerous examples, from Quebec to the former Yugoslavia, to show the dangers of secession in the real world.) Even in such a rosy scenario, such a right remains at odds with international law’s refusal to recognize such a broad right of peoples within states; Barry thus effectively says that cosmopolitans should condemn this norm of international law. 121 For defenses of sovereign equality from a decidedly non-“statist” perspective, see Kingsbury, supra; Martti Koskenniemi & Paivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT’L L. 553, 578-79 (2002). 122 Barry, supra note 32, at 56. 56 Yet instead of assuming that international law is flawed because secession will advance individual well-being, cosmopolitans should more carefully examine the consequences of each. International law’s presumption against secession is not, in my view, just about protecting states (or the “status quo”), even if it may have developed at first to protect them. It is also, far more importantly, about protecting individual welfare as well. Who is to say that individual welfare or freedom is enhanced by secession? The erection of new barriers between states, the losses of economies of scale, and the possibilities of new frictions are all costs that affect individual well-being. Of course, secession should not always be ruled out – it would likely be justified in the case of genocide by the central government against the population of a territory – but international law already recognizes this exception. 123 The lawfulness of secession in such a case seems to me to result from a far more nuanced look at the consequences of secession than does a general presumption in favor of secession. A better course of conduct for cosmopolitans, one taken by both Allen Buchanan and David Held, 124 is to examine the existing structure and carefully consider whether each of the general and special norms promotes or undercuts individual welfare or freedom, rather than to assume – often based on a few spectacular cases convenient to one’s own view of world politics – that they do not. Held, for instance, argues for a political cosmopolitanism where the state system is complemented by political organization at both lower (substate) and higher (multinational) levels – a concept that international lawyers who have studied both domestic autonomy regimes and international organizations 123 See Friendly Relations Declaration, supra note 43; CASSESE, supra note 37. 124 See generally ALLEN BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION (Oxford University Press, 2004); Held, supra note 36. 57 (regional and global) would find quite familiar. 125 The process of seeking to justify general and special duties in international law from an impartialist perspective will prove important to cosmopolitans evaluating the morality of the existing legal order. Not all impartialist defenses will satisfy cosmopolitans; and if particular impartialist arguments turn out not to justify (or only weakly justify) an international law rule, cosmopolitans will have reason to reject the rule. But because impartiality is the lodestar of cosmopolitanism -- and of law -- it cannot be neglected by moral theorists. V. Conclusion To prescribe an individual’s duties to others at home and abroad and promote institutions to promote them, we need to understand the world order we have. My argument shows that states, individuals, and peoples have a broad range of duties, composed of both general duties and special duties. States have some obligations to all other states, or all other individuals or peoples, but they also have many that are limited to particular categories of states, individuals, or peoples. Thus, although international law presumes a premise of juridical equality of states, it in no way requires states to have only equal duties to all other states. Rather, through both the mechanism of choosing treaty partners as well as through the formation of custom, states have different relationships toward each other and toward different individuals. At the same time, Wellman’s insight about special duties in the personal arena applies at the international plane as well: only certain special relationships justify special duties, and those duties vary in important 125 Held, supra note 36, at 34-35. Held also recognizes that his basic principles of cosmopolitanism need to be interpreted in real-life contexts that give weight to “special ties and other practical-political issues.” Id. at 31. 58 ways. 126 A state’s special relationship to its ethnic kin does not generate special duties; even its relationship to its own nationals only justifies (from an impartialist stance) some special duties. And its special relationships with many other states do not create special duties towards them inconsistent with the general duties towards all. I have also shown that both sets of duties are best viewed as fundamentally impartial. The general duties are simply first-order impartial and easily justifiable from a utilitarian, deontological, contractarian, or other perspective. As for the special duties, one of these – treaty-based obligations – turns out to be relatively unproblematic ethically. The more challenging categories are special duties a state owes to neighboring states, its own residents, and its nationals – cases where the law recognizes first-order partiality. Yet the analysis above shows that at least as a prima facie matter, these special duties can be defended far more convincingly from a second-order impartial stance – one that is based on universal moral principles rather than completely on some innate goodness about the ties or intimacy between the dutyholder and the beneficiary. In short, there does not seem to be so much significance to the magical pronoun “my” -- or “our” -- when it comes to international law. 127 Whether this state of affairs is good for international law or bad for it depends, of course, on one’s views of impartiality. As an international lawyer and not a philosopher, I find it a more persuasive basis for justifying special duties – not just those in international law. For sophisticated impartialist accounts, of whatever variety – Kantian, consequentialist, or otherwise – have a clear advantage. Without having to deny that 126 Wellman, supra note 24, at 552. 127 Id. at 539. 59 certain relationships are valuable or good, they do a far better job at answering the more important question for ethics: whether the goodness from those relationships is a sufficient condition for special duties among those in the relationship -- duties in the obvious sense that the agent must perform a certain way for the benefit of someone and special in the sense that the agent performs that way for no other. Their answer is that special duties are better justified from more universalist notions, whether individual autonomy or overall utility. As Wellman has pointed out, those partialist accounts most faithful to partiality risk becoming excuses for all sorts of injustices, while those most convincing at answering the core ethical question above fall into the trap of making quite impartialist claims. 128 This article is not, of course, the place to resolve that disagreement, but the relative ease with which international law norms can be seen as impartialist rather than partialist in my view places a burden on partialists to show whether they believe the special duties in international law can be morally justified. At the same time, I do not seek in this paper to defend a single impartialist theory, and further work will be needed to see which theory of second-order impartiality best justifies various aspects of the international legal order and, if necessary, how other orders may be more impartial overall. Finally, the construct of general and special duties is inextricably linked with the question of borders. To talk about the duties of one international actor to another is to assume that the identities of those actors are fixed. In the case of states, identities are fixed in terms of borders, though they too can change due to wars and secession; but that still begs the question of whether the borders of a state are just ones, and whether other borders 128 Id. at 552-55. 60 of certain states might be better to advance the interests of various actors. 129 As Barry’s, Buchanan’s, and Cavallero’s work makes clear, in the end those justifying special place of the state will have to deal with the justice of these borders. 130 In the case of individuals and groups, who are also duty-holders and rights-holders, identities are shifting and overlapping. Groups or peoples lose and gain members, and the members themselves can have competing claims on many issues. International law is constantly struggling with managing individual and group boundaries and determining to what extent various duties might be special or general depending upon different aspects of that identity. The future will bring both more claims for general duties as well as more claims for special ones, whether they are owed by states, individuals, peoples, corporations, or others. For international actors to make the right decisions, they will need to examine the ethical basis of each of these claims. It is hoped that the analysis offered here will provide a framework for the ethical and legal evaluation of those claims. 129 See Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 AM. J. INT’L L. 590 (1996) (arguing against automatic conversion of intrastate borders to international borders after secessions). 130 See, e.g., Cavallero, supra note 6, at 193-98.