With these ideas in mind, we can proceed to specifying the question that will be the subject of this essay. The relationship between distributive justice and international law might give rise to at least two distinct questions:

1. What duties exist between agents who share liability to the international legal system which do not exist between agents who do not share that liability? We may call this the question of creation: it asks us what duties are created by the fact of the legal system itself.

2. What must the legal system look like for it to do justice to all those agents within its jurisdiction? We may call this the question of fulfillment: it asks us what the legal system would look like for it to adequately ensure that those subject to it fulfill their duties of justice, whatever those duties might be.

I will try to make my argument by comparing the world we have now with what I take to be the nearest possible world without institutions of international law. In such a world, we would still have, I think, collective agents with territorial jurisdiction and coercive force over the inhabitants of that jurisdiction; we would have, in other words, states. Their relationships, however, would not be mediated by the norms of international law. We might imagine, instead, that whatever relationships they derived would be up to the states in question. We can imagine that such states are able to enter into relationships, make contracts, and have a moral nature sufficient to regard these contracts as having at least some moral force. The only difference would be that each of these relationships would have to be, as it were, sui generis; the norms governing any given set of states would have to be ultimately agreed upon by those states, with reference to their own interests, desires and moral ideals. I think that such a world without an international legal system is a great deal more palatable than a world without domestic legal systems. A world in which there are no domestic governments at all seems, to most of us, as a bad—or at least very dangerous—place to live. The space between that world and our own is quite large. The domestic state is a powerful force, to which agency and duties of justice are properly ascribed. The existence of this state seems to transform what the inhabitants of this state’s territory can expect; it also transforms what those individuals owe to one another. A world without law mediating the relationships between states, however, seems less obviously distinct from the world in which we currently live.

This project might be thought impossible, for at least two reasons. Someone might insist, first, that the very fact of states is impossible except through international law; what counts as a state is itself a matter of recognition through international legal norms, particularly the Montevideo Convention of 1933. If this response is right, then the closest possible world I imagine is, in fact, impossible. States cannot live without international law, because they do not exist until international law creates them. This response is mistaken, though. International law defines the criteria states ought to use in their decision-making about which states shall be recognized; it is a mistake to think that, in the absence of these criteria, states would themselves cease to exist. The existence or absence of distinct territorial units, each with a rough monopoly on the use of coercive force within that territory, is a matter of fact, rather than a matter of law. The widespread refusal to recognize Taiwan as a sovereign nation, for example, has hardly caused the country to cease to have the functional apparatus of a domestic state. To think otherwise is to confuse a legal set of criteria with a set of existing social institutions. In the world we are examining here, we can assume that states exist as we know them in our own world; the relationships between these states are distinct, in that there are no standing legal institutions to which these states can refer in their interaction, but the existence of these states does not depend itself upon such legal institutions.

With this in mind, we can examine three distinct forms of argument, each of which might be invoked to defend the idea that the international legal institutions we see right now create distinct distributive duties between states. The first argument looks to the international legal order as itself a causal reason for the poverty and underdevelopment of much of the world. We members of well-off states have duties to redistribute wealth, on this account, because we—through a legal order we have set up in our own interests—are causally responsible for this poverty. We may call this the argument from causation. The second argument instead looks towards the complex network of agreements that have come into existence between societies, and argues that these agreements themselves constitute a site of justice. On this argument—it can be called, without too much distortion, the argument from conversation—the states of the world have distributive duties of justice because they have created complex administrative institutions with substantial degrees of independence from their creating states. Therefore, on this argument, these institutions are themselves subject to the norms of justice, insofar as they are bound to create the conditions under which all agents affected are able to speak and be heard by those institutions. The final argument involves a simple analogy between the domestic and international legal systems, and argues that they are both examples of a common type of norm-governed institution. The cooperation argument argues that the international legal system, like the domestic, is a primary site of justice in virtue of its ability to define individual material holdings and affect the lives of all individuals within its reach.

None of these arguments, I suggest, is ultimately successful as an attempt to derive distributive duties from international law. I do not mean by this that these arguments are utterly mistaken; I mean, instead, to argue that none of them is successful at differentiating between the world of international law and our imagined world without international law. What this means, I suggest, is that our duties to the less developed nations of the world may in fact be quite strong—for reasons closely related to the reasons discussed here—but that these duties do not have international legal institutions as part of their justifying stories.

The argument from causation is not a new one; it finds expression as far back as the earliest writers in the dependency theory tradition, which argued that the persistent underdevelopment of the global South could be ascribed to decisions and practices taken by the global North (Roberts and Hite 2007). What is common in those who make this argument is the idea that the wastage of human life endemic in the underdeveloped world is neither inevitable nor the fault of domestic mismanagement and corruption. Rather, this underdevelopment stems from a set of global institutions that are imposed on the poor by the rich, for the benefit of the rich. The result is that those who are benefitting from this injustice have a special duty to overcome it—by first ceasing to be the beneficiaries of injustice, and then in working to create an alternative, justified global order.