What is the relationship between international law and distributive justice? Domestic legal systems are frequently thought to give rise to distinct duties of distributive justice; those who share liability to a domestic state, on such accounts, share a distinct set of duties to one another, including some duties of distributive justice. The creation of the legal apparatus of the domestic state transforms the duties of those within that state’s territory, giving rise to novel duties of distributive justice (Blake 2001). The question this essay will examine is whether or not the international legal system also gives rise to novel egalitarian duties of justice. Does the creation of the international legal system similarly bring about a distinct set of egalitarian duties?
My answer to this question will be negative; sharing the institutions of international law does not itself give rise to new duties of distributive egalitarianism. This is not to say that no duties of distributive justice exist between states right now. It is to say, instead, that such duties are not dependent upon the existence of international law; we would have these duties regardless of whether or not we share the network of norms constitutive of international law. I will not, at present, attempt a full theory of what these duties might be. I will, instead, simply argue that these duties must be applicable to states qua states, regardless of what legal instruments bind states together. International legal institutions may make some difference in how we fulfill these duties; they may make compliance with our duties more or less easy, for example, or specify a particular method by which our duties might be discharged. The duties themselves, however, are not dependent upon the legal system’s existence, and this fact marks a significant difference between the domestic and international legal systems.
I will try to justify this assertion below, by examining three ways in which international law might be thought to be the source of distinct duties of egalitarian justice. Before I do this, however, a few clarifications are in order. The first is that I am here dealing only with the norms and practices of public international law, rather than with the related but distinct field of private international law or with those parts of domestic legal systems dealing with conflict of laws. I am here referring to public international law as defined with reference to its sources—namely, international conventions, international custom and the general principles of law recognized by civilized nations (Aust 2010: 1–12). The second clarification is that I will, in what follows, be dealing only with distributive justice, rather than with justice more generally. The latter has many aspects that do not reduce to distribution—I assume, for example, that there is a strong relationship between democratic legitimacy and justice, and that this fact would have to be part of any complete discussion of the justice of international law. I will, in the present context, focus on distributive justice. The third clarification is that I will assume, throughout this paper, that international law will for the foreseeable future have the same relationship to coercive power that it currently does. International law, at present, serves as a means by which states justify their actions towards one another, including such coercive actions as military interventions; it does not, however, involve the creation of a particular collective agent with adequate power to coerce all the states of the world. International law is invoked in justification of what I call horizontal coercion, in which states deploy its norms in the justification of their coercive actions towards one another; in this, it contrasts with the vertical coercive structure of domestic law, which involves the creation and justification of a central authority with adequate power to coerce all those within the jurisdiction of that authority (Blake 2011). I assume that, in the short to medium term, we are able to change the content of international law, but not its foundational structure as a creation of state agency (Goldsmith and Posner 2005). The final clarification I want to make follows on from this third one: I will assume that, in the short to medium term, states will have significantly different abilities to make, interpret and break the norms of international law. Powerful states such as the United States are frequently able to ignore unwelcome norms and contrary judgments with something very much like impunity, whereas more marginal states are unable to do the same. The United States was, for example, able to effectively ignore contrary judgments of the International Court of Justice in the case of the mining of the harbors of Nicaragua, and the United Nations in the case of the invasion of Iraq (Gwertzman 1984; Hirsch 2010). For the moment, I want simply to assume that something like this inequality of power will be true for the foreseeable future. I do this not to make the case that this inequality would be true in an ideally just world—I cannot imagine that it would—but simply to accept that this fact is part of the world in which our theorizing must apply; ignoring this inequality, or assuming it away, does nothing to help us in the here and now.
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.
These questions are distinct. We might imagine, for example, someone who believes that individuals have strong egalitarian duties simply in virtue of sharing the status of human, so that the international legal system ought to be reorganized in an egalitarian manner, even though this system is not itself the source of these egalitarian duties (Caney 2011). My own purpose in this essay is to focus on the question of creation, although I will have the opportunity to make some brief remarks on the question of fulfillment.
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.
It might be asserted, instead, that the world I have described does in fact contain a legal order, insofar as the states in question are able to make and keep promises. Much international law, after all, results from the agreements states make with one another. Indeed, a foundational norm of international law is that agreements shall only be made in good faith—as noted in Article 26 of the Vienna Convention of 1969. Is it not, then, impossible to imagine that we could have a world in which states make promises, without that fact itself implying the existence of some legal order, however primitive or weak? The answer, I think, is no—so long as one is able to imagine that we might be able to make promises, and bind ourselves morally, in the absence of any particular set of social institutions or norms. Tim Scanlon, on this note, imagines the possibility of a chance meeting between two members of different tribes, who are able to come to an agreement with one another through gestures and broad indicators of what they each decide (Scanlon 1990). It would seem foolish to think that these two tribesmen have thereby created an institution, in the sense demanded by the objection described here. The agency of these tribesmen is their own: they have each indicated a willingness to bind themselves to a certain course of action, and this willingness exists simply in virtue of their status as agents. They neither create nor require any separate institutional set as a part of this endeavor. Similarly, I think it is entirely possible for groups of individuals, or their representatives, to understand themselves as agents with this ability, without thereby demanding that we give rise to something akin to international law. The world I am imagining demands only that states have the ability to communicate and to enter into agreements; nothing in this, I think, demands or constitutes a distinctively legal set of 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.