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 king whether an impartial morality permits some disparate treatment of an individuals 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? 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 Brian Barry, International Society from a Cosmopolitan Perspective, in INTERNATIONAL SOCIETY: DIVERSE ETHICAL PERSPECTIVES 144, 154 (David R Mapel Terry Nardin ed 1998)
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)
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.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 nstitutionalization because they are inconsistent with existing Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 ETHICS 48, 50-52(1992) see also Barry, supra note 1, at 144-45 JOHN RAWLS, THE LAW OF PEOPLES 83 (1999)
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)
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 oral 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, a position at odds with developments in international human rights, international environmental law, and even much older principles like a states 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 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) David R Mapel, Justice, Diversity, and Law, in INTERNATIONAL SOCIETY, supra note 1 at242.250
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
treaties on pollution as well as a bedrock principle of customary environmental law regarding transboundary activities. Most tellingly, Rawls in The Law of peoples grounds nuch of his work on an unargued summary of international law based on a selective reading of a 40-year old treatise. 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. How to describe and appraise international law --both its norms and its processes for resolving competing claims -- in a way that contributes to 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 See the critique of Rawls in FERNANDO TESON, A THEORY OF INTERNATIONAL LAW 1998) Andrew Hurrell, International Lay 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)
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)
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 urisprudence 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
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
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 to demonstrate the analytical advantages of this construct for the understanding ofg impartialist perspective on ethics(though not any particular impartialist theory ) and thi 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 Il, 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 duty holders and, as a general matter, to whom their duties extend. Part Ill 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, offer a critique of two main approaches to international justice. I conclude with some reflections for further work in the area 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 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
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
Any discussion of general and special duties should begin with H L.A. Harts 1955 essay, Are There Any Natural Rights? 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 firsts 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. 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 relation: oll 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. Hart then sketches the sorts of 64PHL.REV.175(1955) ld at 181 ld at 183 ld. at 188
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
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. 3 As Philip pettit and Goodin note, these special duties can arise by virtue of agents identities, relationships or histories 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 The Partiality debate. First are debates between partialists and impartialists. 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. Lawrence Becker has categorized these debates as 13 Robert E Goodin, What is So Special about Our Fellow Countrymen?, 98 ETHICS 663 665(1988 Philip pettit robert Goodin, The Possibility of special Duties, 16 CANAD. J. PHIL. 651 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 Maclntyre's notion of the"liberal
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
concerning three major questions: whether personal interests can play a role in determining oral duties, whether it is possible to adopt a standpoint for moral deliberation that is dependent of ourselves; and whether we can take into account personal relationships in assessing moral duties. 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. 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 Lawrence C Becker, Impartiality and Ethical Theory, 101 ETHICS 698(1991) Pettit Goodin, supra note 14
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
(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 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 lay that all states are sovereign equals with identical rights and duties. 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) UN CHARTER, art. 2(1)
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)