I lay out my thesis as follows: Chapter 1 (an extended version of this proposal) provides an introduction to and overview of the book. It also clarifies the scope of the project of global justice as compared with other conceptions of justice. Chapter 2 examines the state of scholarship on global justice, examining it through the three key disciplines that have most focused on it: ethics, international law, and (a bit on) international relations. In each case I consider the shortcoming of the discipline’s approach to constructing a just world order and its incapacity in many cases to consider the insights of cognate fields. Chapter 3 offers a basic structural overview of the international legal system, conceptualizing it in terms of a system of general and special duties that have developed to respond to the claims of a variety of global actors — principally states, peoples, individuals, and economic enterprises.
Chapter 4 presents my claim of the weak form of cosmopolitan justice already inherent in this system. It sees that justice as based on two core values – the imperative of promoting international and internal peace, on the one hand, and the inherent and equal dignity of individuals, on the other. I appraise the justice of norms of international law by first following a consequentialist rationality to see if they advance peace; but then I must apply a deontological constraint that invalidates rules that would violate core human rights – a vision and method that accepts elements from both Hobbes and Kant. That form of justice is not as thick as the justice we might minimally expert for domestic polities, nor is it the limit of justice for which we should strive in the international realm. However, it is justice deserving of the name – one justifiable from an impartial perspective and, indeed, broadly consistent with a cosmopolitan vision of the world.
To test my claim that international law comports in many important respects with this vision, I then examine the core constitutive norms of the system – principally envisioned as general and special duties – that respond to the claims of the global actors. In each case, I offer an attempted crystallization of the law as it currently stands, taking into account areas of disagreement or flux, and then proceed to evaluate the justice of those norms, as well of claims by various international actors to change the existing norms in one direction or another. In some cases the law will prove defensible under my test; in others the law will not. But the arguments of those seeking to change the law will merit as much scrutiny as the status quo.
The subsequent three chapters address the core norms created in response to the claims of states and peoples. Chapter 5 concerns the ban on the use of force, nonintervention, and self-determination, key provisions that set the basic rules of cooperation within the system as well as the possibility of peoples to assume the status of states. Chapter 6 focuses on sovereign equality of states, the somewhat mystical idea that states are juridically equal, an idea said by many scholars to be either illegitimate morally or belied by reality. Chapter 7 turns to one particular aspect of that debate, the place of states within international institutions that seem to play favorites with respect to membership, decisionmaking processes, and outcomes.
I then turn to the norms developed to address the claims of individuals. Chapter 8 turns to human rights law and focuses on what I regard as the most fundamental justice-related issue associated with human rights, namely whether states should uphold or defend the rights of people beyond states’ boundaries. This inquiry unites three important areas of law — the extraterritorial effect of human rights norms, universal jurisdiction, and humanitarian intervention. And Chapter 9 addresses the morality of the seemingly odd ways in which human rights relates to two other areas of law said to protect human dignity, international humanitarian law and international criminal law.
In Chapter 10, I turn to claims made by states, individuals, and business entities regarding wealth, and in particular address the concerns of many within ethics regarding the distributional aspect of international law’s rules. I conclude with a chapter on the current gaps between international law and different visions of global justice.
My methodology is thus one of appraising the law and legal institutions – the ethics on the ground, as it were — rather than seeking to derive from first principles some ideal theory of global justice, a matter best left for philosophers anyway. The challenge here is to see whether the law as it exists corresponds to any approach to justice and see the opportunities for the law to advance various conceptions of justice. It is ultimately a ground-up study, offering up the practice of international law to show its ethical content. I thus in a sense start with Andrew Hurrell’s insight that “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. . . .”* Hurrell’s point offers a cogent rebuttal to skeptics of the law by virtue of its origins in political compromise. But I go beyond that claim by arguing that those ethical claims are not solely a function of the inclusive process by which international law emerges and evolves, but also by virtue of its content. There is a connection between the two insofar as it seems hardly coincidental that much of the core structural norms of international law do hew closely to certain moral intuitions and theories.
It is important at the outset to state a number of directions in which this work does not go. First, I take the basic state system as a given. While much is up for discussion within this system, the globe is, for the foreseeable future, likely to be governed primarily through independent and sovereign states. While beyond the scope of this book, I note that such a system is not only a fact, but has much value as a basis for global governance. Second, this book does not focus on questions about the nature of law (e.g., the Hart-Fuller debate) in general or of the nature of international law in particular. I sidestep these jurisprudential and ontological questions and instead assume that treaties and custom at a minimum, are, indeed, acceptable forms of, as well as outputs of, lawmaking.
Lastly, this volume is directed at appraising what I regard as the fundamental norms of the international legal system that respond to the most important claims of the key global actors. We might call these constitutive norms, though I make no claims that international law has a constitution. The substantive body of international law is enormous, covering not just well known matters like war and peace, the law of the sea, and human rights, but manifold technical areas ranging from telecommunications to antitrust to global health to international labor. Many of these areas simply cannot be appraised from the vantage point of my theory any more than one might ask whether an arcane provision of the tax code or the customs duties can be defended under Rawls’ difference principle – they are simply too divorced from the goals of international justice as I see them for us to have a meaningful appraisal. Others can take my theory, or others, to these dark and quiet corners of the international legal landscape, but I will focus on the dominant features of the global legal system.
* 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).