[1.7.] International Law.

 

We have seen that in civil law systems, the law consists of a system of well-organized and extensive rules enacted by a law-making party, and in common law systems, the law consists of

case law (decisions of judges in past cases) and individual statutes (rules enacted one at a time by a legislature).

 

Within a given state (whether it has a civil law or common law system), it is relatively clear what counts as law for that state. (Of course, a given law might be difficult to interpret, but that’s a different issue, one which we’ll address later.)

 

But what is international law? There is no single world government, no world-wide legislature tasked with enacting laws that will hold for all peoples at all times. So the answer to our question will not be as straightforward as the answer to, e.g., the question “are there laws of the state of Georgia?”

 

Some philosophers of law, such as John Austin, have been skeptical about the very notion of international law...

 

John Austin (English, 1790 – 1859)[1]

·         friend of the utilitarian philosophers Jeremy Bentham and John Stuart Mill

·         originator of the theory called legal positivism, according to which law and morality are completely independent of each other [we will examine this theory in detail soon]

 

On Austin’s view, law is best defined as “a series of commands issued by a sovereign and backed by sanctions”; this is sometimes called a command theory of law.

 

International “law” seems to lack all three of the conditions Austin describes: commands issued by a sovereign and backed up with sanctions. But Austin’s definition of law has been widely criticized; one need not accept it or his denial that international law counts as genuine law.

 

A further, fundamental question about international law is: what could obligate someone (an individual, or a state, or an international organization) to obey national law? This is an even more difficult question than the one we’ve been considering up to now (what obligates an individual to obey the laws of his or her nation?)...

·         Hobbes’ response to the question about individuals and domestic law requires that those individuals be living together in a society and that there be a single recognized source of law in that society. From an international perspective, those conditions are not met.

·         Socrates’ response to that question won’t work, for similar reasons: there is no single world-government to which anyone owes a debt of gratitude, and while we may have the option of leaving our own society (and thereby leaving the implied contract we have with that society), we don’t have the option of leaving the planet!

·         Rawls’ response to that question makes sense only within the framework of a social structure that looks at least something like his ideally just society—and the international community of nations looks nothing like that.

 

Today we will:

·         examine the recognized sources of international law

·         examine Kant’s moral philosophy as a way of laying the groundwork for a detailed examination of his views of international law (in the next class).

 

 

[1.7.1.] The Sources of International Law.[2]

 

There are four traditional sources of international law:

 

1. treaties, formal agreements between two or more nations

·         includes general conventions, e.g., the Charter of the United Nations, the International Covenant on Civil and Political Rights, according to which (among other things) “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”[3]

·         a treaty can be ratified by a state with expressed reservations regarding certain of its provisions.

 

2. custom (df.): in the context of international law, “custom” “refers to those generally followed practices within the international order that have been internalized and accepted as law by those engaged in them. Custom does not have the force of law until it has been internalized and accepted as law.”[4]

 

3. “Legal doctrines or practices common to all civilized states.” For example, the idea of due process is part of international law (“due process” refers to “the legal procedures that have been established as a means of protecting individuals’ rights”[5]):

Many norms of due process have been incorporated into international law in this way. All civilized states commit themselves to one or another conception of due process and usually to certain fundamental due process requirements, for example, persons are to be informed of the charges against them, they are to have the opportunity to defend themselves, ex post facto applications of legal rules are to be avoided, and so on. As international legal practice has developed, these norms have been incorporated into international law on the grounds that they reflect shared understandings of how legal systems are to operate.[6]

 

4. “[R]ulings by authoritative judicial bodies, reports from recognized international commissions, and so on.”[7] One such judicial body is the International Court of Justice:

 

International Court of Justice (ICJ)

·         Also known as the World Court

·         Located in the Hague, the Netherlands

·         The primary judicial organ of the United Nations

·         Consists of 15 judges, each of a different nationality, elected to nine-year terms by the UN Security Council and the UN General Assembly; elections are held every three years for five of the 15 seats.

·         Official languages are English and French

·         Only states, not individuals or international organizations, can be parties before the ICJ

·         Countries fall within the jurisdiction of the ICJ only if they agree to fall within its jurisdiction. A number of countries, including the United States and France, have rejected the ICJ’s compulsory jurisdiction, although they might agree to be bound by the Court’s decisions on a case-by-case basis.

 

In recent years, a further notion has been added to the list:

 

5.  Jus cogens principles: “those principles or norms of international law necessarily binding on all states or other international actors regardless of their treaty undertakings or the shape of, or their attitude toward, customary practices.”[8]

·         For example: “It seems perhaps noncontroversial to say that regardless of treaty or custom or any other source of international law, states may not slaughter large, peaceful, law-abiding segments of their own populations. States that do so may be subject to various sanctions, even coercive intervention, within the international order, because jus cogens principles prohibit genocide.”[9]

·         Such principles are held (by the people who believe in them) to be mandatory on all states and other actors (individuals or organizations).

·         Not everyone agrees that there are such principles; the notion of jus cogens requirements of international law is controversial.

 

 

[1.7.2.] Kant on International Law.[10]

 

[1.7.2.1.] Background.

 

Immanuel Kant (1724-1804)

·         Prussian

·         perhaps the most influential and widely discussed Western philosopher after Plato and Aristotle

·         studied for (among other things) his elaborate epistemological and ethical theories

 

To understand Kant’s approach to ethical questions, we should first consider the sort of approach to ethics that Kant rejects:

 

consequentialism (df.): a normative theory of ethics according to which whether an action is moral or immoral depends only on its consequences or effects; sometimes described as a teleological theory of normative ethics (from Greek telos, goal, end, or outcome). There are two broad types of consequentialism:

·         ethical egoism: the only morally relevant consequences of an action are the consequences it has for the person performing the action; its effects on other people are irrelevant.

·         utilitarianism: any effects an action has for anyone at all are morally relevant; so when you consider what effects an action will have, you must consider what those effects will be for anyone who might be affected; a good-making consequence of an action is that it increases happiness or well-bring; a bad-making consequence is that it decreases happiness or well-being.

 

Consequentialism is one of the two main traditions in modern normative ethics. Kant belongs to the other tradition:

 

deontological theories [a.k.a. deontology] (df.): normative theories that focus on duty, holding that there are some actions that you have a duty to perform and some you have a duty not to perform, regardless of the consequences. (from Greek deon, “duty”)

 

Kant developed an elaborate deontological theory of normative ethics, based on a single idea which (according to Kant) all rational beings will accept:

 

The Categorical Imperative (version 1):  “Act only according to that maxim by which you can at the same time will that it should become a universal law.” (Foundations of the Metaphysics of Morals; quoted in your textbook, p.38)

 

The CI suggests a procedure for deciding whether it is morally permissible to perform an action:

·         Ask what “maxim” (a rule or principle of behavior) you would be following were you to perform that action

·         Ask whether you can rationally will for that maxim to “become a universal law,” i.e., whether you can rationally will for everyone to follow that maxim, all the time.

·         If you can, then the maxim is “universalizable” and the action is morally permissible.

·         If you cannot, then the maxim is not “universalizable” and the action is immoral.

 

For example, consider the maxim, “When I believe myself to be in need of money, I will borrow money and promise to repay it, although I know I shall never do so.”

·         You cannot will that this become a universal law, because such a law would be self-defeating: if everyone followed this rule, then eventually no one would have any reason to believe anyone else was promising in good faith to repay a loan–so people would stop lending money: “no one would believe what was promised to him but would only laugh at any such assertion as vain pretense.”

·         So making a false promise violates the CI and is therefore immoral.

·         Kant thought that any lie is immoral, even lying to save someone’s life (see quotation on p.38)

 

Kant believed that a second version of the CI is equivalent to the first:

 

The Categorical Imperative (version 2): “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” (Foundations of the Metaphysics of Morals; quoted in your textbook, p.39)

 

On Kant’s view, the CI requires that we respect the moral right of individuals to determine how they will behave, how they will live their own lives. I.e., we must respect their autonomy:

 

autonomy (df): an individual's capacity for self-governance, for deciding for himself or herself how he or she will live.

 

This means that we can never use them or manipulate them to achieve our own purposes, even if our purposes are good ones.

 

Suppose that you lie to a friend in order to get a loan; you say that you will repay it, even though you know you won't be able to. In doing this, you would be treating her only as a means and not as an end in herself.  You would be manipulating her into doing something that you want her to do by giving her false or incomplete information. This is true, even if you want to borrow the money for very good purposes (e.g., to pay for drugs to save the life of your dying child).

 

To treat her as an “end” rather than as a means only, you would need to be forthcoming about your situation. You would need to tell her why you need the money and that you won’t be able to repay it and then let her make up her own mind about whether she will give it to you. This would be to respect her ability to make up her own mind about how to act. If she chooses to give you the money, then she has freely made your purpose her own.

 

 

Stopping point for Monday January 29. For next time, read pp.42-49 (by Kant).