From Nuremburg to Kosovo: The morality of illegal international legal reform

Ethics

Volumn 111, Issue 4, 2001, Pages 673-705

  Buchanan, Allen ^a  

^a NONE

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EID: 0035402946     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/233569     Document Type: Article

References (39)

1. Thomas Franck, "The Emerging Right to Democratic Governance," American Journal of International Law 86 (1992): 46-91.
2. For a valuable critical exposition of the different ways of formulating the democratic peace hypothesis, the evidence for it, and the criticisms of it, see Bruce Russett, Glasping the Democratic Peace: Principles for a Post-Cold War World (Princeton, N.J.: Princeton University Press, 1993).
3. J. S. Watson, "A Realistic Jurisprudence of International Law," The Yearbook of World Affairs (London: London Institute of World Affairs, 1980), pp. 265-85; Alfred P. Rubin, Ethics and Authority in International Law (Cambridge: Cambridge University Press, 1997), esp. pp. 70-206.
4. J. S. Watson, "A Realistic Jurisprudence of International Law," The Yearbook of World Affairs (London: London Institute of World Affairs, 1980), pp. 265-85; Alfred P. Rubin, Ethics and Authority in International Law (Cambridge: Cambridge University Press, 1997), esp. pp. 70-206.
5. There may, however, be domestic legal and/or political repercussions.
6. As an example of an illegal act directed toward reform that is not an act of intervention, consider the United States's unilateral declaration in 1976 of a prohibition against using fishing nets that are dangerous to dolphins in a 200-mile zone (far exceeding its territorial waters). The morality of such illegal acts directed to reform on international law in the name of protecting species or environmental protection is an important topic that merits a separate treatment.
7. The foregoing picture of international law's limited resources for lawful moral reform is, of course, a sketch in broad strokes. There are more subtle modes by which international law can be changed. For example, judicial bodies (such as the International Court of Justice) or quasi-judicial bodies (such as the UN Human Rights Committee) can achieve reforms under the guise of interpreting existing law. However, as a broad generalization it is fair to say that these modes for effecting moral improvements are both limited and slow.
8. Watson, pp. 271-72; Rubin, p. 124.
9. Watson, pp. 271-72; Rubin, p. 124.
10. The Nuremburg Code, which prohibits experimentation on human subjects without consent, was drafted as a direct result of the prosecution of the Nazi doctors for their inhumane experiments on unwilling human subjects. See German Territory under Allied Occupation, 1945-1955: U.S. Zone, Control Council No. 10, Trials of War Criminals before the Nuremberg Military Tribunals (Washington, D.C.: U.S. Government Printing Office, 1949), vol. 2, pp. 181-82; William J. Bosch, Judgment on Nuremburg: American Attitudes toward the Major German War-Crimes Trials (Chapel Hill: University of North Carolina Press, 1970).
11. The Nuremburg Code, which prohibits experimentation on human subjects without consent, was drafted as a direct result of the prosecution of the Nazi doctors for their inhumane experiments on unwilling human subjects. See German Territory under Allied Occupation, 1945-1955: U.S. Zone, Control Council No. 10, Trials of War Criminals before the Nuremberg Military Tribunals (Washington, D.C.: U.S. Government Printing Office, 1949), vol. 2, pp. 181-82; William J. Bosch, Judgment on Nuremburg: American Attitudes toward the Major German War-Crimes Trials (Chapel Hill: University of North Carolina Press, 1970).
12. Rubin, pp. 97-130; Reginald Coupland The British Anti-Slavery Movement (London: Oxford University Press, 1993), pp. 151-88. Note that in adducing this example, I am not assuming that the motives of the British government were pure, only that one justification for the forcible disruption of the transatlantic slave trade that could have been given was that these illegal actions would contribute toward a moral improvement in the international legal system. Whether those who instigated the policy of disrupting the transatlantic slave trade were motivated by humanitarian concerns or not is irrelevant.
13. Rubin, pp. 97-130; Reginald Coupland The British Anti-Slavery Movement (London: Oxford University Press, 1993), pp. 151-88. Note that in adducing this example, I am not assuming that the motives of the British government were pure, only that one justification for the forcible disruption of the transatlantic slave trade that could have been given was that these illegal actions would contribute toward a moral improvement in the international legal system. Whether those who instigated the policy of disrupting the transatlantic slave trade were motivated by humanitarian concerns or not is irrelevant.
14. Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1964), pp. 33-39.
15. The problem of achieving greater equality among states is a complex one. One cannot assume that the best or only way to achieve greater equality is by greater democratic participation in the making and application of international law. One alternative would be a system of constitutional checks on actions of more powerful states. For example, international norms specifying when humanitarian intervention is justified might be crafted to reduce the risk that powerful states would abuse them, by requiring very high thresholds of human rights abuses before intervention was permitted, and by requiring international monitoring of the process of intervention to facilitate ex post evaluation of whether the requirement of proportionality was met, etc. I am indebted to T. Alexander Aleinikoff and David Luban for emphasizing this point (personal communications).
16. Henry Shue, Basic Rights, 2d ed. (Princeton, N.J.: Princeton University Press, 1980), pp. 131-52; Thomas Pogge, "An Egalitarian Law of Peoples," Philosophy & Public Affairs 23 (1994): 195-224.
17. Henry Shue, Basic Rights, 2d ed. (Princeton, N.J.: Princeton University Press, 1980), pp. 131-52; Thomas Pogge, "An Egalitarian Law of Peoples," Philosophy & Public Affairs 23 (1994): 195-224.
18. There are two quite different conceptions of legitimacy that are often confused in the writings of political theorists. The first, weaker conception is that of being morally justified in attempting to exercise a monopoly on the enforcement (or the making and enforcement) of laws within a jurisdiction. The second, stronger conception, often called 'political authority', includes the weaker condition but in addition includes a correlative obligation to obey the entity said to be legitimate on the part of those over whom jurisdiction is exercised. I have argued elsewhere that it is the former conception, not the latter, that is relevant to discussions of state legitimacy in the international system. I would also argue that this is true for legitimacy of the system. Allen Buchanan, "Recognitional Legitimacy and the State System," Philosophy & Public Affairs 28 (1999): 46-78.
19. Watson can perhaps be interpreted as endorsing this version of the Fidelity to Law Argument. He strongly emphasizes that international law will only be effective in constraining the behavior of states if it is consensual and rejects illegal acts of reform as being incompatible with the requirement of consent (Watson, pp. 265, 270, 275). The chief difficulty with this line of argument is that while it would be extremely implausible to say that there must be perfect compliance with law for it to be effective, Watson does nothing to indicate either what level of compliance is needed for effectiveness or what counts as effectiveness.
20. Rubin, pp. 190-91, 205, 206; Watson, pp. 265, 270, 275.
21. Rubin, pp. 190-91, 205, 206; Watson, pp. 265, 270, 275.
22. The literature exposing the deficiencies of the various forms of Realism in international relations is voluminous. Of particular value are Charles Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1979), pp. 3-66; and writings of the liberal theory of international relations by Anne-Marie Slaughter, "International Law in a World of Liberal States," European Journal of International Law 6 (1995): 503-38; and Andrew Moravcsik, "Taking Preferences Seriously: A Liberal Theory of International Politics," International Organization 51 (1997): 513-53.
23. The literature exposing the deficiencies of the various forms of Realism in international relations is voluminous. Of particular value are Charles Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1979), pp. 3-66; and writings of the liberal theory of international relations by Anne-Marie Slaughter, "International Law in a World of Liberal States," European Journal of International Law 6 (1995): 503-38; and Andrew Moravcsik, "Taking Preferences Seriously: A Liberal Theory of International Politics," International Organization 51 (1997): 513-53.
24. The literature exposing the deficiencies of the various forms of Realism in international relations is voluminous. Of particular value are Charles Beitz, Political Theory and International Relations (Princeton, N.J.: Princeton University Press, 1979), pp. 3-66; and writings of the liberal theory of international relations by Anne-Marie Slaughter, "International Law in a World of Liberal States," European Journal of International Law 6 (1995): 503-38; and Andrew Moravcsik, "Taking Preferences Seriously: A Liberal Theory of International Politics," International Organization 51 (1997): 513-53.
25. Terry Nardin, Law, Morality, and the Relations of States (Princeton, N.J.: Princeton University Press, 1983), pp. 5-13; John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 51-120.
26. Terry Nardin, Law, Morality, and the Relations of States (Princeton, N.J.: Princeton University Press, 1983), pp. 5-13; John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 51-120.
27. Nardin acknowledges that states do share some ends, e.g., the flourishing international trade, but his view seems to be that what is distinctive about international law is that it binds together states in the absence of shared substantive ends.
28. Watson, p. 268.
29. For a valuable exposition and defense of the idea of a global culture of human rights, see Rhoda E. Howard, Human Rights and the Search for Community (Boulder, Colo.: Westview, 1995), pp. 1-20.
30. Fernando Tesón, The Philosophy of International Law (Boulder, Colo.: Westview, 1998), pp. 39-41.
31. Benedict Kingsbury, "Sovereignty and Inequality," European Journal of International Law 9 (1998): 599-625.
32. Kofi Annan, Speech to the General Assembly, September 20, 1999, p. 2 (September 20, 1999; SG/SM/7136 GA/9569: Secretary-G).
33. John Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 136-37.
34. Allen Buchanan, "Justice, Legitimacy, and Human Rights," in The Idea of Political Liberalism, ed. Victoria Davion and Clark Wolf (Lanham, Md.: Rowman & Littlefield, 2000), pp. 73-89.
35. Thomas Christiano, "On Rawls's Argument for Toleration" (unpublished paper); Allen Buchanan, Justice, Legitimacy, and Self-Determination: International Relations and the Rule of Law (New York: Oxford University Press, fortacoming).
36. Thomas Christiano, "On Rawls's Argument for Toleration" (unpublished paper); Allen Buchanan, Justice, Legitimacy, and Self-Determination: International Relations and the Rule of Law (New York: Oxford University Press, fortacoming).
37. Buchanan, "Justice, Legitimacy, and Human Rights," and Justice, Legitimacy and Self-Determination: International Relations and the Rule of Law.
38. For a valuable review of the evidence that current international law prohibits armed humanitarian intervention, even with Security Council authorization, see Lori Fisler Damrosch, "Changing Conceptions of Intervention in International Law," in Emerging Norms of Justified Intervention (a collection of essays from a project of the American Academy of Arts and Sciences), ed. Laura W. Reed and Carl Kaysen (Cambridge, Mass.: American Academy of Arts and Sciences, Committee on International Security Studies, 1993), pp. 93-110.
39. Barry E. Carter and Phillip R. Trimble, International Law: Selected Documents (Boston: Little, Brown, 1995), pp. 14-15.