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Cornell International Law Journal

Volumn 39, Issue 3, 2006, Pages 477-499

  Trachtman, Joel P ^a  

^a TUFTS UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 34047128581     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (91)

1. In using Rawls's work as a basis and as a foil, 1 follow a long tradition. "Rawls's A Theory of Justice is generally considered to be the most complete and systematic account of a rights-based justice in contemporary philosophy. It is not surprising, therefore, that the important attempts at developing a systematic theory of global justice have been attempts at 'globalizing' Rawls's theory of justice." KOK-CHOR TAN, JUSTICE WITHOUT BORDERS: COSMOPOLITANISM, NATIONALISM AND PATRIOTISM 54 (2004).
2. John Rawls, The Law of Peoples, 20 CRITICAL INQUIRY 36 (1993),
3. revised and expanded in JOHN RAWLS, THE LAW OF PEOPLES (1999).
4. JOHN RAWLS, A THEORY OF JUSTICE 8 (1971) ("I shall be satisfied if it is possible to formulate a reasonable conception of justice for the basic structure of society conceived for the time being as a closed system isolated from other societies. . . . It is natural to conjecture that once we have a sound theory for this case, the remaining problems of justice will prove more tractable in the light of it.");
5. JOHN RAWLS, POLITICAL LIBERALISM 12 (1995).
6. "Moral hazard" is an economic concept describing a circumstance in which individuals do not bear the full adverse consequences of their decisions, and so may have perverse incentives to act in a way that diminishes social welfare.
7. For a similar perspective, see Kevin R. Johnson, Open Borders, 51 UCLA L. REV. 193 (2003).
8. See Jules L. Coleman & Sarah K. Harding, Citizenship, the Demands of Justice, and the Moral Relevance of Political Borders, in JUSTICE IN IMMIGRATION 18 (Warren F. Schwartz ed., 1995).
9. Frank Garcia and Fernando Teson have brought these concerns to the foreground in their work. See, e.g., Frank J. Garcia, Building a Just Trade Order for a New Millennium, 33 GEO. WASH. INT'L L. REV. 1015 (2001);
10. FERNANDO TESON, A PHILOSOPHY OF INTERNATIONAL LAW (1998).
11. See, e.g., LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE (2002).
12. Rawls states that "[a]ll ethical doctrines worth our attention take consequences into account in judging rightness." RAWLS, POLITICAL LIBERALISM, supra note 3, at 30.
13. MILTON FRIEDMAN, PRICE THEORY 13 (1962).
14. See, e.g., Senate Committee Conducts Hearing on Immigration Reform Legislation, 82 Interpreter Releases 1243, 1244 (2005) (comments of Sen. John McCain).
15. For an assessment of trade rules against certain principles of justice, see Darrel Moellendorf, The World Trade Organization and Egalitarian Justice, 36 METAPHILOSOPHY 145 (2005).
16. For a more detailed analysis, see Joel P. Trachtman, Legal Aspects of a Poverty Agenda at the WTO: Trade Law and "Global Apartheid," 6 J. INT'L ECON. L. 3 (2003).
17. See, e.g., World Bank Independent Evaluation Group, Assessing World Bank Support for Trade, 1987-2004 (2006), available at http://www.worldbank.org/ieg/trade/docs/trade_evaluation.pdf.
18. A recent World Bank Independent Evaluation Group report criticized the Bank for failing to pay sufficient attention to distributional effects in connection with its advice to borrowers to liberalize trade. Id.
19. Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251, 252 (1987).
20. Howard Chang makes an explicit comparison between apartheid and restrictions on immigration: "Just as we condemn segregation at the local level for undermining equality of opportunity in the domestic context, I suggest, we should condemn immigration restrictions for undermining global equality of opportunity." Howard Chang, Cultural Communities in a Global Labor Market: Immigration Restrictions as Residential Segregation, working paper dated 2006, at 10, available at http://lsr.nellco.org/upenn/wps/ papers/90.
21. DANI RODRIK, HOW TO MAKE THE TRADE REGIME WORK FOR DEVELOPMENT (2004), available at http://ksghome.harvard.edu/~drodrik/ How%20to%20Make%20Trade%20Work.pdf.
22. JARED DIAMOND, GUNS, GERMS AND STEEL: THE FATE OF HUMAN SOCIETIES (1999).
23. Cf. Gerald L. Neuman, The Lost Century of Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993) (describing earlier restrictions).
24. See, e.g., WTO Secretariat, GATS, Mode 4 and the Pattern of Commitments, dated 12 Apr. 2002, available at http://www.wto.org/english/ tratop_e/serv_e/symp_apr_02_carzaniga_e.doc.
25. Monterrey Consensus, UN Doc A/Conf.198/3, 22 Mar. 2002, para. 42. Even these minimal goals are not being met.
26. As discussed below, Rawls believes that the "duty of assistance" is limited to the promotion of good governance. See generally Rawls, supra note 2.
27. See generally GLOBAL JUSTICE (Thomas W. Pogge ed., 2001);
28. FRANK J. GARCIA, TRADE, EQUALITY AND JUSTICE: TOWARD A LIBERAL THEORY OF JUST TRADE (2003).
29. See also Joel P. Trachtman, Review Essay: The Law and Economics of Global Justice, 96 AM. J. INT'L L. 984 (2002);
30. Joost Pauwelyn, Book Review: Just Trade, 37 GEO. WASH. INT'L L. REV. 559 (2005).
31. See Thomas W. Pogge, The Incoherence Between Rawls's Theories of Justice, 72 FORDHAM L. REV. 1739, 1755 (2004).
32. See Martha Nussbaum, Women and the Law of Peoples, 1 POL. PHIL. & ECON. 283, 294 (2002).
33. Charles Beitz, Rawls's Law of Peoples, 110 ETHICS 669, 680 (2000).
34. The distinction between "peoples" and states need not concern us, as Rawls's intent is (i) to emphasize the responsibility of states to their individual constituents - the people, and (ii) to avoid implicit acceptance of some of the powers he understands states to have at traditional international law. Rawls, supra note 2, at 23-30.
35. RAWLS, A THEORY OF JUSTICE, supra note 3, at 84.
36. See Brian Barry, Humanity and Justice in Global Perspective, in NOMOS XXIV: ETHICS, ECONOMICS AND THE LAW at 232-34 (J. Rowland Pennock & John W. Chapman eds., 1982).
37. This question seems to have been asked in CHARLES BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS (1979).
38. See GLOBAL PUBLIC GOODS (Inge Kaul ed., 1999);
39. Seyla Benhabib, The Law of Peoples, Distributive Justice, and Migrations, 72 FORDHAM L. REV. 1761, 1779-80 (2004).
40. The third preambular statement of the WTO Charter may be cited as evidence of the existence of a reciprocal cooperative venture for mutual advantage: Being desirous of contributing to these objectives [raising standards of living, full employment, expanded production, sustainable development] by entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce (emphasis added: the italicized language suggests that the draftsmen were aware of the international justice debate).
41. Mathias Risse, What to Say About the State, Harvard University Kennedy School of Government Faculty Research Working Paper Series, Feb. 2006, available at http://ssrn.com/abstract=890753.
42. The distinction between "peoples" and states need not concern us, as Rawls's intent is (i) to emphasize the responsibility of states to their individual constituents - the people, and (ii) avoid implicit acceptance of some of the powers he understands states to have at traditional international law. Rawls, supra note 2, at 23-30.
43. Id. at 83.
44. See Thomas Pogge, The Incoherence Between Rawls' Theories of Justice, 72 FORDHAM L. REV. 739 (2004).
45. RAWLS, POLITICAL LIBERALISM, supra note 3, at 291.
46. Id. at 6.
47. See Allen Buchanan, Rawls's Law of Peoples, 110 ETHICS 691 (2000).
48. Rawls, supra note 2, at 119.
49. For a criticism of the use of "peoples" from both an empirical and methodological perspective, see Benhabib, supra note 32.
50. Even assuming an illiberal people, it seems subversive of Rawls's domestic principles of justice to assume that individuals in the domestic original position would select an illiberal political culture.
51. Rawls makes the assumption of fair representation in the domestic original position. Rawls, supra note 2, at 30-31.
52. Their interest is to live in a well-ordered (liberal or decent) society. This society is one that can provide basic goods. See Leif Wenar, Contractualism and Global Economic Justice, in GLOBAL JUSTICE 76, 84 (Thomas W. Pogge ed., 2001), citing Rawls, supra note 2, at 24, 34.
53. Rawls, supra note 2, at 105-20.
54. This duty is limited to an amount sufficient "to help burdened societies to be able to manage their own affairs reasonably and rationally and eventually to become members of the Society of well-ordered Peoples." Id. at 111.
55. See Charles Beitz, Does Global Inequality Matter?
56. and Rainer Forst, Towards a Critical Theory of Transnational Justice, in GLOBAL JUSTICE (Thomas W. Pogge ed., 2001); Carens, supra note 16, at 257-58.
57. See Charles R. Beitz, Review Essay: International Liberalism and Distributive Justice: A Survey of Recent Thought, 51 WORLD POL. 269, 290 (1999), stating that "I believe that the philosophical weakness most characteristic of cosmopolitan theories - although not found equally in all of them - is a failure to take seriously enough the associative relationships that individuals do and almost certainly must develop to live successful and rewarding lives." However, Beitz accepts a federal possibility: "it is hardly clear that a sophisticated cosmopolitanism cannot explain how local affiliations might give rise to special responsibilities. Such a view would recognize the value to individuals of their associations with domestic or local communities and argue that ethically significant properties of these associations justify internal distributive arrangements that are different from, although not inconsistent with, what is required by global principles." Id. (citations omitted) (emphasis in original).
58. THOMAS W. POGGE, REALIZING RAWLS (1989).
59. See Carens, supra note 16, at 257-58.
60. Rawls, supra note 2, at 43.
61. Rawls, supra note 2, at 39, n.48.
62. MICHAEL WALZER, SPHERES OF JUSTICE 39 (1983).
63. For a summary and critique of Walzer's argument, see Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. REV. 1047, 1069-73 (1994).
64. Chang, supra note 17.
65. See the interesting argument by Kok-Chor Tan that nationalism can be reconciled with cosmopolitanism. Tan, supra note 1.
66. WALZER, supra note 54, at 47.
67. HENRY SIDGWICK, ELEMENTS OF POLITICS 296-97 (1881).
68. Jean Hampton, Immigration, Identity, and Justice, in JUSTICE IN IMMIGRATION 67, 84 (Warren F. Schwartz ed., 1995).
69. Joseph Raz & Avishai Margalit, National Self-Determination, 87 J. PHILOSOPHY 439 (1990).
70. Carens, supra note 16, at 258.
71. RAWLS, POLITICAL LIBERALISM, supra note 3, at 335 (including freedom of movement and occupation as "basic liberties").
72. Id. at 228.
73. There is no clear evidence that free immigration, or free trade, would generally prove detrimental to domestic workers. For discussions of immigration, see George J. Borjas, The Economics of Immigration, 32 J. ECON. LIT. 1667 (1994).
74. JOHN RAWLS, JUSTICE AS FAIRNESS: A RESTATEMENT 43 (Erin Kelly ed., 2001).
75. Rawls, supra note 2, at 8, 39.
76. Rawls makes this argument explicitly at Rawls, supra note 2, at 8.
77. THOMAS POGGE, WORLD POVERTY AND HUMAN RIGHTS 139-144 (2002).
78. It is also worth noting the "flip side" of this argument: that states would have reduced incentives to become wealthy due to the prospect that they would be taxed to help the poor. Of course, this argument has no more impact internationally than it would in domestic society; the difference principle seems to survive this concern.
79. Tan makes an important argument that Rawls seems to accept collective responsibility for governmental choices, in a manner inconsistent with his domestic focus on normative individualism. TAN, supra note 1, at 74-76.
80. See ALBERT BRETON, COMPETITIVE GOVERNMENTS 259 (1996).
81. Joel P. Trachtman, Regulatory Competition and Regulatory Jurisdiction, 3 J. INT'L ECON. L. 331 (2000).
82. See, e.g., Joseph Stiglitz, Globalization and Its Discontents (2002). But see, 'Letter from Kenneth Rogoff to Joseph Stiglitz,' dated 2 July 2002, available at http://www.imf.org/external/ np/vc/2002/070202.htm.
83. Stefan Gosepath, The Global Scope of Justice, in GLOBAL JUSTICE at 145, 162 (Thomas W. Pogge ed., 2001) (citation omitted).
84. See RAWLS, supra note 65, at 166 (applying the principles of political justice to all domains).
85. It is fitting to refer to the horrifying, albeit presumably honest, statement of Clare Booth Luce: "Americans identify with America, and increasingly there are people-Poles, Italians, Israelis - who identify with two countries. But I do not know of any other identification that I can make, say, with the condition of the people of the Sahara. I repeatedly see pictures in the papers of a starving mother with her child holding out its hand. I think it would be hypocritical if I didn't say that I would feel a little more compassion if one of my pet birds had broken a leg in its cage in my own house. Quoted in William Raspberry, "Mrs. Luce: An Awful Interview," Washington Post, Sept. 15, 1982. Louis Michael Seidman finds Mrs. Luce infuriating but right: "Anyone in this country who spends money on a pet bird or, for that matter, on dinner at a good restaurant, a movie ticket, or a book about immigration policy must care very little about the welfare of starving children in the Sahara."
86. Louis Michael Seidman, Fear and Loathing at the Border, in JUSTICE IN IMMIGRATION 136, 137 (Warren F. Schwartz ed., 1995).
87. This issue is touched upon in Simon Caney, Cosmopolitan Justice and Equalizing Opportunities, in GLOBAL JUSTICE (Thomas W. Pogge ed., 2001).
88. RAWLS, A THEORY OF JUSTICE, supra note 3, at 212-13.
89. Carens, supra note 16, at 259.
90. Pirke Avot (The Ethics of Fathers) 2:21.
91. RAWLS, A THEORY OF JUSTICE, supra note 3, at 46-53.