THE ROLE OF FUNDAMENTAL ETHICAL PRINCIPLES IN ASCERTAINING CUSTOMARY INTERNATIONAL LAW

This chapter identifies and elaborates upon certain ethical principles relevant to defining and ascertaining the content of customary international law. It is appropriate to consult ethical principles for at least three reasons.

First, customary norms cannot be identified in an ethical vacuum. Although traditional positivist theory may adopt the pretense of being amoral, looking only to the “will” of states, this posture is a conceit. Any theory that looks solely to the will of states is itself adopting an ethical perspective according to which honoring the will of states is ethically permissible or even desirable. Moreover, the will of states has at times been evidently immoral, such as when states have turned their back on victims of human rights atrocities in other states, invoking the rubric of state “sovereignty” to excuse their inaction.

Second, Chapter 4 reviewed various theories regarding normative authority. Some background system of ethical principles is necessary to evaluate these theories and determine which legitimacy criteria ought to be accepted and under what circumstances.

Third and finally, a methodology for identifying and interpreting customary international law ought to encourage the adoption of norms that accord with the general ethical sensibilities of the states and peoples of the world. This is particularly true if, as I argue later in this chapter, states form part of a global community of states that coexists ethically with a worldwide community of humankind.