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International law and the limits of global justice


There are two central theses to this article, the first is that a special kind of governance authority is needed for principles of distributive social justice (‘social justice’ from now on) to be applicable to any sphere of human action. The second is that international law does not and cannot represent that kind of governance authority. It is not ‘social justice-apt’, in my terminology. This is due to the limits inherent in the statist character of international law, a character that underlies the point and purpose of international law in the first place. Putting these together, one can conclude that international law cannot be used to govern the global order according to those principles of social justice that liberal theorists typically defend in the domestic context. This shows that if the cosmopolitan project of extending social justice to the global arena does not find an alternative form of governance for the international order (the problem of ‘cosmopolitan coordination’) it ceases to be a viable project.

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1 Rawls J., The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), pp. 35 ff .

2 Although, I have argued, human rights standards have a very specific function which sets limits to what ends they can serve. See Meckled-Garcia S. ‘Do transnational economic effects violate human rights?’, Ethics and Global Politics, 2:3 (2009), pp. 259276 .

3 See, for example, Pogge Thomas, World Poverty and Human Rights (Cambridge: Polity, 2002) , §§ 4.7 and 4.8. Pogge believes that consistency requires the same principles of domestic justice apply to the international order, or at least our judgement of it (pp. 39 and 105 ff.), yet he focuses on human rights rather than distributive justice for strategic reasons to do with the acceptance of his view (ref. 169–70). Even if the notion of justice employed is ‘minimal’ this requires a clear set of principles for specific agents to follow. See Meckled-Garcia S. ‘On the very idea of cosmopolitan justice: constructivism and international agency’, Journal of Political Philosophy, 16:3 (2008), p. 245 .

4 Other examples of Cosmopolitanismiv: Buchanan Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2004), pp. 195200 ; Caney S. ‘Cosmopolitanism and equalising opportunities’, in Pogge T. (ed.), Goblal Justice (Oxford: Blackwell, 2001) .

5 See arguments for this at S. Meckled-Garcia, ‘On the very idea of cosmopolitan justice’, pp. 252 ff.

6 See, for example, S. Meckled-Garcia, ‘On the very idea’, pp. 263 ff.

7 This is not a ‘practice-dependent’ view. That type of view is mistakenly attributed to me at Ronzoni M., Philosophy & Public Affairs, 37:3, p. 230, fn. 5 . I explicitly reject that approach at ‘On the very idea of cosmopolitan justice’, p. 251.

8 Cf. also Meckled-Garcia, ‘On the very idea,’ pp. 247 ff. and 252 ff.

9 Note that I am not assuming anything about the reality or existence of such provisions. My argument proceeds conditionally: if any such valid provisions do exist, then those are the provisions of international law. Alternatively one could say: if international law can be said to exist, then at least one such provision must be said to exist.

10 See, for example, The International Law Commission. See Statute of the International Court of Justice (1945) Art 38(d) .

11 This is clearly expressed in Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (Vienna, 21 March 1986) (not yet in force), Art 1 (i) & (j).

12 Vienna Convention on the Law of Treaties, (Vienna, 23 May 1969) (27 Jan 1980) [VCLT from now].

13 Universal Declaration of Human Rights (1948), International Covenant on Civil and Political Rights (1966) (1976), International Covenant on Economic, Social and Cultural Rights (1966) (1976).

14 Whilst it has been argued that other types of agent are involved in law making processes, see Christine Chinkin Alan Boyle, The Making of International Law (New York: Oxford University Press, 2007) , esp. chap. 2, decision-making rights are nevertheless the monopoly of states, just as in domestic law making, lobbies and pressure groups can influence legislative decisions, legislative sovereignty nevertheless lies with the members of the legislature. See Pronto Arnold N., ‘Some thoughts on the making of international law’, European Journal of International Law, 19 (2008), pp. 601616, 606 ff .

15 The rule or practice comprises the actions of states, together with opinio juris, in the international law jargon. See Yearbook of the International Law Commission, vol. II (1950), pp. 368372 .

16 Art. 1 (3) refers to cooperation in the solving of economic, social, cultural, or humanitarian problems and encouraging respect for human rights and fundamental freedoms.

17 VCLT, Art 26.

18 Statute of ICJ, Art 38; For other general principles see Cheng Bin, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press, 1953/2006) .

19 Art. 34(1). Note that jurisdiction is decided by state consent, Art. 36(2) and Art. 59 read together.

20 ‘Only states may be parties in cases before the Court’, Statute of the ICJ, Article 34.1; ‘Every State possesses the capacity to conclude treaties’, VCLT, Art. 6.

21 Montevideo Convention on the Rights and Duties of States, Uruguay (1933) (1934), Article 1 of which is arguably part of customary international law, also Art. 2; also Grant T. D., ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37, Columbia Journal of Transnational Law (1999) .

22 In spite of attempts at reinterpreting international legal personality, see, for example, Nijman J. E., The Concept of International Legal Personality, An Inquiry into the History and Theory of International Law (The Hague: T. M. C. Asser Press, 2004), esp. pp. 455456 and 473 .

23 These conditions were echoed in the European Economic Community's Badinter Arbitration Committee (Opinions) (16 December 1991), charged with determining the status of the republic of Croatia, Macedonia, and Slovenia, which had sought European Community recognition: ‘the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority …’ (Opinion 1).

24 Whilst only states can have international legal personality in this sense, they are not the only entities which can be a subject of international law in the sense of having duties under it. Natural persons can also be subject to international legal obligations. Cf. Orakhelashvili Alexander, ‘The Position of the Individual in International Law’, California Western International Law Journal, 31 (2001), pp. 241276 .

25 Judge Huber, in USA v. Netherlands, Island of Palmas case of 1928, vol. II, Reports of International Arbitration Award, pp. 829–71, 838, identifies sovereignty over ‘a portion of the surface of the globe’ as necessary condition for including that portion in the territory of any particular state.

26 European Convention on Nationality (1997), Art. 1.

27 Nottebohm (Lichtenstein v. Guatemala) case, ICJ Reports (1955).

28 Ahlstrom Osakeyhtio and Others v. Commission (Wood Pulp) case, European Court of Justice (1988): ‘the two undisputed bases on which state jurisdiction is founded in international law are territoriality and nationality’, Common Market Law Reports, 4 (1988), p. 901 ; International Law Reports, 96 (October 1994), p. 148 . Furthermore, the territoriality of criminal law principle is exclusive, for example, Separate Opinion of Guillaume Judge, Congo v. Belgium, ICJ Reports, 5 (2002), pp. 3, 36 . See also VCLT, Art. 1, (a), (b), and (g), and esp. Art. 29.

29 On ‘International Public Order’, see Mosler Hermann, The International Society as a Legal Community (Alphen ann den Rijn: Sijthoff & Nordhoff, 1980), pp. 17 ff ; Orakhelashvili Alexander, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006), pp. 11 ff .

30 On the crime of ‘aggression’ see Resolution RC/Res.6, ‘The crime of aggression’, adopted at the Review Conference of the Rome Statute, Kampala (11 June 2010).

31 Even UNSC Resolution 1593 referring the case of Darfur, Sudan, to the public prosecutor of the International Criminal Court, was worded explicitly in terms of peace and security.

32 For example, The World Bank, IMF, WTO, The International Labour Organisation, International Covenant on Economic, Social and Cultural Rights and its Committee, the UN Development Programme and the UN General Assembly with its Declaration on the Right to Development and the Millennium Development Goals.

33 Cf., authors who propose that in lieu of clear principles and obligations agents can still ‘promote’ global egalitarian aims, for example. Barry C. and Valentini L., ‘Egalitarian challenges to global egalitarianism: a critique’, Review of International Studies, 35:3 (2009), pp. 485512, 15 .

34 J. Rawls, The Law of Peoples.

35 Kuper Andrew, ‘Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons’, Political Theory, 28:5 (2000), pp. 640674 esp. 646 ff . Also T. Pogge, World Poverty, § 7.3.

36 Consider a proposal (sometimes scouted in the literature) to use the ICJ to hold states to account for failure to uphold Article 2.1 of the International Covenant on Economic Social and Cultural Rights: the duty of signatory states to assist other states in achieving economic and social rights thresholds as much as they can. Proposals have included remedy or compensation by signatories that have not done this, for a breach of obligation. Unfortunately, those making the proposal, ignore the cooperative nature of that provision (and the explicit statement of ‘free consent’ in Art. 11), and they also ignore that to set up a system of compulsory redistribution for this purpose would require a system of international fair burdens and benefits that in itself requires a governance body to determine and impose. Without that there is no sense of what explicit and strict obligations states are under to contribute. Many of the statements of the CESCR bear this out, as they add no specific notion of contribution and in fact sound like the obligations are, to a large extent, imperfect duties. Stretching the mandate of a cooperative provision such as 2.1 to mandate economic governance, then is clearly ultra vires given the point of the treaty, and the context of the basis of specific and specified obligations as requiring substantive cooperation.

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Review of International Studies
  • ISSN: 0260-2105
  • EISSN: 1469-9044
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