Chapter in States, Nations, and Borders: The Ethics of Making Boundaries (Buchanan & Moore eds. 2003)

People and Boundaries: An “Internationalized Public Law” Approach

Benedict Kingsbury

The editors of this volume regard international law as an ethical tradition to be appraised alongside Confucianism or liberalism. Certainly it is a tradition of thought — its adherents are conscious of carrying on a shared enterprise, recognize canonical texts and modes of argument, identify a common (if changing) set of problems, and have a defined professional identity of mutual recognition and mutual defense. But is it an ethical tradition? Three features of the international law tradition muddy comparison with archetypal ethical traditions.

First, international law is almost bound to aspire to universality: its normative propositions thus appeal to universalist ethical justifications, but seemingly-universal justifications often prove to be particularist when probed in hard cases. Ethical justifications in international law thus move between universals stated very abstractly — the ethic of peace and effectiveness has been preponderant among international lawyers since 1945 — and a plethora of unreconciled and often contested specific ethical structures. These can endure unreconciled because international law· holds itself out not only as an ethical tradition, but as a means of bridging traditions and establishing widely accepted criteria under which those from different ethical traditions can agree together on practical action. The discipline is thus in internal tension between this pull toward ecumenical neutrality and competing pulls of specific ethical traditions, above all the pull of the liberal ethical systems in which many of the dominant voices in international law are socialized.

Second, international law is to some extent validated by practice, and continuous movement between theory and practice is essential to the argumentative pattern of in international law. The concept of law involves both texts and behavior. Thus the internal criteria of the mainstream of the international law discipline require that it be explicated and evaluated not as pure theory or pure practice, but as a web spun between these poles.

Third, the tradition has never quite successfully integrated the view of international law as being about rights and duties of states with a view of international law as being expressly and directly concerned with people. It thus contains both an ethic of order between states; associated since the sixteenth century with European statecraft; and since the nineteenth century with positivism, and an ethic of rights of individuals and collectivities associated with Enlightenment rationalism, the American and French Revolutions, socialism, anti-colonialism, and human rights. The lack of resolution between these ethical strands is evident in much of the law concerning boundaries and territory.

Rather than ruminate in detached and abstract terms on these three tensions in international law as an ethical tradition, I will make a specific argument from within the tradition, and develop this argument by reference to illustrative subject matter in which these tensions are actually evident. The argument I will make — a non-standard one, to the explained in Section 2 — is for an internationalized public law approach, and the subject matter I will explore to illustrate it in Sections 3-7 is the relation between people and boundaries.