The Internal Morality of International Law

We would like to express our sincere thanks to the McGill Law Journal for organizing the symposium that was the wellspring for this volume. We gratefully acknowledge as well our debt to the volume’s contributors—Seth Davis, Chimène Keitner, Frédéric Mégret, Jens David Ohlin, Edmund Robinson, and Kimberley N. Trapp—and to colleagues who participated in the symposium by offering valuable commentary: Margaret de Guzman, Colin Grey, Richard Janda, and Patrick Macklem. We will offer reflections on our colleagues’ insightful commentary in Part IV. Before doing so, however, we will first use this opportunity to offer a brief restatement of two central ideas from Fiduciaries of Humanity, and their relationship to one another: the prohibition on unilateralism and the fiduciary criterion of legitimacy. The prohibition on unilateralism is a legal principle that denies one party any authority or entitlement to dictate terms to another party of equal standing. The fiduciary criterion of legitimacy is a standard of adequacy for assessing the normative legitimacy and lawfulness of the actions of international public actors. The criterion demands that public actions have a representational character in that, for them to be legitimate and lawful, they must be intelligible as actions taken in the name of, or on behalf of, the persons subject to them. In Part II, we elaborate on some of the ways international law reflects the prohibition on unilateralism and the fiduciary criterion. We suggest that the two are complementary, and that their synthesis comprises an internal morality of international law. In Part III, we elaborate on our conception of the internal morality of international law, drawing on the writings of Lon L. Fuller. We compare the fiduciary internal morality with the Fullerian theory developed by Jutta Brunée and Stephen Toope, and suggest that the fiduciary theory can underwrite a compelling account of the rule of international law. We then use the fiduciary construal of the rule of international law, in Part IV, to develop or comment on our colleagues’ contributions to this volume. In Fiduciaries of Humanity, we suggest that the prohibition on unilateralism operates as an organizing idea of international law at a number of levels and across a wide range of fields. At the interstate level, the principle explains the foundational doctrine of sovereign equality according to which states enjoy legal equality and independence from one another, since independent equals cannot dictate terms to one another. States are thus barred at international law from violating the territorial integrity of other states, and from otherwise interfering unilaterally in the internal affairs of other states. When disputes arise, states are expected to pursue good faith negotiations, with resort to impartial third-party arbitration or adjudication if necessary. At the intrastate level, the prohibition on unilateralism bars individuals from dictating terms to one another. If one individual were legally entitled to impose terms of interaction on another, the principle of legal equality would be compromised. The ascendant party to the interaction would possess a legal prerogative not enjoyed by the other. On a Kantian construal, the prohibition on unilateralism follows from Kant’s innate right to equal freedom; the mere subjection of one individual to the will of another (even if the other is reasonable, acting in good faith, and so on) is a wrongful compromise of equal freedom. On a Hobbesian construal, unilateralism’s violation of the principle of legal equality is enough to demonstrate its wrongfulness. At the intrastate level of individuals and groups interacting with one another as private parties, the prohibition on unilateralism bears on horizontal relations between those individuals and groups. We argue in Fiduciaries of Humanity that the …