Role of Ethics In International Law: An Analysis
“Ethics is knowing the difference between what you have a right to do and what is right to do.”
– Potter Stewart
The present paper deals with the issues of ethical influence on international laws and relations. Making and compliance to international laws are often concerned with different reasoning views. Ethics is one such reasoning aspect. Often international treaties, agreements and policies lack the essence of ethics and morality. The need of this ethical appeal is discussed under different subheads in the following article. The aim is to provide an altruistic approach towards inculcation of ethics in dealing with international norms.
In recent years, much has been written about the international law but not with an integrated perspective. Distinctions between the private and public international laws have been emerged and studied as separate set of doctrines and principles by the international lawyers, that arguably constitute its own tradition, sub-traditions and specialized language for resolving cross-national legal disputes. According to Daniel Philpott, “International law tradition is dedicated to extending to the entire globe, a set of commitments to which states give their active assent.” Thus, ethics forms an intrinsic part of the process by which these commitments take place. To be more precise, when we theorize about international law, we draw on ethical discourse to create an ethic of international law, both public and private, that seeks to resolve transnational legal problems. By virtue of being humans we are supposed to be ‘social animal’ possessing sense of righteousness, morality etc. All of mankind’s social actions cannot be controlled by laws and legislations. Ethics surely play an important role in determining the good conduct of a human being and ultimately of nations at large.
ETHICS AND INTERNATIONAL LAW: BINARY DISTINCTION
The English word “ethics” is derived from the Ancient Greek word ethikos, meaning “relating to one’s character”, which itself comes from the root word ethos meaning “character, moral nature”. The concept of “ethics” was introduced by Socrates, and defined as a “philosophical discipline” by Aristotle. Today, this has evolved into a discipline, which tries to set up criteria for “good” and “bad” behavior, and to evaluate the motives for these behaviors and the consequences thereof.
The most heated debate is whether ethics and law are intertwined. In fact, international legal theory is more often susceptible to claims that law and ethics should be separated in international legal discourse. Some scholars argue for an engagement of ethical dimension in international law because modern international law is still under the spell of positivism. Even if scholars do not make the question of ethics explicit in their analyses, it is implicit in what the scholarship seeks to do – namely to negotiate conflicts between states, fora, peoples, and normative communities in such a way so as to determine what rule of law should govern a given dispute. In making this choice, the international lawyer engages in ethical reasoning by evaluating that which laws or rules should guide the international legal community and choosing among competing possibilities to effectuate the international good.
MORALS AND PRINCIPLES IN INTERNATIONAL LAW
While International Law binds different nations together, the rules themselves do not attract compliance by the member states, but it is the different set of theories and principles that a particular state follows. Individuals comply with rules for different reasons. Likewise states differ in the reasons they comply with international norms. Norms, in general, serve as a modal indication of general conduct, which increases the coordinated behavior by inducing more members to abide by the norm. They prescribe the moral conduct that in turn identifies desirable and undesirable behaviors in society. States may be motivated by a desire to avoid sanctions, by obedience to authority, utilitarian compliance, socialization, reputational concerns, or norm internalization. There also exists another reason for such compliance, i.e. moral reasoning. People use to choose between inconsistent interests, values claims, and norms, in those instances in which the inconsistency means the person is pulled toward opposite behaviors. These decisions are “moral” because they involve the ordering of self- and other-regarding interests. Scholars such as Alex Wendt and Ian Hurd have persuasively argued that compliance motives fall into three broad categories: coercion, self-interest, and principle. Realist approaches argue that, a state complies with international law because, a more powerful state, is able to “persuade” it to do so with the credible threat or exercise of force. Rationalist approaches see states as egoistic unitary actors that care about maximizing self-interest. Contrasted with rationalist approaches, reputational theories recognize that compliance may occur even when few or no benefits accrue directly to the actor, but rather because it enhances a state’s reputation, making it appear to be a more reliable partner. Another set of theories emphasizes compliance decisions based on a state’s perceptions of whether or not (and to what extent) a rule is legitimate. The final set of theories focuses on the power of ideas, means, because those rules are consistent with ideas the states hold about substantively legitimate behavior.
Lawrence Kohlberg’s influential studies give description of developmental psychology of morality and moral reasoning. According to him, the dilemma forces the subject to balance the duty to obey the law, the tension between authority and autonomy, the value of personal and familial relationships, the tension between property rights and the right to life, the duty to keep promises, and the role of fairness or justice.
CLAIMS OF RIGHTS AND JUSTICE AT INTERNATIONAL LEVEL
Nation states possess internal and external sovereignty and as such when the basic rights of subjects of any particular state is attacked by the deeds of any other state, there do exists a mechanism, where one nation can claim such rights from the other. The UN treaties and conventions adopted as a part of series of International Human Rights are source of such rights.
There are many examples of claims of rights in the international sphere. Kulbhushan Sudhir Jadhav, an India National was arrested in the Pakistani province of Balochistan on charges of terrorism and spying for India’s intelligence agency, the Research and Analysis Wing. India approached the International Court of Justice (ICJ), asserting that Pakistani authorities were denying India its right of consular access to Jadhav in violation of the Vienna Convention. The ICJ proceedings began in The Hague on 15 May to review the case. On 18 May 2017, the International Court of Justice stayed the hanging of Jadhav.
Another example, concerned a woman in Nigeria who faced death by stoning, once she had weaned her baby, after being convicted of adultery. In another case a teenage single mother was given 100 lashes for adultery, even though she claimed that she had been raped by three men. The court ruling in this case said that the woman ‘could not prove that the men forced her to have sex’.
INTERNATIONAL LAW AS A POSITIVE LAW
International Law as a positive law means, the law which is made through express and tacit agreements between nations, such as diplomatic immunity accorded ambassadors and international treaties. It encompasses the laws which have been consciously enacted by a properly recognised organ of government. As such the role of ethics and moral reasoning comes into play. Whenever any treaty, agreement or convention is proposed the policy makers decide and plan the mode of implementation and can foresee the consequences thereof, which can affect both the parties. The moral appeal that comes from within the policy makers compels them to decide the norms that not only serve their self interests but also that can prove beneficial in serving their common ends.
INTERNATIONAL COURTS: HOW FAR RESPONSIBLE
The International Court of Justice (ICJ) is one of the six principal organs of the United Nations (UN). It settles disputes between states and gives advisory opinions on international legal issues referred to it by the UN. Its opinions and rulings serve as sources of international law. After the court ruled that the United States’s covert war against Nicaragua was in violation of international law, the United States withdrew from compulsory jurisdiction and made it discretionary.
In adversarial proceedings, the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Until rendering a final judgment, the court has competence to order interim measures for the protection of the rights of a party to a dispute. One or both parties to a dispute may apply the ICJ for issuing interim measures, as in Frontier Dispute Case.
From the above discussion, it can be drawn that ethics form an intrinsic section of international law. To be more precise, it is not a mere accessory but the core of decision making that guides a policy maker while entering into an agreement, forming an international policy, or while adhering to any norm. ‘Ethical’ is not synonymous to ‘virtuous’. In other words, making an ethical choice does not mean making a right choice, it simply means to engage one’s ethical capacity.
. Daniel Philpott, Global Ethics and the International Law Tradition, in William M. Sullivan & Will Kymlicka, The Globalization of Ethics (Cambridge University Press, 2007), P-17.
. Henry George Liddell & Robert Scott, An Intermediate Greek-English Lexicon (Martino Fine Books, 1889), P- 179.
. Lawrence Kohlberg, Essays on Moral Development, (Vol. 2, Harper & Row, Cambridge, San Francisco, 1984), P-73.
. Ian Hurd, Legitimacy and Authority in International Politics, International Organization (Cambridge University Press, New York, 2003), P- 379-408; Alexander Wendt, Social Theory of International Politics (Cambridge University Press, New York, 1999), P- 457.
. Donald Earl Childress II, Role of Ethics in International Law (Cambridge University Press, New York, 2012), P- 14-18.
. Lawrence Kohlberg, Essays on Moral Development, supra, P- 75.
. Donald Earl Childress II, Role of Ethics in International Law, supra, P- 24.
. Hari Kumar & Salman Masood, Pakistan Is Ordered to Suspend Execution of Indian Convicted of Espionage, New Delhi, May 18, 2017 https://www.nytimes.com/2017/05/18/world/asia/kulbhushan-sudhir-jadhav-pakistan-india-execution.html.
. Susie Steiner, Sharia Law, Nigeria, Tue 20 Aug, 2002, 17:47 BST https://www.theguardian.com/world/2002/aug/20/qanda.islam.
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. https://en.wikipedia.org/wiki/International_Court_of_Justice. Last appeared on 16-05-2020 at 15:05 pm.
Author Details: Aditi Sharma (Govt. New Law College, Indore)
The views of the author are personal only. (if any)