In “The Concept of Law,” HLA Hart famously gave a back-handed defense of international law as law, but pretty primitive law in comparison to municipal law. He suggested, however, that international law may be in a “stage of transition” towards acceptance of various elements that would “bring it nearer in structure to a municipal system.” That was nearly half a century ago, which you would think would be plenty of time for international law to have matured. Shouldn’t it have grown up by now, found a job, moved out of the house? Actually, how would we know if it had? What would a mature system of international law look like? One might argue that it wouldn’t be mature until it looked just like a domestic legal system (preferably Switzerland’s, not Somalia’s). But that would mean, like the people in Logan’s Run, that international law will always be immature, since the moment of its maturity would also be the moment of its death. The law of a World State wouldn’t be international law – there wouldn’t be any nations for it to be inter. And while international law professors around the world continue to bend our every effort to creating a world government, it continues to be stubbornly elusive and difficult to achieve. (Just kidding! I don’t really support a world government, with its black helicopters and sex monitoring chips. Please don’t say that I do if I’m ever nominated to anything that requires a senate hearing. Unless it’s the senate of the world government. Note that even though the world government doesn’t exist, this guy is already running for its presidency. And you thought that the U.S. primary system was too long.)
So maybe a better question is whether international law has become more mature. How would we measure this? Most of us would undoubtedly agree that it has developed many more, and more effective, law-making and -applying mechanisms, which provide clearer rules of recognition, in Hart’s phrase – although those mechanisms still fall far short of those in any functioning domestic legal system. But there are other possible measures. Its rules are increasingly adopted into domestic legal systems, even that of the United States. Its scope has broadened and deepened. And, perhaps most strikingly, it is no longer the province solely of states. (I know, I know, some of you think that it never was. Change “solely” to “primarily” in the previous sentence and bear with me.) Mature domestic legal systems recognize that many different types of actors, particularly individuals, have legal rights and duties; one might expect, then, that one sign of a maturing international legal system would be that it does too.
Modern international law does, of course, provide individuals and other non-state actors rights, most importantly through the law of human rights. Indeed, one of the most important transitions international law seems to be going through is to base itself more and more on individual rather than state rights. (One might call this a human-rightsification of international law, if it weren’t unpronounceable.) But what about duties? Shouldn’t a mature legal system set out individuals’ duties as well?
In fact, that very idea was proposed at the inception of modern human rights law. It was adopted in the 1948 American Declaration, whose title declares it to be a declaration of human rights and duties, and which includes one chapter for each. The idea has never gone away. Ten years ago, an impressive collection of former heads of state (including Nobel Prize winners Jimmy Carter and Oscar Arias, as well as folks such as Helmut Schmidt and Malcolm Fraser), acting together in something called the InterAction Council, adopted a Universal Declaration of Human Responsibilities drafted by religious philosopher Hans Küng. They have urged that it be adopted by the General Assembly. More recently, the UN Human Rights Commission considered for several sessions, just before it was replaced by the Human Rights Council, a draft Declaration on Human Social Responsibilities . It wasn’t adopted either, but it received quite a bit of governmental support.
Doesn’t this idea make sense? Shouldn’t international human rights law impose human duties, not just with respect to a handful of crimes like genocide, but more broadly? In fact, doesn’t it create a kind of imbalance to have so many rights under international human rights law, and so few individual duties? Well . . . no. Despite its apparent attractions, efforts to turn the law of human rights into a law of human rights and duties pose real dangers – not to sovereignty, but to human rights themselves. And the drafters of the Universal Declaration of Human Rights understood why, as I’ll explain tomorrow. (Assuming the regular OJ bloggers let me keep doing this for another few days before they cut me off.)