international law as a social contract

Regarding the nuclear weapons resolution, in his typically thought-provoking way, reader le radical galoisien raises several pertinent questions. I'll take up his first question, which is all I have time for at the moment.

My concern so far is eloquently tying this social contract idea to justice, especially since "international justice" is a relatively recent phenomenon: the "rules of war" didn't exist a few hundred years ago. How would you argue that that an action of what is unjust by international consensus (Iraq's invasion of Kuwait, for example) is truly unjust? Basically, how would you eloquently argue that violating another nation's self-determination is an unjust action?...

First, I'd challenge the notion that because rules of war and the cosmopolitan attitude are (relatively) recent, they don't matter now; such an idea would forbid the possibility of moral advancement.

Second, the international social contract is more "real" than the classic hypothetical conception. In "Rethinking the Sovereignty Debate in International Economic Law," in the December 2003 Journal of International Economic Law, Kal Raustiala notes, "[E]xpressed consent is the traditional basis of international law. International institutions derive their powers from the explicit consent of the contracting states."

Raustiala quotes Abram Chayes and Antonia Handler Chayes, who argue,

The largest and most powerful states can sometimes get their way through sheer exertion of will, but even they cannot achieve their principal purposes security, economic well-being, and a decent level of amenity for their citizens without the help and cooperation of many other participants in the system . . . That the contemporary international system is interdependent and increasingly so is not news. Our argument goes further. It is that, for all but a few of self isolated nations, sovereignty no longer consists in the freedom of states to act independently, in their perceived self-interest, but in membership in good standing in the regimes that make up the substance of international life. To be a player, a state must submit to the pressures that international regulations impose . . . Sovereignty, in the end, is status - the vindication of the state's existence as a member of the international system. [In The New Sovereignty: Compliance with International Regulatory Agreements, 1995]

Thus, Rustialia argues,

Given a world in which largely irrevocable changes in the global economy have destroyed the ability of states to prosper under autarchy, and in which states must achieve social objectives to be legitimate, international institutions are now the primary means by which states may prosper and achieve social objectives. Consequently, they are the primary means by which states may reassert or express their sovereignty.

Thus, to warrant the idea of an international social compact, we might turn to a form of Kantianism. In "Human rights and international economic law in the 21st century," in the March 2001 edition of the Journal of International Economic Law, Ernst-Ulrich Petersmann explains:

Kant was the first political philosopher who explained why national constitutional guarantees of freedom and rule of law cannot remain effective without complementary international constitutional guarantees of rule of law among states and cosmopolitan human rights protecting individual freedom vis-a`-vis foreign governments across frontiers. Kant's 'democratic peace thesis' - i.e. that constitutional democracies tend to avoid wars among each other, and that 'negative peace' needs to be reinforced by international trade cooperation and cosmopolitan law - has been confirmed by history, notably by the 1951 and 1957 Treaties establishing the European Communities, which are a new kind of peace treaty based on Kantian principles of national and international constitutionalism.

Since every individual and every government risk abusing their freedom and powers, and rules do not enforce themselves, human rights are the most important legal instrument for empowering individuals to defend their equal liberties against abuses of power and for forcing governments, and also international organizations, to regulate national and international relations in a way promoting maximum equal liberty and individual and collective self-government under the rule of law. Just as economic market competition forces producers to increase their productivity and efficiency for the benefit of consumers, and political competition induces governments to improve public policies for the benefit of their citizens, human rights promote the mutual balancing of conflicting rights and an ever more precise specification of the limits of individual freedoms and property rights and of the constitutional limitations of governmental powers. Yet, historical experience and constitutional theory teach that market competition, political competition, as well as legal competition among citizens and their human rights cannot function in an undistorted manner unless the antagonistic conflicts among the short-term interests of individuals are reconciled with the common long-term interests of rational human beings on the basis of constitutional safeguards, notably equal human rights and national and international rule of law.

The Aff could argue that in acting preemptively to prevent threatening nations from acquiring nuclear weapons, the United States not only fulfills rational self-interest in protecting its citizens, but in keeping other nations from harm, preserving their fundamental rights and dignity, and securing international order and an existence necessary for human flourishing.

(It seems we're returning to the UN vs. sovereignty resolution.)