International Criminal Law as Cosmopolitan Right in Reverse

Abstract

Despite the title, Arthur Ripstein’s Kant and the Law of War is best read as a comprehensive account of rightful international order. While the book is certainly a groundbreaking intervention into debates on the law of war, it goes far beyond that, offering rich contributions on everything from the justifications for state sovereignty, to the nature of treaties, the wrongs of colonialism, the rights of refugees, and more. Given this scope, however, there is a surprising and significant absence: the book is relatively silent on international criminal law (ICL).

In this invited symposium article, I argue that ICL has a fundamental role to play in Ripstein’s account, and that his silence on it flows from a potential mischaracterization of the nature of ICL. To this effect, my aims here are to explain where ICL ought to fit on Ripstein’s conceptual map of the international legal order, what ICL’s content reflects, and why ICL is thus essential to Ripstein’s account of international law. In each of these respects I depart from Ripstein’s own view of ICL, while drawing on his underlying theoretical commitments in the book. On form, I will suggest that while Ripstein views international criminal law to be part of the right of nations (a structure between states), it is better understood as an element of cosmopolitan right (a structure between each state and all persons of the world). On content, I will argue that—rather than reflecting the rules states choose to outlaw, as Ripstein at times seems to suggest—ICL reflects a set of peremptory international rules, rules that Ripstein himself views as inherent in the very nature of a legal system between states. Indeed, putting together its form and content, we can see that ICL is the framework through which the peremptory rules of the international legal system are brought to bear on persons. It is the way the rules inherent in a rightful international order are upheld in the face of individual conduct in violation of those rules. And, thus, on character, while Ripstein views ICL as a possible, but optional, component of the international legal order, I will suggest it is a mandatory one: it is a constituent element of an international order under which interactions between all persons are governed by law rather than force. In foregrounding the overlooked role of ICL, I aim to show that Ripstein’s account ought to (and has the resources to) recognize ICL’s essential place in global rightful relations.

This understanding of ICL also provides an opportunity to rethink traditional interpretations of cosmopolitan right itself. Leading accounts of cosmopolitan right often focus on the obligations each state owes every person who is not a member. However, with a proper understanding of ICL in hand, we can develop the correlative component of cosmopolitan right: the obligations every person owes to all states of the world—an idea of cosmopolitan right in reverse.

Keywords: International Law; Cosmopolitan Right; International Criminal Law; Legal Theory; War; Peace