A Liberal Theory of International Justice

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A LIBERAL THEORY OF INTERNATIONAL JUSTICE

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A Liberal Theory Of International Justice A N D R EW A LT M A N AND C H R I S TO PH E R H E AT H W E L L M A N

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Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York ©Andrew Altman and Christopher Heath Wellman 2009 The moral rights of the authors have been asserted Database right Oxford University Press (maker) First published 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Altman, Andrew, 1950– A liberal theory of international justice / Andrew Altman and Christopher Heath Wellman. p. cm. Includes bibliographical references and index. ISBN 978–0–19–956441–5 1. International relations. 2. International law. 3. Justice. 4. International relations – Moral and ethical aspects. I. Wellman, Christopher Heath. II. Title. JZ1308.A42 2009 341.01—dc22 2008049479 Typeset by SPI Publisher Services, Pondicherry, India Printed on acid-free paper in Great Britain by the MPG Books Group ISBN 9780199564415 1 3 5 7 9 10 8 6 4 2

Contents Acknowledgments

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1. Introduction

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2. Self-Determination and Democracy

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3. Secession

43

4. International Criminal Law

69

5. Armed Intervention and Political Assassination

96

6. International Distributive Justice

123

7. Immigration and Membership

158

8. Conclusion

189

Notes

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References

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Index

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Acknowledgments In addition to our students, we are delighted to thank audiences at the American Philosophical Association Pacific Meetings, Amintaphil, Australian National University, Charles Sturt University, University of Melbourne, University of Missouri, Washington University, Western Ontario University, and especially the participants in the two National Endowment for the Humanities’ Summer Seminars we co-directed in the summers of 2005 and 2007. We are extremely grateful to the extensive written feedback we have received from various friends and colleagues, including Richard Arneson, Christian Barry, Michael Blake, Allen Buchanan, Joseph Carens, Thomas Christiano, Andrew I. Cohen, Robert Goodin, Carol Gould, Bill Hoffman, John Kleinig, Chandran Kukathas, Steven Lee, David Lefkowitz, Matt Lister, David Luban, Kay Mathiesen, Larry May, Alistair MacLeod, David Miller, George Rainbolt, Mathias Risse, Alex Sager, Debra Satz, David Speetzen, Daniel Star, Fernando Teson, and Andrew Valls. Special thanks are due to Thomas Pogge, Carl Wellman and two anonymous reviewers for commenting on an entire draft of the book. It has been a delight to work with Oxford University Press. We appreciate Louise Sprake, Elizabeth Suffling, and Michele Marietta for all of their help during the production process, and we are especially greateful to Dominic Byatt for his steadfast enthusiasm and support for the project. Finally, this book draws substantially upon some of our previously published work. Chapter two draws upon “The Deontological Defense of Democracy: An Argument from Group Rights,” which appeared in Pacific Philosophical Quarterly. Chapter three draws upon A Theory of Secession: The Case for Political Self-Determination, which was published by Cambridge University Press. Chapter four draws upon “A Defense of International Criminal Law,” which appeared in Ethics. Chapter five draws upon “From Humanitarian Intervention to Assassination: Human Rights and Political Violence,” which appeared in Ethics. Chapter six draws upon “Justice” (which appeared in The Blackwell Guide to Social and Political Philosophy), “Famine Relief: The Duties We Have to Others” (which was published in Blackwell’s Contemporary Debates in Applied Ethics), and “Relational Facts in Liberal Political Theory: Is There Magic in the Pronoun ‘My’?” (which appeared in Ethics). Chapter seven draws upon “Immigration and Freedom of Association,” which appeared in Ethics. (Complete bibliographic information for all of these publications can be found in the references.) We would like to thank these journals and presses for allowing us to draw upon this work.


1 Introduction This book advances a theory of international justice. The theory is a liberal one in that it places the individual and her rights at center stage and insists that political states are legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. It is not uncommon to insist that a state enjoys authority over its individual members if it satisfactorily protects their rights, but it is becoming increasingly controversial to suppose that any state has a moral right against the rest of the world to order its affairs as it sees fit. In other words, while few doubt that a state may justifiably coerce its constituents when this coercion is necessary to adequately secure their human rights, thinkers increasingly defend a certain form of cosmopolitanism, arguing that every state is under a duty to turn over some substantial portion of its sovereign powers to international institutions. In contrast, our theory holds that a legitimate state has a moral right of political self-determination that not only grounds its authority over its own members, but also absolves it of any duty to alienate its sovereign powers to international arrangements. As long as a state adequately protects and respects human rights, it possesses such a right of self-determination. Moreover, we contend that this right of self-determination is irreducibly collective and so held by the group of persons who constitute the state. Our theory is thus quite distinctive insofar as it combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively anti-liberal idea of an irreducibly collective right of self-governance. In the course of exploring the implications of our theory, we address issues of justice that arise in a world of politically independent, modern states. In particular, we seek to illuminate and answer questions relating to democracy, political self-determination, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. Some of the views we defend run against the grain of current academic opinion. Here are some examples: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must

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A Liberal Theory of International Justice

be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would-be immigrants. There is another way in which this book runs against the grain. In recent years, the focus of scholarship on global affairs has been on the conditions leading to a decline in the power and independence of nation-states and on the consequences of that decline; the international system of independent states has often been treated as a dying one, soon to be consigned to the dustbin of history. Over a decade ago, Giorgio Agamben confidently expected the full completion of “the process of dissolution of the nation-state and of its sovereignty.”1 And notice as well that these days theorists often speak of “global” rather than “international” justice and assume that globalization spells the end of the sovereign state. The questions on which we focus, however, are ones that arise against the background of a global order of politically independent states.2 Although such a focus might seem outdated, the fact is that, unless there is some radical change in world affairs, the human population will continue to be divided into territorially distinct states exercising important sovereign powers and regulating their interaction, to a certain extent at least, by means of international law. Accordingly, we agree with Ulrich Beck that “it is thoroughly misleading to assume that state sovereignty and globalization are irreconcilable with one another.”3 More importantly from an ethical point of view, according to the account of political self-determination we defend in this book, legitimate states would be morally entitled to retain their independence and sovereign powers even if there turned out to be important advantages to dismantling all existing states and dispersing the powers of sovereignty among various local, regional, and global levels of governance.4 Accordingly, even as movement toward such a cosmopolitan form of governance appears to be the trend of the future, questions will and should persist concerning the justice of relations that independent political states have with each other and with the individuals who live within or beyond their borders. In this initial chapter, we sketch the main ideas of our theory of international justice and present a summary of each subsequent chapter. The detailed explication and defense of these ideas are found in those chapters. We begin here with the two main concepts from which contemporary discussions about international justice have been woven: human rights and sovereignty. We understand human rights to be a subset of individual moral rights which are distinguished in terms of their connection to basic human interests or, better yet, human needs. Put succinctly, one might say that human rights are individual moral rights to the protections generally needed against the standard and direct threats to leading a minimally decent human life in modern society. We cannot settle here the highly controversial and complex question of what constitutes a decent life, but we do want to emphasize two points. First, in the

Introduction

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context of the contemporary human life, the threshold of decency seems to us to be reasonably well captured by Articles 3–20 and 25–26 of the Universal Declaration of Human Rights.5 At any rate, these articles, presenting a range of civil, political, and economic rights, strike us as a good place to start a discussion of what individual moral rights must be respected and protected for human beings generally to have sufficient prospects for a decent life. Second, we do not allege that it would be strictly impossible for a victim of a human rights violation ever to live a minimally decent human life: the rights do not provide logically necessary conditions for a decent life. Victims of torture and vicious racial persecution can, despite the enduring psychological and physical scars of their ordeal, still lead decent and even inspiring lives. Witness Nelson Mandela. We claim only that Articles 3–20 and 25–26 collectively constitute a list that is a reasonable first approximation of the protections that individuals generally need against the standard and direct threats found in modern society to living a decent human life.6 A crucial premise of our overall argument is that human rights are connected to political legitimacy. The nature of the connection can be explained as follows. A key feature of states is that they employ coercion and, more generally, exercise ultimate decision-making power over a territorially based population on a wide range of matters. If a state possesses legitimacy, then it has the moral right to exercise such power and other agents have a duty to respect the decisions made in the exercise of that power.7 The moral right to that power involves an internal and external dimension: it is a right to coerce the individual constituents of the state to comply with its duly authorized rules and regulations, and a right against outsiders, imposing upon them a duty to refrain from interfering with the state’s decisions regarding its own constituents. But this exclusive right of a state to govern coercively and impose duties in the exercise of its decision-making power stands in need of justification. What, then, grounds legitimacy? Our contention is that legitimacy rests on the ability and willingness of a state to adequately protect the human rights of its constituents and to respect the rights of all others. If a state adequately protects and respects human rights,8 then we will say that it successfully carries out the “requisite political functions.” That is, the state is doing the job that it needs to do in order to justify its coercive power and thereby be legitimate.9 This conception of legitimacy stands free of any particular account of which specific rights ground legitimacy. It holds only that there are some individual moral rights such that any state that adequately protects and respects those rights is thereby legitimate. Put another way, there are certain individual rights that are the measure of political legitimacy. If this is correct – and it is a substantive normative question as to whether it is – then there is the further substantive moral question of which rights form

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that measure. Our judgment is that rights that are connected in the appropriate way to a decent human life are the rights that form the measure of political legitimacy. Simplifying a bit, we can say that a state has earned legitimacy if it is willing and able (a) to protect its own members against “substantial and recurrent threats”10 to a decent human life – threats such as the arbitrary deprivation of life or liberty, and the infliction of torture – and (b) to refrain from imposing such threats on outsiders.11 As measures of political legitimacy, human rights place constraints on the permissible exercise of power by states. This constraining function was central to the human rights revolution that took place in international law after the end of World War II. The rulings in the Nuremberg Trial, the adoption of the Universal Declaration by the General Assembly of the United Nations, and later legal and political developments called for a rethinking of the idea of state sovereignty. It was no longer reasonable – if it ever was – to think of sovereignty in terms of the Westphalian idea of the absolute dominion of a state over its territory and its members.12 Thus, certain egregious human rights abuses, such as genocide, came to be seen as crimes that could be legitimately tried by international tribunals, regardless of the consent of the state in which the abuses took place and even if the state’s criminal laws did not prohibit the abuses. What, then, is one to make of the concept of sovereignty? Among the key ideas in contemporary thinking about sovereignty is that it is best understood not as a single power, but rather as a bundle of powers.13 One can point to five main sets of sovereign powers: (a) to make, enforce, and adjudicate valid legal rules within a defined territory; (b) to wage war in selfdefense; (c) to enter into binding treaties and agreements; (d) to be free from outside interference in ordering its legal, political, and economic system and other aspects of its basic structure; and (e) to preserve its territorial integrity. The bundle approach surely illuminates the different kinds of powers exercised by a modern state. However, it is possible to conceive of the different powers in the bundle as tied together by a more abstract power, namely a state’s power of self-determination. Each power in the bundle constitutes a different way in which a state can exercise or protect its dominion over its affairs, so that it can determine what kind of state it is to be. This is not to say that every de facto state has a right of self-determination. To the contrary, a central thesis of our theory is that only a legitimate state has a moral right of self-determination.14 Moreover, we hold that this right is irreducible to the individual rights of the constituents of the state. The right is a group right: it belongs to the members of the state as a collective body, because it can only be exercised jointly by the members. The right is also irreducible in the following sense: even a legitimate state is a nonconsensual form of association, and so one cannot simply say – as many liberals are prone to do – that the

Introduction

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self-determination of a legitimate state just is the self-determination of each individual through his or her consent to the rule of the state. No modern state has garnered the morally meaningful consent from all, or even most, of its citizens. Accordingly, the state’s right of self-determination stands free from the individual rights of autonomy held by its citizens. The idea that states can have an irreducible moral right to self-determination has been derided as a “Hegelian myth” by one prominent theorist of international justice.15 This myth treats the state as though it were a super-important person and ascribes to it such a weighty moral significance that individual rights are properly sacrificed to the interests of the state. In our view, any understanding of the state in those terms is both incompatible with liberalism and deeply misguided. Liberalism does not simply hold that individuals have moral rights that restrict the legitimate exercise of state power. More fundamentally, liberalism rests on a position that has been called “value individualism,” namely that the weal and woe of individuals is, ultimately, all that matters morally. We endorse value individualism as an important element of liberalism. But we will argue that value individualism is consistent with recognizing a basic and irreducible moral right of self-determination held by legitimate states. Moreover, our theory is not committed to any Hegelian myth about the state. The state is not a person, much less a super-important one. The state is a territorially based population of politically organized persons. Most important, our theory rejects the idea that the rights of individuals are properly sacrificed to the interests of the state. Rather, a state’s legitimacy, and so its right of self-determination, depends on its protecting and respecting the rights of individuals. Thus, very much contrary to the Hegelian myth, the rights of states are morally subordinate to the rights of individuals. Individual rights not only place limits circumscribing the rightful exercise of a state’s powers of self-determination, those rights also provide the normative considerations that ground a legitimate state’s own right to self-determination. Our theory’s account of the grounds of a state’s right to self-determination has important implications for the question of which groups have a valid claim to constitute a state. A popular notion is that a group must share a thick set of cultural and historical ties. It must be a “nation” or something very much like a nation. Our theory rejects such a view. Any group can constitute a state, no matter how culturally heterogeneous and no matter how divergent the branches of the tree of human history from which its members have descended. As long as the group is willing and able to establish and maintain institutions that perform the requisite political functions, it has a right to constitute a state with the powers of self-determination. The measure of a group’s right to statehood is not the shared culture or ancestry of its members, but rather their ability and willingness to create a legitimate state.

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An increasingly popular view is that the only form that a legitimate state can take is that of a democracy. This view is closely connected to the contention that there is a human right to democracy. We argue, to the contrary, that there is no human right to democracy and that there is no bar, in principle, to a legitimate state having a form of nondemocratic rule. The measure of legitimacy is not democracy but adequate protection and respect for human rights, and democracy is best understood as a valuable means for securing such protection and respect. In our account of political self-determination, the following idea plays an important role: If an agent has a basic moral right to self-determination and makes a certain choice in the exercise of that right, then other agents have a deontological reason to respect that choice. When we speak of deontological reasons, we are referring to reasons that are not simply put in “the balance” and weighed along with other reasons in order to decide what ought to be done. Rather, such reasons have two main features. First, they demand a certain course of action because any contrary course would wrong someone. Second, they are “exclusionary reasons” to not act on the overall balance of reasons in deciding what to do.16 Combining the two aspects gives us the following: they are reasons that (a) demand a particular course of action as the only action in the situation that avoids wronging someone and (b) mandate disregard for other considerations that would, absent the wrong, count as reasons for or against the action. An example will illustrate this idea of a deontological reason. Suppose that Jane and Jack are typical parents of two young children. As part of their right to self-determination, they are together entitled to raise their children as they see fit, within certain limits. Let us assume that Jane and Jack have neighbors who would do a better job when it comes to making decisions about the education of Jane and Jack’s children. It is not that Jane and Jack would be negligent. It is just that the neighbors know much more about education and would make better-informed decisions. Nonetheless, in our view, one should not say that this fact about the neighbors counts in favor of the conclusion that the neighbors are at liberty to override the decisions Jane and Jack make about the education of their children. Jane and Jack are (nonnegligently) exercising their parental dominion in making their decisions, and so there is a deontological reason to respect these decisions. The presence of a deontological reason means that if the neighbors ask themselves whether they should block some educational decision of Jane and Jack, then the action they take in response should not be dictated by the overall balance of considerations that bear on their contemplated intervention. Rather, the neighbors should reason: “It would wrong Jane and Jack to interfere with their decision, and that is all that counts in this situation.”

Introduction

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We argue that the same sort of answer – with an important qualification – is the proper one when it comes to decisions that legitimate states make that fall within the scope of their right of self-determination. Not all those decisions will be morally optimal or even beyond serious moral criticism. But even if they could in practice be countermanded, the decisions should be respected in the same way that Jane and Jack’s (nonnegligent) decisions about their children’s education should be respected. The balance of reasons should not dictate action in contravention of the state’s decisions, and it should not do so in order to avoid wronging anyone. But wronging whom? The state? Our answer – and here is the qualification – is that it would not be the state that is wronged. It would be inconsistent with our endorsement of value individualism to posit that the state is the wronged party, because the state is not an individual whose well-being or life ultimately matters morally. Rather, the individual members of the state are the ones whose lives matter, and they are the ones who would be wronged. It is the wrong to them that requires respect for the self-determination of their state. In the remainder of this chapter, we summarize the main issues and arguments of the subsequent chapters, each of which addresses a distinct set of issues connected to a specific dimension of international justice. By addressing these issues, we aim to elaborate on the meaning and justification of the two central theses of our theory: (a) a state is legitimate if, and only if, it adequately protects certain basic moral rights of its individual citizens and respects the basic moral rights of all other agents17; and (b) a legitimate state has a basic moral right of political self-determination that is irreducible to the individual rights of its members.

SELF-DETERMINATION AND DEMO CRACY This chapter provides an initial articulation and defense of our theory of political self-determination and then applies this theory to the contemporary debate over the noninstrumental value of democracy. Our defense begins by noting that an account of group self-determination is necessary to capture the inherent wrongs of colonialism and the forcible annexation of legitimate states. Transposing these insights to the literature surrounding the value of democracy, we argue that the inherent value of democratic rule cannot be grounded in individual rights but rather must be based on an irreducibly collective moral right of political self-determination. Thus, if the state chooses a nondemocratic form of governance that can perform the requisite political functions, then no individual member who prefers democracy is thereby necessarily wronged.

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A Liberal Theory of International Justice SECESSION

Our account of political self-determination leads us to conclude that separatists may qualify for a right to secede as long as their group is both able and willing to perform the requisite political functions. Although statists recoil from the conclusion that a group may be entitled to secede from a perfectly legitimate state, and nationalists will object that we underestimate the importance to statehood of a group’s shared cultural characteristics, we argue that a group’s rights to political self-determination should ultimately hinge strictly upon its political capacities. Many commentators will object that our standard for the right to secede is entirely too lax, but our theory does not entail any commitment favoring secession. On the contrary, we are emphatically not fans of state-breaking. Just as one might defend the right to no-fault divorce without believing that more people should separate, we defend the right to secede despite having no interest in a world populated with an increasing number of small, more homogeneous states.

INTERNATIONAL CRIMINAL LAW We share the prevalent view that a system of international criminal law is both desirable and in the process of being created. The development of such a system is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, we reject the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross-border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state’s sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond it borders. This obsolete, Westphalian conception is insupportable. In contrast, on our conception of a state’s right of self-determination, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, on our account, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder

Introduction

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and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. We argue against abandoning the project of developing institutions of international criminal justice and make the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.

A R M E D I N T E RV E N T I O N A N D P O L I T I C A L A S S A S S I NAT I O N The use of armed force against one state by another state or by a group of states involves some of the most complex and urgent issues of international justice. In recent years, a consensus has begun to develop around the idea that such force is morally permissible only if it is necessary to prevent or end massive human rights violations amounting to a “supreme humanitarian emergency.” We argue that this consensus should be abandoned in favor of a more permissive, two-pronged approach. Specifically, we suggest that armed intervention is morally permissible when (a) the target state is illegitimate and (b) the risk to human rights is not disproportionate to the rights violations that one can reasonably expect to avert. We then consider a more targeted response to end human rights abuses: the assassination of leaders of grossly illegitimate regimes. Assassination seems to be murder, pure and simple, but we argue that it is not so. After sketching how a system of internationally authorized assassination might work, we analyze its practical and moral drawbacks and find that the question of whether such a system would be morally permissible is an open one. I N T E R NAT I O NA L D I S T R I BU T I V E J U S T I C E An increasing number of theorists are coming to espouse what might be called “egalitarian cosmopolitanism,” the view that it is unjust for a person’s life prospects to be substantially affected by the country in which he or she happens to be born. We reject this position. A reasonable egalitarian principle of distributive justice would not require the elimination of the effects of brute luck on the lives of individuals. Rather, it would demand the elimination of conditions, whatever their origin, that make the less advantaged vulnerable to exploitation and oppression at the hands of the more advantaged. It is perfectly possible, even in today’s increasingly globalized world, for different

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states to have very different levels of average wealth, without the less wealthy being vulnerable to oppression by the more wealthy. Despite resisting egalitarian cosmopolitanism, however, we do not defend anything like the status quo. Among the many things seriously objectionable about the global economic system is the fact that the citizens of wealthy states fail to meet their minimal samaritan duties to assist the hundreds of millions of people who live and die in absolute poverty.

IMMIGRATION AND MEMBERSHIP Appealing to the moral value of freedom of association, we defend a state’s right to control immigration over its territorial borders. Just as an individual has a right to determine whom (if anyone) he or she would like to marry, a group of fellow citizens has a right to determine whom (if anyone) it would like to invite into its political community; and just as an individual’s freedom of association entitles one to remain single, a state’s freedom of association entitles it to exclude all foreigners from its political community. We do not deny either the egalitarian claim that those of us in wealthy societies have stringent duties of global distributive justice or the libertarian contention that individuals have rights both to freedom of movement and to control of their private property. Yet, we conclude that every legitimate state has the right to close its doors to all potential immigrants, even to refugees seeking asylum from incompetent or corrupt political regimes that are either unable or unwilling to protect their citizens’ basic moral rights. This is not to say that legitimate states have no duties whatsoever toward such refugees. States do have a duty to aid them, but it is a duty that can be discharged in a number of different ways.

2 Self-Determination and Democracy In recent years, many thinkers have come to the conclusion that the traditional scope of a state’s sovereign right to determine its affairs should be reduced quite substantially. Few people still think that a state has the right to treat its own members as it pleases, but, aside from a handful of advocates of a world government,1 the generally accepted view is that each state should retain substantial and important powers within the scope of its right to political selfdetermination. At the same time, many thinkers contend that any legitimate state must be a democracy. Such thinkers hold that only democratic governance is consistent with a state’s right to govern its territory and to thereby impose duties of compliance on insiders and of noninterference on outsiders. These two concepts – political self-determination and democracy – are at the center of this chapter. The chapter has two principal aims. The first is to present and defend an account of the right to political self-determination. The second is to show that our account leads to a novel understanding of the value of democracy. These two aims are connected: the understanding of democracy that we develop demonstrates the power of our theory of self-determination to illuminate, in surprising ways, key issues in the field of international justice. Our account holds that the right of political self-determination is an irreducibly collective moral right held by legitimate states and groups that are willing and able to become legitimate states. Our understanding of democracy holds that the inherent value of democratic rule cannot be grounded in individual rights but rather must be based on an irreducibly collective moral right of political self-determination. In short, one cannot explain the noninstrumental value of democracy without accepting our view of self-determination. The chapter has eight main parts. In the first section, we introduce two principles of political self-determination, showing how they underwrite reasonable moral judgments pertaining to international affairs. The principles specify when groups have a basic moral right to political self-determination. From the second to the fourth sections we argue that our two principles generate an understanding of the value of democracy that is both novel and superior to competing accounts. In the fifth section, we respond to the objection that

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our understanding of the value of democracy view is incompatible with acknowledging that democracy is the only legitimate form of government. We concede this charge and show why it should not count against our view. The sixth section responds to the objection that our view is incompatible with acknowledging a human right to democracy. Again, we concede the charge and show why it should not count against us. The seventh section examines whether, in light of our principles of self-determination, international society – or some portion of it – should adopt norms that require states to be democratic as a condition of being formally recognized. Finally, the eighth section argues that our principles of self-determination are consistent with the idea that individuals are what ultimately matter morally and shows how the principles can be connected to a moral requirement to respect individuals.

C O LO N I A L I S M , A N N E X AT I O N , A N D P O L I T I C A L S E L F- D E T E R M I NAT I O N One of the most important political movements of modern times was the decolonization movement of the past century. This movement certainly sought to vindicate the individual rights of persons under colonial rule, as such rights were regularly trampled by the metropolitan powers and their appointed agents. But was decolonization strictly or even mostly about individual rights and the demand of justice that those rights be respected? Margaret Moore does not think so; she writes, “Justice may be a good criterion for assessing government; but it does not seen [sic] to be the primary factor in understanding . . . the massive movement to decolonize in the 1960’s.”2 We think that Moore is right: the decolonization movement was not mainly about individual rights, but rather was principally an effort to ensure that the right of a group to determine its own political affairs was properly respected. Individuals certainly suffered from grievous injustices at the hands of the metropolitan state, but one of the key considered convictions that helped drive the decolonization movement was that, regardless of how well or poorly an imperialist power treated its colony, there were deontological reasons to respect the political self-determination of the native inhabitants of the territory. The work of one of the leading theorists of decolonization, Frantz Fanon, confirms that decolonization was principally about the collective right of selfdetermination. Fanon differentiates the “liberal” moment of the fight against colonialism, which is a matter of vindicating individual rights, from the national liberation phase, which is a matter of vindicating the group’s right of political self-determination. It is the latter which is crucial for him. Fanon writes:

Self-Determination and Democracy

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History teaches us clearly that the battle against colonialism does not run straight away along the lines of nationalism. For a very long time the native devotes his energies to ending certain definite abuses: forced labour, corporal punishment, inequality of salaries, limitation of political rights, etc. This fight for democracy against the oppression of mankind will slowly leave the confusion of neo-liberal universalism to emerge, sometimes laboriously, as a claim to nationhood.3

The “confusion of neo-liberal universalism” rests on the belief that fighting colonialism is, at bottom, an effort to stop the violations of individual rights that attended colonial domination. But, for Fanon, more important is the fight for “nationhood,” that is, the collective, political self-determination of a people. Accordingly, he characterizes anti-colonialism as “the conscious and organised undertaking by a colonized people to re-establish . . . sovereignty.”4 Thus, those under colonial domination sought collective self-rule, and it is not possible to understand the decolonization movement simply as a struggle to protect individual rights. It was predominantly an effort to vindicate the collective moral right of political self-determination. We agree with Fanon and Moore that such a right exists, and here we propose two principles of political self-determination that help to show who has the right and why: (1) A state has a moral right of political self-determination if and only if it adequately protects and respects human rights. (2) A nonstate group that aspires to become a state has a moral right to political self-determination if and only if it is willing and able to become a state that adequately protects and respects human rights. These two principles link political legitimacy – the right to rule a territory, free of external interference – to the ability and willingness of a population to perform the requisite functions by establishing and maintaining institutions that satisfactorily protect and respect human rights. Recall from Chapter 1 that a legitimate state is one that adequately protects its constituents’ human rights and respects the human rights of all others; it performs what we call the “requisite political functions.” These two principles link political legitimacy – the right to rule a territory, free of external interference – to the ability and willingness of a population to perform the requisite functions by establishing and maintaining institutions that satisfactorily protect and respect human rights. The two principles require some qualification. For example, they both must be qualified in light of the possibility that a population is unable to perform the requisite functions because its economic resources have been unjustly exploited or depleted by a foreign power. In such a case, one should not deny that the group has a right to political self-determination. Rather, one should say that it retains such a right and that the foreign power has a duty to restore the group’s

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capacity to perform the requisite political functions. In connection with this point, we agree with Fanon’s assertion that “[c]olonialism and imperialism have not paid their score when they withdraw their flags and their police from our territory.”5 Colonized people should recognize that reparation “is their due” and capitalist states should realize that “they must pay.”6 Indeed, such reparation is owed, regardless of whether a population needs it in order to perform the requisite political functions. Our point here is to highlight a corollary of the more general point about reparations: Where the inability to perform the requisite functions is due to unjust colonialist exploitation of resources, then our principles should be understood, not as denying a right of political selfdetermination, but rather as demanding the necessary restitution.7 Our defense of the two principles begins in this section with several hypothetical examples which show that the principles cohere with, and help explain, certain reasonable moral judgments about international affairs. Our aim is not to provide the full defense in this section or even in this chapter. The hope is that the analyses that the principles help to provide of the issues in each of the succeeding chapters will form essential elements in the case for the principles. One should also keep in mind that rejecting the principles means that one will confront the task of constructing an alternative account of the reasonable judgments that the principles help to explain and justify.8 Let us begin with an example involving forcible annexation. Suppose that both Canada and the United States are legitimate states. Now imagine that the United States annexes Canada against the will of the Canadian people, 90 percent of whom oppose the annexation. Nonetheless, the annexation goes peacefully and the Canadians acquiesce in their new status as citizens of the United States. Also imagine that the Canadians enjoy better protection of their human rights than they did before the annexation and that there is no loss in human rights protection in the rest of the United States or in respect for human rights elsewhere. Is the forcible annexation morally permissible? We think that the most reasonable answer is “No” and that principle (1) explains why. Canada was adequately protecting and respecting human rights prior to the forced annexation. Principle (1) entails that Canada thereby had a right of political self-determination: the state was not doing a perfect job of protecting rights, or even the best job in the world, but it was doing a goodenough job to have the right to be its own, self-determining state. Moreover, the deontological character of rights is such that, even if someone else can bring about better overall results were they to have X, if you have a right to X, then it is impermissible for her to take X from you without your consent, and she would violate a duty owed to you if she did so. The right to private property clearly illustrates this deontological character, but other moral rights display it as well. Thus, consider a particular set of parents who, we suppose, have a right to raise their children because their care meets some


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threshold for adequacy. Even assuming that some other person or couple or entity would do a better job, however one judges “better,” it would be impermissible for that other agent to take control of the children against the will of these parents. Just as in the parental case, the deontological character of rights works in conjunction with principle (1) to explain why the hypothetical US takeover of Canada is impermissible. Notice that if Canada were not a legitimate state before the US takeover, then, in making its case for independence, it would be restricted to invoking considerations such as how well it can protect individual rights in comparison to how well the US would be able to do it, and how much violence a US takeover might bring. And, as our hypothetical scenario shows, Canada could lose the argument on those considerations. Thus, even though the lack of a moral right to political self-determination does not mean that a group should not have its own politically independent state, it does mean that the group’s case for political independence is much more vulnerable to empirical contingencies. Forcible annexation of one state by another is similar to colonial conquest, and, unsurprisingly, our considered convictions in the two sorts of cases are similar as well. Regardless of how well or poorly the dominant state treats the inhabitants of the political communities that it has forcibly absorbed, the coerced takeover constitutes an unjustified interference with the collective right of self-determination of the oppressed population.9 Thus, consider an imperialist state, IMPERIUM, which is ruling over a population, COLONIZED, that is able and willing to constitute a legitimate state. Moreover, the COLONIZED are demanding their independence, that is, demanding that they have their own, self-determining state. Do they have a moral right to it? If they are willing and able to constitute a legitimate state, then, in accordance with principle (2), we say that the answer is affirmative. The situation is morally parallel to our example of the forcible annexation of Canada by the United States: a political community that is willing and able to constitute a legitimate state but is denied the opportunity by the force of another power has had its right of self-determination violated.10 It is true that thinkers who advance purely instrumental accounts of political self-determination could readily argue that, as an institutional matter, it would be best to prohibit all annexations and imperial conquests of legitimate political communities. However, this move alone is not enough because it fails to capture the conviction that a group can be wronged by a single instance of annexation or conquest, even when the political acquisition neither triggers armed conflict nor disrupts the protection of individual rights. We do not deny the obvious, that is, that actual acquisitions and conquests do involve violations of human rights, typically quite massive in scale. Our point is that the moral analysis is incomplete unless it also shows how the collectively held right to political self-determination is also violated.11

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Accordingly, we claim that our principles of political self-determination cohere well with, and help explain, important considered convictions relating to colonialism and forced annexation. Those convictions stem from the idea that certain groups have a collective right to political self-determination. Our claim is that this idea is quite reasonable and can be explained in terms of the connection that our principles draw between human rights and political self-determination. In the next three sections, we extend the argument by showing that our principles succeed in explaining a certain aspect of the value of democracy, whereas approaches that seek to reduce the right of political self-determination to the rights of individuals qua individuals fail.

DEMO CRACY’S VALUE We have argued that the right of political self-determination, understood as an irreducibly collective right held by groups that are willing and able to perform the requisite functions, coheres well with reasonable answers to certain questions relating to imperial domination and forced annexation. In this section, we show how the right helps to provide a surprising explanation of the value of democracy.12 Among thinkers who believe that the value of democracy is not simply instrumental, that is, not simply a matter of the good consequences that democratic arrangements bring about, the unquestioned assumption is that the inherent value of such arrangements is to be explained in terms of their connection to individual rights. In stark contrast, the explanation that we offer is in terms of the connection between democracy and the irreducibly collective right of political self-determination. Let us explain. To start, note that, although few contemporary thinkers deny that democracy brings about the best consequences for society, many believe that the case for democracy does not depend solely, or even primarily, upon its instrumental value.13 Indeed, it is widely presumed that democracy is, in principle, the only form of political association that possesses legitimacy. If democracy were made legitimate by its instrumental value, then other forms of governance could, in principle, be legitimate. For it is possible that some nondemocratic forms could generate consequences that are as good, or even better, than those brought about by democracy. And so the view that democracy is, in principle, the only legitimate form of governance entails that democracy has more than simply instrumental value and that it is good for reasons apart from the good consequences that it brings about for society. Moreover, the view that there are good noninstrumental reasons for democracy coheres well with the idea that dismantling democratic institutions and imposing some nondemocratic form of government on society is always


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wrong, because it violates a duty owed to the members of society. Thus, imagine that Jack is living in a democracy that adequately protects and respects human rights. Then one day, Jill mounts a coup, unilaterally dismantling the democracy and appointing herself as queen. It seems natural to judge that, no matter how enlightened or capable a monarch Jill is, her coup is wrong in principle, violating a duty owed to Jack. This judgment illustrates the fundamental point that we will be advancing is this section: One cannot adequately capture the noninstrumental case for democratic governance unless one acknowledges that there is an irreducibly collective moral right to political self-determination. In order to see the connection between the noninstrumental value of democracy and the moral right of political self-determination, it is important to recognize that democratic governance is itself an exercise in collective, not individual, self-determination. This point has been well made by several authors, including those who do not accept our account of political self-determination. Thus, Allen Buchanan has insisted that “it is simply false to say that an individual who participates in a democratic decision-making process is self-governing; he or she is governed by the majority.”14 In a similar vein, Henry Richardson has pointed out that the kind of freedom secured by popular self-government “applies only at the collective level . . . and does not factor down to the individual.”15 Buchanan and Richardson are making two points here: (a) that individuals in a democracy are not self-determining and (b) in a democracy groups are self-determining. For present purposes, it is the latter point that is relevant. Thus, consider again Jill’s monarchial coup against Jack’s democracy. In seizing political dominion, Jill did not take something that Jack or any other citizen as an individual had previously controlled. Rather, Jill seized something from the group as a whole. Except in the rarest of cases (when Jack’s compatriots are split evenly on a given issue and thus Jack’s vote would be decisive), Jack could not control the outcome of the political decisions. Jill’s unilateral installation of a monarchy did deny the group as a whole something it had previously enjoyed, however, because the group possessed the power to determine the outcome of political decisions. In a legitimate democratic state, then, the group collectively rules itself through the institutions of representative government, periodic elections, and so forth. Moreover, those institutions are, ex hypothesi, adequately protecting and respecting human rights. Our first principle of political self-determination thereby entails that such a state has a moral right to govern its own affairs. And because of the deontological character of moral rights, even if Jill could do a better job of protecting and respecting rights, it is impermissible for her to seize power. Thus, the reasons to respect democratic institutions are not solely

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instrumental. If that were the case, then Jill’s coup would not be wrong in principle, but it might be permissible, depending on how effective Jill’s reign would be at protecting and respecting human rights and serving other political values. The collective right of political self-determination explains why Jill’s coup is wrong in principle, regardless of how well she might rule. Nonetheless, one might be hesitant to accept our explanation of why Jill’s coup is wrong in principle. There are two reasons for such hesitation. First, one might presume that the deontological reasons to respect democracy do not stem from any collective right but rather from individual rights. Second, one might be loathe to accept an important implication of our explanation, namely, that nondemocratic regimes can, in certain circumstances, be legitimate. The two concerns are connected, because a successful argument from individual rights would show that democracy is the only legitimate form of political rule, absent unanimous consent to nondemocratic arrangements, and so would avoid the implication that nondemocracies can be legitimate. We examine the first concern in the next two sections, and the second in the fifth section.

AU TO N O M Y The most tempting account of the legitimacy of democracy derives from its apparent connection to individual autonomy. To appreciate the account, recall Jill’s coup against Jack’s democracy. It seems natural to conclude that, no matter how enlightened and effective a monarch Jill is, her political rule violates Jack’s autonomy. Robert Dahl, for instance, argues along these lines. He defines autonomy in terms of self-government and explains selfgovernment in terms of obeying laws that one has chosen. “To be morally autonomous is to be self-governing. . . . To govern oneself [is] to obey laws that one has chosen for oneself.”16 Where collective choices must be made, no practicable political system will make room for the autonomy of each individual. However, democracy provides the maximum “feasible scope of self-determination for those who are subject to collective decisions, so it also maximally respects the moral autonomy of those who are subject to its laws.”17 In a related vein, Daniel Philpott characterizes democracy as “the activity of governing oneself, of exercising one’s autonomy in the political realm.”18 He contends that individual autonomy “grounds democracy,” arguing that the value of self-government at the collective level is an extension of the importance of self-rule at the individual level.19 Despite initial appearances, this purported connection between democracy and individual autonomy does not obtain. The problem is that, as we have


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seen, in a democracy, groups, rather than individuals, are autonomous in the political realm. Allen Buchanan explains this point nicely: [I]t is simply false to say that an individual who participates in a democratic decisionmaking process is self-governing; he or she is governed by the majority. Unless one (unpersuasively) defines self-government as government by the majority (perhaps implausibly distinguishing between the individual’s apparent will and her “real” will, which the majority is said to express), an individual can be self-governing only if he or she dictates political decisions. Far from constituting self-government for individuals, majority rule, under conditions in which each individual’s vote counts equally, excludes self-government for every individual.20

To see clearly how Buchanan’s point undercuts the arguments of Dahl and Philpott, note that Jill’s reign as a monarch need encroach on Jack’s autonomy no more than the democracy it replaced. Indeed, Jill might implement a new legal code that gives Jack greater dominion over his own life. For example, Jill’s legal code might permit greater access to pharmaceuticals for individuals who are not licensed physicians. More generally, with respect to any given decision, either the individual’s will or the group’s will occupies the relevant position of dominion. If the individual has dominion, then he or she determines the decision, notwithstanding the group’s preferences. If the group has dominion, then it determines the decision, notwithstanding the individual’s preferences. Pace Dahl, there is no guarantee that under democratic institutions there will be a broader range of matters that come under the dominion of the individual. Dahl may reply that democracy does guarantee that there will be a greater proportion of people than under any other regime who will be living under laws which they have themselves chosen. But this reply misses the key point. The individual does not choose the laws; the group does. More generally, the group’s decisional control on a given matter entails that the individual as such lacks control with respect to that matter. When Alvin votes for a candidate in his country’s presidential election, for instance, he and his compatriots as a group make the decision, and his vote (in all but the most exceptional cases) is not decisive. When Alvin sells his house as an individual, on the other hand, then he determines the new owner, and his neighbors as a group, have no control over the matter. One might object that a person’s sale of his house depends on a background system of legal rules that has been adopted by a group decision-making process. Alvin as an individual does not make up the laws regarding the purchase and sale of real estate. And it is true that legal rules empower individuals to enter into binding contracts for the sale of real estate. However, this does not show that Alvin lacks the relevant dominion over the matter of whether and to whom his house is to be sold. Rather, it shows that the law gives such dominion to him.

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Still, Dahl and Philpott might insist that we have missed their key point: politics shapes the institutional framework that affects the life-prospects of all who live within a society. It can be radically alienating for an individual to lack any say in what that framework is. Even if the individual as such does not have dominion over decisions that shape the framework, democracy gives him a say in those decisions. Having such a say is reasonably characterized as a matter of autonomy, and the value of having it grounds the respect owed to democratic arrangements. We do not deny that there is a normative difference between regimes that give individuals a say in determining society’s institutional structure and those that do not, or that individuals will generally lead better lives under the former. Yet, it remains the case that having such a say is not an instance of individual autonomy. The fatal flaw with most attempts to explain the legitimacy of democracy in terms of individual autonomy, then, is simply that democratic decision-making on a given matter is inconsistent with each individual’s possessing autonomy on that same matter.

EQUALITY Because it is widely recognized that democratic decision-making does not in fact preserve individual autonomy, it is much more common for theorists to argue that democracy’s legitimacy is to be explained in terms of individual equality. If this line of argument is successful, then it will not be necessary to appeal to a collective moral right of political self-determination in order to vindicate the idea that the value of democracy is more than instrumental. Moreover, a successful argument will also establish that, contrary to the account of political self-determination for which we have been arguing in this chapter, democracy is the only legitimate form of government (setting aside the possibility of unanimous consent to nondemocratic arrangements). Perhaps the most direct way to ground democracy’s legitimacy in its connection to equality hinges on the idea that only democracy gives equal consideration to the interests of all citizens. Accordingly, Henry Richardson writes, “The basic case for democracy, then, is a case for democracy rather than aristocracy or monarchy. It holds that only democratic government is legitimate because only democracy appropriately institutionalizes the equal consideration of each citizen in . . . the establishment of laws.”21 However, there is a problem with such an approach. Charles Beitz formulates the problem succinctly: “That political decisions take fair account of each person’s prospects is not enough [to ground legitimacy]; for, in theory at least, this could be the case in a perfectly impartial dictatorship.”22 Such a dictatorship


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would give equal consideration to the interests of each member of society in deciding which laws to enact and so be unobjectionable, in principle. Thomas Christiano has sought to circumvent this problem while still building his case for democracy on the principle that, as a matter of justice, “the interests of individuals are to be advanced equally by [their] society.”23 Christiano argues that “it is not enough that justice is done; it must be seen to be done.”24 He then elaborates on this publicity requirement: “[T]hose adult persons who are denied the right of being able to see that they are being treated as equals are being told by society that their interests are not worthy of equal or perhaps any consideration of justice.”25 The central idea of Christiano’s argument is that democracy is the one and only way to meet the principle of equal promotion of interests in a manner that makes the fulfillment of the principle something publicly ascertainable by every citizen. He writes, “Democratic decision-making . . . is the uniquely public way of realizing equality among citizens.”26 Thus, a monarchy or oligarchy might promote equally the interests of all in society, but it would presumably be very difficult for any member to know that this was the case. By contrast, in a properly constituted democracy, “equality is publicly embodied” in the laws and practices that guarantee freedom of speech, voting rights, the right to run for office, and the other dimensions of the right to participate in the political process.27 However, even conceding, arguendo, that satisfaction of a publicity requirement helps to confer legitimacy on democratic regimes, it is unclear that Christiano’s version of the requirement is derived from considerations of equality among individuals. If it were completely impossible for anyone to know whether he or she was being treated equally, then the requirement would be violated even though the cognitive position of each person with respect to her treatment by government was identical. Accordingly, it seems questionable for Christiano to assume that publicity, as he understands it, is an egalitarian principle rather than a distinct demand of justice.28 More importantly, even if we grant that publicity is a requirement of equality, there are nondemocratic decision procedures that could publicly be seen to give everyone an equal say in the political process. Consider a process in which the political outcome for a given issue is determined by random selection from a list of outcomes submitted by citizens of other countries. Each citizen in the country in question would have an equal say and the publicity requirement would be met, because it would be apparent to all that every such citizen had zero input.29 Christiano would not claim that such a regime has legitimacy. However, he does not appear entitled to object to our imagined case, because, if it is perfectly transparent that no citizen has any political power, certainly everyone can effectively see that all are treated equally. Thus,

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Christiano seems wrong to conclude that only a democracy can satisfy the conditions of public equality. Christiano might reply that his idea of “equal say” should be construed as implying that citizens have input that is greater than zero. Indeed, he contends that the collective body of citizens is the only legitimate sovereign and that “only the people have a right to rule over society.”30 Notice, however, that this endorsement of popular sovereignty seems again to smuggle an extraegalitarian consideration into the argument. A principle of popular sovereignty is not derivable from a principle of the equality of individuals but rather, as was the case with publicity, appears to be a distinct normative element. Indeed, the principle involves the idea of collective political self-determination and cannot be cashed out strictly in terms of individual equality for much the same reason that democracy cannot be understood as a simple extension of individual autonomy: popular sovereignty is a matter of the dominion of a particular group, namely, the people of this state rather than the people of some other state or individuals constituting some other group. Such dominion might require that the individuals who constitute the appropriate group be treated as equals in certain respects. However, the right of the group to exercise dominion cannot rest on such equality. It is one thing to say that the people have a right to exercise their collective dominion; it is quite another to say that if they exercise their collective dominion, then it must be done in a way that gives each individual an equal and significant say in the decision-making. Thus, it appears that Christiano does not succeed in finding adequate grounds for the legitimacy of democracy in considerations of individual equality. In contrast to Christiano, Beitz develops a contractualist account of the egalitarian basis of democracy, arguing that “the essential question is whether a procedural arrangement can be justified to everyone who is affected by it.”31 He combines this condition on justification with an account of citizenship as involving two elements. On the one hand, citizenship involves an active element insofar as citizens help to make the law and, on the other, a passive element insofar as they are the objects upon whom the law operates. Among the interests of each citizen, argues Beitz, is the public recognition of his or her equal status as an agent who participates in political decision-making. Citizens also have vital interests to be protected in their passive role, for example, their interest in physical safety. Beitz writes that “a central virtue of democratic forms is that, in the presence of a suitable social background, they provide the most reliable means of reaching substantively just political outcomes consistently with the public recognition of the equal worth or status of each citizen.”32 Nonetheless, Beitz’s egalitarianism falls short of delivering the conclusion that democracy alone is legitimate.33 First, because he does not assert that the interests relating to active citizenship necessarily outweigh those related to


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passive citizenship, it remains possible, in any specific instance, that a nondemocratic government would do a better job of protecting the overall interests of each of its constituents, even as it gave no role to their interest in active citizenship. In such a case, nondemocratic arrangements could be justified to each individual simply on the basis of his or her own interests. If justifiability to each individual is sufficient to deliver legitimacy, then those nondemocratic arrangements would have legitimacy. Second, under certain social conditions it might be true that (a) some nondemocratic regime would more reliably arrive at substantively just political outcomes than any democratic one and (b) the injustices that would be avoided by rejecting democracy are much more serious than any injustice under the nondemocratic arrangements. Under these conditions, nondemocratic rule could also be justified to each person affected insofar as he or she could be given sufficiently strong normative reasons for the arrangements. We agree with Beitz’s claim that “a central virtue of democratic forms is that, in the presence of a suitable social background, they provide the most reliable means of reaching substantively just political outcomes.” However, notice that this claim about democracy appeals to its instrumental value (“the most reliable means”) and instrumental value, by itself, cannot deliver the conclusion that it would be wrong in principle to dismantle a democracy. Moreover, Beitz’s claim also has the important qualification that even the instrumental value of democracy depends on “a suitable social background.” This qualification opens the door to the idea that, where such a background does not exist, there is nothing wrong in principle with dismantling a democracy and replacing it with some nondemocratic but more effective means of governance. The uniqueness of the legitimacy of democracy is thereby lost. Perhaps a defense of the legitimacy of democracy could succeed, however, if cogent egalitarian restrictions were placed on the reasons that could be offered to support the exercise of political power. This line of argument is pursued by Joshua Cohen, who develops an account of deliberative democracy. Cohen contends that “democracy . . . is a framework of social and institutional conditions that facilitates free discussion among equal citizens . . . and ties the authorization to exercise public power (and the exercise itself) to such discussion.”34 In public discussion, citizens offer reasons for supporting, or opposing, collective decisions (or political candidates) and then make their political choices based on those reasons. Cohen argues that such deliberation and discussion must meet certain conditions in order for the equality of citizens to be realized. Central to his account is “the principle of deliberative inclusion,” which Cohen explains as follows: “The deliberative conception requires more than that the interests of others be given equal consideration; it demands too that we find politically acceptable reasons – reasons that are acceptable to others, given a background

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of differences of conscientious conviction.”35 Such a demand on each citizen “expresses the equal membership of all in the sovereign body responsible for authorizing the exercise of [political] power.”36 Cohen is not arguing that a deliberative democracy expresses the individual autonomy of each member. But he does claim that such a democracy embodies “a form of political autonomy” because “all who are governed by collective decisions . . . must find the bases of those decisions acceptable.”37 For Cohen, the requirement that citizens restrict themselves to “public reasons” when deliberating about political matters is precisely what ensures that political decisions are genuinely collective decisions, “made by the citizens ‘as a body.’ ”38 However, even if it were true that no government could be legitimate unless its people and leaders appealed only to public reasons, this would not single out democratic governance as uniquely legitimate because there is no necessary connection between democracy and public reason. If individual citizens are capable of appealing exclusively to public reasons, then so is a monarch or a group of oligarchs. Thus, assuming that Cohen is right about the importance of public reasons, it seems that nondemocratic regimes could, in principle, attain legitimacy. Cohen explicitly considers the possibility that “an ideal deliberative procedure is best institutionalized by ensuring well-conducted political debate among elites.”39 The sort of regime Cohen is imagining is still democratic, even if not deliberatively inclusive, inasmuch as there will be elections in which citizens choose among the elites. Yet, it poses the same kind of problem for his defense of deliberative democracy as an oligarchy or monarchy where the rulers act only on public reason: What is, in principle, illegitimate about such regimes? The answer Cohen gives centers on the claim that “[a] characteristic feature of moral and religious convictions is that they give us strong reasons for seeking to shape our political-social environment.”40 Nondemocratic and democratic but noninclusive regimes fail to acknowledge the due weight of the reasons that an individual agent has to be active in shaping the law that governs her, and so such regimes are presumably illegitimate on those grounds. Cohen seems right to assert that moral and religious convictions can provide individuals with strong reasons to shape their political–social environment, including the laws that govern them. However, it does not follow that such reasons typically tell against nondemocratic or noninclusive forms of government. In those instances in which the convictions are tied to what Beitz called “active citizenship,” individuals will then indeed have strong reason to favor democratic deliberation and participation. Yet, it is difficult to see that this kind of importance placed on political action is characteristic of moral and religious convictions generally. Rather, it seems limited to convictions that are part of a broader normative system that places intrinsic and high value on


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each person’s political agency. Some individuals are committed to such a normative system, but (even leaving aside anti-egalitarians) many do not hold to such a commitment, preferring instead to shape their environment through actions outside of the political arena, for example, by volunteering to work for private charities. Recall President Bush Senior’s “thousand points of light.” The president may misunderstand what can be accomplished through private volunteer work, but that is an empirical judgment about the instrumental value of democracy – a judgment that, moreover, may not be true in all cases. Thus, it is questionable to argue, as Cohen does, that a regime that does not allow for its constituents to participate in political decision-making is automatically illegitimate for failing to recognize adequately the importance that moral and political convictions characteristically attach to political participation. Insofar as Cohen presumes that legitimate governments must be democratic and then argues for a deliberative form of democracy that operates according to the norms of public reason, we have no objection to his argument. Indeed, we do not reject his important claim that the requirement of deliberative inclusion is what ensures that political decisions are genuinely collective, “made by the citizens ‘as a body.’ ”41 But the principle that political decision should be collective in this way is a version of the principle of popular sovereignty, and, as we have claimed in connection with Christiano’s argument, this principle does not seem derivable from considerations of individual equality but rather stands as its own principle of justice. Our examination of equality and autonomy-based arguments for democracy has certainly not been exhaustive, but hopefully it is enough to give a sense of why we are pessimistic about the prospects of explaining the deontological value of democracy in terms of individual liberty or equality.42 In the absence of any successful argument from individual rights, our argument from the collective right to political self-determination should provide some support for the principles of self-determination that we have been defending in this chapter. However, there is an implication of our argument that some might find troubling: nondemocracies can be legitimate. In the next section, we explain how this implication arises and why it should not be taken as a reason to reject our account of political self-determination.

THE RIGHT TO FOREGO DEMO CRACY Let us take stock of the argument. We have shown how our principles of political self-determination can account for the idea that democracy’s value is more than instrumental and have argued that efforts to explain such noninstrumental value in terms of individual rights fail. The individual right

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to autonomy seems, at first glance, to provide a neat and clean way of explaining why democracy has more than instrumental value, but the attractiveness of that right for giving such an explanation proves meretricious. Democratic rule cannot be linked in the required way to individual autonomy because democratic rule is a matter of collective, not individual, self-determination. The individual right to equality is more promising but ultimately fails because it turns out that there is no reason, in principle, why a nondemocratic form of government is unable to treat individuals as equals, on the most plausible understandings of what such treatment involves. In contrast to the autonomy and equality approaches, we do not aim to ground the noninstrumental value of democracy in any individual right. Rather, our claim has been that a democracy has noninstrumental value just insofar as it is the expression of a group’s collective moral right of self-determination. The members of a group that is willing and able to perform the requisite political functions and that desires democratic institutions to carry out those functions are wronged, in principle, by any action that denies or dismantles its democracy. Accordingly, our account of the noninstrumental value of democracy entails that a politically self-determining group has a right to have a democracy. However, it does not entail that such a group must have a democracy. In brief, the reason is that a group has the right to any institutional arrangements – democratic or otherwise – that adequately respects and protects human rights. Thus, democracy is not automatically required, and no individual who is a member of a group that prefers nondemocratic arrangements may legitimately demand, as a matter of principle, that the preference be overturned in favor of a democratic regime. In the next section, we explain why no individual can claim a human right to democracy. This section seeks to show why a politically self-determining group has a right to nondemocratic arrangements. To appreciate how a group may permissibly forego its right to democracy, imagine a possible reunification of the Czech and Slovak Republics. Virtually everyone agrees that the citizens of Slovakia would be wronged if the Czech Republic forcibly annexed the Slovak Republic. If leaders in Prague decided unilaterally to reclaim the territorial boundaries of the former Czechoslovakia, for example, then the Slovaks would be righteously aggrieved, even if the Slovaks were granted all the standard rights of liberal democratic citizenship. The point, of course, is that the principle of group self-determination entails that the choice of whether to reunite with the Czech Republic or to retain their independent sovereignty belongs to the Slovaks themselves. One can imagine the political union unfolding in a less objectionable fashion, however. For instance, suppose that after a lengthy process of deliberation and discussion, Czech citizens held a referendum on whether or not to invite Slovakia to reunite. Imagine that a majority of the existing Czech citizens voted


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in favor of extending such an offer, and a subsequent referendum in the Slovak Republic revealed that the interest in merging was mutual. We suggest that such a merger would be permissible. Most importantly, we contend that the union would not violate the rights of those in the minority who voted against the political marriage. Indeed, in our view, individual citizens in the Czech and Slovak Republics have no more of a right that their countries remain independent of one another than an individual US citizen has a right that her country eschew NAFTA, or that an individual French citizen, say, has a right that France withdraw from the European Union. (Those troubled by this position should ask themselves whether they think that an individual East or West German had a moral right to veto Germany’s reunification.) The central idea here is straightforward: Some decisions are by necessity under the dominion of the group as a whole, and thus any given member of the group cannot rightfully complain about her individual impotence on those matters.43 While most persons would readily concede that an individual is not necessarily wronged by her country’s decision to enter into various types of partnerships, the same principles that explain the permissibility of these mergers have striking implications for democracy. To see this, suppose that, because Vaclav Havel is so widely loved and respected, an overwhelming majority of Czechs voted in a free and fair national referendum to transfer the political powers from the democratically elected legislators to King Havel, whom they reasonably expect to protect their human rights and to respect the human rights of all others (bracketing for the moment the question of whether there is a human right to democracy). Now the question is whether this political arrangement would be morally permissible: Would it violate anyone’s human rights? In our theory, such a rights-protecting monarchy could be permissible if provisions were available for the people to exercise their right of political self-determination to oust Havel or any successor. That is, as long as the constitution allows the people to force at any point a binding referendum on whether democracy should replace the existing monarchical arrangement, there is nothing wrong, in principle, with the establishment and indefinite perpetuation of the monarchy. The referendum must be free and fair, with every adult citizen having a voice and a vote, but if this condition is met and human rights are adequately respected and protected, then the right of political self-determination allows a state to claim or waive democratic governance. Accordingly, a political society can be morally entitled to abandon democracy. At this point one might wonder why we stipulate that the Czechs must retain the option of rescinding the monarchy at any point. After all, if the group really is in a position to claim or waive its right to democracy, then why may it not waive the right permanently? It is admittedly controversial whether an individual can permanently sell herself into slavery, but if human

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rights–respecting monarchies are really as unobjectionable as we claim, then we apparently have no grounds to object to groups’ permanently foregoing democratic governance. Without taking a stand on whether individuals have the moral dominion to sell themselves into slavery, we insist that a group cannot irrevocably turn a country into a monarchy because a political group is comprised of different individuals over time. The changing makeup of groups is important because a group’s decision at time t1 can have an effect upon the different individuals who comprise the group at time t2. Thus, if Czechs irrevocably turned their backs on democracy in 2009, this would be denying a different group of Czechs of the right to claim democratic governance in 2109, and we suggest that existing Czechs are not entitled to restrict the group self-determination of future generations. Thus, just as it is impermissible for existing Czechs to restrict the political self-determination of existing Slovaks, it would be wrong for existing Czechs to restrict the group autonomy of future Czechs. However, it is important to recognize that, while a group might rightfully object if it is denied the opportunity to reclaim democracy, an individual cannot so object. If, as we have suggested, there is no necessary connection between democracy and individual autonomy or individual equality, then a person has no automatic grievance if she is a member of a group, the majority of whom vote to waive its right to democracy. As long as the group prefers a nondemocratic system that adequately protects human rights, including the rights associated with individual autonomy and equality, no dissenting member of the group has the moral power to veto the arrangements in favor of democracy. Moreover, given that deontological reasons to respect democracy flow from the collective right of political self-determination, there can be rights to democracy, but these are rights exercised by groups. As a consequence, individuals may be wronged when their group is denied political self-determination, but these same individuals would have no principled grievance if their group itself freely decided to forego democratic governance. Before closing this section, let us comment on an asymmetry that exists in our account between the “constitutional” choice of a form of government, on the one hand, and the “legislative” decisions to select representatives or enact laws, on the other. A critic of our account might point to a potential inconsistency here. For a constitutional choice, we require a free and fair referendum in which all citizens have a right to vote and voice their political views, but we simultaneously contend that legislative choices need not be democratic. This asymmetry gives our view a dialectical instability, the critic may continue, because whatever reasons exist to require that each citizen have a vote and a voice for a constitutional choice would presumably apply equally to legislative decisions.44 In other words, if we are right that there is nothing objectionable about abandoning democratic governance at the legislative stage, then it seems


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that we cannot consistently demand an essentially democratic referendum for decisions about the form of government. In response, we admit that this asymmetry exists, but we deny that it is unprincipled or in any way objectionable. To see why, notice the difference between grounding democracy in a right of group self-determination versus basing it in either individual autonomy or equality. If the noninstrumental reasons to secure democracy stemmed from either individual autonomy or equality, then democracy would be required at both the constitutional and legislative levels, because deviations from democracy at either stage would impermissibly violate the individual’s autonomy or equality. However, because the deontological value of democracy springs from the importance of group self-determination, there is no reason why democratic processes are required at both the constitutional and legislative stages. A free and fair referendum is required for constitutional choices because, in order to determine the group’s preferences, a vote must be taken to discover what the collective as a whole wants to do.45 Democracy is not required at the legislative stage, however, because the group may in fact favor a nondemocratic form of governance. And if a group freely decides that it would prefer not to make its legislative decisions democratically, then the nondemocratic form of government it selects does not violate the political self-determination of the group. To the contrary, such a government is an expression of political self-determination. The preceding objection might be put more forcefully, however, if it were recast along lines suggested by an argument of Jeremy Waldron’s. Waldron makes the following observation about the exclusion of some citizen, A, from a political decision that is made by other citizens: “If A is . . . excluded from the decision (for example, because the final decision has been assigned to an aristocratic elite), A will feel slighted: he will feel that his own sense of justice has been denigrated as inadequate to the task of deciding not only something important, but something important in which he, A, has a stake as well as others.”46 Waldron then explains this form of denigration in terms of the failure appropriately to respect a person’s capacities as an intelligent agent: When one confronts a right-bearer, one is not just dealing with a person entitled to liberty, sustenance, or protection. One is confronting above all a particular intelligence – a mind and consciousness which is not one’s own, which is not under one’s intellectual control, which has its own view of the world and its own account of the proper basis of relations with those whom it too sees as other. To take rights seriously, then, is to respond respectfully to this aspect of otherness and then to be willing to participate vigorously – but as an equal – in the determination of how we are to live together in the circumstances and the society that we share.47

As we understand Waldron, then, he does not seek to ground the right to vote simply in individual autonomy or equality; rather, he suggests that one wrongly

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disrespects a right-bearer when one does not allow him or her to participate in the political decisions of his or her state. Notice that his account does not posit any irreducibly collective right as the basis of the right to vote. Rather, Waldron focuses directly on the competent individuals who are wrongly treated as if they were incompetent when denied a right to participate in the decision-making process. It is not hard to see how a proponent of this type of account might press the objection that democracy is required at both the constitutional and legislative stages. Specifically, if a competent person is disrespected when she is prohibited from an equal say over communal decisions that affect her, then she is wronged whether she is disenfranchised at either the constitutional or the legislative stages.48 The point, of course, is that since decisions at the legislative stage have an impact on constituents just like those made at the constitutional stage, a right-bearer can be equally disrespected when she is wrongly treated as incompetent to contribute to the decision-making process at either stage. Certainly an individual might be disrespected when denied the opportunity to participate at the legislative stage, but we deny that being prohibited from participating in such decision-making is necessarily disrespectful. To appreciate the distinction we seek to draw, first consider two cases in which a husband, Michael, makes a decision on behalf of his wife, Sally. First, imagine that Michael informs his wife that he will buy her next car because, qua female, she is not competent to make a sound automotive purchase. In this case, clearly Michael disrespects Sally; he wrongly treats her as incompetent to make a self-regarding decision. Imagine a second scenario, however, in which Sally asks Michael to buy a car for her. Suppose, for instance, that Sally makes the following request: “I need to buy a new car, but I’m absolutely swamped at work these days and would really appreciate it if you would do it for me. You have a good sense of my preferences, so I would be most grateful if you would do the research, haggle with the salespeople, and buy whatever you think I would like.” In both cases Michael acts as a proxy for Sally, but the two are importantly different because in the first case Michael appoints himself proxy because he wrongly presumes that Sally is incompetent in this realm, and in the second scenario Sally autonomously appoints Michael as her proxy simply because she believes it would be helpful to delegate the work involved in making this decision. In short, Sally is included in the decision in neither instance, but only in the first case is Michael’s standing as decision-maker disrespectful to Sally. With the preceding in mind, consider two scenarios in which a group elects to forego democratic governance. In the first case, all the men (who make up the majority of a community) vote that women shall henceforth be denied the


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right to vote because, qua women, they are incapable of understanding political issues. Obviously the women in this scenario would be disrespected by their disenfranchisement. Contrast this with the referendum outlined above, however, in which a majority of Czech citizens vote to abandon democracy in favor of a monarchy because they believe there are important advantages to be gained by monarchical decision-making. We contend that the disenfranchised Czech citizens would not be disrespected because, unlike the case of men voting to exclude women, those Czechs who voted in favor of the monarchy did not do so because they believed that they and their compatriots were incapable of understanding political issues. On the contrary, they favored monarchy merely because, like Sally, they believed it would be advantageous to delegate political decisions to a monarch. In our view, a monarchy that comes about in this fashion is no more disrespectful to its disenfranchised citizens than a representative democracy is to the ordinary citizens who are denied the opportunity to participate directly in the enactment of legislation. If this view is right, then even someone who endorses Waldron’s view of the right to participation cannot charge us with inconsistency over the asymmetry that we posit between the constitutional and legislative stages.

DEMO CRACY IS NOT A HUMAN RIGHT Over the past two decades, an increasing number of thinkers have come to the conclusion that there is a human right to democracy. Indeed, such a view of democracy is reflected in important human rights documents. For example, Article 21 of the Universal Declaration of Human Rights provides that “[e]veryone has the right to take part in the government of his country, directly or through freely chosen representatives.” And Article 25 of the International Covenant on Civil and Political Rights holds that “[e]very citizen shall have the right and the opportunity . . . [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot.” In our view, it is mistaken to think that there is a human right to democracy. We suspect that many hold this mistaken view because they believe that a right to democracy can be grounded in considerations of individual autonomy or equality. The third and the fourth sections in the chapter cast serious doubt on whether any such grounding is possible.49 But in this section, we approach the question of whether there is a human right to democracy from the perspective of what human rights are, and we arrive at a conclusion that converges with our account of the connection between collective self-determination and the noninstrumental value of democracy: there is no human right to democracy.

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As explained in Chapter 1, we take human rights to be moral rights to those things an individual needs to live a minimally decent life. Is democracy necessary in that way? We think that the answer is “No.” Even if one accepts the claim that there is something intrinsically valuable about democratic political participation, it does not follow that a decent life is impossible in the absence of democracy. We do not doubt that democratic governance is one the most important keys to protecting human rights, but this shows only that the instrumental case in favor of democracy is an especially strong one. It does not show democracy is itself necessary for decency. Here one might object that our line of reasoning entails that certain noncontroversial, core human rights, such as the right to due process, are also not really human rights. After all, one could claim that the value of due process is strictly instrumental. And if our account disqualifies not merely democracy but also due process, then it should be rejected for straying too far from the standard human rights covenants and discourse. In reply, we appreciate that theories of human rights should maintain an appropriate level of fidelity to the human rights documents and discourse, but we do not think that due process and democracy are in the same boat. People’s lives are profoundly affected by an absence of due process, because they must live with the constant fear that they may – without any warning and for no reason – be subjected to prosecution, punishment, or worse. Such insecurity directly impedes one’s capacity to live a decent life. And, while it is true that an absence of democratic governance may render a state’s commitment to due process that much more tenuous, the lack of democracy does not in itself make it difficult to live a decent life. Thus, while democracy is instrumentally important to living a decent life, it is distinct from things like due process which are directly important. As a consequence, we think that a country can be disqualified from being legitimate if it fails to respect due process, but not if it merely fails to be democratic. However, one might suggest that our own conception of human rights precludes us from distinguishing between due process and democracy in this way. Recall that in Chapter 1 we denied that Nelson Mandela constituted a decisive counterexample to the existence of a human right not to be tortured. The fact that Mandela has endured a great deal of torture and yet still is able to live a minimally decent life – indeed, a truly noble one – appears problematic for us insofar as we claim both that (a) human rights are distinguished in terms of their connection to living a minimally decent life and (b) there is a human right against torture. To counter this potential objection, we suggested that human rights are best thought of as protections against the “standard threats” to living a minimally decent life.50 And because Mandela’s case does nothing to undermine the more general claim that being subject to torture is a standard threat to living a minimally decent life, there is nothing inconsistent about


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explaining human rights in terms of minimal decency and still positing a right against torture. Yet, one might press the issue by asking this question: If we explain human rights as protections against the standard threats to living a minimally decent life, and we readily admit that (in the real world, at least) the absence of democracy tends to render human rights considerably less secure, then why is that admission not equivalent to conceding that the absence of democracy is a standard threat to living a minimally decent human life? Put bluntly, if there is only a probabilistic connection between lack of due process and living a less than minimally decent human life, and there is also a probabilistic connection between lack of democracy and living a less than minimally decent human life, then how can we simultaneously assert a human right to due process and deny a human right to democracy? Our distinction here depends upon the idea that certain things are directly necessary to protect one from the standard threats. We distinguish between due process and democracy because only the former is directly necessary to protect one from such threats. To appreciate this point, imagine that the only standard threat to life came from the arrows which one’s enemy routinely shoots at one. In this case, one might have a human right to a shield which could protect one from the arrows: if one had a satisfactory shield, then one would be sufficiently protected against the standard threat; if one had no shield, then one would not be sufficiently protected. But now suppose that, throughout history, there has been a high probability that a randomly chosen member of any given society would not have a satisfactory shield unless his or her society was rich. Indeed, this circumstance would be easy enough to explain: Only with sufficient funds could people build or otherwise acquire the shields they need. As a consequence, one might suppose that there is actually a human right to live in a rich society. After all, if one does not live in a rich society, there is a good chance that one will have no protection against the standard threat of one’s enemy’s arrows. Against this suggestion, we submit that there would be no human right to live in a rich society. Because one needs only a shield to protect oneself from the sole standard threat to living a minimally decent human life, one has only a human right to a satisfactory shield. The instrumental value of living in a rich society is undeniable, and we should not be surprised if human rights activists focused on ensuring that as many societies as possible were rich. But because living in a rich society is only indirectly related to being protected against the standard threat (whereas having a shield is directly related), we should not say that there is a human right to live in a rich society. A key distinction to keep in mind here is that between (a) having a human right to something and (b) having a human rights–based claim to something. Suppose that in the hypothetical world of shields and arrows particular

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government policies are likely to promote economic growth and thereby make it possible for many more persons to obtain shields. Then one could say that individuals have a strong human rights–based claim against their government that it adopt those wealth-producing policies. In other words, individuals can make a strong argument that government ought to – and perhaps even has to duty to them to – adopt such policies precisely because the policies make it more likely that they will be able to get what they have a human right to possess. But it does not follow that the individuals have a human right to the growth-producing economic policies. In a parallel fashion, individuals in the real world have a strong, human rights–based argument that their states be democratic, but the cogency of such an argument does not mean that there is a human right to democracy. The absence of democracy is not itself a human rights violation but rather is at one remove from such violations. We agree with the proponents of democracy that nondemocratic governments typically treat their subjects in ways that violate the conditions for a minimally decent life, while democracies are much less likely to do so. Accordingly, nondemocracies are much more likely than democracies to do the sorts of things that constitute human rights violations. But that point only shows that individuals typically have a strong, human rights–based argument that their government ought to be – or must be – democratic. It does not show that there is a human right to democracy. No one is surprised that human rights activists work so hard to ensure that as many societies as possible are democratic. But because living in a democratic society is indirectly related to being protected against the standard threats, we should not say that there is a human right to democratic governance. It is more accurate, in our view, merely to acknowledge that democracy’s greatest instrumental value is its tendency to secure those institutions that directly protect our human rights.51

DEMO CRACY AND RECO GNITIONAL LEGITIMACY If our arguments have been sound, then individuals have no human right to democracy. A defender of democracy might at this point counter, though, that even if we are correct, international society should proceed as if there is one. Such a view entails that international society needs to do much more than simply include a right to democracy in its human rights covenants. In its most ambitious form, the view would hold that, even though it is theoretically possible for a nondemocratic regime to be legitimate, international society should adopt and implement a legal norm dictating that only democratic states are to be recognized as legitimate. While this position might


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initially appear self-contradictory, it is not. On the contrary, it stems from the insightful observation that the case for a legal right to democracy need not depend upon a corresponding moral right. Allen Buchanan is among those who appreciate that there can be multiple justifications for a legal right to democracy. He writes: There are three main arguments in favor of international law requiring governments of states to be democratic. The first provides support for the conclusion that democratic governance is a human right properly speaking by grounding democracy in equal consideration for persons. The second, instrumental argument, contends that democracy ought to be required of governments because democratic governance is the most reliable way of ensuring that human rights properly speaking are respected. The third holds that only if governments are democratic is it appropriate to treat them as agents of their peoples and hence as legitimate.52

Given that we have contested the popular notion that equality requires democratic governance, we obviously reject the first of these arguments. However, the three arguments are independent of one another, and so the second and third need to be considered on their own. Although the third argument is not without merit, it seems to us that the second, instrumental line of reasoning is the most compelling. The basic idea here is that, because promoting democracy is one of the best ways to cultivate human rights compliance, we should design international institutions with an eye toward incentivizing states to become and remain democratic. Thus, let us consider the proposition that even if there is no human right to democracy, in an attempt promote respect for human rights, international society should only recognize democratic regimes as legitimate. To begin, asking international society to declare all non-democratic governments illegitimate seems to be an obvious non-starter. After all, international society is predominantly comprised of undemocratic regimes, so asking it to make such a pronouncement actually amounts to proposing that most of the world’s nation-states denounce themselves as lacking legitimacy. Such a strategy does not appear very promising and must be refashioned in a more modest form if it is to be sensible. The most salient option, it would seem, would be for all the world’s existing democracies to get together and to declare that, from now on, they will only recognize as legitimate those regimes which govern in a sufficiently democratic fashion. While this position is clearly more plausible, it is not entirely unproblematic. First, if we are right that nondemocratic states can be entitled to political self-determination, then any nondemocratic states which do qualify would be wronged by an international system which disrespected their moral dominion. This objection is probably not decisive, however, in part because (in the real world, at least) it would be quite rare that a nondemocratic state would

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adequately protect human rights, but also because this worry could presumably be accommodated by allowing nondemocratic states which potentially qualify as legitimate to petition for recognition on the grounds that they actually do a satisfactory job protecting the human rights of their constituents. Even if it were not feasible to provide an avenue for those rare, undemocratic but human rights–respecting regimes to petition for exemptions, it is altogether possible that the resulting deprivation of political self-determination would be more than justified by the consequent gains in global human rights compliance. A second potential problem has more practical bite. This problem stems from the worry that in demanding democratic governance in order for states to be recognized as legitimate, democracies would be raising the bar for recognition too high. Even if all democracies agreed to make democratic governance a condition for their extending recognition to any state, the democracies still might lack the leverage needed to provide effective incentives for other states to adopt and maintain democratic institutions. As Chris Naticchia has observed, the difficulty is that such a large proportion of existing states are nondemocratic that even the combined influence of the world’s democracies might be insufficient to spread democracy.53 The nondemocracies, or perhaps more accurately, the governments of nondemocracies, might decide that forming their own club provides them with a more attractive alternative than giving up their mode of governance in order to join the democratic club. And given that the argument for making democracy a condition of recognitional legitimacy is an instrumental argument, the fact that the instrument might well lack the requisite leverage seems to be a potentially fatal objection. Moreover, if nondemocracies formed their own club in which they recognized one another but did not recognize democracies, the result might even make the spread of democracy more difficult. Accordingly, important empirical uncertainties plague the proposal for existing democracies to band together and recognize only states that have democratic institutions. In part because of the problem raised by Naticchia, Buchanan ultimately stops short of recommending that international society should at this time insist that no undemocratic state will be recognized as legitimate. Less ambitiously, he suggests that, while international society should eventually demand democracy of all states, at this point it should only require that new entities (including those emerging from secession) be minimally democratic in order to be recognized as legitimate.54 While it might seem inconsistent to demand something of new states which is not required of existing regimes, Buchanan arrives at this more modest conclusion based upon the plausible premise that the international community has more leverage over emerging political entities than it does over current states. What is more, as a practical matter, it is always easier to reform a system when one does not touch the benefits of the


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existing members. (It is much easier to get the faculty to agree to reductions in faculty benefits when these reductions will not affect those who have already been hired, for instance.) It seems to us that Buchanan is right to think that international society would have good leverage over any nonstate group that aspired to become a state. The threat that most of the world’s states would not extend recognition would be a strong reason for any new state to adopt democratic institutions. One regret about Buchanan’s proposal, though, is that it is highly unlikely that there will be many new states coming on line in the foreseeable future. Because there are approximately 200 existing states, the proportion of democratic states in the world as a whole will not be much altered. Still, it is difficult to see any downside to Buchanan’s proposal, and its implementation could well generate some progress in the protection of human rights.

VA LU E I N D I V I D UA L I S M A N D R E S PE C T F O R C O L L E C T I V E AC H I EV E M E N T Our principles of political self-determination attribute to certain groups a collective moral right that is not reducible to the moral rights of the individuals who constitute the collectivity. Positing any such collective right might seem to conflict with the deeply held, considered conviction that individuals are the ultimate source of all that matters morally. That conviction is at the center of the view known as “value individualism.” In this section, we explain value individualism and its apparent incompatibility with a right to political self-determination, before proceeding to argue that the two are not in fact contradictory. In the process, we clarify the nature and basis of the right. Michael Hartney describes value individualism as follows: [P]eople generally believe that communities are important because of their contribution to the well-being of individuals. Such a view is part of what might be called valueindividualism: only the lives of individual human beings have ultimate value, and collective entities derive their value from their contribution to the lives of individual human beings. The opposite view we might call “value collectivism”: the view that a collective entity can have value independently of its contribution to the well-being of individual human beings. Such a position is counter-intuitive, and the burden of proof rests upon anyone who wishes to defend it.55

Hartney is right that value collectivism is counterintuitive. Moreover, eschewing value collectivism creates problems for us, because if groups are not sources of ultimate value in the same way that individual persons are,

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political self-determination apparently cannot be valuable in the same way as individual self-determination. As Charles Beitz has argued, given “that states, unlike persons, lack the unity of consciousness and the rational will that constitute the identity of persons . . . [and are not] organic wholes, with the unity and integrity that attaches to persons qua persons . . . [i]t should come as no surprise that this lack of analogy leads to a lack of analogy on the matter of autonomy.”56 In other words, an individual’s right to autonomy is well grounded in the nature of the person, but a state’s right to self-determination lacks any analogous grounding in the nature of the state. Beitz is right to claim that there is an important disanalogy between persons and states (or other groups), but the disanalogy does not undermine the idea of a state’s right to self-determination. When an individual’s right to autonomy is violated, the individual himself or herself is wronged. In contrast, when a state’s right of self-determination is violated, it is the individuals qua members of the political group – rather than the group itself – who are wronged. The crucial insight of value individualism is that all wrongs are ultimately wrongs to individuals. There is no independent wrong to a group because, as Beitz rightly notes, states and other groups are not organic wholes with the unity and integrity of a natural person. However, it does not follow that groups qua collective entities are unable to make decisions and otherwise exercise a “rational will.” Suitably organized political groups can exercise such a will when they take on the task of establishing and operating institutions that perform the functions requisite for legitimacy. The challenge we face in reconciling value individualism with a moral right of political self-determination is to explain how an individual can be wronged when his or her group’s self-determination is disrespected. Put bluntly, if suspending political self-determination is not a violation of the moral rights persons possess as individuals, then how can we assert that individuals are wronged when their group’s self-determination is violated? The key to answering this question lies in understanding how individuals are disrespected in a morally objectionable manner when their group is denied self-determination. This understanding in turn requires us to show how an individual can be wrongfully disrespected when her rights as an individual are not violated. It is true that violations of individual rights, such as the right against torture, are central forms of moral disrespect, but there are other forms, because not all respect is due to people in virtue of their standing as individuals. In many cases, people are owed various types and levels of respect because of their special roles, standing, or abilities. Suppose that, convinced that children should be drinking skim milk, a kindergarten teacher confiscates the carton of whole milk that the child’s parent had packed for her child. Moreover, the teacher refuses to listen to the


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parent’s grievance when she demands that the teacher stop confiscating her child’s milk. The teacher’s actions show disrespect to the parent in a way that is morally objectionable, but it is not disrespect for the parent qua free and equal person. Rather, the teacher’s conduct is disrespectful because it fails properly to respect the special standing of the parent: the teacher has wrongly failed to defer to the parent’s authority over the child, an authority to which the parent is entitled in virtue of her ability and willingness to exercise satisfactory care. The respect owed the parent by the teacher in this example is a case of what Stephen Darwall has called “recognition respect.” As Darwall explains it, such respect is a matter of “respect[ing] requirements that are placed on one by the existence of other persons.”57 Moreover, a right to recognition respect involves “the authority or standing” to require that others comply with the restrictions by holding them to account.58 The teacher wrongly fails to regard the fact that the child’s parent has decided to have the child drink whole milk as placing a restriction on what he, the teacher, may do. And by refusing to respond to the parent’s grievance against him, the teacher compounds the failure of recognition respect. Yet, even if it is clear that the teacher’s decision disrespects the parent, how does the violation of recognition respect operate in the context of a collective decision by a nonconsensual group such as the state. Recall that our valueindividualist approach holds that individuals, and not groups, ultimately matter morally. So it is incumbent on us to explain disrespect for a group in terms of disrespect for individuals. Such an explanation involves two main points. First, there is no reason that a value individualist cannot claim that an individual can be disrespected as a group member. Group membership is a feature of individuals just as much as their other features and is equally a potential object of respect or disrespect from others. Second, disrespect for the group in regard to a certain decision it makes can translate into disrespect for each of the members qua group member. Applying these ideas to states, we suggest that legitimate states are owed respect in virtue of their ability and willingness to perform the requisite political functions. And because a group’s ability and willingness to govern in a satisfactory fashion is a collective achievement made possible only because of the actions and attitudes of individuals within the group, it makes perfect sense that the respect is ultimately owed to these individuals qua members of this group. Accordingly, there is nothing mysterious about claiming that a group’s members are disrespected when their group’s right to self-determination is violated; the group is entitled to dominion over its self-regarding affairs only because it has achieved a certain status, a status achieved by the joint activities of the individual group members. Put plainly, just as parents who competently and conscientiously care for their children are entitled to raise their children as they see fit, a group of citizens who are able

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and willing to perform the requisite political functions have a right to political self-determination. Imperialist colonialism and domination provide a particularly clear illustration of disrespect toward a group’s members in virtue of the denial of a group’s right to political self-determination. It is disrespect, not for something already achieved, but for something within the capabilities of the group to achieve. Aside from its violations of human rights, which are rights that are held by persons as individuals, imperial domination is an affront to the colonized in the form of an attitude that says, “You cannot govern yourselves properly and so we must govern you.” As with forced annexation, this affront constitutes a serious wrong against the individuals who make up the colonized group. The affront denies to the group the recognition respect that is owed to it in virtue of the fact that its members are able and willing to perform the requisite political functions of a legitimate state. To appreciate this key point, consider the following analogy. Imagine that a legal system did not allow women to apply for driver’s licenses because the legislators assumed that women could not be safe drivers. Such a law would wrongly disrespect women because it would fail to acknowledge what they could do behind the wheel. We suggest that a metropolitan power similarly disrespects those upon whom it has imposed colonial rule; the difference is that the women are disrespected qua individuals who could be competent drivers and the colonized are disrespected qua members of a group which collectively could secure a stable and legitimate political environment. Whether people are wrongly treated as incapable of performing individual or collective chores, however, the disrespect is equally pernicious. Suppose that the colonialist insists that although he may be disrespecting the colonized as a group, he is not disrespecting each member of group: he claims only that there are not enough members who are willing and able to perform the requisite political functions, not that every member of the group is lacking in the necessary abilities and dispositions. Indeed, the colonialist may claim that he knows personally some very capable members of the group and lament that, alas, there is an insufficient number of them. Nonetheless, the colonialist is missing the point. Disrespect for the colonized is not simply a matter of his opinions and attitudes about the distribution of capabilities among the members of a group. Rather, the disrespect is fundamentally a matter of his refusal to restrain his behavior appropriately in light of the valid moral claims of the group. Every member of the group, qua member, is disrespected in that sense by the colonialist’s insistence that he and his compatriots govern the colonized rather than allowing the colonized collectively to determine their own political affairs.59 This account of how individuals are wronged by the denial of their group’s right to political self-determination has admittedly been brief, but it is enough to make good on our key point: positing a collective moral right of politi-


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cal self-determination is compatible with value individualism. The claim that there is such a right does not presuppose that any collective entity has ultimate moral value in its own right. Moreover, our principles of political selfdetermination link the right directly to what, on the individualist view, does have ultimate moral value. Groups have the right of political self-determination if and only if they are willing and able to adequately protect and respect human rights. And human rights are protections against standard threats to the ability of individuals to lead decent lives. Accordingly, the right of political selfdetermination does not float free of individual rights or well-being, nor is the right simply conferred upon whichever agent can do the best job of protecting individual rights from a purely instrumental point. Rather, the right is possessed by those groups that are willing and able to do the job well enough, and the right is not extinguished merely because another agent comes along that can do the job better.

C O N C LU S I O N Certain human groups have a collective moral right to political self-determination. They are the groups that are willing and able to adequately protect and respect human rights. When such groups are already organized as states, they are legitimate states, and, among existing states, all and only legitimate ones have a right of self-determination. That is our first principle of political self-determination. Among groups that aspire to statehood, all and only those that are willing and able to adequately protect and respect human rights have a right of political selfdetermination. That is our second principle of political self-determination. Due to the deontological character of the moral right to self-determination, it is impermissible for an external agent to interfere with a group’s exercise of its self-determination, even if the external agent could do a better job of protecting human rights. This impermissibility is manifest in those instances of forced annexation and imperial domination where the takeover target is a group that is willing and able to perform the requisite functions. Any such takeover is a wrong that violates the group’s collective right of self-determination, but it is a wrong not to the group as such but to the individuals who constitute the group and who have achieved, or could achieve, through their coordinated efforts, the creation of a legitimate state. Similarly, when a democracy is replaced by some other form of government against the collective will of its citizens, then a wrong has been done to the individual citizens. Contemporary philosophical thought is skeptical of the idea that there are any irreducibly collective moral rights, a skepticism that derives in large

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measure from the widespread acceptance of value individualism. However, it turns out that our principles of political self-determination are consistent with value individualism. Moreover, the principles help explain what remains puzzling when viewed strictly from the perspective of individual rights: How can democracy have value that is more than simply instrumental? The answer lies, we think, in the collective right of political self-determination and not in any appeal to individual rights such as the rights to autonomy and equality or even in a supposed human right to democracy itself. Put another way, popular sovereignty is normatively prior to democracy and accounts for why democratic institutions must be respected, even if nondemocratic ones could do a better job.

3 Secession In the previous chapter, we developed an account of the right to political self-determination and explored its implications for the value of democratic governance. The account centered on the idea that a moral right of selfdetermination is held by groups that are willing and able to protect and respect human rights. We showed how that idea could cogently explain why legitimate states have a right against being forcibly annexed, and why colonized peoples have a right to their own politically independent, self-governing states. And we argued that our view of political self-determination could explain why forcibly dismantling a democracy wrongs the citizens, regardless of the consequences, whereas the rights to individual autonomy and equality could not explain the wrong involved in eliminating democratic rule against the will of the people. Nonetheless, our view of political self-determination raises many questions because it appears to extend the scope of the right of self-determination well beyond colonized populations and existing legitimate states. Indeed, our account of political self-determination appears to give the right to groups occupying territory within the boundaries of legitimate states, as long as those groups are willing and able to perform the requisite political functions. Even those groups within a legitimate state that have in no way been treated unjustly could, it seems, invoke a right of self-determination to ground claims to secede from their state. And that conclusion might strike many readers as, on its face, rather implausible. Our account of political self-determination does, in fact, involve an unusually permissive stance on state-breaking and lead to that very conclusion. It is a conclusion from which we do not shrink. Thus, in this chapter, we argue that many groups not often recognized as having a right to political self-determination do have a right to secede and establish their own state. The first section sketches the opposing views of statists and nationalists on the issue of secession and explicates our position in relation to those views. The second section addresses criticisms frequently leveled at the sort of position we take. The third section examines a potentially fatal objection to our argument for a primary right to secession, arising from Allen Buchanan’s contention that the right to secession is inherently institutional. Finally, in the last section we turn to the question of whether our account of the right to secession should be embodied in international law.

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A Liberal Theory of International Justice S E C E S S I O N A N D S E L F- D E T E R M I NAT I O N

There are some notable exceptions, to be sure, but most political theorists who comment on state-breaking belong to either of two camps, which we might label “statists” and “nationalists.”1 Statists deny that there can be any unilateral rights to secede grounded in self-determination because secession necessarily involves taking territory from an existing state, and legitimate states enjoy a privileged position of moral dominion over their territory. The crucial point to appreciate, according to the statist, is that secessionist contests are conflicts over territory, so one cannot posit a secessionist right without thereby implying that the state has no right to retain its territorial boundaries. Most people are willing to concede that a state may forfeit a portion of its territory if it treats its citizens sufficiently unjustly, but statists are quick to point out that this concession implies only a remedial right to secede, a secondary right to escape injustice. If a group had a right to secede grounded in self-determination, on the other hand, then (like a spouse in a jurisdiction which allows no-fault divorce) it need not suffer any abuse in order to qualify for a right to secede. And if a group has been in no way treated unjustly, then it is hard to see how the state could have forfeited its sovereignty over any of its territory. Thus, statists reason that because (a) legitimate states are morally entitled to govern their territory and (b) states retain this claim unless their citizens become the victims of injustice, there can be no primary right to secede grounded in self-determination. There can at most be a remedial right to secede in order to escape injustice. Nationalists tend to differ from statists in part because they place a higher premium on group self-determination, but, as we will see, also because they deny that states retain a valid claim to their territorial integrity as long as they do not act unjustly. In order to appreciate the nationalist view, we must begin with the concept of a nation. A nation is understood as a group whose members share a substantial number of such cultural features as language, religion, values, traditions, dress, music, art, literature, and current or ancestral territory. Moreover, the members of a nation identify with their shared cultural features: they think of their language, religion, values, and so on as defining a crucial part of their identity, an identity they consciously share with their co-nationals. Finally, the members of a nation possess, or aspire to, some measure of political self-determination. There is a great deal of diversity among those labeled “nationalists,” but it is typical for them to emphasize both that (a) a nation’s health – i.e., whether its culture is a flourishing and vibrant one – directly affects its members’

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well-being and (b) political self-determination helps to promote a nation’s health. Thus, nationalists have a special interest in political self-determination because they believe that individuals are best positioned to pursue rewarding projects and develop meaningful interpersonal relationships within the context of a flourishing culture, and a nation’s chances of supplying such a healthy cultural context depend largely upon its being politically free to order its own affairs. In response to statists who insist that national groups have no primary right to demand that their self-determination be cashed out in the currency of their own sovereign nation-state, nationalists often point out that territorial boundaries are not only human constructions which may permissibly be redrawn, but that these borders owe their current configuration to a series of violent conquests and morally dubious treaties. And if one agrees that states can be geographically realigned without violating any moral right or obligation and that even legitimate states typically have no unimpeachable historical claim to the particular pieces of land they occupy, one is unlikely to regard the statists’ claims on behalf of existing legitimate states as indefeasible. In the end, then, nationalists tend to be more accepting of state-breaking than are statists. Although we are not entirely unsympathetic to the views of either statists or nationalists, our position on secession is importantly distinct from both. Notice first how our account of political self-determination goes part of the way toward statism. In particular, recall that in arguing that some collectivities are entitled to political self-determination, we singled out those groups able and willing to perform the requisite political functions. Insofar as such groups include legitimate states, but exclude rogue and failed states, our position is consistent with (indeed, it helps justify) the statist’s contention that a legitimate state has a moral claim to its territory. It is important to recognize, though, that even if a state has the right to govern itself free from the interference of external parties, it does not automatically follow that the state has the right to deny political self-determination to all groups within its territory. To make this last point more concrete, consider the relation between Canada and the United States. The right of self-determination explains why Canadians need not defer to the United States when deciding how to govern Canada, but Canada as a whole cannot simply invoke its claim against the United States in a dispute with an internal province like Quebec. Imagine, for instance, that Canada is engaged in two conflicts, one with the United States, which threatens to forcibly annex it, and another with Quebec, which wants to secede. On our account of political self-determination, because Canadians are able and willing to perform the requisite political functions over their territory, they can invoke a right of self-determination to ground a claim against being unilaterally annexed by

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the United States. In other words, if the United States forcibly annexed Canada, this action would violate Canada’s right to political self-determination. However, Canada cannot simply appeal to its rights to govern its own affairs without interference by the United States to justify denying Quebec’s bid for political divorce: Quebec might be willing and able to perform the requisite political functions on its own. The same moral logic that grounds Canada’s right of self-determination with respect to the United States also grounds Quebec’s (potential) right to selfdetermination with respect to Canada. This is not to say that Canada necessarily has no claim to the territory in Quebec; the point is merely that whatever claim it has vis-à-vis Quebec cannot be grounded in its right against outside interference. In our view, a state can rightfully impose itself upon a separatist territory if and only if this imposition is required to secure the essential benefits of political society, that is, if it is necessary to perform the requisite political functions involved in protecting human rights. Thus, whether or not Quebec has a unilateral right to secede depends upon whether Quebec would be able and willing to secure the benefits of political society on its own. Were Quebec able and willing to perform the requisite political functions over its territory (and if the remainder state of Canada would also be left politically viable), then Canada’s political coercion over Quebec would not be necessary to secure the relevant political benefits, and Canada as a whole would not be justified in forcibly denying Quebec’s claim to political self-determination. A legitimate state’s right to political self-determination is, accordingly, qualified and limited by the right to secede of internal populations that are able and willing to perform the requisite political functions, while the right to secede is itself qualified by the condition that the remainder state must be able to continue to perform the requisite functions. Thus, statists are right about a legitimate state’s having a claim to its territory, but they are wrong to suppose that this claim necessarily prevails over all others. As the preceding analysis indicates, a legitimate state can invoke its right of self-determination to justify its territorial sovereignty vis-à-vis all external parties, but such a state must equally recognize the rights to self-determination of politically viable groups within its territory. It is not difficult to see why a nationalist would welcome our response to statism. Because we question the statist’s contention that legitimate states need only avoid injustice in order to retain a right to territorial integrity, our view supports the nationalist’s claim that nations may have a primary right to secede even from perfectly legitimate states. In particular, wherever a separatist nation can perform the requisite political functions, the existing state has no justification for its nonconsensual coercion. In other words, when a nation is sufficiently large, wealthy, politically organized, and territorially contiguous so that it can secure for all individuals in the territory the essential benefits of political

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association, it has a right to secede and form its own state, as long as it can do so without jeopardizing the functioning of the state it leaves behind. Conversely, nations which lack the requisite political capabilities will not have a valid claim to independence. This view entails that, even in those cases in which a nation has a right to secede, it will not be the importance of the nation’s cultural selfdetermination which grounds its claim; rather, it will be the nation’s political capabilities, in particular, its ability and willingness to establish and maintain institutions that adequately protect and respect human rights. Thus, considerations pertaining to the cultural features of a group that aspires to statehood do not get to the bottom of the matter. The fundamental variable will be the separatist group’s ability and willingness to govern the contested territory in a manner that sufficiently protects human rights. Factors related to culture clearly do have a contingent empirical connection to the ability and willingness of a group to govern in such a way.2 But to focus on culture is to miss what is morally decisive in considering whether a separatist group has a right to secede and to form its own state. Accordingly, it may well be that most separatist groups are in fact motivated by nationalist aspirations, but those nations whose claims are legitimate will be justified in their claims by their political capabilities, not by their cultural attributes. As should now be clear, our position is importantly distinct from either the statist or the nationalist view. It diverges from statism in denying that legitimate states have a right to retain their territorial boundaries as long as they do not treat their constituents unjustly, and it differs from the nationalist view by singling out a separatist group’s political capacity, rather than its cultural characteristics, as the key feature which qualifies it for a primary right to secede. This position is a principled and systematic account of secession that appropriately values self-determination without implausibly denying the crucial moral importance of protecting and respecting human rights. If we are correct that there is a primary right to secede grounded in a collective right of political self-determination, then there is no reason to suppose that political divisions must occur neatly along the lines of existing administrative units. As Margaret Moore explains: In many cases, national minorities are correct to point out that administrative boundaries frequently have no moral basis themselves, or that they were often drawn in accordance with a moral or political conception that is irrelevant in the current political situation, or drawn by the central state in order to facilitate assimilation of the minority or its control by the dominant group. It is therefore hard to see why these boundaries should be cast in stone, as the only unit in which self-determination can take place.3

Extending Moore’s point, we would add that a separatist group also need not be contained within only one host state. Thus, not only might a mere portion

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of Texas have the right to secede from the United States, a contiguous portion of Mexico might have a right to secede along with the separatist Texans. Or, more realistically, a contiguous group of Kurds might have a right to secede from Iraq, Iran, and Turkey to create a single, newly sovereign Kurdistan. Admittedly, there will be cases in which secession should occur along administrative lines, as when there are considerable political advantages to keeping the borders intact. And ensuring that the new states are politically viable will inevitably force secessionist groups to shape their new state territory in a way that includes some unionists and excludes some separatists. However, the goal should be for the states to include as many separatists and as few unionists as possible.

C R I T I C I S M S O F A P R I M A RY R I G H T O F S E C E S S I O N Theorists have traditionally shied away from efforts to ground a primary right to secession in a group’s fundamental right to political self-determination for fear that this approach is, at best, messy and, at worst, utterly confused. Critics often cite the argument given by Sir Ivor Jennings in this regard. Referring to Woodrow Wilson’s advocacy of self-determination as a basis for dividing the territories and colonies of the defeated axis powers, Jennings writes: “On the surface [self-determination] seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who the people are.” He proceeds to illustrate the allegedly “ridiculous” character of self-determination by examining the relation between United Kingdom and Ireland during the nineteenth century: “Some . . . said that Ireland ought to have Home Rule. Who was to decide that: the people of the United Kingdom . . . or the people of Ireland? Most Irish representatives in Parliament said that Ireland should decide. But why Ireland? Ireland was not necessarily a political unit because it happened to be an island.” Jennings goes on to point out that, although the majority in three Irish provinces wanted Home Rule, the majority in Ulster did not. So he concludes his reductio of the principle of self-determination: “If one really consults the people, the conclusion may be that in the town of Londonderry fifteen streets and a quarter and five isolated houses shall belong to the Republic of Ireland and the rest to the United Kingdom.” 4 Wilson’s own understanding of self-determination appears to have been rather hazy and undeveloped.5 We certainly have no wish to defend it. But whatever force Jennings’s argument has against certain understandings of the right of self-determination, it fails as a general attack on the very idea of such a right. In order to see why, it is helpful to untangle two distinct arguments

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that Jennings runs together. The first argument holds that the principle of selfdetermination is afflicted by a logically vicious regress. The second holds that its application leads to an unworkable fragmentation of political authority. We will examine each strand in turn. The regress argument can be unpacked as follows. The principle of selfdetermination cannot be applied in order to determine political boundaries, unless one first decides what the boundaries are within which voting is to take place. But the determination of the boundaries within which voting is to take place is itself a determination of political boundaries. Accordingly one must either stipulate the voting boundaries or apply the principle of selfdetermination to determine what those boundaries are. Stipulation would be arbitrary from the perspective of the principle of self-determination, but the repeated application of the principle would just lead to a vicious regress because, with each application of the principle, we need to refer to a previous one to determine the boundaries within which a vote is to take place. The advocate of self-determination can stop the regress only by a declaration that a vote is to take place within certain arbitrarily stipulated boundaries. Contrary to Jennings, it is possible to stop the regress in a nonarbitrary way that is consistent with the principle of self-determination. Harry Beran provides the key: “Let the separatist movement specify the area in which the plebiscite is to be held,”6 and then hold the vote to determine whether a majority in that area favors secession. This approach embodies the idea that, as Charles Beitz puts it, “the people should decide who the people are.”7 In other words, the inhabitants of the territory nominated by the secessionist movement determine through their voting whether they wish to constitute a distinct body politic. Of course, the precise contours of the territory picked out by the separatists is arbitrary in some respects – for example, it will be arbitrary that any given border is not two inches to one side or the other. But more relevant is the fact that the boundaries will be chosen by the separatist group for the reason that there is some basis for believing that the population within those boundaries prefer to have their own state. That reason is not an arbitrary one but rather fits quite comfortably with the principle of self-determination. However, here we are confronted by another problem. What if there is a territorially concentrated group within the territory nominated by the separatist movement that does not wish to be associated politically with the population of the territory as a whole? Beran spells out the answer with a recursive procedure, starting with the initial separatist movement: If there is a majority in the [separatist] territory as a whole for secession, then the territory’s people may exercise its right of self-determination and secede. But there may be people within this territory who do not wish to be part of the newly independent state. They could show, by majority vote within their territory, that this is so, and

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then become independent in turn, or remain within the state from which the others wish to secede. This use of the majority principle may be continued until it is applied to a single community (i.e. a community which is not composed of a number of communities) to determine its political status.8

It is at this point that the second strand of Jennings’s argument kicks in. It might seem that applying the recursive procedure has the potential to lead to the sort of conclusion that Jennings imagines in his Londonderry scenario, and he clearly takes such a conclusion to constitute a reductio of the principle of self-determination. A similar worry about Beran’s recursive procedure is voiced by Margaret Moore, who is a nationalist defender of the right of self-determination but a critic of Beran’s view. Moore considers how Beran’s procedure would have worked in Bosnia-Herzegovina in the early 1990s, at the onset of the breakup of Yugoslavia. She writes that due to the intermixture of various national groups – Slavic Muslims, Croats, and Serbs, among others, “[a]ny application of the principle of recursive secession . . . would not have resulted in a satisfactory settlement, but would have involved a patchwork of enclaves or pockets of sovereign units throughout the republic.”9 Nonetheless, Beran’s recursive procedure does avoid such hyper-balkanization when it is used in conjunction with the requirement that the secessionist population (and the remainder state) must be able adequately to protect the human rights of its constituents and must be committed to respecting the rights of all others. “Pockets of sovereign units” are unable to meet this human rights requirement. However, Moore appears to reject our human rights requirement. She writes: While a normatively acceptable nationalism would be committed to the basic rules of procedural (legal) justice and respect for human rights, the exercise of selfdetermination does not hinge on a confident prediction that the minority nation (would-be secessionist unit) is committed to respecting human rights and the rule of law. Not only are such predictions somewhat speculative, and raise questions of the competence of judicial bodies or outside agencies to assess this . . . but it is not justified by the argument for the moral status of national identity.10

We find Moore’s reasoning here unpersuasive. The speculative nature of predictions about respect for, and protection of, rights does not go to the question of whether a given population has a moral right to secede. Rather, it goes to the questions of whether and how a right to secede should be translated into a legal norm, and which institutions ought to apply the norm. If highly reliable predictions about respect for human rights could be made by some identifiable institution, then it would be difficult to see what ground Moore would have for ignoring them. She is herself committed to a view on which political legitimacy depends on respect for rights: “[A] legitimate state is secured by two tests. The main one is the teleological legitimacy test: a state is legitimate if it

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upholds basic human rights and is governed democratically.” 11 While we question the inclusion of democracy as a condition of legitimacy, we concur with Moore that upholding human rights counts as such a condition. To ignore reliable predictions about whether a new, secessionist state would uphold rights, then, would have the effect of treating the legitimacy or illegitimacy of the new state as irrelevant to the question of whether the secessionist group has a right to form the state. That position does not seem plausible to us. Moore also contends that making the right to secede contingent on the secessionist state upholding rights “is not justified by the argument for the moral status of national identity.”12 And it might be correct that the grounds for the moral status of national identity, that is the reasons why it matters morally that nations be able to preserve and define who they are, cannot justify a human rights restriction on the right of secession. But it is a mistake to look for the justification there. Rather, the justification lies in the moral importance of human rights and the role that such rights play as a basis for political legitimacy. The rights requirement is justified because adequate protection of, and respect for, human rights is necessary for the legitimacy of any state. A secessionist state that fails to conform to the requirement will either lack legitimacy itself, for failure to respect or protect rights, or undermine the rump state’s ability to respect or protect rights. The human rights requirement is a way of ensuring that secession does not result in a state – either the new state or the rump state – that lacks legitimacy. Another nationalist, David Miller, argues against Beran that “it is an illusion to think that by (repeatedly) applying the majority principle everyone can end up in the state they would ideally like to be in. Instead, from any redrawing of boundaries, there are almost certain to be both gainers and losers, and to assess a proposed redrawing we need to estimate the gains and losses, not merely to count heads.”13 This argument has some force against Beran’s own position because he is a consent theorist who takes political legitimacy to rest on the consent of the governed. However, it lacks similar force against our view, which explicitly recognizes that any method of drawing political boundaries will result in some people being members of states in which they would prefer not to have membership. As long as political states remain territorially rather than consensually defined (as they must be if they are satisfactorily to perform the functions that justify their coercive presence), then it will simply not be possible for everyone to enjoy complete discretion regarding their compatriots. Short of anarchism, every theory of the state will have the implication that some proportion of a legitimate state’s population is incorporated into their state in a nonvoluntary manner.14 Miller’s contention that in order to assess a proposed redrawing of political boundaries, “we need to estimate the gains and losses, not merely to count heads,” is half right. Merely counting heads is not enough because a group

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(and whatever remainder state is left) also needs to be able to perform the requisite political functions before it can have a right of self-determination. But estimating gains and losses as a way to assign which groups are to be selfdetermining does not capture the deontological character of the principle of self-determination: if the group can adequately perform those functions, then it has a right of self-determination that does not hinge on any estimation of gains and losses. Miller himself explicitly avoids ascribing any “right” of selfdetermination, favoring instead the idea of that some national groups have a “good claim” to self-determination.15 However, we think that “good claim” is too weak to capture the moral quality of the claim of populations to secede from a larger state – or to refuse to be annexed by a larger state. We will argue shortly that secession and the refusal to be annexed are two sides of the same coin, and that such cases are best understood as involving a right of selfdetermination that is not simply a reflection of the calculation of gains and losses. Critics might insist that we are begging the question by assuming that the relevant population for determining whether the majority is getting what it prefers is the population within the secessionist territory rather than the population of the entire state. The entire state is affected by the issue and so, the argument goes, the preferences of everyone in the state must be taken into account. Otherwise, even if the population in the secessionist territory were only a small fraction of the whole state’s population, that small fraction could override the preference of a large overall majority against secession. In order to see why we reject the above criticism, imagine that the vast majority of Germany wanted to annex (a much less populous) Poland. It would not be defensible to just count up the (mostly German) votes in favor of the annexation and the (mostly Polish) votes against it, and then say that Germany’s annexation is justified by self-determination. The Germans are certainly affected by the issue; that is precisely why so many of them favor annexation! But their preferences cannot override the preferences of the Polish when it comes to the question of whether Poland is to be annexed by Germany. Our contention is that the case of secession is morally symmetrical to the Germany–Poland annexation scenario. The preferences of the entire population cannot override the preferences of those in the would-be secessionist territory. But why not? Our principles of political self-determination explain cases of both secession and annexation. The principle that every legitimate state has a right of political self-determination explains why Germany cannot permissibly annex Poland, if the majority of the Polish do not favor such an arrangement, even supposing that they are outvoted by the Germans. If the Polish do not consent to the annexation, then it is not that the preferences of the Germans are “outweighed.”

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More strongly, without Polish consent, the preferences of the Germans about annexing Poland simply do not count; they are irrelevant. That is the implication of our deontological principle of political self-determination. Recall that the deontological character of the principle excludes as irrelevant certain considerations that would figure in a purely consequentialist, cost–benefit calculation. The satisfaction of the preferences of German citizens does not count in the determination of whether it is permissible for Germany to annex Poland. Similarly, in the case of secession, the relevant principle is that a group that desires independent statehood and is willing and able to perform the requisite political functions has a right of political self-determination, and that principle entails that the preferences of people outside the secessionist territory do not count in the determination of whether secession is permissible. Only the preferences of those within the territory are directly relevant. The larger state that contains the secessionist territory has a right of self-determination based on the ability and willingness of its population to perform the requisite political functions. But the population of the secessionist territory has the same right if it too is willing and able to perform those same sorts of functions within its narrower borders. And just as Germany cannot legitimately annex Poland against the preferences of the Polish majority, neither could it hold on to, say, Bavaria against the preferences of the majority in that state. It might be objected that our analysis of the Germany–Poland annexation scenario is flawed because there is a crucial moral difference between extinguishing the self-determination of an already existing legitimate state and refusing to allow the self-determination of a secessionist group within an existing legitimate state. Poland is an already existing legitimate state and to annex it without its consent is to extinguish its exercise of self-determination against the will of its citizens. In contrast, the inhabitants of a region within Germany, say Bavaria, might have secessionist aspirations but they are already part of a legitimate state, and it extinguishes no one’s self-determination to refuse to allow it to secede. It is true that self-determination is not extinguished by a refusal to allow secession, but the issue is whether the right to self-determination is violated by such a refusal. If the refusal to allow secession does not violate the right, then there must be some morally relevant difference between forcible annexation and the refusal to allow secession. Moreover, the difference must be such that it makes the crucial difference as to whether a group has the right of self-determination. So let us focus on the essential difference between the annexation and secession scenarios: in the former case, the group to be annexed already has a legitimate state of their own, while in the latter, the secessionist group – although willing and able to constitute its own legitimate state – is already part of some larger legitimate state. Is the fact that a group is part of some larger legitimate state

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sufficient to disqualify it from having a right to political self-determination, even if the group possesses all the other features that qualify a group for the right of self-determination? It is difficult to see why being part of an already existing legitimate state would be, in itself, disqualifying. One might point out that secession can have destabilizing or other adverse effects on the remainder state, leaving it unable to meet the conditions of legitimacy. However, this point simply notes an empirical possibility and does not go to the question of what conditions disqualify a group from possessing a right to political self-determination. Instead of disqualifying all groups within existing legitimate states because of the empirical possibility of destabilizing or similar effects, we should simply say that a secessionist group’s right of self-determination depends on its independence not undermining the remainder state’s ability to meet the conditions of legitimacy. T H E P R E - I N S T I T U T I O NA L NAT U R E O F T H E MORAL RIGHT TO SECEDE In the course of developing his moral theory of international law, Allen Buchanan contends that the right of secession is “inherently institutional.” This contention means that “one cannot first determine a pure, noninstitutional right to secede and then, as a separate task determine whether institutionalizing it makes sense.”16 Consider the separatist movement in Chechnya. Buchanan explains: [I]t might be thought that by moral reasoning we can determine whether the Chechens have a moral right to secede without raising the question of what would be a morally justifiable legal rule regarding secession – that we can first settle the issue of whether the Chechens have a moral right to secede and then consider whether the principle according to which Chechen secession is morally justified would be appropriate for incorporation into international law. This, however, is a mistake.17

According to Buchanan, one cannot determine anything about a moral right of Chechens to secede by appealing to the logical implications of abstract principles of justice and right. Only after one has determined what the norms of international law ought to be regarding secession, can one then justifiably assert that the Chechens possess – or lack – a moral right to separate from Russia. And to determine what the norms of international law ought to be, one must pursue “institutional moral reasoning,” in this case reasoning about (a) the proper goals of the institution of international law – for Buchanan, the goals of securing peace and protecting human rights, and (b) the kind of right to secession – if any – that would, in combination with other rules of international law, serve those goals.

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If Buchanan’s view about the institutional nature of the right to secession is sound, then it calls into question the arguments we have made in favor of a primary right to secession. Those arguments have sought to show that there is a moral right of secession that is grounded in a deontological principle of collective self-determination, and the arguments have proceeded independently of considerations regarding the institutions of international law and how a legal right of secession might – or might not – serve the goals of the law. In short, we argued that there is a moral right of secession that is normatively prior to, and independent of, whatever legal right to secession might be best for incorporation into international law. Buchanan is denying that there can be any such pre-legal right of secession. He is not saying that no group can have a moral right to secede, but rather that a moral right to secede is, as a conceptual matter, nothing other than the right of secession that would be found in a morally defensible system of international law. If it turns out that the Chechens would have a legal right to secede under such a system, then they have a moral right to secede here and now. Buchanan’s argument for his view begins with the idea that the moral right to secession includes a right to (attempt to) form a legitimate state without the interference of other states (including the remainder state). If some pre-institutional account of the right, such as ours, were to say that a group possessed the right to secede under conditions C, D, and E (where those conditions do not involve international law), then the account would be committed to holding that any group that satisfies those conditions also has this right, and hence that states ought to refrain from interfering with attempts to form new states that satisfy those conditions. But whether states should refrain from interfering . . . will depend, among other things, upon how states acting in that way will affect the international legal system and its effectiveness in helping to protect human rights and secure peace.18

If such action would render the system ineffective, or counterproductive, in securing its proper goals, then states ought not to refrain from interference with secession attempts by groups meeting conditions C, D, and E. And if states are morally free to interfere, then those groups do not in fact have a right to (attempt to) secede. That is Buchanan’s reasoning, at any rate. It cannot be reasonably denied that whether international law ought to incorporate a right of secession cannot be ultimately determined without taking account of the impact of doing so on the effectiveness of the international legal system in protecting individual rights and securing global peace. But it fails to follow that “one cannot first determine a pure, noninstitutional right to secede and then, as a separate task determine whether institutionalizing it makes sense.”19 It only follows that the existence of such a pre-legal right to

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secession is not the only relevant consideration in determining whether there should be a right of secession under international law. Buchanan is correct to claim that “whether states should refrain from interfering [with attempted secessions by groups meeting conditions C, D, and E] . . . will depend, among other things, upon how states acting in that way will affect the international legal system and its effectiveness in helping to protect human rights and secure peace.”20 But “among other things” is a crucial qualification, and Buchanan gives us no good reason for thinking that a pre-legal right to secession is not among the other relevant considerations. We are prepared to grant that if there were an utter incompatibility between securing global peace and human rights, on the one hand, and providing a legal right of secession, on the other, then the right of secession ought to give way. But that concession does not support Buchanan’s claim that there is no pre-legal right of secession. Rather, the concession rests on an assessment of the relative values of peace, human rights, and the pre-legal right of secession. The right of secession is justifiably sacrificed to peace and human rights, but something of real value has been given up, namely, a certain measure of respect for the deontological principle of political self-determination. It is one thing to agree that peace and human rights are of overriding importance and yet another to say that there is no pre-legal right of secession at all. So the idea that any right of secession under international law should be tailored so as to be compatible with peace and human rights does not entail that there is no pre-legal right of secession. Buchanan might contend that we have failed to appreciate the way in which the concept of secession is an essentially institutional one: “[S]ecessionists typically assert that they have a right to their own legitimate state, and a legitimate state is an institutionally-defined entity, an entity defined as having certain rights, powers, and immunity under international law.”21 His claim here about the definition of the concept of a legitimate state needs to be examined in light of his account of legitimacy. In that account, Buchanan distinguishes two sorts of legitimacy: political and recognitional. The political form concerns whether a state “is morally justified in wielding political power.”22 The recognitional form concerns whether “a particular entity should or should not be recognized as a member in good standing of the system of states, with all of the rights, powers, liberties, and immunities that go along with that status.”23 It is clear that, on Buchanan’s account, the concept of a politically legitimate state is not definitionally linked to that of international law: if there were only one state in the world, that state could, in principle, be morally justified in wielding political power. It is just as clear that recognitional legitimacy is conceptually tied to international law. So it might seem that, insofar as he is referring to recognitional legitimacy, Buchanan is right to say the separatist assertion of

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a right to secede involves the idea that the group ought be granted the rights and powers of a legitimate state under international law. And if the concept of secession entails such a claim about international law, then the concept would seem to be institutional in just the way that Buchanan asserts it to be. But let us look at the matter more carefully. Let us assume, with Buchanan, that groups asserting a right to secede typically claim that their new state should have recognitional legitimacy, as he understands such legitimacy. This claim that the separatists make is indeed conceptually tied to international law and means that the new state “should . . . be recognized as a member in good standing of the system of states,”24 where the system is understood to be one regulated (to some significant degree) by international law. However, Buchanan is wrong to suggest that secessionists typically make the claim because the claim is logically entailed by (a) their assertion of a right to secede and (b) the meaning of the concept of secession. There is no such entailment because, even though the concept of recognitional legitimacy refers to international law, the meaning of the concept of secession does not include any reference to international law or to any type of institution other than that of de facto statehood. Secession is the withdrawal of a territory from the jurisdictional boundaries of an existing state.25 Claiming the right to secede does not, as a conceptual matter, involve any claim about international law, including the claim of recognitional legitimacy under international law. Thus, there is no conceptual contradiction in a separatist group asserting, “We have a right to secede, but we make no claim to recognitional legitimacy.” To see why there is no contradiction, consider a world in which there are states but no international law and everyone knows that the world is like that. In such a world, it would make no sense for a separatist group to claim that it should be recognized as a member in good standing of a system of states, because there is no such system. A claim to recognitional legitimacy would be otiose.26 Yet, a separatist group could quite sensibly assert that it had a moral right of secession: any given assertion of that sort might be false, but it cannot be judged false or otherwise otiose simply because there is no international law. Accordingly, the assertion of a right to secede does not entail the claim to recognitional legitimacy. So why, then, do separatist movements typically make a claim to recognitional legitimacy? Because they live in a world with states and international law, and they want the protections and privileges that come with recognitional legitimacy in such a world. The claim to recognitional legitimacy is not due to any conceptual tie between secession and international law but rather due to the contingent fact that we live in a world with international law. Buchanan makes the important point that secessionist groups claim, as part of their right of secession, a right not to be interfered with in their efforts to

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create a new state. He suggests that this claim of noninterference implies that the right of secession is inherently institutional. But the claim to a right of noninterference is also perfectly sensible in a world without international law. In a one-state world, a secessionist group could assert a right of noninterference against the existing state, and their assertion could be justifiable. Contrast that situation with a no-state world, where the idea of secession would have no purchase because a necessary condition for its applicability fails to obtain. Buchanan’s argument against a pre-legal right of secession incorrectly treats the existence of international law as if it were like the existence of at least one state in the world, namely, as if it were a necessary condition for the applicability of the concept of secession. Yet, the concept of secession can be correctly applied in a world without international law, and so the argument against a pre-legal right of secession fails.

INTERNATIONAL LAW Several of the foundational documents of modern international law declare the existence of a right to political self-determination. For example, the Charter of the United Nations refers to the “the principle of equal rights and self-determination of peoples.”27 In a similar vein, the International Covenant on Economic, Social and Cultural Rights declares, “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”28 However, the apparently sweeping nature of such pronouncements has been accompanied by a highly restrictive interpretation of who enjoys the right. Under international law, the right has been restricted in practice to already existing sovereign states, to states subject to military occupation, and to overseas colonies (under the so-called saltwater rule). International law has not recognized the existence of the right of any territory to secede from a state within which it is located, even if the population in that territory has been subjected to serious and lasting injustices at the hands of the central government. Much further is the law from recognizing a primary right to secede. Clearly, then, a virtual revolution in law would be needed to translate the moral right of secession that we have defended in this chapter into a right under international law. Moreover, the creation of a primary right to secede under international law would have potentially vast repercussions for political affairs worldwide. Such repercussions are far from morally irrelevant. In fact, they implicate not only the collective right to self-determination of many groups but also the human rights of countless individuals. Accordingly, even if there is a primary right to secession, it does not follow straightaway that international law ought

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to incorporate it. Indeed, it does not even follow that there ought to be any right to secession at all – remedial or primary – under international law, because the undesirable repercussions of even a restricted remedial right to secede might be sufficient to defeat any case for an international right of secession. In our view, the arguments that we have given about a primary moral right to secede do establish a pro tanto argument – even if a highly abstract one – for a primary right of secession under international law. If certain groups have a primary moral right to secede, then that fact establishes a good reason in favor of international law including the right among its norms. On the other hand, because the empirical consequences for human rights of creating a primary legal right are potentially so vast, the pro tanto argument does not by itself go far enough to justify even a tentative conclusion that there ought to be such a right. Instead, as we will argue, judgment should be suspended on any conclusion about a right to secede under international law until those potential consequences are far less uncertain than they are at this stage in the scholarly discussion of secession. Accordingly, as we see it, steadfast agnosticism is the most defensible attitude to take toward the question of whether international law ought to recognize a right to secession and, if so, what the scope of that right should be. Allen Buchanan is the most prominent and cogent of contemporary theorists working on the question of the right of secession and international law. His view is that that a remedial right to secession should be recognized by international law but that no primary right of secession ought to be part of the law. Let us begin the case for our agnosticism with an examination of his arguments. When the population in a territory prefers secession and has been subjected to serious and lasting injustices at the hands of the central government, Buchanan argues, then international law should give the population a right to secede. He contends that the law’s current treatment of such a population cannot be defended: The most obvious deficiency of existing international law regarding unilateral secession is the apparent arbitrariness of the restriction to classic decolonization. Presumably what justifies secession by overseas colonies of a metropolitan power is that the colonized are subject to exploitation and unjust domination, not the fact that a body of saltwater separates them and their oppressors. But if this is so, then the narrow scope of the existing legal right of self-determination is inappropriate. The existing right to secession as decolonization appears to be justice-based, yet the idea that serious injustices can justify secession points to a more expansive right.29

At the same time, Buchanan is emphatically opposed to creating any legal right of secession in the absence of serious injustice. He makes his case against a primary legal right, and bolsters his case for a remedial right, by analyzing the types of incentives that international legal rules create. In particular,

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Buchanan argues in favor of remedial rights to secede on the basis of the beneficial incentives that institutionally protecting these rights will create, and he argues against primary rights on the basis of the “perverse” incentives that would be produced by international legal rules designed to protect such rights. On his view, a remedial-rights-only theory “gets the incentives right.” He explains: On the one hand, states that protect basic human rights and honor autonomy agreements are [under his theory] immune to legally sanctioned unilateral secession and entitled to international support for maintaining the full extent of their territorial integrity. On the other hand, if, as the theory prescribes, international law recognizes a unilateral right to secede as a remedy for serious and persisting injustices, states will have an incentive to act more justly.30

In other words, if international law recognizes rights to secede only in cases of injustice, then political leaders will have incentives to govern justly because they know both that (a) doing so will lead international society to support the state in any potential secessionist conflict and (b) sufficient injustices would lead international society to support the separatists. As Buchanan explains it, the incentive structure would be altogether different if the international legal system also respected primary rights to secede. There would be incentives to avoid undertaking policies, such as the devolution of decision-making authority and open immigration, which are potentially beneficial to the regions that might entertain secessionist plans and to society more broadly. Incentives would also be created for leaders to undertake unjust and discriminatory policies, such as deliberately keeping potential secessionist regions economically underdeveloped. Buchanan explains: If state leaders know that unilateral secession will be considered a right under international law for any group that can muster a majority in favor of it in any portion of their state, they will not be receptive to proposals for decentralization. They will view decentralization as a first step toward secession, because creation of internal political units will provide the basis for future secessions by plebiscite. International recognition of a plebiscitary unilateral right to secede would also create perverse incentives regarding both immigration and economic development. States that did not wish to risk losing part of their territory (which includes virtually all of them) would have a strong reason for limiting immigration (or internal migration) that might result in the formation of a pro-secession majority in a portion of the state’s territory. And to deter secession by existing internal political units, the state might even seek to prevent them from becoming sufficiently developed to be economically viable. (The Soviet Union’s policy of dispersing major industries among the republics was very likely motivated at least in part by precisely this consideration.)31

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Thus, not only would leaders lose some of their incentive to govern justly – since being a just state no longer insulates one from the threat of secession – institutionally protecting primary rights to secede would discourage decentralization, open immigration, and freedom of migration because each of these policies potentially nurtures separatism. In brief, there seems every reason to think that institutionally protecting only remedial rights to secede will create positive incentives, while protecting primary rights would eliminate these helpful incentives and create additional detrimental ones. Because political leaders are loath to lose territory and have unparalleled power to promote or destroy peace and justice, Buchanan is right to call attention to these relatively neglected considerations. Moreover, we think that Buchanan accurately describes some of the incentives that could be attached to laws protecting remedial and primary rights to secede. For several reasons, however, we are not convinced that these considerations are sufficiently weighty to conclude that there ought not to be a primary legal right to secede. To begin, there are at least two reasons to think that the “perverse” incentives that Buchanan highlights might not be especially strong. The negative incentives to which Buchanan refers already exist, and so the operative question concerns the extent to which they would be magnified by international law’s recognition of primary rights to secede. We say this because, as Buchanan’s reference to the former Soviet Union illustrates, even in the absence of any international legal right to secede, countries all too often disempower minority groups in an effort to preempt potential independence movements. Thus, as David Copp explains: “States that contain secessionist groups already have to worry about the possibility of secession. There is not now a legal right to secede, but there are secessionist movements all over the world, and the states facing these movements need somehow to deal with the threat to their territorial integrity.” 32 Accordingly, political leaders already have incentives to avoid desirable policies such as decentralization, and so there would be reason to avoid creating legal rules that protect primary rights to secede only if we knew that such rules would substantially strengthen these incentives. But it is unclear that one can be warranted in having much confidence about such a nuanced empirical matter. It is one thing to speculate about the kind of incentive a legal rule might create, but it is another thing to have justified confidence in the degree to which an existing incentive would be increased by this same rule. Additionally, historical evidence indicates that separatist sentiment is sometimes pacified, rather than enflamed, when minority groups are given additional political powers. John McGarry writes: While states are often reluctant to decentralize, for fear it will promote secession, there is evidence that timely and genuine decentralization achieves exactly the opposite effect. While Francoist centralization coincided with a significant increase

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in support for Basque separatism, the granting of autonomy to Basques in 1979 resulted in support for independence dropping from 36 per cent to 12 per cent. The long-time existence of the Canadian and Swiss federations also show that extensive decentralization is consistent with state unity.33

On reflection, this observation should not be all that surprising, even if political leaders sometimes act contrary to the lesson that it teaches. After all, it would be unreasonable to deny that many formerly middle-of-the-road Chechens have become ardent separatists precisely because of Moscow’s brutal campaign to quell the secessionist movement. Thus, leaders with some sense of what actually fuels separatist fires might recognize that they have no reason to avoid decentralization no matter what stand the international legal system takes on rights to political divorce. Another factor to bear in mind is that, while Buchanan highlights the bad incentives that would be created by institutionally protecting primary rights to secede, there are also desirable incentives that would be produced and must be counted in the balance. For instance, arming minority groups with an effective right to secede gives these groups political leverage, and this leverage in turn provides the central government with incentives not to mistreat these minority groups. In addition, instituting a legal right to secede and authorizing an appropriately impartial body to decide contested cases could be beneficial insofar as it would give the parties to a potential secessionist conflict an incentive to bring their problem to a forum “where the issues could be decided in a peaceful and orderly manner.”34 Michael Freeman might be right when he observes, “The restrictive interpretation of the right to self-determination does not inhibit claims to self-determination, but it does inhibit their peaceful and just resolution, since it denies their legitimacy.”35 Accordingly, there are reasons for thinking that a right of secession broader than the remedial right envisioned by Buchanan and others might, on balance, have effects that are quite acceptable and even desirable. Our claim is not that we know, or even have sufficient evidence to believe, that these effects would predominate over the ones cited by Buchanan. But neither do we think that Buchanan has sufficient evidence to believe that the perverse incentives he cites would predominate. Moreover, given the very limited scope of what we can claim to know about what would happen if international law were to treat secession differently, we cannot be justifiably confident that the existing legal norms law should be changed at all. Buchanan points to the arbitrariness of restricting the right of secession to cases of classic decolonization, but the refusal of international law to extend the right to other sorts of cases that also involve seriously unjust treatment of the population of a territory by a central government might not be arbitrary

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from a consequentialist perspective that takes into account the very considerations that Buchanan emphasizes in his argument from incentives. Indeed, Donald Horowitz makes an incentive-based argument for maintaining the existing legal norms and rejecting legal recognition of a remedial right to secede.36 Horowitz’s main concern is with ethnic conflict and the ways in which the recognition of a remedial right to secede could ignite or exacerbate such conflict. Secessionist movements are often fueled by struggles for political power among ethnic groups. Separatist groups are frequently ethnic minorities who want their own state in which they can control the levers of power. If international law were to recognize a right to secession when a territorially based group is victimized by sufficiently serious injustices at the hand of the central government, then, Horowitz reasons, the law could operate as an incentive to the most extreme members of the group to engage in acts of violence designed to provoke the central government into a sufficiently egregious response. He contends that Sikh separatists in the Indian Punjab illustrate this perverse incentive at work.37 Horowitz also worries about the tendency of secession to generate irredentist claims and the conflict such claims cause. Because there will almost always be members of an ethnic group who find themselves on the wrong side of the border, the new separatist state and the rump state will have an incentive to carve out a different territorial settlement enabling them to encompass some or all their stranded ethnic brothers and sisters. Horowitz cites multiple instances of conflict arising from such reasons, including struggles in Kashmir, Bosnia, and Ethiopia.38 Horowitz is not insensible to the injustices from which separatist groups often suffer at the hand of central governments. But he contends that the problem should be addressed by working to build domestic political institutions that create incentives to moderate behavior by politicians. The perverse incentives of a remedial right to secession not only have the unfortunate tendency to intensify interethnic conflict; they also encourage ethnic minorities to pursue a strategy of exit rather than the more reasonable strategy aimed at redesigned domestic arrangements. Such is Horowitz’s view. Buchanan suggests that the chief disagreement between Horowitz and the proponents of a remedial right concern[s] how the international community should invest its energies: in pressuring states to adopt internal reforms that obviate the need for secession or in doing that and also working for international legal recognition of a right to secede when internal reform is not forthcoming, so long as the right to secede is embedded in international institutions that will ensure that its exercise will not result in violations of the rights of minorities.39

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However, we think that the disagreement is not quite captured by describing it as one over how international energies ought to be invested. Horowitz is not simply arguing that devoting energy to internal reform efforts is more efficient than pursuing both internal reform and a legal right to secession, as though the main problem with a right to secession is that it diverts energy that could be more profitably invested in internal reform. Of course, energy would be more profitably invested in internal reform, according to Horowitz, but to put it in that way understates his case against the right to secession. He is arguing that the problem with a legal right to secession is that it would generate very undesirable consequences, not simply that it would not be as good as pursuing the internal reform strategy alone. And the consequences would be very undesirable on account of the incentives for bad behavior that the legal right would create. For Horowitz a remedial right to secession gets the incentives badly wrong, in contrast to Buchanan, for whom the remedial right “gets the incentives right.”40 So this is not just a dispute over whether international institutions would be more efficient if they were to do A only, or to do A plus B. It is a dispute over whether doing B would lead to very bad consequences. In our judgment, neither Buchanan nor Horowitz makes his case against the other. Each presents quite plausible hypotheses about the effects of the legal recognition of a remedial right to secession, but neither presents empirical evidence beyond citing a few cases of secession. No one should be surprised at the stalemate. The truth is that, in the present state of scholarly knowledge, the views of both Buchanan and Horowitz are no better than educated guesses. This should not be understood as condemnation of their work. Educated guesswork is the best anyone can hope to do at this stage in the discussion of secession and international law. More importantly, educated guesswork is indispensable for moving the discussion to the point where something more well founded than that guesswork becomes possible. Accordingly, we hold that, on the current state of the evidence, an agnostic stance is the most reasonable one to take toward the question of what the rules of international law should be when it comes to the matter of secession. To review: While our arguments for a primary right to secession grounded in self-determination establish a pro tanto case for the conclusion that international law should be changed to protect the primary right, we refrain from drawing that conclusion. The morally relevant empirical consequences of such a change are potentially of such great significance that even a tentative conclusion along such lines would need substantial support from an assessment of those consequences. In our judgment, though, that support is lacking because not enough is known, or reasonably believed, about the consequences of changing the existing law. These cognitive limits also require withholding

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judgment on the proposal of Buchanan and others that international law be changed to incorporate a remedial right to secede. It might seem disappointing to conclude the chapter on such an agnostic note. However, it is important to keep in mind that the agnosticism for which we argue goes only to the question of whether international law ought to be changed. Such agnosticism is perfectly consistent with making judgments about whether particular separatist groups have a moral right to secede. On the moral question, we have provided arguments aimed at showing that there is a primary moral right of secession and at formulating the conditions under which a population possesses that right. Defensible moral judgments about particular cases of secession are certainly possible even if it is necessary to withhold judgment about whether international law ought to be changed because the consequences of such a change are currently beyond the scope of what we can know or even believe with sufficient reason. To be sure, there are epistemic challenges in trying to determine whether a given group has a moral right of secession. One must determine whether the majority favors secession and is willing and able to form a legitimate state. One must also determine whether the remainder state would be able to perform the requisite political functions. These are empirical questions which, in a given case, might be difficult to answer. Nonetheless, the difficulties are far more tractable than those presented by the international law questions, and, even if they cannot be resolved in all cases where a separatist movement exists, in some such cases there are surely warranted answers. Moreover, once the relevant empirical questions are answered, the very abstract, pro tanto argument for a primary right of secession does not become irrelevant. To the contrary, the argument means that determining whether international law should have a right of secession, and if so, what its scope should be, is not simply a matter of weighing the costs and benefits of the various options. Because some groups have a moral right to secede, if international law is to justifiably deny the right to any such groups, then there must be sufficiently compelling reasons that stem from the empirical consequences of recognizing the right. Still, one might press the question, “Who is to decide whether a given separatist movement has a moral right to secede, i.e., whether the group is willing and able to form a legitimate state without leaving the remainder state unable to perform its essential functions?” Our answer is: any person who is interested in making an accurate moral judgment about whether a given separatist group has a moral right to secede and who is prepared to ensure that the judgment is adequately informed by the empirical facts. Moral judgments in cases of secession are no different from moral judgments in any other situation: informed persons who desire to make accurate judgments are the

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ones to make them. There is no reason to think that the moral judgments about secession by such persons will be unanimous: informed people who are sincerely seeking the right answers will often disagree with one another. However, such disagreement is no different from what one finds with moral judgments about any other issue. But suppose that the “Who decides?” question is asked about legal rights rather than moral ones. Who is to decide which groups in fact have a legal right to secession under international law? Ideally, such a judgment would be made by an impartial and authoritative institution. As yet, however, there is no such institution, leaving room for some disagreement among jurists and legal theorists over the exact contours of the right to secede under international law. In this respect, the international law of secession is no different from many other areas of international law which also lack an adjudicative body possessing ultimate authority to say what the law is in any case that comes before it. Whatever its exact contours, existing law is so restrictive that there are virtually no groups that can plausibly claim a right to secede. So the absence of an adjudicative body is not all that important. However, if the law were to move in the direction of Buchanan’s remedial right or, even further, toward a primary right of secession, then numerous live legal questions would emerge about whether a group has a right to secede. In such a situation, there would be many disagreements over what the law says and what legal rights particular states and secessionist groups possess. In light of the biases and passions that would invariably accompany such disagreements, it would be much better for there to be an institution that could authoritatively adjudicate the conflicting claims in a reasonably impartial manner. The existence of such an institution would increase the chances of a peaceful resolution of the conflicting claims, as opposed to a situation in which there is no authoritative, reasonably impartial body before which the parties can bring their claims. But what institution could serve as such a body? David Copp – an advocate of a primary right of secession – has made an entirely reasonable proposal. He suggests that the jurisdiction of the International Court of Justice be expanded to include secessionist disputes.41 The Court would adjudicate secessionist conflicts in much the same manner in which it presides over conflicts between sovereign states. Thus, Copp suggests that any separatist group should be permitted to petition the Court, which would then determine if the group meets the minimal necessary conditions to qualify for a right of secession, i.e., the group is territorially concentrated, sufficiently large that it could perform the requisite political functions, and so on.42 If the Court judged the group to be the type of party that might qualify for the right, then it would oversee a plebiscite in the proposed secessionist territory to ensure that a majority did indeed desire independence. Assuming that a majority in fact favored separation, the

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Court would then oversee the political divorce settlement to ensure that, as in marital divorce, both the separatists and the rump state are given a fair share of the collective debts and assets. Copp also proposes that the Court oversee a second plebiscite “to determine whether the group still wants to secede, given the negotiated terms, and to determine whether it does in fact have a stable desire to form a state.”43 If the majority’s preference for divorce remains constant, then the parent state may make one last appeal to the Court (arguing, perhaps, “that the secessionist group did not intend in good faith to abide by the settlement”).44 If this final appeal fails (or is not made), then the Court would oversee the separation, ensuring that the secessionists and the rump state both honor the separation agreement and generally respect each other’s rights. Copp suggests that at this stage, “[t]he right of a secessionist society not to be interfered with in forming a state is of a piece with the right any state has not to be interfered with in governing its territory. So these rights of secessionist societies are essentially the same rights that international law now accords to states, and they would have the same legal force as existing rights of existing states.”45 Copp recognizes that major changes in international law would be required for anything like his proposal to be instituted. For one, a new treaty would be required to extend the jurisdiction of the International Court of Justice in the way required by the proposal. Then there are the formidable political obstacles in the way of persuading states to open themselves to the possibility of losing portions of their territory against the will of the majority within the state. A treaty that is ratified by few, if any, states is worth little. Moreover, these same daunting problems that face a treaty which numerous states would need to ratify would also afflict any effort to establish a new international court that would hear cases involving secession. It cannot be said, then, that the prospects are good for the development of an authoritative and reasonably impartial body for adjudicating separatist claims. But given the potential of such a body to channel explosive disputes into peaceful processes, and the impressive progress that international law has made since the end of World War II, it is not wholly unreasonable to hope that the prospects will justifiably appear much brighter to future generations.

C O N C LU S I O N Our account of political self-determination leads us to conclude that separatists possess a moral right to secede as long as they and their rump state are both able and willing to meet the conditions of legitimate governance. Although statists recoil from the conclusion that a group may be morally entitled to secede from a perfectly legitimate state, and nationalists will object that

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we underestimate the importance of a separatist group’s distinctive cultural characteristics, it strikes us that a group’s right to political self-determination should hinge strictly upon its political capacities. And because existing states are not the only entities capable of performing the requisite political functions, some non-state entities may qualify for political self-determination. It is important to recognize, however, that we are emphatically not fans of state-breaking. Just as one might defend the right to no-fault divorce without believing that more people should separate, we defend the right to secede despite having no interest in a world with an increased number of small, more homogenous states. On the contrary, as next chapter’s defense of the emerging institution of international criminal law will make clear, we actually favor larger and more ambitious international unions, both regional and global, which invariably diminish the importance of territorial boundaries. In the end, then, our attitude toward secession is similar to that of Serbia’s President, Boris Tadic, who responded to Montenegro’s vote to secede from Serbia-Montenegro by saying, “I supported the preservation of a joint state, but as a democratic president of a democratic republic, I recognize the expression of the free will of the Montenegrin citizens.”46

4 International Criminal Law The right of political self-determination held by legitimate states has both inward- and outward-looking dimensions. Among its inward-looking dimensions is the state’s right against persons within its territory who might desire to establish an independent state on part of that territory. This aspect of the right of self-determination is, as we saw in the previous chapter on secession, circumscribed by the right of a territorially-based population to form its own legitimate state out of a piece of the original state. Among the outward-looking dimensions of a state’s right to self-determination is its right to establish and operate its own criminal justice system, free from the interference of international institutions or other states. In our theory of political self-determination, however, this right of internal sovereignty is not possessed by illegitimate states. In this chapter, we examine and elaborate upon the implications of our theory for important developments that have taken place in the field of international criminal law since the end of World War II. Among those developments are: (a) the direct imposition by international law of criminal liability on individuals1; (b) the development of core international criminal norms, such as those prohibiting genocide and crimes against humanity, from whose jurisdiction no state is permitted to remove itself 2; and (c) the establishment of international tribunals asserting criminal jurisdiction over actions within the state’s territory, without the state’s consent to the jurisdiction of the tribunal.3 Each of these aspects of international criminal law involves the potential, or actual, preemption by international society of a state’s own choices regarding matters of criminal justice within its territory. A key question, then, is: When and why is such preemption morally permissible? In addressing this question, we critically examine the prevailing justification of international criminal law and defend an alternative approach.4 We share the prevalent view that a system of such law is permissible and that its development over the past sixty years is justifiable and ought to be continued. However, we reject the conventional arguments offered in support of this system, arguments that rely on the idea that the core international crimes threaten international peace or security and harm humanity. Our alternative

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line of thinking revolves around the claim that, regardless of threats to international peace and security or harm to humanity, it is permissible in principle for international institutions to prosecute and punish persons under international law when there are sufficiently widespread or systematic violations of human rights in a state. Where such violations exist, international institutions and other states are free to intervene to prosecute and punish the violators, and the consent of the target state or its government is not required. Moreover, the rights violations that trigger international jurisdiction need not constitute genocide, crimes against humanity, or any such “supercrime.” Instead, the violations may simply be ordinary criminal acts such as murder or rape committed in a state that is failing to meet a minimum threshold for protecting the human rights of its people.5 However, in order to judge the development of international criminal law, one cannot rest simply with determining what is morally permissible in principle. As we saw in the previous chapter with secession, questions about what is permitted in principle are distinct from those concerning institutions and their rules. When it comes to international criminal law, international society has been pursuing a kind of institution-building experiment since the end of the Cold War. The institutions include an array of international covenants, setting down legal norms governing such core international crimes as war crimes and genocide; international courts to enforce the norms in the wake of atrocities arising from armed conflicts in Yugoslavia and Rwanda; and, most recently, the establishment of the International Criminal Court (ICC). Accordingly, another key question is: Should this experiment with building institutions of international criminal justice be pursued or abandoned? We argue against critics and skeptics that the experiment should be pursued and, in particular, that the ICC holds out reasonable hope for effectively protecting persons against human rights atrocities. We divide this chapter into five main sections. In the first two, we examine some key aspects of the historical development of international criminal law in the twentieth century, including the Nuremberg trial, and the justifications provided by scholars and jurists for the law as it has emerged. Those justifications are rejected. In the third section we present the main ideas of our alternative justification for international criminal law. The central problem we seek to resolve is how international criminal prohibitions can legitimately pierce the sovereignty of a state so as to permit an international tribunal, or a court of another state, to prosecute crimes committed wholly within the state’s territory. The fourth section addresses legal and moral considerations involved in the Nuremberg prosecutions, and the fifth defends the ICC.

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T H E N U R E M B E RG P RO B L E M S In the wake of World War II, representatives from the victorious Allied states convened in Nuremberg to prosecute German political, economic, and military leaders. The International Military Tribunal (IMT) was unprecedented in a number of important respects.6 Not only did its organizers seek to conduct a fair trial rather than merely impose victor’s justice, but also, more strikingly, they did not restrict their charges to the commission of war crimes and the waging of a war of aggression. For the first time, an international tribunal prosecuted political and military leaders for violating the rights of their own citizens and subjects, and, in doing so, the IMT held the individuals involved directly liable under international law rather than simply applying German national law to them. The term “crimes against humanity” was used in the Nuremberg indictments to cover crimes the German defendants had committed against German nationals.7 That term had initially surfaced during World War I to characterize the mass killings by the Ottoman authorities of their Armenian subjects. After the war, the architect of the Armenian genocide, Talaat Pasha, was convicted by a domestic Turkish court for acts “against humanity and civilization,” but he escaped legal punishment and lived under the protection of the German government.8 Moreover, the treaty which had called for the establishment of an international tribunal to prosecute crimes stemming from the war was effectively abandoned by all parties, dashing hopes of any international prosecution of Talaat. Against this backdrop, we can understand what a controversial departure from precedent it was when the Nuremberg tribunal heard charges against the defendants for crimes violating the rights of their own subjects and citizens. One set of questions concerned the issue of forum: Germany was not a party to the London Charter establishing the IMT, and so it was unclear why the tribunal was a legally proper forum in which to bring the charges. It was one thing for Turkey to prosecute its former leaders before a Turkish tribunal for planning and executing the mass murder of its own subjects. It was quite another for an international tribunal to prosecute German leaders for violating the rights of German Jews.9 Another set of questions concerned the issue of the substantive rules of criminal law. Again, Germany was not a party to the charter declaring that crimes against humanity were international crimes, and, prior to Nuremberg, the rule under international law had been that each state was sovereign over defining the criminal status of any act within its borders. The issues of forum and substantive criminal law are in fact connected, given the pre-Nuremberg conception of sovereignty. The conception had arisen out

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of the Westphalian settlement nearly three centuries before World War II and had been the grounds on which President Woodrow Wilson’s Secretary of State, Robert Lansing, opposed any international tribunal to try the planners and perpetrators of the Armenian genocide.10 In the Westphalian order it was taken for granted that each country enjoyed a privileged position of dominion over its own affairs. A sovereign state possessed the liberty to order its own system of criminal law however it saw fit, and thus it was the state’s decision whether or not a given act should be made criminal. Similarly, it was the state’s decision as to the forum before which its subjects or citizens were to be prosecuted. Imagine, for instance, that citizens in some foreign states had found it objectionable that the United States had no criminal prohibition against working on the Sabbath. It would have been wholly indefensible for these states to convene a tribunal for the purpose of criminally prosecuting Americans who worked on the Sabbath. The Westphalian conception of sovereignty provided an account of why that was so. Given the Westphalian view, serious questions arise concerning both the IMT’s authority to try political officials and military personnel in the Axis countries and the grounds for claiming that crimes against humanity were international crimes. In order to appreciate this point, notice how such sovereignty-based doubts about the substantive rules enforced by the IMT are less pressing in the case of the international crime that was declared in a series of treaties and pacts after World War I, the crime of waging a war of aggression. Aggressive war is an act that crosses state boundaries and, as such, can be readily conceived as falling under international jurisdiction. International society as a whole has a stake when the borders of one internationally-recognized state are transgressed by the military aggression of another state.11 In contrast, it is not apparent what stake international society has in prohibiting an individual state from treating its subjects or citizens in ways that do not necessarily have a boundary-crossing character. Moreover, even if the Third Reich’s conduct toward its own subjects was under international jurisdiction in principle, it seems clear that prior to Nuremberg, international society had not exercised its jurisdictional power to make any such treatment an international crime. The power had remained dormant: available, perhaps, but not yet utilized. In other words, even if international society could legitimately prohibit states from treating their own people in certain ways, it had yet actually to adopt such a prohibition. This meant that any legal prosecution for crimes against humanity would seem to run contrary to the principle of the rule of law that proscribes ex post facto prosecution and punishment. And that principle of legality carries moral weight because it is pro tanto unjust to punish anyone who is not guilty of having committed an act that was criminal at the time it was performed. Accordingly, a strong case could be made that charges of crimes against humanity should not have been included in the indictment.12


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Under normal circumstances, the apparent lack of international jurisdiction and the clear absence of any international ban on a state violating the rights of its own people would have led lawyers and jurists quickly to conclude that the charges of crimes against humanity should have been thrown out of court. But circumstances were anything but normal, and many of the best legal minds sought to answer the “Nuremberg problem,” that is, how could those acts of the leaders of the Third Reich that most shocked the conscience of the world be justifiably prosecuted and punished under international law? As we have indicated above, the Nuremberg problem can in fact be disaggregated into two distinct problems. The first implicates the scope and limits of state sovereignty: How can international society legitimately pierce state sovereignty and prosecute officials for the mistreatment of their own people? The second involves questions about the conformity of international prosecutions to the principles of legality: In light of the substantive criminal prohibitions existing at the time of the defendants’ conduct, did Nuremberg and other international prosecutions abide by the requirements of legality, and, if not, should that matter?

S OV E R E I G N T Y A N D T H E R E C E I V E D V I EW The sovereignty dimension of the Nuremberg problem is the more fundamental one: International criminal law cannot legitimately prohibit moral wrongs committed within the borders of a state unless there is a good argument for trumping the state’s assertion of exclusive authority over internal matters. If there is such an argument, then there is nothing wrong in principle with international trials, and one can then turn to questions of whether actual international trials have respected the principles of legality. Among scholars and jurists working in international law, the received view is that the sovereignty problem can be overcome by showing that crimes against humanity, genocide, and similarly grave wrongs are not purely internal state matters. Rather, the view holds that such crimes reach across state boundaries, and it is only because they do so that international criminal jurisdiction can legitimately trump state sovereignty. Taking his cue from the standard distinction between civil and criminal law, Larry May has recently articulated a philosophical principle that lies behind the received view. As May explains, “In domestic settings, criminal prosecutions should only go forward when group-based individual harm is alleged – that is, harm that affects not only the individual victim but also the community. . . . In international criminal law, harms that are prosecuted should similarly affect a public – what could be called the world community, or humanity.” Thus,

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May advocates what he calls “the international harm principle,” according to which international society may make criminal only that behavior harmful to international society itself.13 One way of meeting May’s harm principle when it comes to crimes against humanity and similar atrocities is by connecting such crimes to acts that unquestionably harm international society. This was the main strategy of the lead US prosecutor, Justice Robert Jackson. In his opening address to the IMT, he contended that crimes against humanity were international crimes insofar as they were inextricably connected to the planning and waging of a war of aggression: “How a government treats its own inhabitants generally is thought to be no concern of other governments or of international society.” However, Nazi persecutions of its own people became international crimes “because of the purpose for which they were undertaken . . . the precipitation of aggressive war.”14 As Jackson sees it, the invasion of an internationally-recognized state by another state ipso facto harms the international order of states and brings the matter, in principle, within the jurisdiction of international society. Accordingly, on his argument, international jurisdiction over these crimes can ride piggyback on the crime of waging a war of aggression. State sovereignty is pierced on account of a “war-nexus.” However, the war-nexus argument fails in two main respects. First, it cannot answer the question of why charges of crimes against humanity should be separate charges from those of planning and waging a war of aggression. The problem is that the argument elides the fact that an act is a crime only under a given description. If planning and waging aggression are the central acts that push a state’s conduct out of its sovereign realm, then the criminal charges should be restricted to preparing and waging a war of aggression. Even if “crimes against humanity” were part of the preparation for the waging of the war, then the international crime would still be that of preparing and waging a war of aggression. The reason is because it is only under the description “preparation for a war of aggression” that extermination, persecution, deportation, and so forth would count as international crimes. Under the descriptions “extermination,” “persecution,” and “deportation” we would not have international crimes. Second, as Richard Vernon notes, the war-nexus strategy is “too selective and conditional. . . . For not every persecution, obviously, is a prelude to war.”15 International jurisdiction solely for those moral atrocities which are a preparation for war or an essential part of some cross-border attack seems far too limited. In the next section, we will develop an account that explains why the scope of international criminal jurisdiction ranges more broadly.


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The second way of trying to satisfy May’s international harm principle involves a moral analogue to the boundary-crossing idea that is central to the war-nexus approach. Here the notion is that some crimes are so egregious as to victimize all of humanity, even if the perpetrators never literally reach out beyond their own territory. This notion seems to have been reflected in the opinion of a court in the British zone of occupation after World War II. The court held that a crime against humanity “is committed whenever the victim suffers prejudice as a result of the National Socialist rule of violence and tyranny to such an extent that mankind itself was affected thereby.”16 Hannah Arendt expressed the view more clearly in her discussion of the Eichmann trial, held before an Israeli court: “Insofar as the victims were Jews, it was right and proper that a Jewish court should sit in judgment, but insofar as the crime was a crime against humanity, it needed an international tribunal to do justice to it.”17 Arendt went on to criticize the Israeli court for failing to recognize that the extermination of a particular community – Jews, Poles, or Gypsies, for example, – “might be more than a crime against the Jewish or the Polish or the Gypsy people, that the international order, and mankind in its entirety, might have been grievously hurt and endangered.”18 More recently, Geoffrey Robertson has argued that a crime against humanity “diminishes every member of the human race” and so is properly subject to international criminal jurisdiction.19 And May himself argues for a version of this approach, contending that crimes such as genocide are typically perpetrated by states, or other powerful collective actors, and are committed against persons based on their group affiliation. Such state-sponsored, group-targeted crimes, he claims, are harmful to humanity itself.20 This second way of trying to establish international jurisdiction over crimes against humanity also fails. First, it is wrong to think that Nazi crimes against Jews somehow victimized all humanity. There were many humans who were left quite unaffected by the anti-Semitic atrocities of the Third Reich. Harm was done to the humanity of the Jewish victims, but that is not to say that harm was done to humanity itself. More fundamentally, it is a mistake to argue for the moral permissibility of international criminal jurisdiction on the basis of May’s international harm principle or anything akin to it. The principle presupposes the adequacy of a Westphalian conception of state sovereignty, and that presupposition is the critical normative failure behind both the war-nexus and the harm-to-humanity arguments. If such a conception is accepted, then international law can reach moral wrongs committed within a state only if those wrongs literally or morally cross international borders. As we explain below,

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the Westphalian conception must be abandoned. And once this conception is jettisoned, it is no longer necessary to find harms that cross borders to justify international criminal jurisdiction. In the next section, we develop a justification for international criminal jurisdiction that breaks decisively with the Westphalian model.21

A N EW J U S T I F I C AT I O N Since Nuremberg, a central project of the advocates of international criminal law has been to define certain categories of especially egregious crimes – genocide, crimes against humanity, apartheid, and so on – so as to provide a compelling justification for overriding state sovereignty even when the commission of the crimes does not involve any literal border crossing. In this section we argue that the project is unnecessary; a proper understanding of state sovereignty reveals that international jurisdiction over moral wrongs committed within a state does not hinge on the perpetration of especially heinous “supercrimes.” The tendency of international lawyers to focus on supercrimes is reasonably understood as deriving from a desire to construct a non-paternalistic justification for restricting state sovereignty, i.e., a justification that avoids the claim that the restriction is for the state’s own good. We too eschew paternalism, but the international criminal law need not invoke such categories of crime in order to non-paternalistically justify its interference with a state’s self-regarding affairs. Perhaps the best way to see this is in terms of Joel Feinberg’s work on the moral limits of domestic criminal law. Feinberg has a deep appreciation for each person’s autonomy and, as such, he insists that it would be wrong for the criminal law to interfere with an agent’s self-regarding affairs. There is nothing wrong with punishing those people who wrongly harm others, but the criminal law has no business interfering with an agent’s voluntary actions, no matter how damaging they may be to the agent himself or herself, as long as those actions do not harm any unwilling victim.22 Feinberg’s analysis is relevant here because those who have sought to justify the international criminal law seem to have the same appreciation for the selfregarding activity of sovereign states that he has for the self-determination of individual persons. In other words, if one believes that states enjoy the same rights against paternalistic interference that individual persons do, then one would explicate crimes against humanity and other supercrimes in terms of harm to persons outside of the state whose sovereignty is restricted. Thus, it is


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not surprising that advocates of the received view suggest that the international criminal law is legitimate only when international society is harmed because it allows them to insist that, just like individual persons, sovereign states enjoy the right to self-determination in all matters that do not harm others. However, even if one accepts Feinberg’s assessment of paternalism with respect to individuals, it is a mistake to transpose his analysis to international criminal law in a straightforward fashion because individuals and states are importantly disanalogous. States are comprised of multiple individuals, some of whom might violate the human rights of others, and a legitimating function of any state is to help prevent, prosecute, and punish such violations. An individual may have the right to take actions that harm his or her own basic interests, but a state does not have the moral liberty to undertake or allow actions that harm the basic interests of its citizens or subjects, unless those individuals freely consent. In the absence of such consent, these actions violate the rights of the individuals. The state has the responsibility to help prevent the rights violations of its people and punish through appropriate institutional arrangements those who perpetrate such violations.23 This moral responsibility makes a state’s sovereignty over its people more akin, in certain significant respects, to a parent’s authority over her children than to an individual’s dominion over herself. Parents enjoy a great deal of discretion as to how to fulfill their parental responsibilities: they may choose how the children will dress, worship, eat, be educated, etc. However, there are moral limits on how parents may permissibly raise their children, and those limits are set by the human rights of the children. If a parent is either horribly abusive or woefully negligent, third parties have a moral right, and perhaps even a duty, to interfere on the child’s behalf. A parent has no right against third-party interference if she is starving, beating, sexually abusing, or otherwise violating her child’s human rights. A third party has the moral right to intervene in these circumstances, and it is not necessary to establish that the parent’s mistreatment of her children is harmful to people outside of the family to have a non-paternalistic justification for intervention. That is, one need not show that if a parent mistreats her children in a sufficiently horrible manner, then it becomes a “crime against society” because, say, it is more likely that the children will become socially disruptive. On the contrary, third-party intervention is justified even if the domestic abuse will have no effect upon anyone outside of the family, simply because the child has a right against such mistreatment.24 Nonetheless, the power of the government through which a state exercises sovereignty over its members is analogous to the authority of parents over their children in the following respect: a legitimate government rightfully possesses considerable discretion to order the internal affairs of the state, and yet

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there are moral limits upon how any government may treat the members of the state. These limits are set, in part, by the fact that the government has a responsibility to protect the human rights of its constituents. Thus, when a government fails to provide adequate protection by, for example, perpetrating or permitting the widespread violation of the human rights of persons within its jurisdiction, it loses its legitimacy. When legitimacy is lost, third parties – in this case, other states in international society – have a moral right, if not a duty, to intervene in order to protect human rights. The partial analogy we draw between political sovereignty and parental authority is not meant to justify our revised understanding of sovereignty. Rather, it is meant to clarify our understanding by elucidating a structurally similar form of authority in the personal sphere. The justification for our view rests on the moral claim that it better incorporates a due recognition of the importance of human rights and the inherent moral value of the human individual than does the received understanding. Before we say more about the implications that our revised understanding of political sovereignty has for international criminal law, it will be helpful to note the convergence between our understanding and that of the thinkers and activists who defend the importance and permissibility of certain instances of armed humanitarian intervention. We will discuss armed intervention at length in the next chapter; for now we wish to highlight only that, traditionally, such intervention has been considered strictly impermissible simply because the invaded state has not given its consent, and, on the Westphalian conception of sovereignty, any state not aggressively attacking others has an inviolable right against such intervention. More recently, political philosophers, international lawyers, and many others have questioned this absolute prohibition against intervention on grounds similar to those raised above. Certainly, any given instance of military intervention will remain highly controversial, but we suggest that an increasing number of thinkers and political figures are coming to accept the following view of sovereignty: A legitimate state does indeed enjoy a right to self-determination which gives it exclusive jurisdiction over matters that concern only those within its territorial borders, and so it is impermissible for international institutions or other states to exercise criminal jurisdiction over actions whose significant effects are limited entirely to the territory of such a state. On the other hand, this right rests on the state’s satisfactory performance of the requisite political functions.25 As we argued in Chapters 2 and 3, a state’s right of self-determination depends on its ability and willingness to protect human rights; as a consequence, states that satisfactorily perform these functions – and only such states – enjoy a moral right to sovereignty. Thus, just as a parent who is neither abusive nor neglectful enjoys the discretion to raise her child as she sees fit, a state


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that performs the requisite political functions has a right to order its internal affairs in the fashion it chooses. On the other hand, just as a sufficiently malicious or incompetent parent has no claim to retain custody of her child, a state that is either unable or unwilling to protect the human rights of its people cannot rightfully object to third parties in international society interfering, perhaps even militarily, in matters that affect only those within its territory. However, we do not claim that international criminal prosecution could be justifiable for any and every human rights violation in a state. There are two main reasons for rejecting such a claim. First, the right of political self-determination does not hinge on the ability of a state to perfectly protect human rights but only to adequately protect such rights. It would be impermissible for some international agency to compel Denmark to spend a higher proportion of its tax revenues on its criminal justice system, even assuming that such a shift in revenues would result in fewer crimes that violated human rights or in improved due process for defendants. This impermissibility does not rest on the idea that Denmark’s government is doing the best possible job of protecting human rights but only on the claim that it is doing a good enough job. Any state that adequately performs the requisite political functions possesses a right to choose how its tax dollars are allocated and so may choose an allocation that results in suboptimal protection of human rights. Such a choice may not be overridden by the imposition of international criminal law on rights-violating actions that are confined to Denmark’s territory. Second, there are pragmatic considerations that often dictate nonintervention in a state’s affairs, even when a state is failing to do an adequate job of protecting human rights. These pragmatic considerations play a major role in the debate over armed humanitarian intervention, which we examine in the next chapter, but they are also relevant in the criminal law context. Because every criminal prosecution has substantial opportunity costs and the resources for building an effective system of international criminal law are sharply limited, it is reasonable to focus on those kinds of cases that involve the most widespread or serious rights violations. The ICC takes this approach – Article 5 of the Rome Statute establishing the court provides: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.”26 The statute then goes on to specify four categories of crimes: genocide, crimes against humanity, war crimes, and aggression.27 Such a strategy of limiting the court’s jurisdiction makes sense as part of the process of building an effective international criminal law. Even though there is nothing wrong in principle with using international criminal law to prosecute ordinary crimes that take place in a failed state or even an illegitimate state, practical considerations suggest a more limited role for international prosecutions at this stage in its development.

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We have argued that it is impermissible in principle to impose international criminal law on a state that adequately protects and respects human rights. Such a state may decide to accept an international convention that gives a court, such as the ICC, jurisdiction over certain crimes committed on its territory or by its nationals. But a legitimate state also has a right to decide to forego participation in any such international court. So how does one decide whether or not a state provides adequate protection? Our suggestion borrows a phrase from international criminal law: protection is adequate if and only if a state neither perpetrates nor permits “widespread or systematic” violations of the human rights of persons within its jurisdiction.28 Any state that perpetrates or permits such violations lacks a right of self-determination that would circumscribe the legitimate scope of international criminal jurisdiction. On account of its monstrous violations of human rights, Nazi Germany was an illegitimate state that lacked any claim against the jurisdiction of the IMT. Moreover, German leaders were liable for perpetrating such atrocities, even when committed against persons within the territory of the Third Reich and quite apart from the existence of any war nexus. More recently, the political leaders of Somalia in the early 1990s were unable, and the leaders in Milosevic’s Yugoslavia were unwilling to adequately protect their peoples’ human rights. Accordingly, neither Somalia nor Yugoslavia had a right of self-determination that could provide a principled moral barrier against an effort of international society to criminally prosecute those responsible for crimes that violated human rights and occurred within their borders.29 In contrast, Denmark and Canada neither perpetrate nor permit widespread or systematic violations of human rights within their respective jurisdictions. Accordingly, both states have a right of self-determination that restricts in principle the extent to which they may be forced to accept international criminal jurisdiction. “Widespread” is a purely quantitative notion referring mainly to the number of violations: it takes account of the number of people victimized, weighted by the relative importance of the rights violated. In some cases, the total population size will be relevant, but above a certain threshold number of victims, it probably does not matter what proportion of the total population the victims represent. For example, the Serbian massacre of 7,000 Muslim males at Srebrenica counted as widespread, no matter what fraction it was of the total Bosnian population. “Systematic” is a partly quantitative notion, referring to acts that are part of some plan whose execution would result in many rights violations. But because of the planning element, the notion also has a qualitative aspect: there is some aim or objective that cannot be specified solely in numerical terms. The aim might involve the persecution of a certain social group, but it could also consist of deliberately spreading terror


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through a general population by random acts of violence. Accordingly, on our criterion, international criminal jurisdiction would be permissible in principle whether or not the intended rights violations were group-oriented. Moreover, jurisdiction could apply even before the violations reached a level that would count as widespread. It is important to note that rights violations can be widespread without being systematic or, more generally, part of any organized effort. For example, in a failed state, there may be many murders and rapes that are not directed or instigated by any group but are simply the accumulation of separate criminal acts committed by individuals operating solo and made possible by the breakdown of the state’s law enforcement apparatus. Under our theory, such murders and rapes would be within the potential scope of international criminal jurisdiction, even though they were merely ordinary domestic crimes. In many cases, there will be large numbers of individuals operating in concert to violate the human rights of others. Yet, international jurisdiction should not be automatically triggered by the mere fact that some responsible parties are not prosecuted domestically. Here, again, there is some threshold determined by the number of persons and how important their role was in the rights violations. The more perpetrators who go unprosecuted domestically and the more important their role, the closer one comes to triggering international criminal jurisdiction. We concede that “widespread or systematic” is a relatively vague term. However, it helps provide a criterion that points in the right direction. In order to be normatively plausible, any criterion for when international criminal jurisdiction is permissible must point to the kinds of considerations that we have discussed in cashing out “widespread or systematic,” namely, those regarding the scope and severity of violations of human rights within a state’s jurisdiction. Perhaps there is some phrase other than “widespread or systematic” that better captures the relevant considerations, but it is difficult to see how any standard will be significantly more precise. In connection with “widespread or systematic,” it is worth noting that Article 7 of the Statute of the ICC defines as crimes against humanity acts such as murder and enslavement “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” However, there is a crucial difference between the ICC statute and the account we are proposing. Our account is not offered as a definition of crimes against humanity or any other crime. Rather, it is an account of when and why international prosecutions permissibly pierce a claim of sovereignty. In contrast, the ICC statute defines a certain crime and simply assumes that the crime, so defined, is one that justifies the piercing of sovereignty. The problem with the ICC’s definition is that it simply leaves us with the standard, but

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unpersuasive, argument that crimes against humanity are justifiably subject to international jurisdiction because they are so morally egregious as to harm humanity itself. A second important difference between our account and the ICC approach to crimes against humanity is that we do not require that widespread violations of human rights within a state be part of “an attack” on a population in order for international jurisdiction to apply. As noted above, in failing states with ineffective legal enforcement, rights violations could qualify as widespread simply in virtue of the cumulative result of many unrelated murders, rapes, and so forth. This second difference points to a feature of our account of international criminal jurisdiction that sharply distinguishes it from the received view of human rights crimes: the account does not rely on the idea that international jurisdiction must gain its foothold based on the commission of some “supercrime” such as genocide or crimes against humanity. It is not necessary to struggle – as mainstream theorists have done – to develop a reasonably persuasive account of how certain egregious crimes harm humanity or do damage to international society: the Westphalian conception of sovereignty that demands such harm as a precondition of international criminal jurisdiction has been jettisoned. If one adopts, instead, the functional account of state sovereignty recommended here, then states that do not sufficiently protect the human rights of their people have no legitimate objection to the imposition of international criminal law on them.30

THE LEGALITY AND MORALITY OF NUREMBERG We have argued that international society has the right to set aside the choices of certain states when it comes to matters of criminal justice and to prohibit and prosecute widespread or systematic human rights violations on a state’s territory. This argument would certainly place Nazi atrocities against their own subjects within the potential scope of international criminal jurisdiction. However, it is one thing for an international ban that covers such atrocities to be permissible in principle. It is another for there actually to be such a ban. The second dimension of the Nuremberg problem addresses the claim that there was no such ban and that, as a consequence, the prosecutions for crimes against humanity violated a key principle of legality: the prohibition on ex post facto prosecution. Moreover, Nuremberg’s problems with legality were by no means limited to ex post facto prosecution. Another serious problem concerned the fact that one of the main charges against the defendants – waging a war of aggression – was for a crime that was legally undefined. While various


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interwar treaties did outlaw aggressive war, none of them indicated precisely what made something a war of aggression, and there were no criminal prosecutions prior to Nuremberg for the crime. Thus, the Nuremberg prosecutions seem to have violated the principle of nullum crimen sine lege, the principle of legality traditionally understood as declaring that no conduct may be regarded as criminal without an explicit law that precisely defines the conduct in question. Both the ex post facto and the nullum crimen principles are soundly regarded as principles of justice, and not merely as conventional norms. Indeed, both are incorporated into international human rights documents.31 There are multiple normative grounds for these principles, including the need to restrain governments from repressing political opposition or unpopular groups, but the key point here is simply that it is unjust to the individual. Consider, for instance, the injustice of deciding on Thursday that everyone who had lit a campfire in the park on Tuesday should be punished. If Nancy lit a campfire on Tuesday, then, at the time, she committed no crime. Of course, one might say that Nancy became legally guilty on Thursday for her behavior on Tuesday, but, as a moral matter, this is an injustice to Nancy because applying the law retroactively made it impossible for her to avoid legal guilt.32 Moreover, similar considerations suggest that it would be an injustice to find her guilty for violating a preexisting but extremely vague law, for example, a law that prohibited “actions in the park that might do some harm to the environment.” While lighting a campfire plausibly falls under such a law, almost any action “might do some harm to the environment”, and so the line between criminal and noncriminal conduct becomes practically impossible for a person to know in advance of prosecution. Of course, if there had been cases prior to Nancy’s in which lighting campfires was successfully prosecuted, then the injustice to Nancy would be eliminated. But the reason why there would be no injustice to her is that the prior cases would have had the effect of making the law more precise than it was simply in its original written form, and the greater precision would have been enough for Nancy to know that, to avoid legal guilt, she needed to refrain from lighting a campfire. Accordingly, a strong case can be made that the defendants at Nuremberg were unjustly prosecuted, at least on the charges of crimes against humanity and waging a war of aggression.33 Indeed, the dominant view among international lawyers and legal scholars is that the principles of legality are side-constraints that must not be violated, even for a “good cause” such as punishing perpetrators of mass atrocities or establishing a system of international law more protective of human rights. However, we think that such a side-constraint view is morally oversimplified. There are sometimes moral reasons in favor of punishing legally innocent defendants that are so strong that they defeat the legality-based

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reasons against doing so. In such cases, the defendants have no right to object to their punishment. Before elaborating our argument, it is worth distinguishing it from two similar positions with which it might be confused. First, one could suggest that when a defendant is morally guilty to an extreme degree, she ipso facto becomes legally guilty as well. The idea here is that some of a defendant’s excess moral guilt can fill in, as it were, for what otherwise would be an absence of legal guilt. We reject this account because legal and moral guilt are distinct categories, and it simply misdescribes things to pretend that they somehow merge in extreme cases. A second view is closer to our own: When a defendant is sufficiently morally guilty, it no longer matters that she is legally innocent or that the guilty verdict was tainted by the imprecision of the rules on which the verdict was based. This view correctly acknowledges the descriptive fact that a person can remain legally innocent no matter how morally guilty she is. Nonetheless, it makes a normative mistake by supposing that a defendant’s legal innocence can lose its moral significance when she is sufficiently morally guilty. A person’s legal innocence always generates moral reasons against punishing him or her. However, it can be permissible to punish a legally innocent person because the moral reasons against punishing the legally innocent are not indefeasible. We suggest that the moral reasons against punishing a legally innocent person must be set alongside those moral reasons in favor of doing so, and it is possible in exceptional cases for the latter to defeat the former. Let us consider the Nuremberg defendants insofar as they were prosecuted for crimes against humanity. Even on the view that they were legally innocent of those charges, there were still moral reasons in favor of criminally punishing the defendants for the acts which had been retroactively prohibited by the applicable rules of the London Charter. Each reason might be insufficient on its own to defeat the defendants’ right to legal exoneration. But cumulatively the reasons make a strong case that criminal punishment of the defendants was not, all things considered, impermissible. The most obvious and popular reason to punish the defendants at Nuremberg was simply that they morally deserved it. This retributive conviction is not difficult to explain: justice demands that morally guilty people be punished for their wrongdoing, and given that the defendants at Nuremberg were so horribly morally guilty, it would have been a gross transgression of substantive justice if they had been left unpunished. Put in terms of moral reasons, the defendants’ legal innocence provided moral reasons against punishing them but their extreme moral guilt provided decisive moral reasons in favor of doing so. This position was taken by Hans Kelsen. He wrote that the acts proscribed as crimes against humanity by the London Charter were


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“morally most objectionable, and the persons who committed these acts were certainly aware of their immoral character. . . . Justice required the punishment of these men, in spite of the fact that under positive law they were not punishable at the time they performed the acts made punishable with retroactive force.”34 A second set of moral reasons in favor of punishment were generated by the restitutive effects of punishment. One need allege neither that punishing the criminal fully restores the victim nor that the principal justification of punishment is victim restoration to claim that victims regularly experience a real sense of restoration when those who have violated their rights are duly convicted and punished. If this claim is sound, then the potential restorative effects of punishing the defendants at Nuremberg provided moral reasons in favor of doing so. And because there were so many profoundly wounded victims who stood to gain at least some psychological restoration after the atrocities of the Third Reich, it seems right to suppose that these moral reasons in favor of punishment were substantial. A third set of moral reasons to punish the defendants at Nuremberg stemmed from the role the punishment played in enabling Germany to return to a peaceful life under the rule of law. Until people have a sense that justice has been served to some reasonable extent, they are often unwilling to move forward in a peaceful and constructive fashion. In the case of Germany after World War II, the feelings of resentment and anger were so strong that it is likely that severe and rampant vigilantism would have posed a formidable obstacle to restoring the rule of law. The punishments at Nuremberg were instrumental in neutralizing the anger and outrage that would otherwise have fueled vigilantism, and they did so through a process which embodied in at least some measure the principles of legality. Such a process was reasonably seen as helping to get Germany back on the road to the rule of law. Judith Shklar defended the trial and punishment largely on the basis of this third set of reasons: “as far as the Trial dealt with crimes against humanity it was both necessary and wise.”35 She openly recognized the charges as ex post facto and yet argued that the trial fulfilled “the most compelling purpose of all criminal justice. It replaced private, uncontrolled vengeance with a measured process of fixing guilt in each case and taking the power to punish out of the hands of those directly injured.”36 Shklar also emphasized the contribution of the Nuremberg proceedings to the reestablishment of the rule of law in Germany: “the Trial, by forcing defense lawyers to concentrate on the legality of both the entire Trial and its specific charges, induced the German legal profession to rediscover and publicly proclaim anew the value of the principle of legality in criminal law which for so many years had been forgotten and openly disdained.”37 Writing in 1964, her assessment

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was that, thanks in significant measure to the trial, “Western Germany is now, in short, a Rechtstaat.”38 A fourth reason for concluding that the Nuremberg trial was a permissible exercise of power over the defendants concerns the role of the trial in helping to create a rule of international criminal law. Even though the trial did depart from important standards of legality, as a practical matter, there was no other way to take the first step toward establishing an international rule of law that would protect persons from widespread or systematic violations of human rights.39 Of course, it was an entirely contingent, factual question as to whether the trial would turn out to be a first step or whether its promise in that regard would go unfulfilled. And it is true that for half a century, until the creation of international criminal courts to hear cases arising from the breakup of Yugoslavia and the genocide in Rwanda, Nuremberg did appear to be a dead end. However, the point is that the trial did have the potential to be a first step toward an international rule of law, and that potential was a strong reason for the trial, notwithstanding the trial’s inadequacies from the perspective of the principles of the rule of law. Despite her support for the Nuremberg trial, Shklar was quite critical of the idea that the trial might have been justified on the ground that it helped in the process of constructing a nascent international rule of criminal law that better protected human rights. She wrote, As for the notion that the Trial was part of a “primitive stage” in the ever progressing history of international criminal law. . . . [w]hat is astounding is that anyone should be able to discern a law of progress in operation in international criminal law right after a war which had seen . . . spectacular violations of every known legal and moral norm. At best, it is a testimony to legalistic optimism – and blindness to history.40

However, Shklar failed to adequately distinguish two positions. The first is that there is an “ever progressing history of international law,” a kind of steady march forward of international legality, and that Nuremberg was justified as part of that march. The second position does not accept the thesis that there is a steady march of progress, but nonetheless sees Nuremberg as justifiable because it had a significant potential to contribute to the admittedly contingent process of constructing an international system of criminal law that protects human rights. The first position is not credible, as she points out. The second is not only credible, it has been confirmed by recent history. From Shklar’s historical position in the 1960s, it was only the West German legal system that seemed to have been helped by the Nuremberg precedent. But the contingencies of history, most notably the end of the Cold War, paved the way for a delayed but powerful effect of Nuremberg on the development of an international criminal law more protective of human rights. The IMT


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judgment is often cited as precedent by the international criminal tribunals for the former Yugoslavia and Rwanda. In addition, it is unrealistic to think that there would have been such widespread support for (and so little international resistance to) those tribunals had they not been preceded by Nuremberg. Many critics of the trial did not contest the proposition that the defendants should have been punished. Rather, they objected to what they saw as the pretence and hypocrisy involved in using the forms of law to make it seem that the defendants were being tried before an impartial tribunal providing the traditional legal protections for the accused. The Italian philosopher and antifascist politician, Benedetto Croce, charged that the IMT and subsequent allied tribunals that tried lower-ranking persons from the Third Reich were “courts with no basis in law” and that their “illegitimate judges” were guilty of a serious “breach of morality.”41 Had the Allies resorted to summary execution, Croce contended, there would have been no ground for complaint against them, for there would have been no pretence of a fair and impartial treatment of the defeated enemy. There would simply have been transparent conformity to the time-honored practice of dealing with a defeated nation on the basis of what the victorious nation judges is in its own national interest. The Allies were in fact serving their own national interest, Croce believed, but they were being duplicitous about it. American jurist Charles Wyzanski voiced similar criticisms of the IMT. He condemned the way that the tribunal used the forms of law in what he regarded as an essentially political trial: “there is nothing more foreign to those [i.e. the Nuremberg] proceedings than either the presumption that the defendants are innocent until proved guilty or the doctrine that any adverse public comment on the defendants before the verdict is prejudicial to their receiving a fair trial. And that being so, they ought not to be tried in a court of law.” Wyzanski favored summary punishment by “executive determination” because “it confesses itself to be not legal justice but political.”42 The issues raised by the foregoing criticisms are complex, and we cannot examine them thoroughly here. We limit ourselves to two main points. First, it is difficult to see that the considerations adduced by Croce and Wyzanski are sufficient to show that the trial was impermissible. If the defendants had no right against summary punishment by executive determination, then it would seem that they also had no right against the trial. After all, even though Wyzanski is correct in claiming that many of the traditional legal protections for defendants did not apply, the men in the dock still enjoyed far more in the way of legal protection than they would have been afforded had they been subjected to summary punishment: they had lawyers; they could present a

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defense; the prosecution was required to present its case on the basis of the London Charter and to provide substantial evidence against the defendants; the proceedings were in public; there was the possibility of acquittal if the evidence presented by the prosecution was insufficient; and so on. Second, the question of whether summary punishment would have been better than the trial raises difficult counterfactual issues, among which is the key question of whether the trial in some material way promoted the development of an international rule of law that would help protect human rights. Wyzanski was quite right to say, “If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law.”43 However, we think that he was premature in his judgment that Nuremberg would come to be generally viewed as no more than a case of “victor’s justice” and so hinder the development of an international criminal law. Indeed, after the trial was completed, Wyzanski reassessed his criticisms and came to what we think is a sounder conclusion regarding its merits. He wrote that “the outstanding accomplishment of the trial which could never have been achieved by any more summary executive action, is that it has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement.”44 The crystallization of that concept is precisely what gave the Nuremberg trial the potential to be the first step in the creation of a rule of international criminal law. T H E I N T E R NAT I O NA L C R I M I NA L C O U RT A N D T H E P RO B L E M O F S E L E C T I V E P RO S E C U T I O N If we have argued correctly to this point, then the Nuremberg tribunal and the punishments that it imposed were permissible exercises of power by the Allies over the German defendants. As an illegitimate state, Germany had no right to block the trial, even though it tried Germans for crimes committed on German territory against persons who were not nationals of any Allied state. Moreover, even if the defendants were legally innocent of such crimes, the tribunal had sufficient justification for finding them guilty. Nonetheless, the justifiability of the Nuremberg tribunal and the punishments it handed out must not lead us to conclude, hastily, that there should be standing international courts to hear cases involving the core crimes of international law. The IMT was not a standing institution but only a one-off arrangement that was disbanded after the trial. And as we have seen in the previous chapters of this book, it would be premature to draw institutional conclusions from noninstitutional


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reasoning, that is, to draw conclusions about what international law and its institutions ought to be like from reasoning that abstracts from questions about how such international arrangements would operate under the empirical conditions that obtain in world affairs. Recall that in Chapter 2 we argued that there is no human right to democracy and yet acknowledged that it might nonetheless be best if international institutions treated democratic governance as something to which persons have a human right. And in Chapter 3, we argued that groups may have the right to secede even from legitimate states and yet conceded that it might not be wise, at this point in the development of international institutions, to recognize such a right under international law. Similarly, it may be that, while there is nothing in principle objectionable about a system of international criminal law, it would be wrong or otherwise misguided to try to create such a system in light of certain entrenched realities of international society. Since the end of the Cold War, international society has been pursuing the development of institutions for enforcing and applying the core norms of international criminal law. This experiment in international institutionbuilding has sought to retrieve and develop the animating idea behind the Nuremberg tribunal, namely, that international society should be governed by a rule of international criminal law that imposes individual liability, and so ends personal impunity, for such offenses as crimes against humanity and war crimes. The experiment began with the international tribunals established by the UN Security Council to prosecute and hear cases arising from the breakup of Yugoslavia and the genocide in Rwanda. But the most important part of the experiment is the establishment of the ICC, which began operations in 2004.45 As a consequence, there is one salient question: Should the ICC be supported or rejected? In our judgment, the court should be supported, and in this section, we will mount that defense. To begin, notice that our institutional assessment of international criminal law can be much less tentative than our institutional arguments in previous chapters. In those chapters, we were largely agnostic about the direction in which international law should go, but here we set aside our agnosticism. There are two underlying reasons why we do not find agnosticism in order when it comes to the ICC. First and most obviously, unlike the rights to secession and democracy, we need not imagine de novo different possible models of implementation because the ICC has already been established and operates on the basis of a detailed statute defining its jurisdiction, powers, and procedures. Accordingly, there is a particular institutional setup that can be examined and assessed, whereas international law currently does not have any processes or institutions for implementing a right to democracy or a right to secession. Second and equally important, while no one can be sure at this

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point what benefits, if any, the ICC will ultimately bring, it is safe to assume that this institution will not cause any substantial harms, even if it fails to accomplish it goals. In this respect, the situation is quite different from the one involving a right to secession. If the ICC experiment fails, international society will be back to the status quo ante, where would-be perpetrators of genocide, crimes against humanity, and war crimes can act with impunity, and human rights remain inadequately protected in much of the world. In contrast, a failed experiment in legally recognizing a right of secession is not likely to produce the status quo ante but rather could well generate armed conflict, ethnic cleansing, and other widespread or systematic abuses of human rights. The reason is that the experiment might encourage expectations among separatist groups, and a failed experiment might well lead to bitter disappointment and increased militancy among such groups. But what is the case for the ICC? The argument rests principally on the two traditional justifications for criminal punishment in a domestic context: desert and deterrence.46 Persons who commit core international crimes deserve to be punished for their wrongdoing, and their punishment can be reasonably expected to deter other, would-be perpetrators. The retributive and deterrent considerations that we examined in the previous section in connection with Nuremberg carry over directly to the ICC. In this section we examine deterrence in greater detail. Our claim is that it is reasonable to hope that the ICC will develop into an institution that effectively deters the crimes under its jurisdiction. There is, of course, no guarantee that the court will succeed in this regard. However, neither is there any good reason to abandon the court before it has shown what it can do. The prevention of such crimes is a morally urgent task on account of the widespread, systematic, and severe violations of human rights that they involve. Effective deterrence by means of international criminal law would be a substantial contribution to such prevention. It is true that, in theory, the ICC could be dispensed with, because the crimes under the court’s jurisdiction can be prosecuted, punished, and thereby deterred by the national courts of any state, under the principle of universal jurisdiction. However, national courts have proved themselves unequal to the task; as Leila Sadat writes, “[M]ost national legal systems are unable to address the problem of mass atrocities, committed either on their own territories or abroad, having neither the political will nor the capacity to do so.”47 The ICC might not be the last hope for effective deterrence, but it is the only hope on the horizon.48 That hope is a powerful reason to support the court. Nonetheless, even if the ICC turns out to be an effective deterrent, some critics have pointed to a potential problem that seems, at first glance, to trump considerations of deterrence and to show that the court should be rejected


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for powerful moral reasons. In its most general formulation, the problem is that the ICC will inevitably exhibit a strong political bias in the way it operates.49 More specifically, the problem is one of selective prosecution and punishment. The distribution of political, economic, and military power among the states of international society is so unequal that it is unrealistic to think that the court would prosecute and punish citizens from the more privileged and powerful states. Rather, the ICC will almost certainly restrict itself to the prosecution and punishment of persons from countries that are politically, economically, and militarily weak. And it goes without saying that this kind of systematic bias by the court would violate a principle of formal justice that requires like cases to be treated alike. It seems that it would be a gross injustice for the ICC to permit persons from one part of the world to enjoy impunity, while it goes after persons from another part of the world.50 Nonetheless, while everyone acknowledges that it is morally regrettable for potential defendants to be sorted according to morally arbitrary criteria such as the part of the world from which they come, philosophers are split on the permissibility of punishing defendants even in the presences of selective prosecution. Even though some believe that it is better to punish no one than to punish selectively, we endorse the alternative view that, at least in certain contexts, justice is best served by punishing some criminals, even if other, equally guilty, people are never prosecuted. To see the motivation behind this intuition, consider the enforcement of speed limits in a society where some drivers have radar detectors but others do not. The question arises: Should the authorities penalize speeding drivers, even if the only persons caught speeding are ones without detectors? Punishing drivers in such a situation would be a form of selective punishment. Yet, in our view, the authorities would be justified in penalizing speeders, even though it admittedly violates formal justice to punish only those who lack the radar detectors. Those speeders who are punished will understandably be upset that others are able to speed with impunity, but they cannot righteously object to being punished given that they were guilty of speeding and could have avoided punishment if only they had obeyed the limits. Here a critic might object that our analogy is inapt and that a better analogy would reveal a fatal flaw in our argument. In order to see the objection, suppose that radar detectors are legal but expensive and that every driver who could afford one purchased and used a detector. Imagine further that the only people too poor to afford detectors were blacks and that they were poor because of the legacy of past racial oppression. Under these circumstances, the law effectively boils down to different requirements for blacks and whites, and the enforcement of the law perpetuates and even exacerbates the legacy of past racial wrongs. The critic’s claim is that the practice of the ICC is very likely to

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turn out to be morally tantamount to the enforcement of the speeding laws in this scenario of racial injustice. In particular, the idea is that our argument for the ICC ignores the reality that the defendants prosecuted by the court will likely be drawn almost exclusively from Africa and other extremely poor states. If this idea is correct, the ICC will not lead to a true rule of international criminal law; rather, the court will be enforcing a system that perpetuates and exacerbates racial, political, and economic disadvantage. Such a situation seems pernicious, not only because of selective prosecution that is tilted against the constituents of weak and poor states, but also because those conditions are arguably a consequence of unjust past policies pursued by states whose leaders would enjoy impunity on account of their economic, political, and military power. So goes the objection, at any rate. In response, we think that the objection wrongly presumes that the ICC will always lack either the power or the will to prosecute core international crimes. It is true that the initial indictments and investigations of the court all do involve suspects from African states. Moreover, we acknowledge that it is far-fetched to think that any British, French, or American officials will be pursued in the foreseeable future, even if there were a colorable case that they had committed crimes under the court’s jurisdiction.51 However, it is not unreasonable to hope that at some point in the future an ICC operating with the bulk of global opinion behind it would be prepared to indict an official of a such a state, at least in an egregious case in which the evidence was strong. The state might, of course, exercise its influence to ensure that, as long as the official did not travel abroad, he or she would be safe from arrest, detention, and punishment. To that extent, the rule of law would be marred. On the other hand, the inability of the official to travel abroad without risking arrest would represent a partial vindication of the rule of law: the threat of arrest if leaving one’s own state is not an insignificant sanction.52 At the same time, it would be a mistake to ignore the real possibility that the ICC will become a forum before which appear only defendants from poor and weak states, even though the nationals of other states also stand accused of core international crimes. Let us assume, then, such a scenario. The question, then, is whether we would still endorse the ICC, even though its actual practice deviates so far from the ideals we envisioned earlier in this chapter? Our answer is “Yes.” We answer in the affirmative for two reasons. First, even though this is admittedly a very difficult case, it bears repeating that the ICC is not merely prosecuting citizens from poor countries for belonging to underprivileged states; it is pursuing only those who are guilty of human rights atrocities. Thus, while an African defendant might understandably be outraged that, for example, Europeans can act with impunity, she cannot righteously object that she is


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being punished merely for being an African. After all, she could have maintained her legal immunity if only she had refrained from violating the rights of others. What is more, while the analogy of black speeders may in many ways be an apt one, it is important to bear in mind that the ICC does not concern itself with such relatively trivial conduct. On the contrary, it pursues only those who are charged with the gravest of crimes. Thus, although we acknowledge that this is a case about which reasonable people can disagree, our sense is that it is not impermissible to punish any given African duly convicted of human rights atrocities, even if Europeans or North Americans who commit similarly atrocities enjoy effective immunity merely because they are citizens of powerful states. Second, it is important to recall that international criminal law is not solely about meting out retributive justice. Both in theory and in practice, international criminal law is a marriage between criminal justice and human rights activism. Its point is not merely to see that wrongdoers receive suitable punishment; it is also to help curtail the global climate of impunity and thereby to deter human rights atrocities. Indeed, the human rights activists who support the ICC are motivated by concerns analogous to those who stress the deterrent value of domestic legal systems. And from this perspective, selective punishment matters less because, unlike retributive justice, deterrence is a method whose value does not depend upon the fairness of its distribution. Accordingly, when we move from the retributive to the deterrent value of the ICC, the fact that Africans are selectively prosecuted and punished should provoke less consternation (as long as those punished have, in fact, committed the crimes in question). The reason is that, given the vulnerability of African societies to human rights abuses by their political leaders, effective deterrence would bring great benefits to the population of the continent as a whole, even if there were selective prosecution. It is important to notice, though, that a critic might concede the great deterrent value of the ICC and still reject it as impermissible in practice. This is because, as we acknowledged above, it would not be unreasonable for a retributivist to regard the selective prosecution of Africans and other citizens of poor countries as rendering the ICC simply unacceptable on account of its injustice. And if one adopts this stance, then one might regard the benefits of deterrence as tempting but morally irrelevant. The idea here is a familiar one: it is not permissible to resort to unjust means, even if one seeks to use these means to establish a more just world. Put in terms of exclusionary reasons, the moral reasons generated by deterrence that would otherwise count in favor of the ICC must be excluded because of the injustice of the selective prosecution. This is a very sophisticated objection. And while we are typically sympathetic to principled positions such as this, in this particular case we do not accept the argument.

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To appreciate our reaction, it is important not to lose sight of how utterly vulnerable so many Africans and other citizens of poor countries are to human rights atrocities at the hands of their own rulers. Of course, the ideal response would be to help such persons build secure domestic regimes which effectively protect their human rights. The obvious problem, however, is that no one has the knowledge, power, and/or will to do so. This is why it is important that international society does what it can to realize the available gains of a system of international criminal law. It is not merely that imperfect justice is better than no justice; it is also that human affairs, unfortunately, do not often permit unalloyed gains in the realm of justice but rather require that progress toward greater justice be secured through actions and policies that are, in significant ways, unjust. Thus, while it is generally true that one must not resort to injustice merely for the sake of expedience, it matters how unjust the instrument is and what alternatives are available. Selective prosecution is an injustice, but there can be contexts in which it is permissible. In our judgment, it is possible that an ICC that selectively prosecutes Africans should still be supported. The prevention of human rights atrocities, and the absence of feasible alternative institutions to realize that goal, could carry sufficient moral weight to override the injustice of selective prosecution. Without retreating from this conclusion, let us reiterate our earlier contention that it remains premature to reject the court now on the ground that it will inevitably engage in selective prosecution. For the ICC has not had the time to show whether it can avoid the problem. Moreover, because human life, with all its imperfections, unfolds in time, selective prosecution would be a sufficient ground for rejecting the ICC only if there were no mechanism of self-correction that enabled the court over time to overcome such biased prosecutions should it initially show itself to be a problem. It is simply unreasonable to demand that human institutions be fully just ab initio. The best one can expect is that their moral flaws not be great and that they have ways of working over time to remediate their flaws. In our view, one cannot reasonably expect full justice from the ICC, now or ever. But one can reasonably judge that its prospects for effectively deterring atrocities and meting out retributive justice are sufficiently good, and the prospects for developing feasible alternatives sufficiently bleak, and that the ICC is now worthy of support and will remain so for some time to come.

C O N C LU S I O N In this chapter, we have built upon the account of political self-determination introduced in Chapter 2 in order to defend a system of international criminal


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law as one important part of the effort to promote respect for human rights worldwide. Our theory of group self-determination dictates that every legitimate state is entitled to order and operate its own system of criminal law, but it also entails that if a state’s failure to perform its political functions has led to widespread or systematic violations of human rights on its territory, then there is nothing wrong in principle with the criminal prosecution of its officials or citizens before international bodies or the courts of other states. Moreover, we have argued that international society is justified in pursuing the experiment in international criminal tribunals that first began with Nuremberg in the aftermath of World War II and then was picked up, after lying dormant for a half century, in the years following the Cold War. Reasonable hopes for the success of the experiment now lie mainly with the ICC. The court might well prove unequal to the task (or, perhaps more accurately, international society might well prove unequal to the task of providing the court with what it needs to succeed), but the moral importance of human rights demands of the world’s states that they not abandon the task.

5 Armed Intervention and Political Assassination In the last chapter, we drew upon our theory of political self-determination to explain why illegitimate states cannot rightfully object if international parties criminally prosecute and punish their constituents. While this conclusion may not seem especially radical, many regard the analogous position on armed humanitarian intervention as unacceptable, judging that political illegitimacy does not open up a state to military intervention. And since our account of political self-determination clearly seems to imply that no illegitimate regime has a right against armed humanitarian intervention, our theory might be thought to generate implications that must be rejected. In this chapter, we explain that, while our theory of political self-determination does not commit us to licensing all armed interventions into illegitimate states, it does support a more permissive position than the prevailing view. We contend, however, that this support is a virtue rather than a defect of our account. What is more, we argue that, once one properly understands the morality of armed intervention, it becomes untenable to hold that political assassination is impermissible in principle. The chapter is divided into six main sections. In the first two sections, we explain the consensus view on armed intervention, criticize the two main arguments on its behalf, and outline our alternative account. Next we argue that our account provides a more adequate treatment of intervention in wars of independence than does the consensus. In the fourth section, we contend that the permissibility of armed intervention does not depend upon the consent of the intended beneficiaries. The fifth section explores what the rules of international law ought to be for regulating armed intervention. The sixth section then takes up the permissibility of assassinating those state leaders who egregiously violate human rights and examines whether international law ought ever to authorize assassination. A R M E D I N T E RV E N T I O N : T H E C O N S E N S U S The consensus view regarding the permissibility of armed intervention is reflected in the recent report of an international commission of scholars, jurists,

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and diplomats that was formed and funded by the government of Canada. The International Commission on Intervention and State Sovereignty (ICISS) wrote, “The starting point . . . should be the principle of non-intervention. This is the norm any departure from which has to be justified.” The commission proceeded to make it clear that “[t]ough threshold conditions should be satisfied before military intervention is contemplated.” For example, diplomatic and economic sanctions should have been tried and proved unavailing. However, the commission held that armed intervention could be justified for “certain kinds of emergencies.” In particular, “military intervention for human protection purposes is justified . . . in order to halt or avert large-scale loss of life . . . or large-scale ethnic cleansing.” These sorts of emergencies are “conscience-shocking cases,” typically involving mass murder, widespread rape, and the forcible expulsion of populations.1 Although the task of the ICISS was the essentially political one of articulating principles on which there could be broad agreement among state officials, philosophical discussions of armed intervention have generally proceeded within the normative framework endorsed by the commission. As Michael Blake writes, “[t]here is almost universal support for the thesis that governments ought to limit their interventions to those cases in which the abuses of human rights are most egregious.”2 It is important to note here both sides of Blake’s assertion: Only in the most egregious cases is intervention permissible, but it is permissible in such cases. What counts as “the most egregious?” Among the most prominent proponents of the consensus, Michael Walzer writes, “[h]umanitarian intervention is justified when it is a response (with reasonable expectations of success) to acts that ‘shock the conscience of mankind.’ ” In addition to genocide and enslavement such acts include “massacre and massive deportation” and their moral equivalents.3 If a government was tyrannical but stopped short of perpetrating such extreme abuses, then armed intervention would be impermissible. Taking a position similar to Walzer’s, Nicholas Wheeler has contended that forcible intervention can be justified but only if it is a response to a “supreme humanitarian emergency.” Elaborating on his view, Wheeler explains that it is important to distinguish between what we might call the ordinary routine abuse of human rights that tragically occurs on a daily basis and those extraordinary acts of killing and brutality that belong to the category of ‘crimes against humanity’. . . . Genocide is only the most obvious case but state-sponsored mass murder and mass population expulsions by force also come into this category.

He adds that “state breakdown” could also involve a supreme humanitarian emergency.4

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Terry Nardin’s account of when armed intervention is permissible is much the same. He contends that “only the gravest crimes can justify the high costs of military action.” Expanding on what the “gravest crimes” include, he asserts that “genocide is clearly above that threshold and ordinary oppression below it.” Moreover, “intervention must be aimed at halting current or preventing imminent violence, not removing an oppressive regime whose violence falls below the threshold.”5 As a final example, we can turn to the Director of Human Rights Watch, Kenneth Roth. In a report issued by his organization the year after the beginning of the war in Iraq, Roth writes that “as a threshold matter, humanitarian intervention that occurs without the consent of the relevant government can be justified only in the face of ongoing or imminent genocide, or comparable mass slaughter or loss of life.” He omits mass deportation and so might be in disagreement with Walzer and Wheeler on that score, although ethnic cleansing often involves large losses of life, and so their two positions might be equivalent in practice. Moreover, as with Nardin and Wheeler, Roth contends that “[o]ther forms of tyranny are deplorable . . . but they do not . . . rise to the level that would justify the extraordinary response of military force.”6 Among advocates of the consensus, one of the guiding ideas in applying their threshold of a “supreme humanitarian emergency” has been that, although there will be exceptional situations in which the threshold is met, the routine operation of virtually all de facto states as they currently function falls below the threshold.7 This position does not mean that the consensus view presumes that most states are legitimate, at least in the sense that legitimacy involves the right of a state to coerce its citizens. To the contrary, the idea is precisely that a state’s illegitimacy in that sense – its lack of a right against insiders – is not sufficient grounds for permissible intervention by outsiders. But, when the functioning of an illegitimate state so degenerates that genocide, ethnic cleansing, or some other “supreme humanitarian emergency” develops and the emergency can only be stopped by armed intervention, then such intervention becomes permissible. That is the consensus view at any rate. Some commentators contend that, although the existence of a supreme humanitarian emergency is a necessary condition for a permissible intervention, it is insufficient and that, in addition, the intervention must be authorized by the UN Security Council. On this view, such authorization would be required not merely to make the intervention legally permissible but morally permissible as well. Unilateral interventions and even those that are decided upon by regional organizations such as NATO are considered excessively prone to partiality. Whatever the cogency of this view, it is not part of the consensus. Walzer explicitly rejects the view, endorsing interventions that do not even have the


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approval of a multilateral organization, such as the Vietnamese intervention that overthrew the genocidal Cambodian regime of Pol Pot.8 The ICISS report argues that the possibility of legitimate interventions not authorized by the Security Council cannot be “entirely discounted” and that action by regional or subregional organizations might be warranted when the United Nations fails to act within a reasonable period of time. However, the ICISS is extremely vague about the conditions under which such organizations would have the legitimate authority to make a decision to intervene. Moreover, the ICISS expresses great concern that interventions unauthorized by the Security Council would be undertaken for impermissible reasons and/or have the effect of weakening the United Nations itself.9 The vagueness of the ICISS report on the question of interventions not authorized by the Security Council, and its apparent ambivalence about such interventions, reflect the absence of consensus on the question of authority. This absence is not surprising given the relatively early stage of the current debates over humanitarian intervention, a debate which began in earnest only with the fall of the Soviet Union. Although it is true that there were debates over intervention decades and even centuries ago, those earlier debates took place in a vastly different institutional context. And the issue of authority raises complex questions of institutional design and feasible institutional options: Does the Security Council need to be reformed? If so, how? Are any feasible reforms likely to be adequate? What alternative institutions might be better than even a reformed Security Council? And so on. The foregoing institutional questions involve important empirical issues regarding how institutions operate, and, in this chapter, we do not propose any answers to such empirically-laden questions. On the other hand, the institutional questions are not entirely empirical, and it is unlikely that satisfactory answers will be forthcoming unless the debate over them is guided by an adequate account of the substantive ethical standard that dictates when an intervention is morally permissible. The best institutional arrangements for authorizing forcible humanitarian interventions are those arrangements, from among the feasible ones, that would be most reliable in tracking the requirements of the correct ethical standard. In the next section, we argue that the consensus view does not provide an adequate account of that standard.

M OV I N G B EYO N D T H E C O N S E N S U S In this section, we examine two main arguments for the consensus view of armed intervention. The first invokes a state’s right to sovereign control over its internal affairs, and the second revolves around the claim that armed interventions

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invariably kill, maim, and otherwise do serious harm to individuals who have not done anything to make themselves liable to attack. Consider each in turn. The first and most obvious argument in favor of the consensus stems from the value of state sovereignty.10 The familiar idea here is that intervention violates a state’s right to order its own internal affairs free from external interference. A state can forfeit its claim to self-determination if it engages in or otherwise permits the most egregious abuses of human rights, but otherwise it enjoys a morally privileged position of dominion over its selfregarding affairs, and outsiders have a corresponding duty not to intervene. Thus, in arguing for the demanding standard of a supreme humanitarian emergency, Vaughn Lowe asserts that very strong prohibitions on the interstate use of force “are essential to the maintenance of the sovereignty and independence of States. Without them [i.e., strong prohibitions], the right of each State to choose its political, economic and cultural systems could not be maintained.”11 We agree that countries can be entitled to political self-determination, but we deny that states retain this right as long as they steer clear of a supreme humanitarian emergency. We suggest, instead, that the same threshold that determines when a state has the right to rule insiders (“internal legitimacy”) also determines when a state has a right against interference by outsiders (“external legitimacy”). And, as even proponents of the consensus recognize, a state can lack a right to coerce insiders when it has a very poor human rights record, even though no supreme humanitarian emergency exists within its jurisdiction. (Countries such as Saudi Arabia and China may be good examples.) But is there any good reason to think that there is one and the same threshold for both internal and external legitimacy? We think that there is. The protection of the human rights of its members is the key moral task that grounds the right of a state to coerce its members: the task is both urgent and cannot be adequately accomplished in any way other than the establishment of a coercive political authority that rules over a fixed territory. It is this same task that grounds a state’s right against outside intervention: the demand that outsiders refrain from intervention is valid only if a state is adequately protecting the rights of its members. Should a state fail in the performance of that task, it has no moral standing to stop an outside party from intervening in order to help rectify the state’s failure. We are not claiming that it would be automatically permissible to intervene in the affairs of all countries lacking in internal legitimacy. Nor are we suggesting that the lack of internal legitimacy means that other states are morally at liberty to intervene in any and every aspect of a state’s rule over its members. Rather, the claim is that, if there are sound moral reasons to avoid violent intervention in the affairs of internally illegitimate countries that are


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not suffering from a supreme humanitarian emergency, then those reasons do not stem from any right that these countries have against interventions aimed at stopping human rights violations. The second argument in defense of the consensus objects to military interventions, not because they disrespect the sovereignty of illegitimate states, but because virtually all such interventions foreseeably kill or maim noncombatants who have done nothing to make it morally permissible to harm them in such ways. Thus, Bagaric and Morss write, “The first difficulty of humanitarian intervention stems from the inherent contradiction in using force in order to protect rights. Force invariably results in the killing of people, and hence violates what might be thought of as the most fundamental right of all – the right to life itself.”12 Yet, the argument continues, the rights of these noncombatants, though very strong, are not absolute. If there is no other way to rescue far greater numbers of persons from death or grave bodily harm, then armed intervention might be permissible as a grim moral necessity. But only in circumstances so dire that a supreme humanitarian emergency exists is intervention morally permitted. So goes the argument. One might seek to rebut this line of argument by claiming that noncombatants who are killed or maimed by an intervention have their rights violated only if they are deliberately targeted for attack. One could proceed to argue that such targeting does not necessarily occur in every armed intervention and so constitutes a tenuous ground on which to conclude that only the grim moral necessity of stopping a supreme humanitarian emergency makes intervention permissible. However, such a rebuttal ignores an important point. An individual’s right to security can be violated not simply by actions that deliberately kill her or otherwise do serious bodily harm; actions that impose unreasonable risks on an individual also violate her human rights. Suppose that Jack and Jill are combatants, but Jim is not. Jack drops a bomb in Jim’s neighborhood in an effort to kill Jill. There is a 99 percent chance that the bomb will kill Jim, even though Jack is not trying to kill Jim and would be happy to learn that Jim had escaped any harm. Even if Jim does manage to escape harm, Jack has violated his right to security, unless he has consented to the risk involved in Jack’s dropping the bomb. In the absence of such consent, Jack has imposed an unreasonable risk on Jim and thereby violated his security right. Accordingly, this second argument in favor of the consensus view need not assume that the use of military force necessarily involves the deliberate targeting of individuals who are not morally liable to attack. Rather, it requires only the more plausible premise that the use of such force imposes an unreasonable risk on individuals who are not morally liable to attack. Nonetheless, there is reason to doubt that the argument succeeds.

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Consider the use of military force after the first Gulf War to create a safe haven and no-fly zone in northern Iraq. The zone was established and enforced by the allied troops in order to protect the Kurdish population. Its establishment constituted an armed intervention into Iraqi territory and was protested by the government. Still, the actual use of armed force was quite modest, mainly threatening Iraq’s radar sites that sought to track the planes patrolling the no-fly zone. An even more modest use of force can be found in the US intervention in Haiti in 1994 to depose a military regime that had overthrown the democratically-elected government led by Jean-Bertrand Aristede. After peaceful negotiations and then an economic embargo failed to return Aristede to power, the United Nations authorized member states to use “all necessary means” to depose the military regime and reestablish the rule of Haiti’s legitimate government.13 President Clinton publicly threatened an invasion and sent the US fleet toward the island. As the invasion force approached, a deal was brokered by former President Carter in which the Haitian military agreed to relinquish power. A US-led Multinational Force arrived in Haiti, establishing relative security with only minimal resistance before turning its operations over to a UN mission.14 The second argument for the consensus would be more cogent if all armed interventions employed military force on the order of magnitude found in a full-scale war, because such war tends to impose unreasonable risks. As the cases of Haiti and the safe haven in northern Iraq show, however, interventions can involve risks and costs far lower than those of total war. And it seems problematic to suppose that the same level of grim moral necessity would be required to make any armed intervention permissible, whether the intervention involved the great costs of full-scale war or the much more limited costs of the northern Iraqi no-fly zone or the US deployment of forces in Haiti. It is unclear why armed interventions on the relatively modest scale used in Haiti or northern Iraq would need to meet the standard of preventing a supreme humanitarian emergency in order for them to be permissible. Thus, the second argument seems insufficiently responsive to the vastly different scales on which military force is used in different interventions. One might reply that use of military force may start out modestly but that there is the ever-present danger of escalation into full-scale war. There does seem to be much truth, after all, in Iris Young’s assertion that “[v]iolent acts tend to produce violent responses in an escalating spiral. Too often, generals and politicians arrogantly assume that they can control the violent consequences of their own violent actions.”15 However, there are many cases in which the modest use of military force had very little prospect of producing an escalating and uncontrollable spiral of reciprocal violence, cases in which


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it was clear from the outset that a modest use of force could accomplish the goal in question. This was true of the no-fly zone in northern Iraq: it was wholly unsurprising that Iraq made no serious effort to fight against the allied patrols. One might insist, though, that it is not possible to foresee whether an initially modest deployment of force will do the job and not require escalation. The increase of US forces in Vietnam from a handful of advisors to half a million personnel testifies to the difficulties of determining such matters. However, there was a time well before the troop escalation reached into the hundreds of thousands when it was reasonably foreseeable that the US government could not achieve its goal of stabilizing and normalizing the south Vietnamese regime. This is one of the reasons why the continued prosecution of the war was so seriously culpable. It should also be noted that in many cases the parties who need to be stopped are nothing like the Vietnamese, who were highly motivated and disciplined fighters, seeking to rid their country of foreign domination. Many of the worst human rights abusers in recent years have been undisciplined forces mainly interested in what they can gain personally by joining in the atrocities. When confronted with substantial firepower, such abusers are not likely to put up the kind of resistance that would lead to an escalating cycle of violence. For instance, whatever else might have been said against armed intervention in Darfur, once the specter of genocide became apparent, one could not have plausibly invoked the possibility that the responsible parties in the Sudanese military and their Janjaweed accomplices would put up resistance so fierce and determined that full-scale, Vietnam-type war would have resulted. They simply did not have that much at stake in pursuing the genocide. If our analysis is right, then neither of the two standard defenses of the consensus is sound. More positively, though, the problems we have examined point toward a more adequate normative account of armed intervention. Corresponding to the two main arguments on behalf of the consensus, this account would be two-pronged. First, such an account would have an “illegitimacy threshold”: Armed intervention is permissible only if the target state lacks legitimacy because it fails to adequately protect human rights. If the target state does an adequate job of protecting human rights, then intervention is ruled out as a matter of principle based upon the state’s right to selfdetermination, and the potential benefits to be gained from armed intervention should be disregarded as beside the point. If the target state is illegitimate, on the other hand, then one must consider a second condition which involves a proportionality principle: Subject to certain conditions, an armed intervention is permissible if the risk to the safety and security of noncombatants is not disproportionate to the rights violations that one can reasonably expect

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to avert.16 The conditions include standard just war requirements – last resort, no targeting of noncombatants, reasonable chance of success, undertaken with the aim of correcting the injustice – as well as the illegitimacy threshold.17 Our suggestion, then, is that the consensus view fails to provide a sound moral principle for judging the acceptability of armed interventions and should be replaced with the position that intervention is permissible in case (a) the target state is illegitimate, and (b) the risk to the safety and security of noncombatants is not disproportionate to the rights violations that one can reasonably expect to avert. Assuming that an intervention is appropriately targeted at combatants and military targets and that the only reasonable chance for successfully preventing (or stopping) human rights abuses within the target state is through armed intervention, then we should conclude that the intervention is permissible as long as it meets the above two conditions. In the next section, we buttress our two-pronged account by considering wars of political independence.

WA R S O F I N D E PE N D E N C E One of the most important aspects of world history in the twentieth century was the decolonization movement. In particular, many indigenous groups fought with the force of arms for political independence from their colonial oppressors. In this section, we argue that our two-pronged account is superior to the consensus view in addressing questions about armed intervention in the context of such struggles. Suppose that sometime in the past an imperialist state, IMPERIUM, forcibly took control of a territory on which a certain group, COLONIZED, lived. Decades passed. IMPERIUM treated COLONIZED in a way typical of imperial states: it systematically and harshly exploited the labor and resources of COLONIZED, and it deployed violence to squelch any aspirations the COLONIZED might have had of regaining their independence. But as imperial states go, IMPERIUM was far from the worst, and no supreme humanitarian emergency existed among the COLONIZED. Still, as things now stand, the vast majority of the members of COLONIZED fervently desire to expel IMPERIUM and reestablish a politically independent state. They are willing and able to create and maintain a legitimate state. Do they have a right to use armed force against IMPERIUM? We think that the COLONIZED are morally permitted to use proportional and appropriately targeted armed force against IMPERIUM, on the condition


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that there is a reasonable prospect of success and no reasonable prospect for a peaceful route to political independence. From the time that the COLONIZED were able and willing to form a legitimate state of their own, IMPERIUM’S refusal to permit them political independence was the moral equivalent of an act of aggression forcibly annexing a legitimate state. Legitimate states have a moral right to use force in self-defense to vindicate their right to selfdetermination,18 and the right does not disappear just because the aggressor is successful in imposing its will. As Jeff McMahan writes, “Successful aggressors remain liable to attack as long as they retain the spoils of their wrongful aggression.”19 Similarly, IMPERIUM remains liable to attack as long as it is forcibly depriving the COLONIZED of their right of self-determination. Suppose, then, that the COLONIZED revolt against IMPERIUM’s rule, starting a war of independence. IMPERIUM is a daunting foe and so the COLONIZED ask for help. Can an outside state, HELPER, permissibly use armed force against IMPERIUM in intervening on the side of the COLONIZED? Our answer is “Yes.” IMPERIUM’s rule over COLONIZED is illegitimate, and so IMPERIUM has no right against HELPER’S intervention on behalf of COLONIZED. Thus, the first prong of our two-pronged test for permissible intervention is met. The second prong requires that the risk to the safety and security of noncombatants that arises from HELPER’s intervention not be disproportionate to the rights violations that the intervention helps avert. There is no reason to suppose that in wars of political independence this second condition cannot be met, and if it is in HELPER’s case, then the two-pronged account entails that intervention is permissible even if there is no supreme humanitarian emergency among COLONIZED. In order to help confirm the two-pronged analysis of wars of independence, consider a hypothetical case involving individuals. Imagine that Jack invades Jim’s home and keeps him prisoner there. Jim’s life is not endangered, but Jack keeps him confined to the basement without means of communication to the outside world and subjects Jim to physical beatings. The police have been bribed by Jack or are otherwise not in position to intervene. But Jim is finally able to get a cell phone and send a text message to Jill. Jill comes to Jim’s aid, finds it necessary to fight off Jack, and with the help of Jim, succeeds in overpowering Jack, who goes down fighting to his death. Jill and Jim acted permissibly in attacking and killing Jack. Jack not only lacked a right against Jill’s intervention on behalf of Jim, his aggression had rendered him liable to attack by Jim and Jill. Morally, the situation among IMPERIUM, COLONIZED, and HELPER is analogous. IMPERIUM’s aggression meant that it had no right against HELPER’s intervention on behalf of COLONIZED and rendered it liable to attack by COLONIZED and HELPER.

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One might reply that the consensus view can be adjusted to incorporate an exception to the supreme-emergency threshold that would permit armed intervention in cases of wars of independence. However, such an exception appears inconsistent with the second of the two arguments made in favor of the consensus. If, arguendo, the violence of war and the casualties it brings are morally so bad that armed intervention is permissible only if needed to bring an end to a situation so egregious that it counts as a supreme humanitarian emergency, then HELPER’s armed intervention against IMPERIUM is not permissible. But that is an implausible conclusion. Walzer defends the consensus, relying mainly on the first of the two arguments standardly presented for it, the argument from the high value of political self-determination. At first glance, his treatment of wars of independence appears to support our judgment that HELPER’S aid to COLONIZED is permissible, while still recognizing a very strong presumption against intervention. He distinguishes between cases in which a people struggles to throw off the yoke of a tyrant from cases in which “a particular set of boundaries clearly contains two or more political communities, one of which is already engaged in a large-scale military struggle for independence.”20 Walzer’s central contention is that military assistance to a tyrannized people (a case of the first kind) is impermissible intervention but that nothing is automatically wrong with assistance to a political community engaged in a military struggle for its independence from another community (a case of the second kind). Invoking the ideas of John Stuart Mill, he writes, “Self-determination . . . is the right of people ‘to become free by their own efforts’ if they can, and nonintervention is the principle guaranteeing that their success will not be impeded or their failure prevented by the intrusions of an alien power.” Walzer endorses Mill’s “stern doctrine of self-help,” according to which “people who have had the ‘misfortune’ to be ruled by a tyrannical government” must become free without outside assistance.21 In contrast, if there are two distinct societies occupying the same territory, with one of them fighting for independence from the other, then, on Walzer’s view, it is permissible for outside forces to aid the society seeking political independence. The hypothetical case of COLONIZED would appear to be quite analogous to cases of this latter sort, and so external armed support for COLONIZED would be permitted. At the same time, Mill’s stern doctrine helps to ensure that intervention is permissible only in the most exceptional of circumstances. Walzer’s position seems problematic. There is no intrinsically significant moral difference between a people who want to rule themselves but are oppressed by a tyrant and a people who want to rule themselves but are oppressed by the agents of another political community.22 Walzer’s view is to preach the stern doctrine of self-help to the people in the former case but to


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allow external help to people in the latter case. The high value that he places on political self-determination does not dissolve the difficulty. The suffocation of self-determination by a local tyrant rather than by an external state is still an affront to a people’s right of self-determination. Their right to become free by their own efforts is a claim–right against anyone coercively interfering in their efforts to create a legitimate state. Walzer would reduce the claim– right to a mere liberty in relation to some local thug, although it would still be a claim–right against another people. But, if political self-determination is as valuable as Walzer insists, then it is difficult to see the moral logic in his view. Walzer might presume that in a society oppressed by a local tyrant the people themselves need to build the political institutions essential for realizing their self-determination and so might conclude that such institutions can only be created through an internal struggle that does not rely on outside intervention. By contrast, he might say, in the case of a society where there has already been external intervention in the form of conquest by an imperial power, counter-intervention to rid the society of that power is justifiable in order to permit the society to return to the status quo ante when it was able to exercise its own powers of self-determination. In response, we do not question that there is considerable empirical truth in the Millian–Walzerian idea that a people learn much about building and sustaining suitable political institutions through its own struggle against a local tyrant. However, it is unclear to us that an exclusively internal struggle is the only way to build and sustain suitable institutions when a society is controlled by a local despot or that external assistance and internal struggle are mutually exclusive.23 It seems sensible to think that there is a right way and a wrong way for an external power to assist a society seeking to throw off the yoke of a local tyrant, just as there is a right and a wrong way for an external power to assist a society seeking to throw off the yoke of an imperial power. In both sorts of cases, justifiable forms of intervention must take careful account of the existing capacity of a society to build – or rebuild – legitimate political institutions. Accordingly, there does not seem to be any difference of principle between intervention to help a colonized society and intervention to help a society oppressed by a local tyrant.

THE CONSENT OF THE RESCUED Although the issue addressed in this section has not received as much attention in the literature as questions concerning how severe human rights violations

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must be for intervention to be permissible, those thinkers who have addressed it generally agree that an intervention is not morally permissible unless the intended beneficiaries consent to their rescue. Agreement on this point is independent of whether a thinker also accepts the requirement of a supreme humanitarian emergency. Fernando Tesón contends that “[t]he victims must welcome the intervention.”24 Jeff McMahan essentially concurs, writing that intervention “must either be requested, or there must be at least compelling evidence that the intended beneficiaries would welcome rather than oppose intervention by the particular intervening agent or agents.”25 And Richard Miller writes, “outsiders ought to have warranted confidence that the vast majority of the intended beneficiaries of the intervention consent to the risks on the basis of adequate information.”26 As a matter of strategy, it unquestionably helps if the intervention is welcomed. As the war in Iraq illustrates, it is not only important that the intended beneficiaries desire outside help, it can also be strategically crucial that they want it from the particular party intervening. But those who insist that outsiders should have the consent of the beneficiaries are invoking a moral principle, not merely making a point about military strategy. The claim being advanced is that, even if the outsiders can successfully intervene and have impeccable intentions, it would be wrong as a matter of principle for them to forcibly meddle in another country’s affairs unless they had good reason to believe that at least a majority of the intended beneficiaries consent to this intervention. Although this claim may appear so obvious as to require no comment, we would like to highlight two points. First, it is important to notice that one is in no position to insist on this additional requirement unless one adopts something like the account of group self-determination we defend in this book. Second, even those who believe in the deontological value of group selfdetermination may not be able to insist that the group’s will is relevant in the circumstances which must obtain for armed intervention to be permissible. Consider each of these points in turn. The claim that the beneficiaries must consent to the intervention refers to the victims of oppression, not the population as a whole. No one would think that armed intervention into an apartheid regime would be impermissible if the oppressive racial majority outvoted the oppressed minority. The oppressed group must consent. It is clear, though, that this requirement cannot mean that each and every member of the group must consent, for then no intervention would ever be permissible. Instead, the group as a whole must decide, based on some decision criterion that does not demand unanimity. But that is just to say that the oppressed group is entitled to order its own affairs, even if there are dissenters from its decisions within the group.27 Accordingly, the


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requirement of consent is a straightforward instantiation of something like the right to group self-determination, for which we have argued in this book. It is important to recognize, however, that the entailment relation runs in only one direction: While this requirement implicitly presumes that there are deontological reasons to respect a group’s dominion over its own affairs, it is not true that our position on group autonomy commits us to this additional requirement. This is so for two reasons. First, we have argued only that those groups which are able and willing to perform the requisite political functions are entitled to be politically self-determining. And since there is no reason to suppose that any given group of victims will have the required political capabilities our thesis does not entail the consent requirement. (If the slaves distributed throughout the antebellum South lacked the capacity to govern themselves, for instance, then they would not, in our view, be entitled to political self-determination until such a capacity was developed.) Thus, while being a victim of grave injustice presumably entitles one to some sort of special consideration, it in and of itself does not qualify a group for a right to autonomy. A second reason for our reservations about the proposal endorsed by McMahan et al. is that, even if one could somehow extend our account to show that victims of injustice are always entitled to collective self-determination, it is not clear that groups are entitled to this type of sovereignty in cases where humanitarian intervention would otherwise be permissible. To see this, recall that armed intervention is not permissible unless: (a) there are sufficiently severe violations of human rights, and (b) there are no unreasonable risks imposed on nonconsenting parties.28 What theorists such as McMahan, Miller, and Tesón essentially propose is that a third requirement be added: (c) A majority (perhaps a supermajority) of the intended beneficiaries consents to the intervention. But note that if one requires, beyond the first two conditions, that a majority of the victims welcome the intervention, then one thereby empowers the group’s majority – whenever they so choose – to force the minority to remain in a position where their human rights are vulnerable to violation. It seems dubious to hold that a group has this type of normative dominion over its members. To put this last point in more concrete terms, no one would claim that a majority is entitled to democratically vote to enslave a portion of the population. And if a group’s majority is not entitled to enslave a minority, then it is unclear why the majority in an oppressed group would have the moral standing to block the only effective and reasonable means the group has of avoiding grave oppression. Imagine, for instance, that the American Confederacy had successfully seceded and continued its legal institution of slavery. Suppose further that the independent North was contemplating an armed intervention

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that would eradicate slavery without imposing unreasonable risks on anyone and that such intervention was the only way to abolish slavery without such risks. According to the logic of requirement (c), this intervention would have been permissible only if a majority of the slaves welcomed the North’s intervention. But it seems problematic to say that the majority in the Confederacy is not at liberty to employ a wicked institution such as slavery while also maintaining that a majority of slaves is morally permitted to deny the minority its only reasonable chance to escape their slavery. This point about the limits of the normative power of the majority can be illustrated with a more homespun example. Imagine that your alcoholic neighbor is wielding a pistol and mercilessly beating his five children (all of whom are at least eighteen years old). Just before you burst in to stop the abuse, however, you notice that three of the children are clearly imploring you to stay away, while the other two are begging you to help. Are you required to defer to the wishes of the majority in this case, or does the severity of the abuse justify your barging in against the will of the majority of the victims? In our view, the samaritan rescue is unquestionably permissible, as long as the prospects for success are sufficiently good. And notice: Our key point here is not that the preferences of the minority are important; it is that human rights violations are sufficiently important to trump the preferences of the majority. Thus, while there are morally relevant differences between a majority voting to enslave a minority and a majority of slaves voting to reject armed intervention, it does seem that in both cases a proper regard for the human rights of members places constraints on the scope of a group’s right to self-determination. If this analysis is right, then in all cases in which our two conditions are satisfied, there is no normative room left for a group to be self-determining. Along these lines, notice that if the intervention were too risky, then the intended beneficiaries would be entitled to reject it, but the group’s self-determination would do no moral work here because the intervention would have already been ruled impermissible for having failed to satisfy the second condition (no unreasonable risks may be imposed upon nonconsenting parties). Similarly, the victims might be entitled to reject an armed intervention if the abuse to which they were subjected was not sufficiently grave, but the group’s decision is normatively impotent here as well because the intervention would in this case be prohibited for failing to satisfy the first condition (there must be sufficiently severe violations of basic human rights). We do not deny that if a majority of intended beneficiaries does not welcome an intervention, then that fact is potentially relevant to a well-grounded decision about whether an intervention is permissible. But its relevance is indirect and epistemic: It might provide reason to think that the risks of a


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military intervention are unreasonably great. After all, the intended beneficiaries are on the ground and possess an intimate knowledge of local conditions. They might be in good position to make a judgment about the risks, and majority opposition to an intervention could well reflect the judgment that the risks of intervention to them are unreasonably high. But notice that the majority’s judgment is not a criterion of permissible intervention; rather, it is evidence of whether a key criterion – the proportionality principle – is met. And the majority’s judgment in this regard can be mistaken: the minority who favor intervention might be correct in thinking that the risks are not excessive. We can conclude this discussion by putting the preceding points in terms of our imaginary example of an independent North contemplating armed intervention to rescue the oppressed blacks in the newly sovereign Confederacy. If the blacks were enslaved, and if the North could effectively eliminate the institution of slavery without imposing unreasonable risks upon those who were enslaved, then even the preference of the majority of slaves not to be rescued would not render the North’s invasion impermissible, because the slaves as a group do not have the collective right to reject a military operation to free all of them. If the North’s proposed invasion were to impose unacceptable risks upon the slaves, on the other hand, then the intervention would be impermissible. But in that case the intervention would be straightforwardly prohibited by the second condition in our two-pronged account. No moral work would remain to be done by the consent requirement. Accordingly, we conclude that the proposed consent requirement should be rejected and that considerations related to group consent provide no reason to supplement our two-pronged account of armed intervention.

INTERNATIONAL LAW Thus far, we have been concerned with the question, “What are the moral principles that apply to armed interventions by states seeking to prevent or stop human rights abuses in other states?” Now we turn to a related but distinct question: “What should the rules of international law be for regulating armed intervention.”29 As we have seen in previous chapters, it is altogether possible that the legal rules that ought to exist for regulating interventions would be quite different from the moral principles, since sound principles of morality may need to be simplified or modified in other ways as they are translated into legal rules for regulating international actors. With this in mind, let us now consider what the international law should say about armed humanitarian intervention.

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The arguments offered to this point create a certain kind of presumptive case for incorporating the two-pronged approach into international law. In particular, the arguments provide a good (but certainly defeasible) reason for doing so, namely, that the two norms embodied in the approach reflect a more adequate account than its chief competitor of what moral demands and permissions flow from the requirement to respect human rights. This reason is a priori in the sense that the arguments establishing it abstract from all empirical considerations regarding how institutions in fact operate. The abstraction isolates one kind of good practical reason. Thus, if one knew nothing else but that moral principles permit intervention in cases of type A, B, and C, and one had to decide whether to have a rule of international law that permitted intervention in those sorts of cases, then one would have a reason to choose such a rule. This presumptive case for having legal rules that directly reflect the twopronged approach is, however, potentially vulnerable to a number of counterarguments. Persons sympathetic to the consensus view might mount some of these counterarguments in order to show that, even if their view does not capture the “deep morality” of humanitarian invention, it does capture what the legal rules regarding intervention should be.30 Such counterarguments suggest that it would be better for international law to require a supreme humanitarian emergency as a condition of permissible intervention than for it to incorporate our two principles of legitimacy and proportionality. First, consider the potential for abuse if our relatively permissive approach were translated into international law. The last century alone was littered with cases of aggressive wars waged under the banner of humanitarian intervention. Indeed, even when Nazi Germany invaded Poland in 1939, Hitler alleged that he was merely acting to protect the rights of the minority Germans in Poland. And given the lamentable tendency of leaders to publicly justify their aggression as selfless rescues, it would seem to be a mistake to translate directly into law an approach as permissive as our two-pronged one. After all, bellicose leaders and states might well become more emboldened if they needed only to allege that their armed incursions are against an illegitimate state and likely to have a net positive effect in terms of human rights. Second, beyond worries about malicious leaders abusing the rules, there are important concerns about the extent to which conscientious leaders might misuse them, and, here again, it seems that our two principles of legitimacy and proportionality would be excessively permissive as legal norms. Thus, consider our proportionality principle: Subject to certain conditions, an armed intervention is permissible if the risk to rights is not disproportionate to the human rights violations that one can reasonably expect to avert. Even if one agrees with us that this is a sound principle for the direct moral evaluation of


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cases of intervention, it seems much less likely to be correctly understood and consistently applied than the requirement of a supreme humanitarian emergency. The reason is that the supreme emergency requirement has only one fuzzy borderline, namely, the line between that which does and that which does not count as such an emergency, and all one needs to ask is whether the proposed intervention is above or below that borderline. Significantly, it is irrelevant how far above or below the intervention is. The proportionality principle, on the other hand, has a potentially infinite set of borderlines. And for any given case, one must answer the difficult question of whether the level of risk imposed is out of line with the expected human rights gain. Accordingly, transposing the principle directly into international law would risk creating situations in which well-intentioned but misguided leaders embarked on tragically counterproductive missions to help foreigners. The foregoing arguments based on the potential for abuse and misuse present substantial considerations against directly incorporating our twin principles of legitimacy and proportionality into international law. Nonetheless, they do not amount to a decisive case in favor of putting the consensus standard of a supreme emergency into the law. First, note that the considerations argue at least as strongly in favor of an absolute legal prohibition on humanitarian intervention as they do for a rule that permits interventions only in cases of a supreme humanitarian emergency. An absolute ban would seem to be less vague than a supreme-emergency rule and, to that extent, less prone to abuse or misuse. Thus, Simon Chesterman argues in favor of an absolute ban, claiming that any departure from “the cardinal principle of the prohibition of the use of force to intervene” would seem “likely to increase the number of interventions taken in bad faith.”31 And Nico Krisch, who is also sympathetic to an absolute ban, highlights the fact that “the history of humanitarian interventions is one of abuse.”32 Moreover, one could add that, in contrast to an absolute ban, a supreme-emergency standard introduces the likelihood of well-intentioned but “mistaken” interventions, that is, interventions that rest on the mistaken belief that the conditions in question constitute a supreme humanitarian emergency. Accordingly, a concern with abuse and misuse might well lead one to agree with Krisch that “the establishment of an institutional system to preserve peace and to delimit the rights of its subjects (even if still deficient) outweighs that need for a right to humanitarian intervention, even on moral grounds.”33 Advocates of incorporating the consensus standard of a supreme emergency into international law could respond by pointing to some gaps in the absolutist arguments. First, even conceding an increased risk of abuse and misuse by legally allowing some interventions, it is still possible that such an increased risk would be more than outweighed by an even greater increase

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in rights protected or rights violations averted. What is more, it is plausible to think that some governments would be deterred from permitting massive atrocities within their jurisdiction by the possibility of a legally authorized intervention and that there would be more overall deterrence by a system of international law that authorized interventions than in one that absolutely prohibited them. Third, world leaders have been increasingly mindful of international legal rules as international criminal law continues to emerge. In the past, leaders had lamentably little personal incentive to refrain from committing legally prohibited acts of aggression. As more and more rulers are subjected to international criminal prosecution and punishment, however, it is not unreasonable to expect future leaders to be ever more attentive to, and respectful of, international law regarding humanitarian intervention. The foregoing replies to the absolutist position are, we think, sufficient to show that the absolutist has considerably more work to do before the case against legalizing humanitarian intervention can be clinched. But they reveal that the case for putting the consensus standard into the law is also far from decisive. The responses involve empirical suppositions that are, in the present state of knowledge, no better than partially-informed guesses. It might not be unreasonable to speculate that legalizing intervention will deter some leaders from pursuing policies that involve widespread human rights violations. But it is speculation. And one could equally well speculate that any such deterrence will be insignificant or, at least, insufficiently robust to counterbalance the abuse and misuse. Moreover, the replies to the absolutist position do not by themselves argue for a supreme emergency standard over the two principles that we have proposed. After all, one could also speculate that human rights would be better served, overall, by our two principles than by the consensus standard. We are not prepared to say that such speculation should dictate decisions about international law, but the same seems true regarding the speculation that would support the absolutist or the consensus positions.34 Further reinforcing our agnosticism regarding international law is the complex interplay between the question of what the legal rules of intervention should be and the issue of which institution should have the authority to license interventions. The answer to the former question is a function, in part, of what institutional capacity exists, or could be created, to operate as the authority. In this respect, we follow Allen Buchanan, who has argued, in the context of just war theory, “Not just alternative norms but also alternative combinations of norms and institutions need to be evaluated.”35 For example, existing international institutions might be bad candidates to apply our proportionality principle because they are driven too much by national geopolitical interests. Yet, it could be the case that newly-created institutions would have


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the capacity to apply the principle in a reasonable and evenhanded manner. As Buchanan writes of norms governing the use of force in international affairs, “where appropriate institutions are present, a more permissive norm may be valid than would be the case if these institutions did not exist.”36 The issue of what institutional alternatives exist to the present international arrangements, and how they would use different norms for humanitarian intervention, is a difficult, empirically-laden question that needs considerably more attention before anyone can reasonably consider it to be adequately resolved. Some might object that acquiescence in the current state of the law is a consequence of our agnosticism about what the law of humanitarian intervention should be. Such institutional conservatism might seem, at best, a cop-out and, at worst, an unacceptable implication of our view. However, even if it is true that such conservatism is implied by our view, we reject the idea that acquiescence in the current state of the law is objectionable. If the law were not simply morally subpar but rather were morally intolerable, then agnosticism would indeed be untenable. But if the law were intolerable, then there would be normative arguments, with adequately supported empirical premises, showing that the law was so. Yet, even the most charitable understanding of the current arguments about the law was humanitarian intervention would be hard pressed to represent any of them as showing that the existing law was intolerable. One other point regarding our agnosticism is in order. Although we have not taken a stand on empirical questions necessary to resolving the question of what legal rules should govern humanitarian intervention, we have made normative arguments that bear importantly on that question. In particular, we have argued that there is a presumptive case, albeit a highly abstract one, that the legal rules should incorporate our two principles of legitimacy and proportionality. Additionally, we have argued that those two principles capture the deep morality of intervention. And if we are correct on the score of deep morality, then the rules of international law should be fashioned to yield the optimum balance between discouraging impermissible and encouraging permissible interventions, where permissibility and impermissibility are determined by the two principles. It is true that this point does not resolve the issue of international law. However, the two principles do provide a normative framework that can orient and guide discussion and debate over the empirical dimensions of the issue, a framework superior to that of the consensus account of the deep morality of intervention. It would be quite heartening if someone could assert with justified confidence that a particular regime of legal rules strikes the optimum balance. But our agnostic claim that no one can yet make such an assertion does not leave thinkers groping around in the dark, because it is conjoined with a set of guiding normative principles.

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A Liberal Theory of International Justice A S S A S S I NAT I O N

Armed interventions have a substantial likelihood of imposing disproportionate risks upon individuals, even when there are severe rights violations within a possible target state. Yet, nonviolent strategies will often be insufficient to stop such violations. Accordingly, given our proportionality principle, it makes sense to explore a way of deploying violence that has the potential to impose a lower degree of risk on nonculpable individuals than does armed intervention. With this in mind, we turn to the question of whether it would ever be morally permissible to assassinate a political leader in order to prevent or stop severe human rights abuses. While a consensus is developing that armed intervention across international borders is sometimes morally permissible, the same cannot be said when it comes to the assassination of state leaders.37 It may be true that, at least since the 9/11 attacks, considerable support has developed for the assassination of the leaders of non-state organizations that perpetrate terrorist actions.38 Much of this support is undoubtedly due to the idea that such organizations are at war with liberal democracies. In contrast, when it comes to the peacetime assassination of the leaders of internationally-recognized states, the general view seems to be much the same as that expressed in 1975 by the “Church Committee” of the US Senate: “We condemn the use of assassination as a tool of foreign policy. Aside from pragmatic arguments against the use of assassination . . . we find that assassination violates moral precepts fundamental to our way of life.”39 Indeed, even when a ruler is responsible for moral atrocities within his or her own state, there is little, if any, support for the idea that he or she is a morally permissible target of assassination.40 However, once one agrees that armed intervention is sometimes permissible, it becomes very difficult to argue consistently that assassination is always morally impermissible. Consider the fact that an armed intervention on the scale of a war will pose a grave danger to the life and limb of many thousands of persons who have little or no responsibility for the massive rights violations that the intervention is meant to halt. Even minimal forms of military intervention, such as no-fly zones, have the potential to kill or maim scores of persons who are, at worst, small cogs in the machinery of an illegitimate state. In contrast, assassination appears to avoid collateral risk to substantial numbers of persons.41 Thomas More long ago referred to this possible moral advantage of assassination. His Utopians rewarded the assassination of enemy kings. Although the encouragement of such killing may have seemed “like the cruel villainy of an ignoble mind,” the Utopians regarded themselves as “humane and merciful, because by the death of a few bad men they spare the lives of many innocent men who would otherwise die in battle.”42 From this


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sort of moral perspective, it appears at least prima facie paradoxical to adopt the position defended by Tesón when he argued (prior to invasion of Iraq) that armed intervention to overthrow Saddam Hussein was justifiable but the assassination of Hussein was morally impermissible.43 The case for the permissibility of assassination can be bolstered by considering an analogy. The leader of an illegitimate regime perpetrating human rights atrocities is morally analogous to an individual who has tied up another person and is proceeding to beat that person to death. If the only way for the person to be rescued is for a bystander to employ deadly force against the perpetrator, then the bystander does not violate any of the perpetrator’s moral rights in killing her. The perpetrator’s own actions have rendered her morally liable to be killed. Analogously, a political leader whose regime is perpetrating human rights atrocities has made herself morally liable to be killed if such killing is necessary to stop the atrocities. There are, of course, many more victims in the case of a political leader than in that of a domestic criminal, but this fact only seems to make it even more apparent that political assassination is permissible when necessary to rescue a population from sufficiently severe human rights abuses. One might seek to distinguish assassination from armed intervention by arguing that assassination amounts to taking someone’s life without due process of law. Thus, in reference to the prewar situation in Iraq, Tesón argues, “Assassination is banned, not because the punishment is necessarily inappropriate in light of Hussein’s crimes but rather because the agents of liberal democracy must conduct themselves in a way that honors the civic virtues for which they stand. Criminal punishment can only be imposed through the mechanisms allowed by liberal society.”44 Indeed, Tesón should go further and point out that due process is itself a fundamental human right that is possessed even by a brutal ruler. The flaw in Tesón’s reasoning rests on his assumption that assassination is necessarily a form of punishment, when, in fact, assassination can be an action that – similar to armed intervention – is aimed at rescuing persons from the human rights abuses of an illegitimate regime rather then inflicting a punishment on the targeted leader. To emphasize: Just as when one shoots a kidnapper (and unlike punishment), the point of assassination can be to rescue the victims, not to harm the oppressor. What is more, notice that the police do not violate the kidnapper’s due process rights if they shoot her when she refuses to surrender and continues to torture her victim. The kidnapper’s due process rights would be violated only if she were killed after being taken into custody or is otherwise rendered nonthreatening. The same would be true of a tyrant responsible for massive atrocities that can be

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stopped only if she is no longer in power. But if the ruler refuses to step down or change her policies, then assassinating her does not violate her due process rights.45 One might press the argument against assassination, however, by pointing out that there is an important disanalogy between the kidnapper case and the case of a political leader. In the former, there is an official authority – the police force – that is licensed to “shoot-to-kill” under the appropriate conditions. In the latter case, however, there is no such authority. And it would be a very bad world if just anybody with access to a handgun felt licensed to assassinate those leaders they judged to be responsible for the most egregious rights violations. In reply, we agree that the issue of authority is crucial and that there is currently no legal or political agency with the authority under law to kill corrupt rulers. However, it is unclear that no one could permissibly assassinate a ruler responsible for atrocities in the absence of such an agency. Surely, it would have been permissible for someone to have assassinated Stalin or Hitler at some point in the 1930s. It seems, then, that political assassination is, in principle at least, a morally permissible means of stopping or otherwise diminishing the number of human rights abuses. Roughly, an assassination would be permissible if (a) the target had rendered herself morally liable to being killed and (b) the risk to human rights is not disproportionate to the rights violations that one can reasonably expect to avert. Condition (a) is the analogue of the armed intervention condition concerning the illegitimacy of the target state. Just as illegitimacy means that the target state lacks a right against intervention, the moral liability condition means that the targeted ruler has no right against being killed.46 Condition (b) is the same as in the case of armed intervention and is intended here to be responsive to the fact that assassinations can also impose unreasonable risks upon the intended beneficiaries. Still, even if assassination can be permissible in an institutional vacuum, this last objection points to the desirability of exploring the radical idea of an international institution set up to issue and carry out credible threats against dictators in extreme cases. Such an institution would have the authority, under international law, to say to political leaders whose regimes are responsible for human rights atrocities comparable to those of Stalin, Hitler, Pol Pot, or Idi Amin: “Unless you satisfy the following conditions (which would presumably include stepping down from power), we authorize your arrest and, should you resist, the use of deadly force against you.”47 Clearly there would be difficult questions to address in designing such an institution: How would its members be chosen? Would it operate by majority vote? Would the institution operate under UN authority? What would its criterion be for authorizing an arrest/assassination? Would the public be informed that a given ruler is being investigated? Would the ruler in question be given


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the opportunity to defend herself, to appeal a judgment against her, and/or to negotiate a deal? Would an authorization to use deadly force be made public? Who would carry out an arrest/assassination effort? We have no favored answers to such questions. Our only suggestion here is that, whatever kind of institution would be good enough, that is, sufficiently impartial, informed, and judicious, for authorizing armed interventions is likely to be good enough to issue credible threats against political leaders responsible for the world’s worst human rights abuses. One might contend that any institution with the power to threaten leaders with assassination would be subject to intolerable abuse. The institution could, for example, fall under the control of states that employ it for purposes of increasing their power and influence in international affairs, or at least for reducing the power of their enemies. One should never be cavalier about the potential for abuse, but we do not regard this objection as decisive. In our view, the admittedly ineliminable risks of abuse must be seen in comparison to the two other options: armed intervention and unbridled political leadership. Armed intervention is also subject to abuse, and giving leaders free reign over their constituents virtually guarantees the continued existence of massive human rights violations by some of the world’s most oppressive regimes. In comparison with the moral costs of these alternatives, the risk of abuse would not in itself seem to provide a decisive case against assassination. What is more, no proponent of the consensus view on armed intervention could object on these grounds because, while people have voiced similar concerns about intervention, advocates of the consensus hold that there is some institutional arrangement or other that can acceptably cabin any tendency toward abuse.48 As troubling as the risk of abuse, we think, is the problem that even sincere, well-meaning people simply cannot be trusted to make reliable judgments on several essential matters. First, even when a ruler is quite brutal, his place may simply be taken by someone even more brutal. If assassinating Saddam had the consequence that his son, Udday, became ruler, then the rights of Iraqis might have been violated on even a more massive scale. Second, even if the successor is not more brutal, the assassination might have a backlash effect in which the public in the state of the now-dead ruler demands that the rightsviolating policies of the slain leader be pursued and even intensified. For instance, suppose that NATO had assassinated Milosevic in order to stop ethnic cleansing in Kosovo. The Serbian public might have become so inflamed by the assassination that it would have been politically impossible for any successor to negotiate a settlement with NATO that would have brought an end to the forced evacuations. Third, the killing of a political leader might prove unavailing because the human rights problem is driven by the system of power in a state, rather than by the personality of the ruler. Fourth, an

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assassination could create a power vacuum within a state, leading to a condition of anarchy or civil war in which rights violations are perpetrated on an even more massive scale than they were under the tyrannical regime. On this point, think of Yugoslavia after Marshall Tito’s death.49 Before he died, people worried that Tito was the glue that held a fragile society together. For some time after his death, many were relieved that conditions did not unravel. Before too long, though, the society was torn apart in a more violent fashion than even experts expected. Fifth, assassination does not require substantial military resources but, rather, is available to almost anyone who has a firearm. Accordingly, making it legally permissible might encourage disreputable and shadowy persons and organizations to use it, possibly exacerbating the foregoing problems. These issues reveal a telling disanalogy between the kidnapper and the tyrant cases: There are obviously difficult questions that must be answered when deliberating whether or not to shoot a kidnapper. Is this force necessary? Am I sufficiently confident that I can disarm the kidnapper without harming the hostages? Yet, the analysis is nothing like that required in the political case, because one does not typically have to worry about how others will react to one’s killing the kidnapper. In the political case, on the other hand, it is often extremely difficult to know in advance how all the relevant parties will react to the assassination, and as we have detailed just above, the negative consequences are potentially quite grave. In our view, this concession does much to undermine the case for authorized assassination. Assassination is not nearly so precise and simple as it might initially appear. As Franklin Ford concludes at the end of his book examining assassination plots from ancient through modern times, “the history of countless assassinations . . . contains almost none that produced results consonant with the aims of the doer, assuming those aims to have extended at all beyond the miserable taking of a life.”50 And if this is right, then assassination appears unable to deliver as advertised, since very rarely could one be sufficiently confident that it would not impose unreasonable risks upon the intended beneficiaries in the targeted ruler’s state. As a consequence, assassination is ultimately revealed not to be such a promising alternative in cases when full-scale armed intervention would not meet the proportionality condition. Still, it may be premature to abandon the inquiry at this early stage, and we suggest that it makes sense to explore the possibility of a very conservatively designed institution that would authorize assassination only in those cases in which there was an extremely high level of justified confidence that the potential gains from assassination were worth the attendant risks. Without implying that Allen Buchanan would agree with our view of the value of exploring the possibility of such an institution, it seems apt to reiterate his general point about the interplay of institutions and norms governing the use of force:


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“where appropriate institutions are present, a more permissive norm may be valid than would be the case if these institutions did not exist.”51 But here one might wonder why we remain interested in such an institution, despite the substantial risks involved, when we ourselves admit that, at best, it should be used only very sparingly. Our answer to this question stems from our estimation that most of the benefits of such an institution would not principally come in terms of assassinated rulers. This is for two reasons. First, the hope and expectation would be that the threat rather than the (possibly) subsequent assassination is what actually removes rulers from power. Because the chief goal is not to harm the rulers but to rescue those currently suffering from their evil or incompetent leadership, the aim would be merely to remove the leader from office. Accordingly, if an investigation concluded that a certain ruler was “eligible” for assassination, there would first be a warning and an opportunity to leave power. If the warning poses a credible threat, then it seems reasonable to hope that it will motivate leaders to step down before the threat is acted on. Second, such an institution has the potential to be beneficial beyond the particular cases in which threats are issued. The crucial point here is that the tragic level of political injustice in the world is no accident; it occurs because of the perverse incentive structure which currently exists. Put bluntly, there are too many carrots which encourage, and too few sticks which discourage, ruthless and opportunistic political tyranny. It is easy to imagine how an institution that can credibly threaten assassination would motivate leaders generally to refrain from the worst of human rights abuses. It would not be necessary for each particular egregiously bad ruler to be threatened; the fact that some such ruler is threatened might be enough to convince the rest to bring an end to the worst abuses perpetrated by their regimes. The foregoing considerations do little more than suggest the kinds of empirical issues that must be addressed by any reasonable effort to examine the radical suggestion of legalizing the assassination of political leaders. Even though the prospects for vindicating such legalization appear dim, it is difficult to avoid the conclusion that treating assassination as automatically out of bounds is, in part, a result of the widespread but false belief that political assassination is murder, plain and simple. Once that belief is jettisoned, the institutional questions become crucial in considering a legal norm that would license assassination.

C O N C LU S I O N In light of post-Cold War international developments that include genocide and ethnic cleansing, it is not surprising that serious thinkers have returned with renewed energy to the topic of armed humanitarian intervention. Although

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this interest in the topic is to be welcomed, the consensus that has developed around it is flawed. The consensus is correct to hold that armed intervention for the protection of human rights is morally permissible in principle, but it is wrong to hold that it is permissible only in cases of supreme humanitarian emergency. Illegitimate states have no right against armed intervention, and such intervention is in principle permissible when the risks to rights that it imposes are proportional to the rights violations that it can be reasonably expected to avert. Nonetheless, it does not automatically follow that this kind of proportionality standard should serve as a legal norm; it may well be that a more restrictive and/or less nuanced principle should be used for the purposes of international law. At the same time, despite significant moral similarities between armed intervention and assassination, there is virtually no support for the targeted killing of corrupt leaders. We understand that there are profound risks to creating an international institution designed to authorize assassinations, but there is no reason why assassination can be summarily ruled out as a matter of moral principle, and we believe it is worth dedicating greater attention to whether and how such an institution might be designed.

6 International Distributive Justice1 Consider the following five claims: (1) Every human has a right to equal consideration. (2) Existing boundaries separating political states have been drawn in a morally arbitrary fashion. (3) Political communities owe their membership neither to consent nor to any other voluntary transaction. (4) There is such great disparity in international wealth that many people’s life prospects are profoundly affected by the country in which they are born. (5) One’s country of birth is a matter of brute luck. It is difficult to deny any of these five claims, and their combination has inspired an increasing number of theorists to espouse egalitarian cosmopolitanism, a view that revolves around the idea that it is unjust for a person’s life prospects to be substantially affected by the country into which he or she is born. Indeed, it might appear as though one has only two choices: become an egalitarian cosmopolitan or refute one of the five claims. This dichotomy poses something of a dilemma for the account of political self-determination that we have been developing and defending in the previous chapters of this book. On the one hand, if we accept egalitarian cosmopolitanism, then our account of the right of self-determination becomes highly vitiated. The reason is that we would then be saying that justice requires an equalization of life prospects for all humans. Even if such an equalization were possible in a system of politically self-determining states, which is highly unlikely, the requirement would place very tight constraints on the exercise of self-determination: Legitimate states would still have a moral right to order their affairs, but only subject to the condition that their choices not result in any substantial inequality of life prospects for any humans anywhere. The implications of such a condition for economic policy, or even for any domestic policy that would have a substantial impact on productivity or efficiency, are not difficult to discern in broad outline: States would be hemmed in when it came to virtually any domestic policy,

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under a duty to redistribute wealth if they adopted especially effective wealthproduction policies and, presumably, a duty to avoid policies that would leave them with substantially less wealth than other states. Whatever the details of such duties, it seems clear that the right of political self-determination would need to be highly qualified in light of them. The right would consist of, as it were, the dominion that is left over once a state has discharged its egalitarian cosmopolitan duties, and our suspicion is that not much of significance would be left over. On the other hand, the dichotomy says that if we reject egalitarian cosmopolitanism, then we must confront the task of refuting one of the five claims with which the chapter began. Yet, none of those claims appears vulnerable. So do we concede that the right of self-determination needs to be much more heavily qualified than has been suggested in previous chapters? Our answer is “No,” because, in this chapter, we reject the dichotomy. Without contesting any of the five claims, we eschew egalitarian cosmopolitanism.2 Despite resisting this increasingly popular position, however, we do not defend anything like the status quo. As we argue below, there are ample grounds on which to criticize the global economic landscape without resorting to egalitarian cosmopolitanism.

RAWLS AND EGALITARIAN COSMOPOLITANISM What one says about the (in)justice of the current global distribution of wealth obviously depends upon one’s theory of justice. It is not surprising, then, that one of the most popular arguments for egalitarian cosmopolitanism is simply to endorse John Rawls’ highly acclaimed theory of domestic justice and then argue that it has egalitarian cosmopolitan implications. Given that Rawls’ theory is the most sophisticated and celebrated account in the literature, this is a reasonable strategy. With this point in mind, let us review Rawls’ theory of justice as fairness. In A Theory of Justice, Rawls sought to develop an approach that was systematic and powerful like utilitarianism, but which still accommodated nonutilitarian notions like fairness. In building his account of “justice as fairness,” he drew inspiration from a simple, paradigmatically fair distributive method. In particular, Rawls began by considering the fairest way for Jill and Jack to split a pie. One method, to which no one could object, would be to let Jill cut it into two pieces and then let Jack choose his piece first. Their pieces might not be exactly the same size, but neither could question the fairness of the distribution since Jill had the opportunity to cut the pie into equally desirable portions, and Jack could have chosen Jill’s piece if he had so desired. In Rawls’

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view, the key to developing an adequate theory of distributive justice was to devise an analogous method for the more complicated division of the costs and benefits of social cooperation. To see how he attempted this, suppose that ten people need a fair way to split a pie. Presumably, the best strategy would be for one person to divide the pie into ten pieces with the understanding that she will get the last piece. Naturally, the pie-cutter will do her best to divide the pie into ten equal pieces since any inequalities will result in the biggest pieces being taken first and, ultimately, the smallest piece being left for her. A complication arises, however, because we cannot assume that the size of the pie is constant. If the pie is analogous to the costs and benefits of social cooperation, its size will depend on how society’s basic institutions are organized. The reason is that different institutional arrangements will create different levels of incentive for productive activity. Accordingly, distributing products equally can inhibit the incentive to produce, since each person will be disinclined to produce when she gets to enjoy all of her leisure but only one-tenth of her production. Thus, dividing the communal pie into ten equal slices will lead to a smaller overall pie, and, because the pie-cutter would not insist upon equal-sized slices at the expense of the absolute size of her own slice unless she were exceptionally envious, the cutter would rationally prefer any inequalities which would result in the last piece of pie being bigger than it would be otherwise. After all, the person who arranges the sizes of the ten pieces chooses last, and she can reasonably expect that her nine companions will leave the smallest piece for her. Thus, once we transpose the pie-cutting model to a larger group and then add the observation that our method of distribution has an effect on the size of the pie as a whole, we end up with the following recommendation: The costs and benefits of social cooperation are to be arranged so that the worst-off person has the best-possible share. Now that we have a sense of Rawls’ overarching aim, let us examine his defense of justice as fairness. Rawls formulates his theory so that it includes two key principles, but because the second principle is two-pronged, his account may be understood in terms of three distinct principles: the Principle of Equal Basic Liberties, the Principle of Fair Equality of Opportunity, and the Difference Principle. The Principle of Equal Basic Liberties, which enjoys priority over the other two, specifies that “each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all.”3 In other words, each person is to have an equal right to as extensive a set of such liberties as the freedom of conscience, freedom of speech, freedom of political participation, the right to private property, etc., as is compatible with everyone else enjoying these freedoms to the same extent. The Principle of Fair Equality of Opportunity

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requires that offices and positions be genuinely open to all under conditions of fair equality of opportunity. The idea here is simply that each person should be able to compete on a level playing field, so that those with the same talents and motivation enjoy equal opportunities to assume positions of economic reward, power, and prestige. And finally, the Difference Principle asserts that social and economic inequalities are to be arranged so that they are of the greatest benefit to the least advantaged. In other words, deviating from equality is permissible only when it is to the maximal advantage of those who end up as the worst-off. It is apparent how these principles derive their inspiration from the piecutting scenario, but notice that Rawls also seeks to support his theory with the same reasons which inspire our confidence in the fairness of the pie-cutting procedure. To appreciate this point, recall that Jill and Jack will not necessarily get precisely equal pieces of pie. Thus, the method of division is not justified exclusively by the size of the portions; the distribution is also justified because it is the result of a procedure to which neither could sensibly object. Put simply, Jill and Jack would both rationally agree to this method of division. Similarly, Rawls seeks to defend his principles by showing that they too would be agreed to by rational bargainers in a suitable choice situation. The basic idea is to construct a thought experiment which demonstrates that, like Jill and Jack with their respective pieces of pie, no one living in a society whose basic institutions are in accord with the principles of justice as fairness could reasonably contest her lot. Thus, the description of the rational-choice situation, the “original position,” is extremely important because Rawls seeks to justify his theory not only on the grounds that his principles square with our considered judgments of social justice, but also because they would be chosen by rational contractors in circumstances that we all agree are fair. The first point to notice about the rational bargainers is that we cannot use actual people who are aware of their circumstances because white, male Christians are liable to lobby for rules which favor white, male Christians, for instance, while black, female Muslims might seek rules privileging black, female Muslims. Moreover, because the wealthy and powerful have greater bargaining power, the principles likely to emerge from any negotiations among actual contractors would reflect these power differentials. Such principles would not necessarily be fair, of course, since they stemmed from a morally arbitrary source. To derive principles to which no one could reasonably object, then, we must strip each contractor of any morally arbitrary advantages in bargaining power, and the best way to do this, Rawls suggests, is to put the contractors behind a “veil of ignorance” where they lack knowledge of their personal characteristics and station in society. If each contractor has no idea whether she is black or white, female or male, Muslim or Christian, for instance, then


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she will not be concerned merely to protect people of her own description. In Rawls’ view, the setup of the original position reflects the liberal idea that each individual is to be treated as a free and equal person and so the principles to which the contractors agree will establish a basic structure for their society that guarantees to all freedom and equality. Rawls proposes that the bargainers would reason as follows. First and foremost, they would insist on the Principle of Equal Basic Liberties because each would want to ensure her freedom to live according to her own conscience. If a contractor knew that she was a Muslim, for instance, she might want a state which favors Muslims, but since the contractor knows neither her religious convictions nor which religion is dominant, her first priority will be to secure an arrangement wherein each person is at liberty to worship (or not) as she sees fit. Similarly, each rational bargainer would insist that all public offices and other positions of authority are effectively open to all. Again, unless one knows that one was a member of the privileged caste or class, one would want to make sure that everyone has an equal shot at all positions of consequence. Finally, when it comes to distributing the basic goods of society, the best way to ensure that one has sufficient means to live a rewarding life is to arrange things so that one’s worst-case scenario is as good as possible. In other words, one would distribute equally what Rawls calls “social primary goods” (goods such as rights, liberties, wealth, power, and opportunities, which virtually everyone needs to pursue their goals and projects), unless departing from equality would improve the smallest portion. Given the rationality of this reasoning, Rawls concludes that the contractors would opt for his principles of justice. And because the rational preferences of bargainers behind the veil of ignorance lend support to whichever arrangements they endorse, Rawls sees this thought experiment as compelling support for his conception of justice as fairness. Rawls emphasizes that he is concerned with the basic structure of a particular society, and not with private organizations within a society or with global justice, but he does speculate that “[w]ith suitable modifications [his] theory should provide the key for some of these other questions.”4 And, despite Rawls’ disclaimer about the applicability of the theory to matters beyond the state’s borders, other philosophers have utilized it for precisely that purpose. Indeed, bearing in mind the five claims listed at the beginning of this chapter, justice as fairness seems quite straightforwardly to point in the direction of egalitarian cosmopolitanism. The basic idea is this: If it is unjust that someone should have worse prospects in life merely because she happened to have been born black rather than white, then it would equally seem unjust for someone to be disadvantaged merely because she happened to have been born in Chad rather than in Sweden.5 Accordingly, for the same reasons that Rawls requires that the bargainers behind the veil of ignorance not know their skin color, they ought

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not to know their nationality. Thus, just as domestic contractors would select principles which insure that the basic structure of their society does not tolerate any inequalities among the races, international contractors would choose principles which insure that global arrangements do not privilege the citizens of some countries over others. In short, when we think of international distributive justice, there seems every reason to suspect that the contractors in a suitably modified original position would want to apply Rawls’ principles globally. Thus, because one apparently need invoke only Rawls’ theory of domestic justice and the five claims outlined above in order to defend egalitarian cosmopolitanism, it is not surprising that so many theorists are now coming to endorse this view.

C O N T E S T I N G E G A L I TA R I A N C O S M O P O L I TA N I S M There are two obvious ways to contest the foregoing case for egalitarian cosmopolitanism. One could challenge whether Rawls’ theory genuinely has the international implications that many philosophers think it has, or one might question justice as fairness. Consider the prospects of each strategy. In his last book, Law of Peoples, Rawls himself apparently denies that his theory of justice implies egalitarian cosmopolitanism. Using the term “peoples” to refer to politically organized societies, Rawls advances the following principle of international distributive justice: “Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.”6 A just regime is one that embodies some form of the liberal idea that justice requires each and every citizen to be treated as a free and equal person. A decent regime does not measure up to liberal justice. However, such a regime does at least embody a conception of justice that takes into account the interests of all its constituents and so, as Rawls sees it, decent regimes should be tolerated by liberal ones: Decent regimes should be free from all coercive efforts by liberal ones to make them more like the liberal ones. Political societies that are operating under such unfavorable economic and social circumstances that they cannot achieve the level of a decent regime, much less a liberal one, are called “burdened societies” in Rawls’ terminology.7 His principle of international distributive justice requires that liberal and decent regimes render such assistance to burdened societies so that they can become liberal or decent themselves. Egalitarian cosmopolitans are doubly dissatisfied with this principle of international distributive justice: Not only does it conceive of this duty as obtaining among societies rather than individual persons, it demands too little redistribution from the haves to the have-nots. First, conceiving of the


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duty of assistance as obtaining among peoples, that is, as among collectivities, is problematic because it renders one incapable of ensuring that each individual receive what justice requires. The reason is that, even if the haves as a people give all that can legitimately be asked of them to the have-nots as a people, there is no guarantee that the have-nots will subsequently ensure that all among them have enough to satisfy even their most basic needs. Second, even if Rawls were right to insist that international redistribution should occur between groups, it is not clear why he believes that the better-off societies must give burdened societies only as much as they need to become minimally decent. Put another way, why think that an inequality is unobjectionable as long as no society is so poor as to be burdened? It seems more natural to think that the same reasons Rawls invokes in defense of the difference principle at the domestic level would apply equally, mutatis mutandis, to international inequalities, and that the least-advantaged political societies should be raised as high as possible on the scale of economic well-being. In addition, some criticize Rawls for inexplicably failing to acknowledge the existence of a global basic structure and (as a consequence) misconceiving global distributive justice as a matter of redistribution. In Theory, Rawls writes: The basic structure is the primary subject of justice because its effects are so profound and present from the start. The intuitive notion here is that this structure contains various social positions and that men born into different positions have different expectations of life determined, in part, by the political system as well as by economic and social circumstances. In this way the institutions of society favor certain starting places over others. These are especially deep inequalities.8

But if it is true that each society has a basic structure that “favor[s] certain starting places over others,” then it is all the more true that in international society certain starting places are favored over others. And if domestic justice includes the Difference Principle, which demands that society raise as high as possible the least-advantaged within it, then it would seem that international justice should include a Global Difference Principle, demanding that we raise as high as possible the least-advantaged within global society. Law of Peoples appears seriously flawed, then, because Rawls commits either the empirical error of failing to recognize that a global basic structure exists or the normative mistake of thinking that the international basic structure is not as morally significant as its domestic counterpart. Either way, this oversight is thought to be a grave one because the existence of a morally significant global basic structure appears to have profound implications for whatever duties of international assistance one should posit. Not only would justice demand an international arrangement in which the have-nots get much more of the global economic pie than Rawls suggests, the establishment of such an

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arrangement would be a matter of distribution, not redistribution. As Thomas Pogge, explains: the tenor of [Rawls’s] remarks throughout is that a global difference principle is too strong for the international case. . . . This suggests a view of the difference principle as a principle of redistribution, which takes from some to give to others: The more it redistributes, the more demanding is the principle. But this view of the difference principle loses an insight that is crucial to understanding Rawls’s own domestic difference principle: There is no prior distribution, no natural baseline or neutral way of arranging the economy, relative to which the difference principle could be seen to make redistributive modifications. Rather, there are countless ways of designing economic institutions, none initially privileged, of which one and only one will be implemented. The difference principle selects the scheme that ought to be chosen. The selected economic ground rules, whatever their content, do not redistribute, but rather govern how economic benefits and burdens get distributed in the first place.9

In sum, this criticism alleges that Rawls fails to acknowledge the presence of a global basic structure and therefore mistakenly advances an overly cautious principle of redistribution instead of an appropriately ambitious theory of international distribution. In our view, these objections to Rawls’ principle in Law of Peoples are compelling. If one accepts that justice requires correcting for any significant distributive effects of morally arbitrary factors, as Rawls seems to accept in his design of the original position, then stopping short of a Global Difference Principle cannot be justified. Accordingly, we think that a successful challenge to egalitarian cosmopolitanism must rest on an argument that justice as fairness should be rejected in favor of some alternative account of justice. Indeed, we have serious reservations about a key element of justice as fairness. In particular, without questioning the premise that there is a human right to equality, we hold that realizing equality does not require that no one’s life prospects be substantially affected by morally arbitrary matters of luck, such as where one is born. To appreciate our concerns, notice that by relying on a certain conception of fairness, Rawls incorporates a distinctive understanding of equality into his theory of justice. In particular, insofar as he begins with the conviction that it is unfair for people to have divergent life prospects because of some characteristic which is merely a matter of brute luck (like one’s color of skin), Rawls thereby appears to embrace what has come to be known as “luck egalitarianism”: the view that injustice occurs whenever one’s life prospects are affected by matters of luck.10 This view is also central to egalitarian cosmopolitanism. However, we will argue that the most compelling understanding of equality does not require insulating the life prospects of individuals from the effects of


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luck; instead, justice demands that national and international society address, not all inequalities deriving from luck, but rather those inequalities that render people vulnerable to oppressive relationships.11 We do not deny the obvious appeal of luck egalitarianism. It seems patently unfair that some people’s life prospects are dramatically worse than others when neither the poorly-off nor the well-off did anything to deserve their initial starting points, and it is hard to deny that the world would be better if, ceteris paribus, everyone enjoyed roughly equal prospects for a rewarding life. It is important to recognize, though, that luck egalitarianism has competitors, and we are choosing among the alternatives for a theory of justice, not merely to describe our ideal world. This latter point is important because we are not omnipotent beings charged with creating a perfect world from scratch; we are selecting principles which can permissibly be coercively imposed upon others. Given this task, we judge that one of luck egalitarianism’s competitors, relational egalitarianism, is superior.12 Elizabeth Anderson provides an especially lucid explanation and defense of relational egalitarianism. Her account takes as its point of departure the question: “What is the point of equality?” In Anderson’s view, answering this question reveals most clearly why relational theories are preferable to those which fixate on luck. The crucial point is that we should care about inequality principally to the extent that subordinates are dominated in oppressive relationships. For this reason, Anderson insists that we should be “fundamentally concerned with the relationships within which the goods are distributed, not only the distribution of goods themselves.”13 To appreciate the force of this point, compare two possible inequalities. The first exists between two societies, A and B. Assume that everyone in A is equally well-off; everyone in B is doing equally poorly; and no one in either A or B knows anything of the other society’s existence, since they are on opposite sides of the earth and have never had any contact. The second inequality mirrors the disparity between the As and Bs, except that it exists within a single society C. And because the Cs share a single political community, they are not only aware that others are faring considerably better/worse, they occupy relationships that are affected by these inequalities. We take it as uncontroversial that the inequality among the Cs is much more worrisome than the same inequality between the As and Bs. In other words, even if it would be better if, ceteris paribus, there were no inequality between the As and Bs, we should, as a matter of justice, be much more concerned to eliminate the inequality among the Cs. Based in part upon reasoning like this, Anderson concludes that “[n]egatively, people are entitled to whatever capabilities are necessary to enable them to avoid or escape entanglement in oppressive relationships.

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Positively, they are entitled to the capabilities necessary for functioning as an equal citizen in a democratic state.”14 Michael Walzer provides another version of relational egalitarianism, well capturing its key insights: It’s not the fact that there are rich and poor that generates egalitarian politics but the fact that the rich “grind the faces of the poor,” impose their policies upon them, command their deferential behavior. Similarly, it’s not the existence of aristocrats and commoners or of officeholders and ordinary citizens that produces popular demand for the abolition of social and political difference; it’s what the aristocrats do to commoners, what office holders do to ordinary citizens, what people with power do to those without it. The experience of subordination – of personal subordination, above all – lies behind the vision of equality.15

Walzer and Anderson present different versions of relational egalitarianism. What is common to them, however, is the idea that the kinds of inequality that are of greatest moral concern are those that involve an asymmetry that empowers the better-off to systematically treat the worse-off in ways that seriously wrong them. The wrong is variously identified as oppression or domination.16 In whatever way one thinks that the wrong is best explained, the key point is that the focus of moral concern should not be on inequality as such but rather on what that the wealthy or the politically powerful or the socially privileged can do, with impunity, to those below them. And what the better-off can do to those below them is a function of the kind of relationship in which they find themselves. If there is no relationship – as with the As and the Bs – then, even if there is a large inequality, the most important egalitarian concern has no foothold. The views of Anderson and Walzer convince us that equality, as a demand of justice, must be understood in a way that is sensitive to the relationships within which social goods are distributed. We would eliminate the inequality between the As and Bs if it could be done by waiving a magic wand that would alter the historical trajectories of both societies so as to bring them smoothly to something approximating the current mean level of wealth between them. However, their current inequality is not sufficiently worrisome that justice licenses interference in the internal affairs of the As in order to eliminate the inequality between them and the Bs. Because the inequality among the Cs is much more troubling from the standpoint of justice, on the other hand, it might be permissible in principle for other states to demand, on pain of sanction, that the wealthy Cs take measures to ensure that the less well-off Cs are not entangled in oppressive relationships.17 At this point, a critic might counter that the moral importance of an inequality cannot be a function of the relationship within which the goods are distributed unless one’s being in this relationship is a matter of brute luck (as


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is presumably the case with one’s being born a citizen of a wealthy society). But this objection fails to appreciate the extent to which relational equality is a genuine alternative to luck equality. According to the brand of relational egalitarianism we favor, the key issue concerns which inequalities facilitate oppressive relationships, not which ones owe their existence to mere luck. Because it is the existence of oppression which is morally crucial, and because not all inequalities leave those with less vulnerable to oppression, justice is not concerned with all inequalities, or even with those inequalities which have no source other than luck. As a consequence, even if a world with no inequality between the As and the Bs would be preferable, eliminating this inequality is not important enough to justify coercively requiring the As to transfer some of their wealth to the Bs. To recapitulate: Given that the moral importance of any particular inequality is mainly a function of the relationship in which the goods are distributed, the lack of a robust relationship between the constituents of a wealthy state and the citizens of a poorer country implies that this inequality does not obligate those in the relatively wealthy state to share their assets with those in the relatively poor country, even though the location of a person’s birth is a matter of luck. Others might worry that relational egalitarianism implausibly treats duties to realize equality as merely conditional duties. Richard Arneson, for instance, has objected that “[i]f there is a norm that a male should take off his hat if he is in church, then so far as this norm is concerned, a male who is in church and wants to avoid the obligation to keep his hat on can simply leave the church. For my part, I find it counterintuitive to regard social justice obligations as optional or avoidable in that way.”18 We suspect that part of what makes this objection seem cogent is the fact that wearing hats in church is of no consequence to the lives of others. If it were true that a man’s wearing a hat in church caused innocent people to die, on the other hand, then there would be nothing mysterious about saying that justice does not require men to stay out of church, nor does it prohibit men from ever wearing hats, but it does require men to refrain from wearing hats in church. Similarly, if it is true that some inequalities render people vulnerable to oppression only in the context of certain types of relationships, there is nothing curious about saying that justice does not require the elimination of all inequality, nor does it require that people stay out of these types of relationships, but it does require that people avoid specified inequalities within the context of certain relationships. Yet, Arneson still might worry that, on a relational egalitarian theory, one party to a relationship can escape all obligations of justice to the other party simply by ending the relationship. But history matters morally, and ending a relationship does not produce a situation that is the moral equivalent of never

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having been in the relationship in the first place. In a divorce, for example, the parties will often have post-divorce obligations that stem from their having been married. One could say that such obligations mean that the relationship has not ended entirely but continues in an attenuated form. We would not object to that description. But the description simply shows that, contrary to Arneson’s worry, neither of the parties in such a relationship have the moral power to extinguish willy-nilly all ties between them, because there are certain obligations of justice that survive the termination of the marriage and cannot be unilaterally willed away by one of the parties. Similarly, when it comes to political relationships, some obligations of justice between the parties might survive even as one of the parties terminates the current form of the relationship. One more concern about relational egalitarianism worth mentioning here is the criticism that it wrongly prohibits some changes that are Pareto superior.19 To see this, recall the inequality between the As and Bs which relational egalitarianism allows. Now imagine that one of the people from B is willing to endure a second-class status among the As because she can earn more working among the As than if she remained among the Bs. Relational egalitarianism would object to this person’s move even if both this person and the As would thereby be made better-off. But if everyone is benefited by the move, surely it cannot be morally problematic. Our response to this is twofold. First, the idea that all Pareto improvements must be morally permissible presumes that consequences are all that matter morally. If one believes things other than consequences (like fairness, for instance) can be independently morally significant, on the other hand, then one cannot assume that all moves which are Pareto superior must be morally permissible. Moreover, it is important to note that relational egalitarians need not insist that equality is the only moral consideration. Thus, a relational egalitarian might specify that the person’s move from B to A is in one way a moral improvement (insofar as it improves everyone’s circumstances), but in another way is morally problematic (insofar as it renders the person from B vulnerable to oppression in a way that she was not before). Clearly there is room for relational egalitarians to disagree among themselves as to how these competing considerations should be weighed, and of course any given relational egalitarian may or may not find the person’s move from B to A all things considered objectionable depending upon the specifics of the case. Even if one shares our preference for relational over luck egalitarianism, however, one might think that the history of colonization and the current levels of international trade (among other things) illustrate that it is simply not the case that the world’s wealthy and poor are unconnected and unaware of each other (as we stipulate in our example of the As and Bs). On the contrary,


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one consequence of the emerging global basic structure is that virtually all the world’s people now share some type of relationship, so presumably even relational egalitarians cannot dismiss the moral significance of global inequality. In other words, just as theorists like Pogge have cited the emerging global basic structure to undermine Rawls’ views on international justice, one might invoke this global basic structure against a relational egalitarian to show that the world’s wealthy and poor are substantially related to one another. We acknowledge that the emerging global basic structure entails that virtually all of us have increasingly substantial relationships with people all over the world. And from relational egalitarianism, it follows that the more robust these relationships become, the more concern there should be about the inequalities within them. But we can concede all of this without committing ourselves to egalitarian cosmopolitanism because our account has never relied upon the claim that being compatriots is the only morally relevant relationship. On the contrary, our account requires only the less ambitious (and more plausible) claim that the relationship among compatriots is one relationship with morally relevant implications for inequality. To appreciate the significance of this point, consider the question of who was morally responsible for the crimes committed in apartheid South Africa. In the late 1980s, activists argued that average Americans were partly to blame for the injustices being perpetrated in South Africa. The idea was that, insofar as American corporations were investing in South African companies and American politicians were recognizing the apartheid government as legitimate, Americans were financially and socially supporting the South African system in its oppression of blacks. As such, Americans were complicit in the injustice and thereby had a special obligation to divest themselves of all South African companies and to put political pressure on the South African government to reform. We accept this argument, but we would also emphasize that, whatever responsibility the average American had to work for the elimination of injustice in South Africa, it was clearly less than that of the average white South African. The idea here is straightforward enough: Even if it is true that the average American was related to the injustices being perpetrated in South Africa (insofar as she voted and paid taxes in support of a government which continued its diplomatic relations with the South African government, for instance), the average South African was more intimately related to these injustices (insofar as she voted and paid taxes in support of the government which actually imposed the system of racial apartheid). Thus, just as we can find an accomplice guilty of being an accessory to murder without necessarily suggesting that she is just as responsible as the murderer, we can hold average Americans morally responsible for injustices in South Africa without supposing that they must be just as responsible as the white South Africans themselves.20

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This discussion of the relative levels of moral responsibility for political injustice in South Africa is relevant to our inquiry into international justice because it illustrates that, even if it is true that people around the globe are becoming increasingly related, this in no way shows that foreigners are currently as closely related to one another as compatriots. Even though robust international relationships are emerging all over the globe, the inequalities among foreigners are in most cases not nearly as morally significant as the same inequalities would be when experienced between two citizens of the same country. In sum, if there is something to be said for relational theories of equality (as we have argued above), and if being a compatriot is a particularly close relationship (which the apartheid discussion is intended to show), then it is not necessarily unjust for a person’s life prospects to be substantially affected by the country into which he or she is born. In other words, one can concede all five of the claims listed at the outset of this chapter without thereby committing oneself to egalitarian cosmopolitanism. It is important to recognize, however, that while we do reject egalitarian cosmopolitanism, we are not defending the status quo. One need not be an egalitarian cosmopolitan to find grounds for condemning the current global distribution of economic well-being as an outrageous injustice. Perhaps most obviously, while our support for a relational theory of equality precludes us from automatically condemning the relative poverty which currently exists internationally, it does not stop us from criticizing the staggering amount of avoidable absolute poverty which so much of the world’s population presently endures. Moreover, the relational account does help explain why certain inequalities are morally unacceptable for both relative and absolute reasons. Thus consider the well-documented inequalities between men and women. Martha Nussbaum refers to some of the key ones: Women “are less well nourished than men, less healthy, more vulnerable to physical violence and sexual abuse.”21 She goes on to say that in much of the world, women “lack essential support for leading lives that are fully human. This lack of support is frequently caused by their being women.”22 Nussbaum is noting that women suffer from both relative deprivation, that is, they have less than men, and absolute deprivation, that is, they are frequently unable to live fully human lives because they are women. The absolute deprivation is a straightforward violation of the human rights of women: they are not protected by their states against the standard threats to leading a decent life. But, if our theory does not automatically judge relative inequality as morally unacceptable, are we not then unable to condemn women’s deprivation relative to men? The answer is that we can and do condemn such relative deprivation, for the reason that it renders women vulnerable to oppression. For the fact is that women and men live side by side in the same society, inextricably enmeshed in


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many sorts of relations with one another and, thus, any systematic and substantial gender inequalities will be especially prone to bring with it vulnerability to oppression. Accordingly, a relational theory of equality is especially sensitive to such inequalities and can help explain not only why the absolute deprivation of women is morally unacceptable, but also why their relative deprivation merits severe moral criticism. A B S O LU T E P OV E RT Y: S I N G E R , S A M A R I TA N I S M , AND THE PARTICULARITY PROBLEM In the previous section we argued that economic inequality is not necessarily problematic, even if it stems from nothing more than luck. The basic idea was that in cases where having less does not leave one vulnerable to oppression, the mere fact that others have more need not in itself be a grave moral matter. Absolute poverty, however, is a different matter. Regardless of whether others have more or less, one endures absolute poverty when one is too poor to live a recognizably decent human life. Given that half of the world’s population survives on only $2 a day, and 20 percent has only half of that amount, absolute poverty unquestionably poses a moral problem daunting in its magnitude. The profoundly degrading conditions of life for those in absolute poverty create reasons of justice for wealthy people to offer assistance when doing so is not unreasonably costly. No one has defended this position more cogently than Peter Singer, and so in this section we first pursue a roughly Singerian line of argument before confronting a problem that requires some modification of the position.23 Singer defends two possible versions of the duty to attend to those who are impoverished. The more minimal position requires only that one help others when one can do so without sacrificing anything morally significant; the more ambitious stance demands that one must give until one is sacrificing something morally comparable.24 Although Singer prefers the more demanding version, we believe that any moral theory that requires one ceaselessly to sacrifice for the good of others should be rejected as too demanding. In our view, a person need not apologize for devoting the lion’s share of her time and resources to her self-regarding projects and loved ones. However, if another person is gravely imperiled and one can rescue her at no unreasonable cost to oneself, then one has a moral duty to do so. Following Singer, we believe that the best way to defend this principle is with a simple thought experiment. Imagine, for instance, that you are reading this book and enjoying a cocktail by the pool at the Hard Rock Hotel and Casino in Las Vegas. Ordinarily, of

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course, philosophical musings about a liberal theory of global justice would hold your undivided attention. On this occasion, however, you lift your head and notice that an unattended infant has just fallen into the shallow end of the pool and will surely drown unless someone immediately saves her. Are you morally required to rescue the baby? Does it matter that she is not your child and that you have no preexisting or special relationship with her? We presume that almost everyone would agree that one ought to rescue the child, even if doing so would involve spilling one’s drink and ruining the book. Perhaps one would not be obligated to help if the baby were not imperiled (one need not come to the infant’s aid if she merely needed another coat of sunscreen or a long-overdue diaper change, for instance) or if the assistance would be unreasonably costly (as it would be if rescuing it were to trigger a life-threatening allergic reaction from the chemicals in the pool). Nevertheless, because the baby is sufficiently imperiled and you could save her without sacrificing anything significant, it does not matter that you are in no way related to, or especially responsible for, the child. Thus, it would be beside the point to protest: “It’s not my baby” or “I never agreed to babysit that kid.” These defenses might be relevant in some instances (if someone questioned why you had not changed the baby’s diaper, for instance), but they are not germane in this case, because all of us have samaritan duties to rescue even anonymous strangers when they are sufficiently imperiled and we can do so without significant cost to ourselves. We take the preceding analysis to be commonsensical and thus presume that most readers will not seriously object to anything at this early stage. The strength of Singer’s argument, though, is his recognition that surprising conclusions regarding international distributive justice follow from granting that we have moral duties to rescue others when they are sufficiently imperiled and we can assist them at no unreasonable cost. This is because there are currently masses of children starving to death, and virtually everyone reading this book is wealthy enough to save some of them without sacrificing anything significant. Thus, for the very same reasons that you would be morally required to save the drowning infant at the Hard Rock pool, you are morally required to contribute a modest amount, say $100, to saving the lives of a few children who are currently starving to death.25 At this point, one might object that there is a huge difference between saving a drowning child in your immediate presence and sending money to help anonymous foreign children who are starving in some unfamiliar place, thousands of miles away. We appreciate that these two scenarios are likely to feel different to many of us, but Singer argues cogently that there is no morally relevant difference between them. In other words, whatever effect the difference in nationality, the physical distance, or the use of mediating devices might


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make in motivating us to rescue someone else, the moral relations between you and the starving distant foreigner are the same as those between you and the drowning infant. To see that shared nationality is not necessary to ground a duty to rescue, think again of the drowning infant at the pool. Does it matter whether the infant is your compatriot? Presumably not. Imagine, for instance, if an American who sat and watched the infant drown defended herself in the following fashion: “Ordinarily I would have leapt in to save the child, but I did not do so in this case because I knew she was Australian.” One would be rightly appalled by this response. As long as the infant is sufficiently imperiled and one can rescue her without sacrificing anything significant, it makes no difference what nationality the two parties are because samaritan duties are owed to fellow human beings, not just to compatriots. (Notice, for instance, that the biblical story from which samaritan duties derive their name involves a gentleman from Samaria saving an imperiled stranger, not a fellow Samaritan.) For similar reasons, it is irrelevant whether the rescuer and the imperiled person are on the same country’s soil. Imagine, for instance, that the pool in question was not in Las Vegas but on a desert resort that straddles the United States–Mexico border. Suppose that in order to create a “Swim to Mexico” gimmick, the resort designed the small pool so that one side was in the United States and the other in Mexico. Would it make a difference whether the infant fell in the American or the Mexican portion of the pool? Presumably not. Combining these two points, a Canadian tourist lounging on the American side of the pool who saw an Australian infant fall in the Mexican portion of the pool would be just as morally obligated to perform the rescue as an American tourist on the American side of the pool who saw an American infant drowning in the American portion of the pool. In short, both the citizenship of the parties and the country in which the rescue must be performed are morally irrelevant. What is crucial is whether the rescuee is sufficiently imperiled and can be saved at no unreasonable cost to the rescuer. Where both of these conditions obtain, neither nationality nor national location makes a difference. At this point, one might object that while the national location of the two parties is irrelevant, their spatial location can make a difference because one is bound only to assist those in one’s close proximity. To appreciate the moral relevance of distance, this critic might ask us to imagine that one is lounging beside the ocean rather than a pool. Suppose that one sees (perhaps through binoculars) an infant fall off the back of a boat ten miles offshore and that those on the boat did not notice the infant’s fall. Additionally, there is no one else on the beach at the time. Under these circumstances, when the imperiled person is no longer right under one’s nose, so to speak, it is not so clear that

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one has a moral duty. And this apparent absence of a duty is explained, the skeptic suggests, by the distance between one and the infant. We concede that there may be no samaritan duty in this case, but we deny that the lack of a duty is due merely to the physical distance separating the two parties. If one has no duty to rescue a drowning infant ten miles offshore, it is either because one is unable to do so (since the infant would no doubt drown before one could swim out to her) or because doing so would be unreasonably costly (since the rescuer might reasonably fear drowning or being attacked by sharks). To see that the distance itself is morally irrelevant, imagine that one has freakishly long arms that enable one to pull the baby out of the ocean without even getting out of one’s chair on the beach.26 Or, if such long arms are too fanciful to consider, imagine that one has a speedboat, a jetpack, or even a giant crane that would enable one safely to retrieve the infant in a matter of seconds. Under these circumstances, we suspect that most would agree that one has a duty to save the drowning infant. Thus, once we strip this scenario of the features that undermine one’s capacity to perform the rescue at no unreasonable cost, it becomes apparent that the issue of distance is not in itself morally relevant. Finally, notice that it makes no moral difference whether one’s rescue is mediated by devices or other people. Imagine, for instance, that after spending a couple of hours by the Hard Rock pool, you return to your hotel room to avoid getting sunburned. Fortunately, the hotel has closed-circuit television coverage of the pool, so you can continue to check out the lively scene from the comfort of your air-conditioned room. While watching on your room’s television, you notice the infant fall into the pool. Because you are staying on the thirtieth floor, there is no way that you could make it down to the pool in time to save her yourself. Without getting out of your chair, however, you could pick up your cell phone and call the bartender at the poolside bar, who – once alerted – could easily rescue the infant herself. It seems to us that you are just as obligated to make that call, even if there would be a $100 roaming charge on your cell bill, as you would be to dive into the pool yourself. It makes no difference, in other words, whether one can personally rescue the drowning child all on one’s own, or whether one can merely play a part in the rescue by calling others who, once informed, can complete the rescue. Once one recognizes that neither nationality nor distance, nor the use of mediating devices and people in any way diminishes one’s duty to rescue imperiled strangers, it is clear that one’s duty to rescue starving infants on another part of the planet is just as pressing as the initial poolside rescue with which we began. Indeed, the last scenario of using one’s cell phone to initiate a rescue of someone one sees drowning on a television monitor is very much like a situation that many of us routinely experience: We are watching some-


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thing entertaining on television when a commercial alerts us that children suffering in absolute poverty desperately need our help. If it is clear that we have a duty to jump in the pool to save the infant, and we have a duty to make an expensive cellular phone call to the poolside bar, then it is equally clear that we have a duty to use our cell phone to make a modest donation (say, $100) to the institution saving the starving children. If the fact that the children are citizens of another country is irrelevant; if the physical distance between you and them makes no difference; if – like the loss of one’s cocktail and the damage to one’s book – the loss of $100 is not an unreasonable sacrifice; and if the use of mediating devices like cell phones, credit cards, and international relief agencies is not important; then it is difficult to avoid the conclusion that one’s moral duty to send money to those in absolute poverty is just as strong as one’s duty to jump in the pool to save a drowning child. At this point one might protest that there remains a big difference between saving a single drowning infant and sending money to help masses of starving children: the number of people imperiled. Numbers might be thought to matter because when there is only one imperiled person, his or her peril becomes salient in a way that explains why you as a potential rescuer have no discretion but to help him or her. When there are numerous imperiled people (so many, in fact, that you could not possibly rescue all of them), no single individual’s peril is salient, and thus one retains the discretion as to whether or not to help. We agree that numbers can matter morally, but we do not think they can make the type of difference that this objection supposes. More specifically, we acknowledge that one enjoys some discretion when there are more imperiled people than one could possibly save, but it is not the discretion to choose whether or not to perform the rescue; it is merely the choice of whom to rescue. As a utilitarian, Singer does not couch his arguments in the language of rights, but we would explain this discretion in terms of the correlative rights to assistance. Thus, to return to our initial example, we would say that the drowning infant in the Hard Rock pool has a samaritan right that you rescue her. If the situation were altered slightly so that there were two drowning babies, and it was impossible to save both, then it would be implausible for you to say that you no longer had any duty to rescue. You must still rescue one of the babies, although you may choose which one to rescue. In terms of the infant’s rights, obviously, neither of the two drowning babies has a right that you save her in particular, but we would say that each has a right that you save one of them.27 Thus, just as a lounger by the Hard Rock pool could not justify rescuing neither of the infants with the lame excuse that “once the second child fell in, I resumed my reading because I knew that I could not

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save both,” the fact that an individual cannot save all the world’s people from absolute poverty provides no justification for rescuing none.28 In short, while the world’s current situation is admittedly much more messy and heartbreaking than our imagined situation of a single drowning baby who is seen by a single sunbather, the complexity of the actual world’s crises in no way makes our duty to rescue any less stringent. However, there is a problem that requires some modification of the Singerian position that the wealthy among us are morally obligated to donate some appropriate amount to famine relief. We can call it “the particularity problem.” Because there are so many people in the world imperiled by such a variety of evils and serious injustices, it seems wrong to claim that wealthy folks must perform the particular chore of sending money to help those in absolute poverty.29 Instead, well-off individuals may spend their time and money addressing other evils and injustices which are arguably as bad (or worse) for human beings, such as genocide, the use of rape as a weapon of war, and the torture of political prisoners. One might reply that absolute poverty is morally unique on account of the sheer number of persons who live in such conditions, a number far greater than those suffering from any of the other evils and injustices. However, as was just noted, no individual can do anything to eradicate absolute poverty. If your actions can rescue 100 persons from absolute poverty or 100 from torture – but cannot rescue both sets of persons – then it is not clear that there would be anything wrong in rescuing the torture victims. Additionally, even if someone seeks to address the particular problem of absolute poverty, it is not clear why assistance must come in the form of a monetary contribution. Other kinds of action could be more effective and seem to be permissible alternatives, for example, lobbying political leaders or business executives. Thus, there appears to be a particularity problem for Singer’s samaritanism: Even if we take for granted that the indecent conditions of others morally obligate us to help them, the Singerian arguments fail to establish that one’s samaritan energies must be focused on the particular problem of absolute poverty or the particular method of contributing money to relieve poverty. However, we do think that the arguments point to a more general and persuasive position, namely, the view that, although well-off individuals have a great deal of discretion as to how to address the most serious injustices of the world, they also have a duty of justice to take action to mitigate such injustices. Thus, while we may not be specifically morally obligated to contribute money to help save the lives of starving children, it is hard to see why there is any difference, morally speaking, between those of us who do nothing to reduce global suffering and a lounger by the Hard Rock pool who cannot be bothered to put down his or her book to save the drowning infant.


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R E S P O N S I B I L I T Y F O R WO R L D P OV E RT Y: POGGE AND THE POOR A popular objection to the idea that well-off individuals have a duty to send money to the masses of people suffering in eviscerating poverty is that the dire circumstances of the masses are brought on by their own governments. The thought behind this objection is that the members of wealthy states are not responsible for the corruption and inefficiency of those governments. According to the objection, it is this corruption and inefficiency, not anything done by individuals in wealthy states, that is to blame for the existence of absolute poverty. The most direct answer to this objection is that the members of wealthy countries do act in ways that make them responsible for the dire conditions of persons in impoverished states. Moreover, this responsibility, the argument goes, is not solely a matter of the obvious injustices connected with imperialist domination and exploitation of which Western powers were guilty in the past. Rather, wealthy states are actively perpetuating absolute poverty in the current era of globalization. Acknowledging the role of wealthy states in perpetuating poverty does not absolve the corrupt governments in impoverished states of their share of responsibility. Nonetheless, the argument holds, it is a shared responsibility, and the members of wealthy states can plausibly be said to bear a substantial share. The strongest version of the foregoing argument pinning responsibility on the wealthy is found in Thomas Pogge’s account of global poverty. Pogge argues that the governments and members of wealthy states are imposing a “coercive global order that perpetuates severe poverty.” He writes that, in virtue of this imposition, the wealthy “participate in depriving [the impoverished] of the objects of their most basic rights.”30 Accordingly, the wealthy have obligations to the impoverished that go well beyond mere samaritan duties. In the remainder of this section, we examine Pogge’s account of world poverty. The discussion proceeds in two parts. First, we examine the key moral duty that grounds the account. Then we turn to his causal explanation of the persistence of absolute poverty in the world today. Our focus throughout this section is on the moral duties that the individual members of wealthy states have to those in absolute poverty. We leave to the next section the question of what duties the states themselves, as collectives entities, may have. Much of the appeal of Pogge’s approach comes from its apparently modest moral premises. In particular, he presumes merely that we have a “negative duty . . . not to contribute to or profit from the unjust impoverishment of others.”31 The basic idea behind this claim is that, just as we have a duty not to directly treat another in a way that is wrong or unjust, we also have a duty to

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refuse to support, or profit from, someone else treating another in such a way. However, a critic might argue that this apparently unobjectionable negative duty is too demanding, at least in our complex modern world. It would seem extremely difficult or even impossible for an individual to avoid supporting or profiting from institutions that routinely commit wrongful harms, without withdrawing almost entirely from modern social and political life. Vegetarians often go to admirable lengths to avoid supporting factory farming, but factory farms are not the only perpetrators of moral wrong. Consider multinational banks, pharmaceutical corporations, health maintenance organizations, oil companies, “big” agriculture, the US government, and so on. The reader can supply his or her own list, if necessary. The point is that a demand to avoid complicity with institutions committing serious injustice is tantamount to a demand to withdraw in Thoreau-like fashion from modern life. So Pogge’s seemingly innocuous negative duty is actually an unreasonable demand for moral purity. Or so the criticism goes. There is much that is cogent in the criticism, but we believe that, despite being quite modest, Pogge’s demand gets him everything he is seeking. To appreciate the power of Pogge’s moral premise, consider the following hypothetical. Imagine that Sally’s parents own a company that makes profits from prison labor. In her country, it is publicly known that prisoners are coerced into working and that the criminal justice system is corrupt, failing to meet minimum standards of due process and decent treatment. But Sally and her parents are emotionally close, and, with the money they earn, Sally’s parents pay her college tuition and otherwise provide her with a comfortable life. Is it wrong for Sally to accept this money from them? Suppose she defends accepting the money by saying, “I agree that forced prison labor and the failure to provide due process are terrible wrongs, but that provides no reason to criticize my conduct because I am not coercing anyone or depriving them of due process. In fact, I don’t have any dealings whatsoever with prisoners or the criminal justice system.” Such a response would be wholly unreasonable. Sally may not directly benefit from the unjust system of criminal punishment, as do her parents, but she does accept from her parents the benefits generated by that system. It is understandable why someone might contend that an adult child in this situation should not accept any financial assistance from her parents and even that she should have nothing to do with them. However, it would be a great sacrifice for Sally to have nothing to do with her parents and (let us assume) a very substantial sacrifice for her to accept no financial support from them. The level of “moral purity” that would be demanded by an insistence that Sally cut ties to her parents or even simply to refuse her parents’ help seems to us to be excessive. The lives of very few human beings would sustain scrutiny if


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they were assessed by such a demanding standard.32 Accordingly, we suggest a more modest requirement: If accepting money from her parents is to be permissible, then Sally must assist in some substantial way efforts to establish due process and eliminate forced prison labor. More generally, the relevant moral principle is this: If one accepts the benefits of seriously unjust social arrangements, then one is required to contribute to efforts to eliminate (or, at least, ameliorate) those arrangements and, if feasible, one’s contribution must be such that it does more to weaken the arrangements than one’s acceptance of the benefits does to perpetuate them. This principle gives us a way of understanding Pogge’s negative duty as imposing a reasonable demand on individuals. One does have a duty to neither support nor profit from institutions that wrongly harm others, but it is a duty that does not demand moral purity. Rather, it demands a course of action that, on balance and over time, is reasonably calculated to do more to undermine the injustices with which one is complicit than to perpetuate them.33 A critic might point out that, given our interpretation of Pogge’s negative duty, the duty requires individuals to act in a practically inconsistent manner: the individual is both to accept benefits from the offending institution and also to work to undermine the very same institution. How can that sort of practical irrationality be defended? In response, the first point to note is that the duty does not prohibit an individual from refusing all benefits offered by an offending institution and cutting all her ties to the institution. Second, there is indeed a kind of practical inconsistency in continuing to accept the benefi ts of an offending institution and, at the same time, doing as the duty demands when one continues to accept the benefits, namely, working to undermine that very institution. Thus, one is required to work at cross-purposes to what one is doing in continuing to accept the benefits, because an institution that is (sufficiently) undermined will no longer be able to offer benefits. But we do not think that this kind of inconsistency is a problem here. Rather, it represents a reasonable way of accommodating the (presumed) truth that humans are entangled in a web of unjust institutions, by taking advantage of the fact that human lives are stretched out over time: if a person is not “pure” enough to disentangle herself all at once from that web, then she may instead work over time to weaken the web. To illustrate how our understanding of Pogge’s negative duty might be applied to international distributive justice, recall the case of apartheid South Africa mentioned earlier in this chapter. Many governments and corporations effectively buttressed the whites’ privileged position, and implicated themselves in the injustice of apartheid, by investing in White South African businesses and recognizing the apartheid government as legitimate. This created a situation in which a very large number of individuals, including many citizens of

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liberal democracies, would have found it costly to divorce themselves from any and every institution that was complicit in apartheid. Nonetheless, such divorce was not morally required. Rather, what was required was something less onerous, namely, to join in the efforts of activists who were lobbying the relevant political and economic leaders to divest of all South African holdings. And many individuals did just that, helping to secure the eventual demise of apartheid. This example illustrates the relatively modest nature of the demands imposed by Pogge’s negative duty to avoid supporting or profiting from unjust institutions. If there is a problem with Pogge’s account of global poverty, then it does not seem to be in his moral premises. Let us proceed, then, to Pogge’s causal explanation of the persistence of poverty. The world’s poorest, he claims, are suffering not simply because we are doing little to help; they are being actively and wrongly harmed by a system of global political and economic arrangements that is disproportionately shaped by and for wealthy Western societies. To motivate our examination of Pogge’s claim, recall the objection voiced at the beginning of this section: “Why should I have to bail out the impoverished when their own corrupt governments are responsible for their condition?” Recent research does indeed confirm that there is a connection between the quality of one’s government and the degree to which one is protected from famine, for instance.34 In particular, evidence indicates that effective democratic governance virtually insures that a country will not be ravaged by a widespread famine with which it cannot internally cope.35 And Pogge agrees that “[m]any governments of the developing countries are autocratic, corrupt, brutal, and unresponsive to the interests of the poor majority.” But the analysis of the causes of poverty should not stop there. Pogge writes that the poor “can surely point out . . . that they did not authorize the clique that rules them and that their interests can be sold out by this clique only because we [i.e., the wealthy] treat it as entitled to consent on behalf of the people it manages to subjugate.” Elaborating on the crucial last point, he explains that autocratic and corrupt rulers “are internationally recognized as entitled to sell natural resources and borrow money in the name of the country and its people.”36 In Pogge’s analysis, these resource and borrowing privileges that international society extends to oppressive rulers of impoverished states play a crucial causal role in the perpetuation of massive absolute poverty. Pogge maintains that these privileges are no accident; they exist because they are in the interest of the wealthy states. The resource privileges help guarantee a reliable supply of raw materials for the goods enjoyed by the members of wealthy states, and the wealthy states have set up a global order that extends the privileges to tyrannical and corrupt states precisely because doing so serves to maintain a


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reliable supply of such materials. The borrowing privilege allows the financial institutions of wealthy states to issue lucrative loans and is extended for that reason. It may seem that such loans are good for developing states too, but Pogge argues that, in practice, the loans work quite to the contrary: Local elites can afford to be oppressive and corrupt, because, with foreign loans and military aid, they can stay in power even without popular support. And they are often so oppressive and corrupt, because it is, in light of the prevailing extreme international inequalities, far more lucrative for them to cater to the interests of foreign governments and firms than to those of their impoverished compatriots.37

Additionally, the privileges “greatly strengthen the incentives to attempt to take power by force, thereby fostering coups, civil wars, and interstate wars in the poor countries and regions.”38 If the foregoing causal analysis is right, what are the implications for the average citizen in a wealthy country? What does Pogge’s account imply about those of us who enjoy our clothes from A&F, our coffee from Starbucks, our dinners from Domino’s, our cell phones from Sprint, and our MTV on cable television?39 The account implies that we can enjoy these luxuries (in large part) because we benefit from a global economic system that provides us with natural resources bought very cheaply from foreign political leaders who benefit from a global political order that gives them the privilege of controlling those resources and financing the military power they need to suppress their own compatriots. Thus, those of us in wealthy Western societies profit from an overall global system that plays a prominent role in propping up dictators who in turn create the political conditions that make it nearly impossible for hundreds of millions of people to escape absolute poverty. Most of us do not directly oppress the impoverished individuals of developing states in that we do not work for the multinational corporations and other institutions that impose that order on the world. But we do accept the benefits of dealing with such institutions: cheaper goods, less expensive services, and so on. If Pogge’s causal analysis is right, then we are like Sally accepting benefits from her parents. Just as it would have been extremely costly for Sally to refuse financial help from her parents, virtually none of us would be willing to entirely divorce herself from the existing international economic system. But if we are going to continue helping ourselves to the spoils of an unjust political and economic global order that we ourselves help to impose, then we have a duty to work to make this system a more just one. It is not enough for Sally to say, “Don’t blame me; I don’t employ any prison labor.” Neither would it be enough for any of us to say, “Don’t blame me. I didn’t give resource and borrowing privileges to any corrupt and autocratic government.”

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Thus, if Pogge is right about the causal contribution that wealthy states and their members make to the perpetuation of absolute poverty in developing states, then even those who deny both egalitarian cosmopolitanism and the samaritan duties we endorse above would have ample grounds to criticize the status quo. Put simply, Pogge’s work seems to show that one need posit only a negative duty not to contribute to injustice in order to object to today’s global distributive order. Before discussing the ways in which Pogge’s analysis might be challenged, let us turn to its implications, not for the individuals of wealthy states, but for those states themselves as collective entities plausibly claiming legitimacy. It turns out that there are some startling implications for the account of political legitimacy that we have defended in this book and for the arguments that we have built on that account I N T E R NAT I O NA L D I S T R I BU T I V E J U S T I C E A N D P O L I T I C A L L E G I T I M AC Y To begin, recall that, in order to be legitimate, a state must be able and willing to perform the requisite political functions. We have not specified exhaustively which political functions are requisite, but we have argued that a state must adequately protect and respect human rights. And while we also have not fully specified what the threshold level of adequacy is, we have presumed that many liberal democratic states (like the members of the European Union, for instance) clearly qualify as legitimate, whereas those which are either manifestly unable (such as Somalia) or woefully unwilling (such as Myanmar) are equally clearly illegitimate. We would now like to revisit this issue of state legitimacy, however, in light of Pogge’s views on international distributive justice. In particular, we want to examine whether the profound injustice of the existing international economic order renders wealthy liberal democratic states illegitimate. To qualify as legitimate, a state must satisfactorily protect the human rights of its constituents and adequately respect the human rights of everyone else. One must guard against underestimating the importance of the italicized portion of the preceding sentence. While it is common to place the greatest emphasis on how states treat their own citizens, a state cannot be legitimate unless it also respects the rights of foreigners. Even if Saddam Hussein’s regime in the early 1990s had flawlessly treated all Iraqis as free and equal citizens, for instance, it would still have become illegitimate for having invaded Kuwait. And, as a consequence, this counterfactual Iraq would not have had an irreducible moral right to political self-determination. It is important to appreciate, however,


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that while waging an aggressive war might be the most obvious and widely discussed injustice that an internally just country might commit against international society, it is not the only way for a country to violate the human rights of foreigners. If outsiders have human rights to some base level of economic resources, for instance, then an otherwise just state might be rendered illegitimate solely for violating these rights. With this in mind, it is worth considering what implications Pogge’s scathing criticisms of the international status quo have for the (il)legitimacy of the wealthy Western countries. The flip side of our account of the right of political self-determination is that legitimate states have an irreducible collective duty to protect and respect human rights. But if Pogge’s account of the causal mechanisms for the reproduction of poverty is accurate, then wealthy states egregiously violate that duty. For wealthy states are then the agents that extend the privileges that empower the corrupt and tyrannical regimes of impoverished states to govern in the interests of the rulers and their allies and with indifference to the interests of the impoverished masses over whom they rule, and wealthy states are the agents that neglect to institute the reforms that would eliminate global poverty. Notice that, given our account of political self-determination, which sees it as an irreducibly collective activity, the perpetuation of poverty via the mechanisms identified by Pogge cannot be dismissed as a simple matter of the moral failure of the individual members of wealthy states. There is, of course, individual moral failure involved in the process. But individual citizens cannot extend the privileges that are central to the mechanisms; only states can do so. Accordingly, the combination of Pogge’s analysis of the mechanisms that reproduce absolute poverty and our account of the irreducibly collective nature of political self-determination leads to the conclusion that there is a profound, collective moral failure of each wealthy state that contributes to the construction and maintenance of the current rules of the world economy. As Pogge puts it, “we are preserving our great economic advantages by imposing a global economic order that is unjust in view of the massive and avoidable deprivations it foreseeably reproduces.”40 And the moral failure involved in perpetrating such an injustice would seem to destroy the possibility that any wealthy state is legitimate. According to Pogge’s analysis, the injustice here is not one that can be dismissed as relatively insignificant. To the contrary, because of the millions of deaths each year due to poverty-related causes, it would amount to “the largest crime against humanity ever committed, the death toll of which exceeds, . . . every three years, that of World War II, the concentration camps and gulags included.”41 It seems, then, that a standard presumption about state legitimacy would need to be effectively turned on its head; those states commonly thought most

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clearly to qualify for legitimacy (i.e., wealthy Western liberal democracies like Canada, the United States, and the members of the European Union) would turn out to be the furthest removed from legitimacy. And states such as Chad and Belarus that clearly mistreat their own population but have relatively little influence over nonmembers would be less egregious violators of the conditions of legitimacy. In the end, then, the world would be populated more or less by two types of states: those countries which lack legitimacy because of how they treat their constituents; and wealthy liberal democratic states which are illegitimate because of how they violate the human rights of outsiders. If this analysis is accurate, then it follows that even if every one of the arguments in this book is sound, many of those arguments would not apply to the real world. More specifically, because most of our arguments concern the rights to political self-determination to which legitimate states are entitled, the world’s current lack of legitimate states would mean that no state in the real world has any of the rights to self-determination we outline. Even if we are correct that legitimate states have a right to design their own systems of criminal law, for instance, this conclusion says nothing about how actual states may behave, since no existing state meets the criteria that we require to qualify for this right. Having posed this challenge to our account of political self-determination, let us explore how we might respond to it. There are at least four possible responses. The first and most obvious would be to deny Pogge’s claim that the existing global order harms the world’s poor. Matthias Risse, for instance, has argued that the existing order of sovereign states has actually done a remarkably good job of eliminating poverty, when judged relative to historical standards.42 A second potential response would be to concede that the wealthy states harm the world’s poor but to deny that the former violate the rights of the latter. The basic idea here is that, even if a gun seller who sells a gun to a murderer indirectly harms the murderer’s victim, it is the murderer – not the gun seller – who actually violates the right of the victim. Similarly, even if wealthy states indirectly harm the world’s poor by empowering tyrants, it is the tyrants – not the liberal democratic regimes who trade with them – who violate the rights of their subjects. A third possible rejoinder derives from our previous analysis of the hypothetical situation of Sally, the woman whose parents owned a company that made profits using forced prison labor in a thoroughly corrupt criminal justice system. We said that Sally faced a choice: she had a moral obligation either to refuse all financial benefits from her parents, notwithstanding her close emotional ties to them, or to take action reasonably calculated to make a significant contribution to the reform of the system. Our idea here is that an analogous situation holds with states, whose withdrawal from the global economic system is even less feasible than Sally’s financial or


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emotional disentanglement from her parents. In order to maintain legitimacy, states do not need to withdraw from the global system, but, if they do not withdraw, then they are obligated to pursue policies reasonably calculated to mitigate significantly the severe human rights deficits of the system. Fourth and finally, one might concede that wealthy Western states are in an important sense illegitimate but insist that legitimacy can be unbundled in such a way that leaves these states with much of their legitimacy intact. While we think that it would be worth exploring each of these four possibilities, we will pursue only the last option here. We believe that political legitimacy can be disaggregated and thus need not be treated like a single on/off switch, whereby states are entitled either to complete sovereignty or none at all. If this is right, then states which are illegitimate for having disrespected the human rights of outsiders can nonetheless retain a portion of their rights to group autonomy. To appreciate the motivation behind this account, notice what one commonly thinks about the way an individual’s behavior generally affects her right to self-determination. In particular, although a duly convicted criminal has forfeited some of her rights, no one supposes that criminals have forfeited all rights and thus can be treated in any fashion whatsoever. On the contrary, most contend that the type and number of rights a criminal has forfeited depends upon, among other things, the particular crime that she has committed. This fact accounts for our understanding that different criminals deserve different punishments. With this in mind, imagine that Andrea and Barbara are both mothers who drive, but whereas Andrea is a conscientious mother and reckless driver, Barbara is a negligent mother but a careful driver. Assuming further that Andrea’s driving and Barbara’s parenting are both sufficiently bad, it might be justifiable for society to take action. The important point to notice for our purposes here, though, is that society would justifiably respond very differently to these two women. Specifically, while it might revoke Andrea’s driver’s license, society would never take her children away from her, because there is nothing about her poor driving which indicates that she is an unfit mother. And while society might well take Barbara’s children from her, it would never suspend her driving privileges because there is nothing about her poor parenting which would lead anyone to question her driving. Put plainly, people often forfeit rights over certain, localized areas of their lives, and thus there is no reason to suppose that even one’s deliberate misconduct requires one to surrender all of one’s autonomy. It has not been uncommon to apply the preceding type of reasoning to states, arguing that a state can forfeit a portion of its legitimacy without necessarily forfeiting all of it. Indeed, consider some of the commentary on Nazi Germany. Given the ways in which the Nazi government horribly trampled

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on the human rights of both German nationals and foreigners, it is hard to imagine a state doing more to forfeit its sovereignty. And yet even in this case people have suggested that at least pockets of the German state’s legitimacy remained. Imagine, for instance, a couple that had been married by a justice of the peace during the Third Reich. Would one consider these people legally married? Of particular importance here is that the ceremony culminated with the justice of peace proclaiming, “With the power vested in me by the authority of the government of the Third Reich, I now pronounce you husband and wife.” It would seem strained to reason that because the German government was illegitimate, it had no authority whatsoever to vest in its officials, and thus the putative official was no more empowered to marry the couple than some random individual who merely pretended to be a justice of the peace. More plausible is the idea that even though Germany forfeited a great deal of its sovereignty, it still retained the right to conduct matters such as issuing marriage licenses and performing wedding ceremonies.43 In light of the preceding reflections, it would seem neither ad hoc nor unprincipled to suppose that, even if the wealthy Western states have a horrible record of human rights violations when it comes to global poverty, such states have forfeited only elements of their sovereignty and not the entirety of it. In particular, these states would retain their right to make coercively enforced rules for their own members and otherwise to regulate conduct within their territories, insofar as the rules and regulations did not involve imposing an unjust global economic and political order. Wealthy states would also retain rights to make treaties and agreements with other states, again, as long as such agreements did not involve the imposition of an unjust global order. However, wealthy states would have no right to make loans to regimes that oppress and impoverish their own people, nor to sell such regimes military equipment used to bolster their power. More radically, wealthy states would have no right against interference by a group – call it the “poverty army” – that was willing and able to stop the wealthy states from imposing their unjust global order, as long as the poverty army could succeed without imposing unreasonable costs of its own. It does not matter whether such an army is composed of rebellious constituents of the wealthy states or of outsiders. Wealthy states would have no claim–right to invoke against the “interference” of the army. Moreover, if one accepts Pogge’s estimate of the scale of rights violations that results from the current global order, then it is difficult to escape the conclusion that the poverty army would be at liberty to use armed force, subject to certain restrictions.44 In reality, of course, there is no poverty army, and it seems unlikely that there will ever be one. One can imagine some advocates of the poor being willing to use armed force against existing states to put an end to the current


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global order, but it is doubtful that they would ever be able to accomplish their goals in such a manner. More likely is that they would create a backlash that would only further entrench the existing order. At least, that is how events would likely unfold unless there is some radical change in international affairs. Accordingly, the portion of legitimacy that wealthy states forfeit, given the accuracy of Pogge’s causal account of poverty, is very substantial in theory but less so in practice.

O U TS O U RC I N G The issue of international distributive justice raises a host of abstract and concrete questions. We have focused thus far on the abstract, but, before closing the chapter, let us turn to a more concrete question: Does outsourcing labor wrongly exploit the world’s poor?45 This question is especially pressing for those who endorse a relational theory of equality as we do because, while relational egalitarians are well positioned to explain the impermissibility of importing guest workers who endure relatively poor compensation and a subordinate political status in their host country, we seem incapable of consistently objecting to exporting these jobs.46 What is more, given the vast disparities in international wealth, we apparently cannot object to foreign workers being subjected to considerably less pay and worse conditions than the guest worker positions we prohibit in wealthy societies. Even with the difference in pay and working conditions, foreign workers are not vulnerable to the same oppressive relations as guest workers are. We acknowledge that our theory provides no grounds for objecting, in principle, to outsourcing jobs at relatively low levels of pay and in relatively poor working conditions. If the moral (im)permissibility of any given inequality is in part a function of the relationship between the unequals, then whether or not a person’s wage, working conditions, and political status are oppressive will depend upon their relative standing in society. And because societies vary in their average wealth, this means that a wage which might be objectionably low in the United States may not be in, say, India. There are three chief reasons for the conclusion that outsourcing jobs to foreign workers who will accept less pay is, in principle, acceptable. First, the relatively poor-paying jobs being exported are often enthusiastically embraced by the individuals in poor countries. It is not just that those employed have so few viable alternatives; it is also significant that these job-holders are often able to take care of their entire family with the wages. If one family member has a job in a Nike plant, say, this may literally mean not only that she need not go into prostitution but also that her younger sisters do not feel compelled to either.

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Second, capitalism in some form seems essential to the kind of sustained economic growth needed to eradicate poverty, and outsourcing labor from wealthy to poor states is one of the most important ways to help spread capitalism to regions that most desperately need it. Recognizing the productive power of capitalism does not require one to think that such a system always operates in a benign manner. Indeed, one can acknowledge that capitalism has generated great injustices on the domestic and international levels. But the domestic histories of liberal and social democratic states suggest that the bad effects of capitalism can be substantially mitigated by appropriate political arrangements. Eliminating political tyranny, for instance, would likely have a very salubrious effect on the way capitalism operates in many states, and reordering the UN, the WTO, and other international institutions to increase the bargaining leverage of developing states could also have a similarly healthy effect. Finally, a third reason for thinking that outsourcing is, in principle, an acceptable economic practice is that it helps establish interdependence among states and that such interdependence creates economic bargaining chips that make resort to war or to threats of war less likely as a way to settle problems.47 If the Western powers had closer economic relations with Iran and were prepared to use the leverage that comes from those relations, for instance, then they would likely have a much greater chance of peacefully influencing Iran’s nuclear agenda.48 With the proper political arrangements in place, then, there should be much less concern about firms moving their jobs to foreign countries where prospective employees are eager to work for considerably less. At the same time, it is important to acknowledge that many companies are wrongly exploiting victims of injustice and/or those who are suffering in absolute poverty. To get a better sense of when and why a firm should be criticized for impermissibly exploiting prospective employees, consider a number of scenarios in which Nike might move a factory from the United States to India. If there were no absolute poverty in India and its relative poverty compared to the United States were in no way the result of injustice, then there should be no objection to Nike moving a factory to India, even assuming that it were to pay employees there one-tenth of what it would have to pay its American employees for doing comparable work. But if prospective employees in India are imperiled by absolute poverty, then Nike’s wages might not be permissible. There is nothing necessarily wrong with offering a job to people in absolute poverty, but we consider it objectionable to offer wages which the imperiled would not accept if they were not so impoverished. Employers would be wrong to take advantage of the fact that prospective employees are living in conditions of absolute poverty, because absolute (rather than relative) poverty is the line at which people obtain samaritan rights to assistance.


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There is a big difference, for instance, between Jude Law offering Charlize Theron a leading role in one of his films if she will have sex with him, and his offering a starving person a sandwich in return for sex. Both offers may be suberogatory, but we submit that only the latter unjustly exploits the person to whom the offer is made. The problem with offering to help people out of absolute poverty only if they will make sneakers for you to sell in United States, then, is that people in absolute poverty have samaritan rights which entitle them to assistance without this condition. We do not allege that the Nike company is specifically responsible for offering this samaritan assistance, but the samaritan right to be freed from the perils of absolute poverty explains why those in absolute poverty are entitled to wages above those which they would accept only because they are suffering absolute poverty. To the extent that various international companies currently take advantage of the fact that prospective employees are enduring absolute poverty, then, the status quo is morally objectionable. Taking advantage of a prospective employee’s relative poverty (even when he or she is not in absolute poverty) can also be problematic if this prospective employee’s relative poverty is the result of injustice.49 To appreciate this point, imagine a number of scenarios in which a taxicab company might offer to give people rides from Jericho to Jerusalem. In the first instance, imagine that masses of people walk the road from Jericho to Jerusalem, and that many of them get so tired by the midway point that they would gladly pay handsomely to be driven the rest of the way. There is no objection to a taxi company capitalizing on this fact, even if it charged very high rates for its service. The morality of these prices would be very different, however, if the desire for rides sprang from a different source. Imagine that the owner of the company set up a taxi stand halfway between Jericho and Jerusalem only because she knew that there was a gang of hoodlums who routinely attacked and broke the legs of people on that road. Under these circumstances, it would be impermissibly exploitative for the taxi company to charge the victims of the gang exorbitant prices for its services. The central idea here is that it is wrong to gain from charging prices which others accept only because they are the victims of injustice. If sound, this principle is relevant to Nike’s decision to build a factory in India because part of the explanation for the relative poverty in India is that it has been treated unjustly. Thus, while there is nothing wrong with Nike offering jobs to people into India, it would be objectionable for Nike to pay its employees wages which people in India would never have accepted were it not for the history of injustice which India has endured. Thus, to the extent that various international companies currently take advantage of the fact that prospective employees have been unjustly placed in positions of relative poverty, the status quo is morally objectionable.

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There may be other reasons why the hiring practices of existing international companies are morally problematic, but if the arguments in this section are on target, then we can confidently stand by our twofold contention that (a) there is nothing inherently objectionable about utilizing foreign labor markets, but (b) accepting this conclusion does not require one to endorse anything like the world’s current distribution of economic resources and well-being.

C O N C LU S I O N In this chapter, we have argued that there is no necessary injustice in the fact that countries have very different levels of average wealth. A reasonable egalitarian principle of distributive justice would not demand that we eliminate the effects of brute luck on the lives of individuals. Rather, it would demand that we eliminate conditions, whatever their origin, that make the less advantaged vulnerable to exploitation and oppression at the hands of the more advantaged. In today’s increasingly globalized world, big differences in wealth can be more readily translated into international exploitation than they could in much of the past. However, it is still perfectly possible for two states to have very different levels of average wealth, without the less wealthy one being vulnerable to oppression by the more wealthy one. Ireland and Denmark have per capita GDP levels that are more than ten times that of Bulgaria and nearly that many times greater than that of Romania. Yet, it is difficult to see that the two wealthier states pose any threat of oppression to the two, much poorer ones. Indeed, far from fearing oppression, Bulgaria and Romania have rationally sought closer economic and political ties with Ireland and Denmark (and other wealthy states) by joining them as member states of the European Union. If our relational egalitarianism is right, then citizens of relatively wealthy states need not transfer resources until no foreigners are less well-off. Instead, different states will have different duties of distributive justice and, as a consequence, their distributive responsibilities must be counted among the things influenced by a state’s political self-determination.50 This is because the duties that any given wealthy country has to a poorer state will depend not only upon their historical ties, but also on their current relationship. For example, it would be significant not only if the poorer country was a former colony or military victim of the wealthy state, but it could also make a difference if the two states are now part of a regional union. Thus, by admitting Bulgaria and Romania into the EU, the other EU states placed themselves in a special relationship with the two poorer countries, a relationship that could entail additional distributive duties. A country cannot change its history, of course,


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but it can determine with whom it will associate and how it will conduct itself on the international stage in the future. And since the nature and extent of its international responsibilities will be a function of this conduct, states at least have some control over whom they owe what. What is more, even if we hold constant how much is owed to foreign states, each country will enjoy a degree of discretion as to how this debt is paid (e.g., whether duties of assistance are discharged via exporting resources or through admitting greater number of immigrants, for instance). Thus, while this chapter aims principally to offer an alternative to egalitarian cosmopolitanism, it also confirms the book’s central thesis that legitimate states enjoy a right to a meaningful degree of political self-determination.

7 Immigration and Membership1 The right of a state to control its borders and its membership is a central element of its sovereignty. But, as with other aspects of sovereignty, many contemporary thinkers have argued that the scope of a state’s control of these matters should be seriously restricted. For example, an increasingly popular position in academic circles is that states are obligated to open their borders to any outsider who wishes to enter, as long as she does not pose a danger to national security, public health, or some similarly important societal concern. And most people, within or outside of the academy, would say that states are obligated to admit refugees from political persecution. In this chapter, we appeal to the moral value of freedom of association to defend a robust account of state’s right to control its borders and membership and to criticize widely held views about the limits of that right. Without denying that those of us in wealthy societies have extremely demanding duties of global justice, we conclude that a legitimate state has no duty to admit into membership any potential immigrants or even to open its border to refugees desperately seeking asylum from incompetent or corrupt political regimes that are either unable or unwilling to protect their own members’ human rights. Accordingly, a legitimate state’s moral right to self-determination entitles it to more control over who may enter its territory and community than is often thought warranted. The chapter is divided into five sections. First we argue for a presumptive case in favor of a state’s right to limit immigration as an instance of its more general right to freedom of association. In the second and third sections, we respond to the egalitarian and libertarian cases for open borders. Next, we raise and counter a number of possible objections. And in the fifth section, we consider the permissibility of screening immigrants based upon their race, ethnicity or religion. T H E C A S E F O R T H E R I G H T TO C LO S E D B O R D E R S To appreciate that a presumptive case in favor of a state’s right to control its borders and membership2 can be built upon the moral value of freedom of

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association, notice both that (a) freedom of association is widely thought to be important and (b) it includes the right not to associate and even, in many cases, the right to disassociate. That freedom of association is highly valued is evident from commonly held views on marriage and religion. In the past, it was thought appropriate for one’s father to select one’s marital partner or for one’s state to determine the religion one practiced, but, thankfully, those times have (largely) passed. Today, virtually everyone agrees that we are entitled to marital and religious freedom of association; most of us take it for granted that each individual has a right to choose her marital partner and the associates with whom she practices her religion. Put plainly, among our most firmly settled convictions is the belief that each of us enjoys a morally privileged position of dominion over our selfregarding affairs, a position which entitles us to freedom of association in the marital and religious realms. Moreover, freedom of association includes a right to reject a potential association and (often) a right to disassociate. As Stuart White explains: Freedom of association is widely seen as one of those basic freedoms which is fundamental to a genuinely free society. With the freedom to associate, however, there comes the freedom to refuse association. When a group of people get together to form an association of some kind (e.g., a religious association, a trade union, a sports club), they will frequently wish to exclude some people from joining their association. What makes it their association, serving their purposes, is that they can exercise this “right to exclude.”3

In the case of matrimony, for instance, this freedom involves more than merely having the right to get married. One fully enjoys freedom of association only if one may choose whether or not to marry a second party who would have one as a partner. Thus, one must not only be permitted to marry a willing partner whom one accepts, one must have the discretion to reject the proposal of any given suitor and even to remain single indefinitely if one so chooses. As David Gauthier puts it, “I may have the right to choose the woman of my choice who also chooses me, but not the woman of my choice who rejects me.”4 We understand religious self-determination similarly: Whether, how, and with whom Judith attends to her humanity is up to Judith as an individual. If she elects to explore her religious nature in community with others, then she has no duty to do so with anyone in particular, and she has no right to force others to allow her to join them in worship. In light of these common views on marriage and religious self-determination, the case for a state’s right to control immigration might seem straightforward: Just as an individual has a right to determine whom (if anyone) she would like to marry, a group of fellow-citizens has a right to determine whom (if anyone) it

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would like to invite into its political community. And just as an individual’s freedom of association entitles her to remain single, a state’s freedom of association entitles it to exclude all foreigners from its political community and territory. However, there are at least two reasons that complicate this simple inference from an individual’s to a state’s right to freedom of association. First, there are morally important differences between individuals and groups, and these differences might suggest that only individuals enjoy a right to freedom of association. Second, even if it is possible for groups to have such rights, presumably the interests a group of citizens might have in controlling immigration are not nearly as important as an individual’s interest in having a decisive say in whom she marries. Yet, although these two issues complicate the analysis, we think that they do not defeat the argument from freedom of association to the right of a legitimate state to control its membership and its borders. Let us consider each issue in turn. In response to the first concern, as made plain by our discussion in Chapter 2 of Charles Beitz’s analysis, we recognize that individuals and collectives are importantly disanalogous. But hopefully the theory of political self-determination we have already developed in this book puts us in such a position that we need here only to supply an abbreviated explanation for why legitimate states are entitled to freedom of association. To begin, notice how common and uncontroversial it is to posit a presumptive group right to freedom of association. Think, for instance, of the controversy that has surrounded groups like the Boy Scouts of America or the Augusta National Golf Club, both of which have faced considerable public pressure and even legal challenges regarding their rights to freedom of association. In particular, some have contested the Boy Scouts’ right to exclude homosexuals and atheists, while others have criticized Augusta National’s exclusion of women.5 These cases raise a number of thorny issues. We need not adjudicate either of these conflicts here, however, because the requisite point for our purposes is a minimal one. Specifically, even those who insist that the Boy Scouts should be legally forced to include gays and atheists or that Augusta National cannot justify its continued exclusion of women typically concede that there are weighty reasons in favor of allowing these groups to determine their own membership. That is, even activists lobbying for intervention usually acknowledge that there are reasons to respect these groups’ rights to autonomy; the activists simply assert that the pro tanto case in favor of group self-determination is liable to be outweighed in sufficiently compelling instances, cases such as those in which society as a whole discriminates against women or privileges theism and heterosexuality over atheism and homosexuality. The key point is that questioning Augusta National’s group right to determine its own membership does not require one to deny that groups have a presumptive right to freedom of association, because one could simply assert that this presumptive right is vulnerable to


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being overridden. To emphasize: Even the most vociferous critics of exclusive groups typically acknowledge that collectivities enjoy a presumptive right to freedom of association; they merely deny that this right is an absolute one which necessarily trumps all competing concerns. And because we seek at this stage to defend only a presumptive case in favor of a legitimate state’s right to control its own borders, it is enough to note how uncontroversial it is to posit a group’s right to freedom of association. There is still room to question our slide from an individual’s to a state’s right to freedom of association, however, because, unlike the Boy Scouts and the Augusta National Golf Club, political states do not owe their membership to the autonomous choices of their constituents. We appreciate that the nonvoluntary nature of political states raises complex problems for those of us who would defend a legitimate state’s right to political self-determination, but here we would like merely to highlight some of the unpalatable implications that follow from denying such a state’s right to freedom of association. For example, consider the moral dynamics of regional associations like the North America Free Trade Agreement (NAFTA) or the European Union (EU). If legitimate states did not enjoy a right to freedom of association – a right which entitles them to decline invitations to associate with others – then they would not be in a position to either accept or reject the terms of these regional associations. Think of Canada’s choice to join NAFTA, or Germany’s decision to enter the EU, for instance. No one thinks that it would be permissible to force Canada into NAFTA or to coerce Germany to join the EU. And the reason it is wrong to forcibly include these countries is because their right to self-determination entitles them to associate (or not) with other countries as they see fit. Put plainly, if one denies that legitimate states like Canada and Germany have a right to freedom of association, one could not explain why they would be righteously aggrieved at being forced into these mergers. Indeed, there would be even more awkward implications, because without positing a right to freedom of association we could not satisfactorily explain what is wrong with one country forcibly annexing another. Imagine, for instance, that a series of plebiscites revealed both that an overwhelming majority of Americans wanted to merge with Canada and that an equally high proportion of Canadians preferred to maintain their independence. Would it be permissible for the United States to forcibly annex Canada? Even if the United States could execute this unilateral merger without disrupting the peace or violating the individual rights of any Canadians, this hostile takeover would be impermissible. The crucial point for our purposes is that one cannot explain the wrongness of unilateral annexations such as this unless one supposes that countries like Canada enjoy a right to self-determination that include the right of Canadians, as a political community, to associate with others as they see fit.

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Nonetheless, one might still question the argument sketched above on the grounds that the intimacy of marriage makes freedom of association immeasurably more important in the marital context than in the political realm. After all, in the vast majority of cases, fellow-citizens will never even meet one another. On this point, consider Stuart White’s contention that “if the formation of a specific association is essential to the individual’s ability to exercise properly his/her liberties of conscience and expression, or to his/her ability to form and enjoy intimate attachments, then exclusion rules which are genuinely necessary to protect the association’s primary purposes have an especially strong presumption of legitimacy.”6 Transposing White’s reasoning, some might insist that, since there is no intimacy among compatriots, it is not at all clear why we need to respect freedom of association for groups of citizens.7 We concede that freedom of association is much more important for individuals in the marital context than for groups of citizens in the political realm, but our argument does not rely upon these two types of freedom of association being equally important. Notice, for instance, that being able to choose the associates with whom one worships is also less important than having discretion over one’s marital partner, but no one concludes from this that we need not respect freedom of association in the religious realm. It is important to recognize that we seek at this stage to establish only that there is a pro tanto case in favor of each legitimate state’s right to control immigration, and it will be the burden of the remainder of the chapter to show that competing considerations are not as weighty as one might think. Nonetheless, let us say a bit more about this presumptive case. In our view, individuals and legitimate states both have rights to selfdetermination.8 This means that they occupy morally privileged positions of dominion over their self-regarding affairs. Such a position can be outweighed by sufficiently compelling considerations, of course, but in general people and states have a right to order their own affairs as they please. Freedom of association is not something that requires an elaborate justification, then, since it is simply one component of the self-determination which is owed to all individuals and legitimate states. As a consequence, there is a very natural and straightforward case to be made in favor of freedom of association in all realms. Just as one need not explain how playing golf is inextricably related to the development of one’s moral personality, say, in order to justify one’s right to play golf, neither must one show that one’s membership in a golf club is crucial to one’s basic interests to establish the club members’ right to freedom of association. And if no one doubts that golf clubs have a presumptive right to exclude others, then there seems no reason to suspect that a group of citizens cannot have the right to freedom of association, even if control over


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membership in a country is not nearly as significant as control regarding one’s potential spouse. What is more, for several reasons it seems clear that control over membership in one’s state is extremely important. To see this point, think about why people might care about the membership rules for their golf club. It is tempting to think that club members would be irrational to care about who else is (or could become) members; after all, they are not forced to actually play golf with those members they dislike. But this perspective misses something important. Members of golf clubs typically care about the membership rules because they care about how the club is organized, and the new members have a say in its organization. Some members might want to dramatically increase the number of members, for instance, because the increased numbers will mean that each individual is required to pay less. Other members, on the other hand, might oppose expanding the membership because of concerns about the difficulty of securing desirable tee times, the wear and tear on the course, and the increased time it takes to play a round if there are more people on the course at any given time. And if there is nothing mysterious about people caring about who is (or could become) members of their golf clubs, there is certainly nothing irrational about people being heavily invested in their country’s immigration policy. Again, to note the lack of intimacy among compatriots is to miss an important part of the story. It is no good to simply tell citizens that they need not personally associate (let alone associate intimately) with any fellow citizens whom they dislike; the point is that people rightly care very deeply about their countries and, as a consequence, they rightly care about those policies which will affect how their political communities evolve. And since a country’s immigration policy affects who will share in controlling the country’s future, it is a matter of considerable importance. These examples of the golf club and the nation-state point toward a more general lesson. Because the members of a group can change, an important part of group self-determination is having control over what the “self ” is. In other words, unlike individual self-determination, a significant component of group self-determination is having control over the group which in turn gets to be self-determining. It stands to reason, then, that if there is any group whose self-determination we care about, we should be concerned about its rules for membership. This fact explains why freedom of association is such an integral part of the self-determination to which some groups, including legitimate states, are entitled. If so, then anyone who denies that we should care about the freedom of association of non-intimate groups would seem to be committed to the more sweeping claim that we should not care about the self-determination of any non-intimate groups. But, unless one implausibly believes that we should care only about intimate groups, then it is unclear

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why we should suppose that only the self-determination of intimate groups matters. Thus, despite being large, anonymous, and multicultural, people rightly care deeply about their political states, and, as a consequence, they rightly care about the rules for gaining membership in these states. Or, put another way, the very same reasoning which understandably leads people to guard their state’s sovereignty also motivates them to keep an eye on who can gain membership in this sovereign state. Another reason to care about immigration policy has to do with one’s duties of distributive justice. As we argued in the last chapter, it seems reasonable to think that one has special distributive responsibilities to one’s fellow citizens. If this is right, then in the same way that it is reasonable to be discriminating in forming intimate relationships because of the moral freight attached, one might want to limit the number of people with whom one shares a morally significant political relationship. Thus, just as golf club members can disagree about the costs and benefits of adding new members, some citizens might want to open the doors to new immigrants (in order to expand the labor force, for instance), while others would much rather forego these advantages than incur special obligations to a greater number of people. Thus, even though the relationship among citizens does not involve the morally relevant intimacy of that between marital partners, the considerations quickly canvassed above as well as the behavior of actual citizens indicate that we need not conclude that control over immigration is therefore of negligible significance. If so, then neither the observation that (a) individual persons are importantly disanalogous to political states, nor the fact that (b) freedom of association is much more important for individuals in the marital context than for groups of citizens in the political realm should lead us to abandon our initial comparison between marriage and immigration. As a consequence, we have no reason to abandon the claim that, like individuals, legitimate political regimes are entitled to a degree of self-determination, one important component of which is freedom of association. In sum, the conclusion initially offered only tentatively can now be endorsed with greater conviction: Just as an individual has a right to determine whom (if anyone) she would like to marry, a group of fellow-citizens has a right to determine whom (if anyone) it would like to invite into its political community. And just as an individual’s freedom of association entitles her to remain single, a state’s freedom of association entitles it to exclude all foreigners from its political community. There are two features of the view that we are advancing which we would like to highlight here: (a) we are defending a deontological right to limit immigration rather than a consequentialist account of what would be best, and (b) our view might be dubbed “universalist” rather than “particularist” insofar as it neither suggests nor implies that only distinct nations, cultures, or other


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“communities of character” are entitled to limit immigration. Consider each of these points in turn. First, let us emphasize that we seek to defend a deontological conclusion about how legitimate states are entitled to act, not a consequentialist prescription for how to maximize happiness or a practical recipe for how states might best promote their own interests. We understand that groups can have weighty reasons to limit immigration in certain circumstances, but what the best policy would be for any given state’s constituents (and/or for those foreigners affected) will presumably depend upon a variety of empirical matters that vary from state to state and time to time. Thus, we doubt that any one-size-fits-all immigration policy exists, and we, qua philosophers, have no special qualification to comment on the empirical information that would be relevant to fashioning the best policy for any given state. However, if anything, we are personally inclined toward more open borders. We believe strongly that, just as few individuals flourish in personal isolation, open borders are typically (and within limits) best for political communities and their constituents. Still, just as one might defend the right to divorce without believing that many couples should in fact separate, we defend a legitimate state’s right to control its borders without suggesting that strict limits on immigration would best serve the interests of either the state’s constituents or humanity as a whole. Our aim in this chapter is merely to show that whatever deontological reasons there are to respect freedom of association count in favor of allowing political communities to set their own immigration policy. We hasten to add, however, that while we conceive of freedom of association in deontological terms rather than consequentialist terms, we do not thereby suppose that it is absolute. We consider freedom of association a deontological matter because it is something to which a party can be entitled, that is, a person can be wronged by the violation of her freedom to associate, and we do not believe that matters of entitlement can be adequately cashed out in exclusively consequentialist terms. In saying this, however, we do not thereby commit ourselves to the view that such a right must be perfectly general and absolute. A right can be independent of, and largely immune from, consequentialist calculus without being entirely invulnerable to being outweighed by all competing considerations. Prince William has a right to marry anyone who will have him, for instance. And while this right gives him the discretion to marry any number of people, presumably it would be defeated if his marrying a particular person would set off a chain of events leading to World War III. The second aspect of our account worth highlighting is that our defense of freedom of association makes no mention of a political community’s distinctive character or culture. We emphasize this point to distinguish

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ourselves from those who argue that ethnic, cultural, or national groups have a right to limit immigration in order to preserve their distinctive characters.9 In particular, the most compelling treatments of the morality of immigration with which we are familiar are Michael Walzer’s seminal discussion of membership in Spheres of Justice and David Miller’s recent article, “Immigration: The Case for Limits.”10 Other ways in which our account diverges from theirs will become apparent in due course; for now, our point is that Walzer and Miller both stress the importance of preserving culture. As Walzer puts it, “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.”11 In a similar vein, Miller suggests that “the public culture of their country is something that people have an interest in controlling: they want to be able to shape the way that their nation develops, including the values that are contained in the public culture.”12 Miller also stresses the role that limiting immigration can play in curbing population growth, but his flagship argument features the importance of preserving culture. He is especially interested in political groups being able to preserve their distinctive identities because he believes that states must maintain a decent level of solidarity in order to secure social justice. Unless compatriots sufficiently identify with one another, Miller argues, it is unlikely that the political climate will engender mutual trust or fellow feeling, elements that liberal and social democratic states need if they are to motivate their constituents to make the sacrifices necessary to sustain a healthy democracy and an equitable welfare state. In contrast to authors like Walzer and Miller, our account emphasizes that any legitimate state is entitled to freedom of association. Thus, just as few would suggest that individuals have a right to marry only people of their own ethnicity, culture, nationality, or character, we do not believe that a state’s right to limit immigration depends upon, or derives from, its members sharing any distinctive ethnic/cultural/national characteristics. Certainly, states that are composed of distinct cultural groups might in certain circumstances be more interested in, or more inclined to, exclude others, but we deny that they alone have the right to do so. To see why, think again of groups like the Boy Scouts or the Augusta National Golf Club. Presumably no one would suggest that the Boy Scouts are entitled to freedom of association only because they are all heterosexual theists or that Augusta National’s claim to group autonomy depends upon their membership being all male. Indeed, if anything, it is just the opposite: the group autonomy of the Boy Scouts and Augusta National are challenged precisely because the former explicitly exclude gays and atheists and the latter have no


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female members. And since more diverse groups of Scouts or golf club members would be at least equally entitled to freedom of association, there seems no reason to believe that only groups whose members share a distinctive, culturally salient characteristic are entitled to freedom of association. If so, then we need not suppose that only populations with distinct national characters are entitled to limit immigration into their territories. To reiterate: Even if it is true that countries whose populations understand themselves to be importantly distinct from (most) foreigners exhibit the greatest interest in excluding nonnatives, one should not infer from this that only these groups are entitled to control their territorial borders and membership.13 In sum, the commonly prized value of freedom of association provides the basic normative building blocks for a presumptive case in favor of each legitimate state’s right to exclude others from its territory. But, while freedom of association provides a weighty consideration in favor of a state’s right to limit immigration, it is obviously not the only value of importance. Thus, even if our reasoning to this point has been sound, the case in favor of a state’s dominion over its membership and borders is only presumptive and may be outweighed by competing considerations. With this in mind, let us now review the arguments for open borders to see if any of them defeats a state’s right to limit immigration.

T H E LU C K E G A L I TA R I A N C A S E F O R O PE N B O R D E R S Luck egalitarians survey the vast inequalities among states and then allege that it is horribly unjust that people should have such dramatically different life prospects simply because they are born in different countries. The force of this view is not difficult to appreciate. Given that one’s country of birth is a function of brute luck, it seems grossly unfair that one’s birthplace would so profoundly affect one’s life prospects. Some believe that the solution is clear: Political borders must be opened, so that no one is denied access to the benefits of wealthy societies. Although he couches his argument in terms of a principle of humanity rather than equality, Chandran Kukathas makes this point particularly forcefully: A principle of humanity suggests that very good reasons must be offered to justify turning the disadvantaged away. It would be bad enough to meet such people with indifference and to deny them positive assistance. It would be even worse to deny them the opportunity to help themselves. To go to the length of denying one’s fellow citizens the right to help those who are badly off, whether by employing them or by simply taking them in, seems even more difficult to justify – if, indeed, it is not entirely perverse.14

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For several reasons, this argument for open borders presents an especially imposing obstacle to the pro tanto case for the right to restrict immigration outlined above. The initial point to note is that both its moral and empirical premises appear unexceptionable: How could one plausibly deny either that all humans are in some fundamental sense equally deserving of moral consideration, or that the staggering inequalities across the globe dramatically affect people’s prospects for living a decent life? Indeed, looked at from this perspective, sorting humans according to the countries in which they were born appears tantamount to a geographical caste system. As Joseph Carens argues, “Citizenship in Western liberal democracies is the modern equivalent to feudal privilege – an inherited status that greatly enhances one’s life chances. Like feudal birthright privileges, restrictive citizenship is hard to justify when one thinks about it closely.”15 What is more, notice that advocating this position does not require one to deny the importance of freedom of association. An egalitarian who presses this objection can agree that we should generally be free to choose our associates, as long as the resulting associations do not lead to unjust arrangements. Thus, allowing states to limit immigration is regarded as problematic on this view only because countries cannot enjoy this form of freedom of association without people’s life prospects being seriously affected by morally irrelevant matters, that is, factors entirely beyond their control. Despite the intuitive appeal of this line of reasoning, we will counter this objection with two arguments. First, drawing upon our analysis from the last chapter, we suggest that the most compelling understanding of equality does not require one to guarantee that no one’s life prospects are affected by matters of luck; more minimally, equality demands that one address those inequalities that render people vulnerable to oppressive relationships. If this is correct, then the particular theory of equality required to motivate the egalitarian case for open borders is suspect and should be rejected in favor of a theory of relational equality. Second, even if luck egalitarianism is the best theory of equality, it would not generate a duty to leave borders open because a wealthy state’s redistributive responsibilities can be discharged without including the recipients in the union. Consider each of these responses in turn. To recall why we endorse relational over luck egalitarianism, consider again our comparison of two possible inequalities. The first exists between two societies, A and B. Everyone in A is equally well-off; everyone in B is doing equally poorly; and no one in either A or B knows anything of the other society’s existence, since they are on opposite sides of the earth and have never had any contact. The second inequality mirrors the disparity between the As and Bs, except that it exists within a single society C. And because the Cs share a single political community, they are not only aware that others are faring considerably better/worse, their relationships are affected by these inequalities.


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In our view, the inequality among the Cs is much more worrisome than the same inequality between the As and Bs. In other words, whether or not one should care about the inequality between the As and Bs, clearly one should be much more concerned to eliminate the inequality among the Cs. Thus, although we would not hesitate to eliminate the inequality between the As and Bs if, ceteris paribus, we could do so by waiving a magic wand, this inequality is not sufficiently worrisome that we would necessarily interfere in the internal affairs of the As in order to eliminate the inequality between them and the Bs. Because we are much more concerned about the inequality among the Cs, on the other hand, we would be correspondingly less reluctant to demand that the wealthy Cs take measures to ensure that the less well-off Cs are not entangled in oppressive relationships. As a consequence, without asserting that there is nothing of moral consequence to be gained from realizing luck equality, we do advance a more modest claim: Even if achieving relational equality is important enough to trump freedom of association, realizing luck equality is not important enough to deny people their rights to such freedom. And this more modest conclusion has important implications for the morality of immigration. Most obviously, even if, ceteris paribus, a world with no inequality between the As and the Bs is preferable, eliminating this inequality is not important enough to justify limiting the As’ right to freedom of association. In short, given that the moral importance of any particular inequality is a function of the relationship in which the goods are distributed, the lack of robust relationship between the constituents of a wealthy state and the citizens of a poorer country implies that this admittedly lamentable inequality does not generate sufficient moral reasons to obligate the wealthy state to open its borders, even if nothing but luck explains why outsiders have dramatically worse prospects of living a rewarding life. Here two potential objections present themselves. First, although it is not false to say that the citizens of some countries are relatively well-off while the constituents of others are relatively poor-off (as we do in our example of the As and Bs), this description is nonetheless misleading insofar as it fails to capture that, in the real world, those in the developed countries are staggeringly wealthy in comparison to the masses who are imperiled (when not outright killed) by oppressive poverty. In short, given the radical inequality and objective plight that make Carens’ reference to “feudal privilege” apt, it is not so easy to dismiss global inequality merely because it does not exist between compatriots. Second, because of the history of colonialism as well as the current levels of international trade (among other things), it is simply not the case that the world’s wealthy and poor are unconnected and unaware of each other (as we also stipulate in our example of the As and Bs). On the contrary, one

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consequence of the emerging global basic structure is that virtually all of the world’s people now share some type of relationship, so presumably even relational egalitarians cannot dismiss the moral significance of global inequality. There are important truths in both of these objections, so let us consider each in turn. To begin, the twin facts that the world’s poor are so desperately needy and the world’s wealthy are so spectacularly well-off that they could effectively help the impoverished without sacrificing anything of real consequence is unquestionably morally significant, but in our view these facts indicate that the real issue is not about equality. Rather than being exercised merely because some are relatively worse-off through no fault of their own, one should be concerned simply because others are suffering in objectively horrible circumstances. It is absolute poverty that drives our moral intuitions about the situation, not relative poverty. Moreover, the reason that one may be morally duty-bound to help is not because mere luck explains why one is doing better than they are. One’s duty to help stems straightforwardly from samaritanism: one has a natural duty to assist others when they are sufficiently imperiled and one can help them at no unreasonable cost to oneself.16 As a result, we are inclined to respond to the first objection in disjunctive fashion: If the less well-off Bs are not doing terribly badly in objective terms, then the inequality between the As and Bs does not generate a duty on the part of the As to help the Bs. If the Bs are clearly suffering in an objectively perilous situation, on the other hand, then the As may indeed have stringent duties to help, but these duties spring from a samaritan source rather than from the mere fact that the As are (for morally arbitrary reasons) doing better than the Bs. If this is right, then even the inequalities we now see in the real world do not sufficiently buttress the luck egalitarian’s case for open borders. Regarding the second objection, we acknowledge that the emerging global infrastructure entails that virtually all of us have increasingly substantial relationships with people all over the world. And as relational egalitarians, it would seem to follow that the more robust these relationships become, the more concerned we should be about the inequalities within them. But we can concede all of this without jettisoning our response to the egalitarian case for open borders, because our account has never relied upon the claim that being fellow citizens of a country is the only morally relevant relationship. On the contrary, our account requires only the less ambitious claim that the relationship among compatriots is one relationship with morally relevant implications for inequality. To see the significance of this point, notice what we would say about inequalities within a particular state. Even though we think that the relationship shared among compatriots is relevant when assessing the inequalities between two people, we would never say that there are no relationships


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other than the public one among all individuals as citizens that are morally relevant. Familial relations are particularly liable to oppression, for instance, and so one justifiably thinks that inequalities between wife and husband, between the parents and children, or among the children call for concern among compatriots who are not members of the same family. Accordingly, the theory of relational equality is consistent with condemning as unjust a situation in which some families paid for their sons but not their daughters to go to college, while refraining from such condemnation when one set of parents paid for their children’s college expenses and another set of parents did not. Thus, there is nothing about our insistence on the moral relevance of the relationship among compatriots that forces us to deny that there may be other relationships within the state which are significant for the purposes of an egalitarian analysis. And if we can acknowledge the moral importance of relationships within a state other than the citizen-to-citizen relation, there seems to be no reason why we cannot accept that citizens of separate states can stand in relationships which matter from the perspective of equality. Most importantly, conceding this last point does not undermine our response to the egalitarian case for open borders because we can still insist that (whatever other relationships there are which matter from the standpoint of equality) the relationship between fellow-citizens is sufficiently important to explain why we need not automatically restrict the liberty of the better-off citizens in one country merely because nothing but luck explains why they are faring so much better than the citizens of a foreign state. Finally, a persistent critic might counter that, even if the case based on luck egalitarianism fails, both samaritanism and the morally relevant relationships among foreigners explain why we have duties to those outside of our borders. In response, we suggest that these duties, even if stringent and demanding, can be fully satisfied without necessarily allowing those to whom we are dutybound entry into our country. That this is so will become apparent shortly when we explain why, even if luck egalitarianism is correct, it cannot shoulder the argumentative burden required of it by the case for open borders. Before turning to this argument, though, it is worth examining Walzer’s analysis of guest worker policies, such as the one by which Germany brings in workers from Turkey but without offering them any chance for German citizenship. Walzer argues that, while Germans are not morally obligated to admit any Turkish citizens, they nonetheless may not treat the workers they do admit as a class of permanent political subordinates. He writes: “Democratic citizens, then, have a choice: if they want to bring in new workers, they must be prepared to enlarge their own membership; if they are unwilling to accept new members, they must find ways within the limits of the domestic labor market to get socially necessary work done. And those are their only choices.”17

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Walzer’s position is intuitively a sensible one. It seems that there is something wrong with creating a political underclass as a response to the demands of the domestic labor market. But there is also something curious about his position. After all, if prospective immigrants have no right to entry, then how can they have a conditional right to (potential) political equality if admitted? By comparison, if Miriam has no right that Patrick sell to her his gently used copy of Spheres of Justice, presumably Miriam would thereby also lack the conditional right to a cheap price if Patrick chooses to sell it to her. One might think that the moral right of equality either gives the prospective workers a right to equal citizenship within Germany or it does not, but it could not generate a conditional right which depends upon the choice of the Germans. However, reflecting upon the distinction between luck and relational theories of equality shows why such thinking is mistaken. Walzer’s conditional right to equality-if-admitted makes perfect sense if he is implicitly presuming a relational theory of equality (as we believe he is),18 because such a theory implies that the same inequalities which would clearly be pernicious among compatriots might well be benign when present between individuals of two distinct countries. A permanent political underclass within a state is vulnerable to oppression and unjust exploitation by the rest of society, and that is why the German policy is morally objectionable. Thus, there is no inconsistency in Walzer finding an inequality between Germans and Turks unobjectionable, on the one hand, and objecting to this same inequality when it exists between two persons (whatever their nationality) subject to the German state, on the other. We are now in a position to conclude the first prong of our criticism of the egalitarian case for open borders with two points. That case depends upon a particular theory of equality, luck egalitarianism, which is not the only game in town and might well not be the best game. As we saw in the last chapter, relational egalitarianism is a strong competitor to luck egalitarianism on issues that do not directly concern immigration. And as we have just seen, Walzer’s reasonable view of guest worker policies can be explained and vindicated on relational egalitarian premises. For the sake of argument, however, let us assume that we are wrong to criticize luck egalitarianism. Suppose that luck egalitarianism is the best theory of equality, or that securing luck equality is as least as important as securing relational equality, or at the very least that realizing luck equality is sufficiently important to justify restricting the right to freedom of association. Even if we grant one of these assumptions, it would still not follow that legitimate states are therefore not entitled to pursue an exclusionary policy on immigration. To see why, consider how marital freedom of association is typically combined with the demands of domestic distributive justice.


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Even the most zealous activists for transfers from the haves to the havenots typically claim neither that we must abolish marriage nor that wealthy individuals must marry poor ones. Instead, it is standard to keep separate our rights to freedom of association and our duties of distributive justice, so that wealthy people are free to marry whomever they choose and then are required to transfer a portion of their wealth to others no matter whom (or even whether) they marry. Admittedly, history includes radical movements like the Khmer Rouge, who abolished marriage because it was thought to be inconsistent with their quest for complete equality, but any sensible egalitarian repudiates such fanaticism.19 Accordingly, despite the enormous disagreement about what type of responsibilities the likes of Bill Gates and Warren Buffet have to the rest of society and humanity in virtue of their staggering wealth, no one alleges that, unlike the rest of us, these billionaires are required to marry poor spouses. And just as the domestic redistribution of wealth among individuals does not require that wealthy individuals be compelled to marry poor ones, global redistribution does not require that wealthy states be compelled to open their political borders to persons from impoverished states. Instead, even if one presumes that wealthy societies have extensive distributive duties, these duties are distinct and can be kept separate from the societies’ rights to freedom of association. Just as relatively wealthy persons are required merely to transfer some of their wealth to others, it would seem that wealthy countries may fully discharge their global distributive duties without including the recipients in their political union, simply by transferring the required level of funds abroad. Here one might reassert the objection to our analogy between immigration and marriage. In particular, because political unions are not nearly so intimate as marriages, an egalitarian might consistently protect freedom of association in the marital realm without being similarly impressed with a state’s right to craft its own immigration policy. We agree that it would be more of an imposition to restrict one’s discretion to select one’s spouse, but this concession is unproblematic because we need not press the marriage analogy as far as this objection presumes. We invoke this analogy merely to help motivate our claims that (a) the value of freedom of association provides a presumptive case that must be overridden and (b) rights to freedom of association and duties of distributive justice can be kept separate and thus may be fully satisfied without conflicting with each other. Our limited hope in invoking this analogy is that certain unexceptionable views on marriage will help illustrate that our contention about a state’s right to control its territorial borders need not conflict with the duties of distributive justice, even if the latter are cashed out in luck egalitarian terms. If this view is right, then arguments like Peter Singer’s (which compares impoverished persons who wish to emigrate to wealthy states to

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people clamoring for shelter from the fallout of a nuclear bomb) are fallacious because, unlike those exposed to the fallout and whose only hope of survival is to be admitted to the shelter, would-be immigrants can be effectively helped without being admitted into the wealthy country.20 Thus, no matter how substantial their duties of distributive justice, wealthier countries need not open their borders. At most, affluent societies are dutybound to choose between allowing needy foreigners to enter their society or sending some of their wealth to those less fortunate. Indeed, David Miller has pressed this point even further, suggesting that it would be better if wealthier countries sent resources abroad. As he puts it: People everywhere have a right to a decent life. But before jumping to the conclusion that the way to respond to global injustice is to encourage people whose lives are less than decent to migrate elsewhere, we should consider the fact that this policy will do little to help the very poor, who are unlikely to have the resources to move to a richer country. Indeed, a policy of open migration may make such people worse off still, if it allows doctors, engineers, and other professionals to move from economically undeveloped to economically developed societies in search of higher incomes, thereby depriving their countries of origin of vital skills. Equalizing opportunity for the few may diminish opportunities for the many.21

If Miller’s argument is sound, then the ardent egalitarian not only may be in no position to demand that affluent societies open their borders, she may be forced to insist that they not do so, since sending aid abroad is a better way to rescue those most imperiled by poverty. To review: Even if we grant for the sake of argument that equality requires one to continue transferring resources until no one’s life prospects are substantially impacted by matters of brute luck, this would still not imply that wealthy states have no choice but to open their borders. Instead, relatively well-off states would at most have a disjunctive duty either to import needy foreigners or to export surplus resources, or (if Miller is right) affluent societies might have no choice but to strictly regulate their borders and send valuable resources where they are most desperately needed. Before turning to what might be called the “libertarian” case for open borders, we would like to emphasize that nothing in the preceding critique of the egalitarian case for open borders is intended as a rejection of egalitarianism or a defense of the status quo. On the contrary (as we argued at length in the previous chapter), we believe that most of us in affluent societies have pressing restitutive, samaritan, and egalitarian duties to do considerably more to help the masses of people in the world tragically imperiled by absolute poverty, and we even think that one good way to provide this assistance is to allow more immigrants from poorer countries. If sound, the arguments of this section establish merely that egalitarian considerations do not by themselves generate


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a moral duty which requires wealthy countries to open their borders, in part because the egalitarian case for open borders depends upon a suspect theory of equality, but also because wealthy countries have the discretion to discharge their distributive responsibilities in other manners.

T H E L I B E RTA R I A N C A S E F O R O PE N B O R D E R S To motivate the libertarian case for open borders, Carens imagines the following scenario. “Suppose a farmer from the United States wanted to hire workers from Mexico. The government would have no right to prohibit him from doing this. To prevent the Mexicans from coming would violate the rights of both the American farmer and the Mexican workers to engage in voluntary transactions.”22 As this example illustrates, libertarian arguments against restricting immigration can take either of two forms, depending upon whether they focus on property rights or rights to free movement. The former emphasizes the rights of those within the state and contends that limiting immigration violates individual property owners’ rights to invite foreigners to visit their private property. The latter stresses the rights of foreigners, claiming that closing territorial borders wrongly restricts an individual’s right to freedom of movement. According to the first type of argument, states may not limit immigration because doing so wrongly restricts their constituents’ rights to private property. The appeal of this idea is apparent: If a farmer owns a piece of property, then she occupies a position of moral dominion over that land which gives her the discretion to determine who may and who may not enter. If the farmer’s government denies foreigners access to its political territory, however, then it thereby effectively denies the farmer the right to invite foreigners onto her land. Thus, since a state cannot limit immigration to its territory without also limiting its constituents’ property rights, political communities clearly are not morally entitled to determine who crosses their borders. It is worth noting that this argument is not skeptical of the moral importance of freedom of association; it merely questions why the state should get to enjoy this right when its doing so necessarily limits the ability of its individual constituents’ to use their own property in order to associate with others. In a conflict between the right of an individual and that of the state, a libertarian will typically argue that the individual’s right should take precedence. But when the state as a whole gets to limit immigration, it curtails the rights of its citizens to unilaterally invite foreigners onto their land. So the libertarian concludes that the individual should have priority in this conflict, thereby nullifying the state’s claim to control immigration.

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In response, we concede that there is a conflict between a legitimate state’s sovereignty over its territory and an individual property owner’s dominion over her land, but in this case the claims of a (duly limited) state are overriding. We are defenders of individual self-determination, but the crucial point here is that one cannot consistently insist that property rights are totally unlimited without committing oneself to anarchism.23 The inconsistency arises because political states are functionally incompatible with extending unlimited dominion to their constituents. States must be sufficiently territorially contiguous in order to perform their requisite functions, and achieving contiguity requires them to nonconsensually coerce all those within their territorial borders.24 Thus, while it is perfectly intelligible to claim that individual dominion should always take precedence over state sovereignty, one cannot maintain this position without implicitly endorsing anarchism. To reiterate: Effective political society would not be possible unless some crucial decisions were made by the group as a whole, and (as this example of the conflict between a state’s controlling its territory and an individual controlling her land indicates) all areas of group sovereignty imply a corresponding lack of individual dominion. In light of this, we suggest that in the choice between unlimited property rights and the anarchism it entails, and limited property rights and the statism it allows, one should favor the latter.25 Of course, one might eschew anarchism and still suggest that individual property rights take precedence over a state’s right to control its borders, but this position would require an additional argument designed specifically to show why the individual should take precedence over the group in matters relating to the use of private property for associational purposes. One cannot presume in advance that such an argument could not be furnished, but there are several reasons to be skeptical of this approach. To begin, notice that in matters unrelated to immigration we take it for granted that the group as a whole has a right to freedom of association that takes precedence over the claims of the individual. Consider again, for instance, Canada’s participation in NAFTA or Germany’s membership in the EU. In these cases, everyone acknowledges that Canadians as a whole must determine whether they would like to join NAFTA and that Germans as a group should decide whether or not Germany will enter the EU. If each individual’s right to freedom of association must always take precedence over the group’s, on the other hand, then it follows that every single Canadian had the right to veto Canada’s involvement in NAFTA or a single German citizen would be entitled unilaterally to block Germany’s membership in the EU. This position is clearly untenable. And if it is unreasonable to hold that individuals have the right to veto their county’s entrance into associations like NAFTA or the EU, then it


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seems equally unreasonable to hold that individuals have a property-based right to veto their country’s immigration policy.26 At this point one might answer that a country’s limiting immigration is in principle distinct from joining NAFTA, the EU, or even the merger between East and West Germany, because the latter three are all acts of association, whereas restricting immigration is a refusal to associate. The idea is that an individual may not appeal to the value of freedom of association to criticize any of these mergers because each expands her possibilities for association. But – the argument goes – this carries no implications for whether an individual might rightfully object to her state’s restricting immigration, which limits the people with whom she can associate. The distinction between expanding and limiting association is a real one, but we nonetheless doubt that it will do the necessary work. To see why, consider an uncontested secession like Norway’s break from Sweden in 1905. In this case, more than 99 percent of the Norwegians voted in favor of political divorce, and Sweden as a country did not resist the separation.27 Whatever one thinks about the theory of secession we defended in Chapter 3, this seems like a paradigmatic case of permissible state-breaking. If each individual’s right to freedom of association trumps the state’s right to self-determination in those cases in which the group as a whole seeks to disassociate from others, however, then Norway’s secession was unjustified; it was impermissible because every last Norwegian (if not also each Swede) had the right unilaterally to veto the divorce, and the plebiscite in favor of separation did not pass unanimously. Again, we presume without argument that this position is implausible. And if an individual’s claim to freedom of association does not trump her state’s right in the case of secession, there seems good reason to believe that an individual’s property-based claim to association would also be insufficient to defeat her state’s claims in the realm of immigration. A second reason to doubt that an individual’s dominion over her private property takes precedence over the state’s control of its territorial borders stems from the twin facts that (a) an inability to invite foreigners onto one’s land is typically not an onerous imposition and (b) bringing outsiders into the political community has real consequences for one’s compatriots. We take it as apparent that being unable to invite foreigners onto one’s land is in most cases not a severe limitation of one’s dominion over one’s property. That inviting foreigners to live indefinitely on one’s property has consequences for others is less obvious, on the other hand, but this can be seen by reflecting upon the implications of the relational theory of equality outlined above. In particular, recall Walzer’s conclusion that affluent societies have no obligation to invite guest workers into their territory, but they are obligated to treat as political equals all those they do admit. The idea here is that once an individual enters

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the territory and becomes subject to the dictates of the state, she becomes more vulnerable than outsiders to political oppression and unjust exploitation.28 Thus, Walzer rightly concludes that all those who are permitted to enter the territory for an indefinite period must be welcomed as equal members of the political community. If his analysis is sound, however, it explains why a person’s inviting foreigners onto her land has important moral implications for all the state’s citizens. This invitation does not merely entitle the invitee to stay on one’s land, it morally requires all of one’s fellow citizens to share the benefits of equal political standing with this new member of the political community. And because the costs of extending the benefits of political membership can be substantial, it makes sense that each individual should not have the right unilaterally to invite in as many foreigners as she would like. It is only appropriate that the group as a whole should decide with whom the benefits of membership should be shared. Although the preceding considerations show why the libertarian is wrong to assume that the state’s right to freedom of association must give way to individual property rights, we think there is room for an intermediate position that accommodates in a principled way both associational and property rights, giving each right its due. And the existence of this intermediate position is important because a state should not restrict individual dominion any more than is necessary. In particular, while we are skeptical that an individual has the right to invite foreigners to live on her land indefinitely, we do not see why property owners (or any other citizen, for that matter) may not invite outsiders to visit for limited periods. Indeed, this is an appealing position because allowing for these sponsored visits gives property owners greater dominion over their land than the status quo without creating any additional imposition upon their compatriots (since citizens are not obligated to extend the benefits of political membership to those foreigners visiting for a limited amount of time). What is more, this solution enables states to avoid the standard practical problem of foreigners entering the country on a limited visa and then staying indefinitely, because the state could simply require the property owner to be responsible (putting up collateral, perhaps) for all those she invites to visit. In the end, then, we are inclined to conclude that a property owner’s dominion over her land might well entitle her to invite foreigners to visit her land, but it would not justify a more sweeping curtailment of a state’s right to control immigration into its territory. At this stage a libertarian might concede all that we have argued so far and still insist that states may not restrict immigration, not because doing so unjustifiably limits the property rights of its citizens, but because it violates foreigners’ rights to freedom of movement. Surely each of us has a right to migrate as we please; if not, then states would be justified prohibiting emigration or


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even free migration within the country. And just as our rights to freedom of movement allow us to leave or travel within our country, they entitle us to enter other countries as well. As Carens emphasizes, “No liberal state restricts internal mobility. Those states that do restrict internal mobility are criticized for denying basic human freedoms. If freedom of movement within the state is so basic that it overrides the claims of local political communities, on what grounds can we restrict freedom of movement across states?”29 Thus, unless one is prepared to accept a state’s right to deny either emigration or internal migration, consistency appears to demand that states not limit immigration either.30 Our response to this second prong of the libertarian case for open borders is analogous to our arguments above: We agree that there is a basic right to freedom of movement, but we do not think the right is perfectly general and absolute. Jack’s right to freedom of movement does not entitle him to enter Jill’s house without her permission, for instance, so why think this right gives Jack a valid claim to enter a foreign country without the country’s permission? Some might counter that this response essentially denies the right in question, but we reject such a claim. No one says that Juan is denied his right to marriage merely because he cannot unilaterally choose to marry Juanita against her will. So, just as Juan’s freedom of association in the marital realm remains intact despite Juanita’s right to not associate with him, there seems no reason why Jack’s right to freedom of movement does not similarly remain intact despite foreign states retaining the right exclude him. David Miller captures this point nicely: The right of exit is a right held against a person’s current state of residence not to prevent her from leaving the state (and perhaps aiding her in that endeavor by, say, providing a passport). But it does not entail an obligation on any other state to let that person in. Obviously if no state were ever to grant entry rights to people who were not already its citizens, the right of exit would have no value. But suppose that states are generally willing to consider entry applications from people who might want to migrate, and that most people would get offers from at least one such state: then the position as far as the right of exit goes is pretty much the same as with the right to marry, where by no means everyone is able to wed the partner they would ideally like to have, but most have the opportunity to marry someone.31

What is more, there is no inconsistency in insisting upon freedom of emigration and internal migration, on the one hand, and allowing states to restrict immigration, on the other. First and most importantly, distinguishing between immigration and emigration makes perfect sense given that freedom of association includes the option not to associate; one may unilaterally emigrate because one is never forced to associate with others, but one may not unilaterally immigrate because neither are others required to associate with

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any given potential immigrant. Second, as explained above, immigration is importantly different because, unlike either emigration or internal migration, it can involve costs to those who must include you as an equal in their political community.32 Third, a state that denies emigration (or perhaps even one that denies internal migration, for that matter) treats its citizens as tantamount to political property insofar as it forces them to remain in the union, regardless of their preferences. As unpleasant as it might be to be denied the right to enter a country, on the other hand, this rejection no more treats one like property, than does a romantic partner who declines one’s marriage proposal. Thus, there appears to be nothing inconsistent about requiring states to permit open emigration while simultaneously allowing them to limit immigration. As a consequence, we are no more impressed by the second prong of the libertarian case for open borders than by the first. In both instances, the libertarian gestures toward an important right, but the existence of this right could defeat the presumptive case for a state’s claim to control its borders only if the right is wrongly conceived to be perfectly general and absolute. In the end, then, neither the egalitarian nor the libertarian argument for open borders undermines the case that can be made on behalf of a legitimate state’s right to restrict immigration.

P OT E N T I A L O B J E C T I O N S Even if the pro tanto case for a legitimate state’s right to control its borders can withstand the attack from both luck egalitarians and libertarians, it may be vulnerable on other fronts. While we obviously cannot respond to every possible criticism here, we would like in this section to consider four additional objections. The first criticism worth entertaining is the practical concern that our proposal will lead to states doing nothing to help the world’s poor. More specifically, the worry is that allowing states to limit immigration on the condition that they help imperiled foreigners in other ways will inevitably lead to states justifying their restrictive immigration policies with promises to help elsewhere and then subsequently reneging on these promises. Thus, given that our proposal might well lead to greater neglect of the world’s most impoverished people, it should be rejected outright. In reply, we strongly agree that it would be unfortunate and unjustifiable for countries to restrict immigration and then refuse to offer alternative types of assistance, but there is nothing about our position that licenses this behavior. To emphasize: At no point do we allege that the citizens in affluent societies may turn their backs on the world’s poor; we suggest only that, whatever


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level of support is owed, it need not come in the specific currency of open borders. Thus, if this objection is to have any bite, it must be aimed at the practical application rather than the theory of our position. But even here it seems wrong to object that our proposal would lead to wealthy countries doing much too little to relieve the plight of the poor, because the wealthy already do much too little. Indeed, to the extent that our position gives political communities the discretion to help in a variety of ways, it makes it easier rather than harder for affluent societies to fulfill their requirements of global distributive justice, and thus our proposal stands a greater chance of garnering compliance than a less flexible model which gives states no choice but to open their borders. Thus, not only does this objection offer no reason to question our approach in theory; if anything, it points to a practical advantage of our position. A second objection is inspired by the plight of refugees seeking political asylum. In particular, we have throughout defended a legitimate state’s right to limit immigration without exception, but surely it would be unconscionable for a state to slam its doors on people desperately fleeing unjust or failed regimes. After all, even authors like Walzer, who are in general prepared to defend a state’s right to control its membership and borders, make an exception for refugees.33 The core idea behind this objection is that, unlike those who merely lack exportable resources, some asylum-seekers are actively threatened by their state or by forces within their state from which the state cannot or will not protect them; their only escape from peril is to be granted asylum. In our view, there is certainly a samaritan duty for a state to help asylumseekers who show up “on its doorstep.” However, the duty is not correctly characterized as a duty to grant them asylum, that is, to let them into the country. The duty is more general – a duty to help rescue from peril – and it could be discharged in any one of several distinct ways, for example, by sending the asylum-seekers to another state that has agreed to let them in; by establishing through military intervention a safe haven in the asylumseekers’ home state and returning them there; by letting them in and granting them asylum until such time as they can be safely resettled in another state or their home state. It might true that, in many situations, only the last of these options is available. But it does not follow that states have a general duty to admit asylum-seekers; only that their duty of rescue can often be discharged only by admission. It should also be noted that, even in such cases, the duty does not necessarily involve anything more than offering a temporary stay. Permanent residence – and the equal citizenship that, as a matter of justice, must go with such residence – would be part of the duty only if nothing was done to remedy the situation in the home state and no other state was willing to grant permanent residence.

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Thus, we again conclude that affluent societies have a duty to help, but it is a disjunctive duty: Just as global poverty requires wealthy states to either export aid or import needy immigrants, the presence of those desperately seeking political asylum renders those of us in legitimate states duty-bound either to grant asylum or to ensure that these refugees no longer need fear their domestic regimes or at least are welcomed by some state that will protect them. Miller gets this point just right when he suggests that the lesson for other states, confronted with people whose lives are less than decent, is that they have a choice: they must either ensure that the basic rights of such people are protected in the places where they live – by aid, by intervention, or by some other means – or they must help them to move to other communities where their lives will go better. Simply shutting one’s borders and doing nothing else is not a morally defensible option here.34

A third objection complains that allowing each state to lock the door to its territory leads to gross inefficiencies. The core idea motivating this objection is that, because setting up barriers invariably keeps people out of areas in which they could more fully realize and capitalize upon their skills and abilities, continuing to exclude people from political territories makes no more sense than our history of excluding women from various spheres of employment. Our response to this objection is twofold. First, although restricting international migration is undoubtedly inefficient, it does not follow that opening borders would result in an overall net gain. While it is tempting to think that permitting unlimited immigration will finally allow everyone to enjoy wealthy economies and stable liberal democratic governments, it may be that these economies and forms of government have been able to function in their enviable fashion precisely because they have always excluded so many. Indeed, it is often thought that, just as the institution of private property does domestically, the presence of a variety of separate, relatively closed states enables us to avoid a global tragedy of the commons. John Rawls is among those who stress this point: An important role of a people’s government, however arbitrary a society’s boundaries may appear from a historical point of view, is to be the representative and effective agent of a people as they take responsibility for their territory and its environmental integrity, as well as for the size of their population. As I see it the point of the institution of property is that, unless a definite agent is given responsibility for maintaining an asset and bears the loss for not doing so, that asset tends to deteriorate. In this case the asset is the people’s territory and its capacity to support them in perpetuity; and the agent is the people themselves as politically organized.35

And if lifting all restrictions on immigration would lead to anything like a global tragedy of the commons, it is hard to imagine what gains in efficiency


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opening borders could create to compensate. Thus, opening borders will not necessarily spread the advantages to everyone; it may actually lead to their being available to no one. If so, then the best strategy might be to replicate successful economic and political arrangements elsewhere, not to allow an unlimited number of foreigners to migrate to those environments which are currently economically healthy and politically well ordered. Second, even if we assume for the sake of argument that there would be a net gain in efficiency from opening borders, the assumption may be beside the point, given our right to organize our lives in ways that are not necessarily maximally efficient. If there would be considerable gains to raising our children in community as Plato recommends, for instance, we take it for granted that one would still have the right to raise one’s own natural children in a nuclear family. Here it is important to recall that the value of freedom of association supplies the normative conception for a deontological case for the state’s claim to control immigration. And even if this case results in only a presumptive right, its deontological source ensures that it cannot be defeated by an appeal merely to efficiency maximization. Thus, because this objection relies upon an empirically suspect claim and appeals to the wrong type of consideration necessary to defeat a right, we do not worry about the possibility that institutionally respecting a legitimate state’s rights to control its own borders might lead to losses in global efficiency. The fourth and final objection asks why if our view allows legitimate states to keep outsiders from getting in, does it not also imply that a state may kick insiders out? After all, as we have already admitted, it is matter of mere brute luck whether one is born inside or outside an affluent society, so our view cannot consistently suggest that insiders somehow deserve to remain within their states. But obviously it is untenable to suppose that a state might permissibly institute a policy of forcible emigration, and so it seems that our view must be rejected for its absurd implications. In reply, we agree that legitimate states may not evict citizens with anything like the freedom that they may employ in screening potential immigrants, and we also concede that the difference between emigration and immigration cannot successfully be cashed out in terms of the current citizens’ deserving their privileged places within the desirable political community. Thus, if we are to avoid this reductio ad absurdum, we must supply some other explanation for a legitimate state’s relatively limited discretion over forcible emigration. We believe that such an account can be constructed in terms of a state’s limited dominion over its constituents. The key point is that states are severely limited in how they may treat their citizens. In particular, because universal political consent is a fiction, political coercion is nonconsensual and, as such, is extremely difficult to justify.

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Nonconsensual coercion is in some instances permissible (and thus states can be legitimate), however, because of how utterly horrible life would be in the absence of political stability. Thus, we believe that states are justified insofar as they secure vitally important benefits (i.e., protection of human rights) that would be unavailable in their absence, and they do so without requiring their citizens to make unreasonable sacrifices. Because nonconsensual coercion is such a serious matter, however, political states would not be justified if they either (a) did not supply these extremely important benefits, (b) were unnecessary to securing these benefits, or (c) made unreasonable impositions upon their subjects and citizens in the course of supplying these benefits. This third condition is the crucial one for our discussion here. In particular, clearly a political state would be making unreasonable demands upon its constituents if it required some of them to leave the territory permanently and relinquish their citizenship. Indeed, it is difficult enough to justify the state’s continued nonconsensual coercion of those who stay, so it seems clear that a regime may not permissibly force some to leave their homeland and give up their membership. Instead, if a state is to be legitimate, it must treat everyone within its territorial confines as equal citizens who, among other things, are equally entitled to remain citizens of the territory in which they have resided. States are not similarly required to admit outsiders onto the land and into the community, however, for two reasons. First, because states do not nonconsensually coerce foreigners, they need not have the same worries about unreasonably imposing themselves on those who apply for admission. Second, even if we suppose that states have a responsibility not to adversely affect any human – whether a citizen or not – there remains a morally relevant difference between denying entry to a potential immigrant and forcibly evicting a political subject, because only the latter forcibly separates a person from her homeland and deprives her of political membership. Thus, both because states have special responsibilities not to make unreasonable demands upon their citizens, and because it is much more of an imposition to be forced from one’s homeland and deprived of citizenship than to be denied entrance to a particular foreign state, there is nothing inconsistent about distinguishing between screening applicants for admission and forcibly evicting citizens. As a result, our view does not imply that legitimate states may kick insiders out and thus does not commit us to the absurdity that this objection alleges. A QUESTION OF CRITERIA In Who Are We? Samuel Huntington expresses the worry that not only are there too many immigrants entering the United States, but that an excessive


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proportion of them are from Mexico, a country with a different culture from that of the United States. He views the United States as defined not just in terms of its distinctive American political creed of fidelity to the Constitution, but also by its Anglo-Protestant culture. Thus, Huntington fears that, unless it more stringently limits the flow of Mexican immigrants, the United States will forever lose its distinctive – and distinctly valuable – character. His provocative views raise a difficult and important question for our account of a state’s right to control who, if anyone, may be allowed to enter its territory and become a citizen: “Does a state have the right to adopt a policy that explicitly excludes people based upon their race, religion, or ethnicity?” The issue can be put in a very pointed form: “What should one say about a white-majority state that decided to admit only whites?”36 On the one hand, it would seem that an applicant rejected for not being white would not have her rights violated, if a state does indeed have the right to exclude everybody. On the other hand, most people reasonably take it for granted that, even if a business is not required to hire anyone, it may not adopt a policy to hire only whites. And if a company cannot select employees in this way, it might seem that a state may not screen potential immigrants according to race. Walzer explores the issue in terms of “White Australia,” that country’s erstwhile policy to admit only whites. He concludes that Australians would in fact be permitted to admit only whites, but only if they ceded a portion of their territory to those who needed it to survive. He writes: Assuming, then, that there actually is superfluous land, the claim of necessity would force a political community like that of White Australia to confront a radical choice. Its members could yield land for the sake of homogeneity, or they could give up homogeneity (agree to the creation of a multiracial society) for the sake of the land. And those would be their only choices. White Australia could survive only as Little Australia.37

Thus, Walzer appears to believe that, while Australia was not at liberty to simply turn its back upon needy nonwhites, there is nothing inherently unjust about an immigration policy that discriminates based upon race. David Miller analyzes the issue and comes to a conclusion that conflicts with Walzer’s. Miller argues that, even if the state is at liberty to exclude everyone, it wrongs potential applicants for admission by excluding them based on a category like race. As he puts it: I have tried to hold a balance between the interest that migrants have in entering the country they want to live in, and the interest that political communities having [sic] in determining their own character. Although the first of these interests is not strong enough to justify a right of migration, it is still substantial, and so the immigrants who are refused entry are owed an explanation. To be told that they

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belong to the wrong race, or sex (or have the wrong color) is insulting, given that these features do not connect to anything of real significance to the society they want to join. Even tennis clubs are not entitled to discriminate among applicants on grounds such as these.38

Walzer’s position looks plausible if one considers that, as abhorrent as racism is, racist individuals cannot permissibly be forced to marry someone (or adopt a child) of another race. And if the importance of freedom of association entitles racist individuals to marry exclusively within their race, it might seem that racist citizens are similarly entitled to exclude immigrants based upon race. At the very least, one must explain why the immigration case is dissimilar from the marital one. In the end, though, we reject Walzer’s position because we think that such an explanation can be furnished. Yet, we are also not entirely persuaded by Miller’s explanation. As noted above, Miller suggests that a state may not exclude immigrants based upon a category like race because doing so wrongly insults applicants of the rejected race. It is not clear that this account suffices, though. We do not doubt that the rejected applicants are insulted, but it is not clear to us that they have a right not to be insulted in this way. By analogy, we would expect a black person to be insulted by a racist white who would never consider marrying someone who is black, but we would not say that this black person has a right not to be insulted in this way. Because of these concerns, we propose an alternative suggestion as to why states may not limit immigration according to racist criteria, one which focuses upon the rights of those already within the political community rather than the rights of those who might want to enter.39 We shift the emphasis from foreign immigrants to citizens of the state whose policy is in question because, given our relational theory of equality, persons have responsibilities to their compatriots that they do not equally owe to foreigners.40 In particular, persons have a special duty to respect their fellow citizens as equal partners in the political community. With this point in mind, we suggest that a country may not institute an immigration policy which excludes entry to members of a given race, because such a policy would wrongly disrespect its own citizens who belong to the dispreferred category. White Australia does not simply insult nonwhites who are foreigners, but who wish to become citizens of Australia; more importantly, it disrespects nonwhites who are already citizens and thereby makes them second-class citizens. However, someone might question whether a race-based immigration policy could really show disrespect for any of a state’s current citizens, given that no citizen can be evicted from the country based on race or any other factor. To see how such disrespect is possible, consider an analogous situation from the familial context. Rather than focusing upon racists who are unwilling to marry outside of their race, imagine a family of white racist parents with


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two children, one white and another black. (For the purposes of this thought experiment, imagine that white parents occasionally gave birth to black children.) Now, imagine that the parents announce that, as much as they would love to have a third child, they have decided against it for fear that they might have the bad luck of having another black child. Obviously this announcement would be deeply wounding to their black child, who would rightly regard herself as an outcast in the family, even if she was not threatened with abandonment. In light of this analogy, it is not difficult to see how Asian Australians, for instance, would be disrespected by an immigration policy banning entry to nonwhites because they were regarded as inferior to whites. Even though this policy in and of itself in no way threatens Asians with expulsion, it sends a clear message that, qua Asians, they are not regarded with equal concern and respect by their fellow white citizens. As Michael Blake comments, “Even if a hypothetical pure society could close the borders to preserve itself, a modern multi-ethnic democracy could not do so without implicitly treating some individuals already present within the society as second class citizens.”41 Thus, unless Australia were already composed exclusively of white constituents (and no state is completely homogenous), it would be impermissible to institute immigration policies designed to approximate a “White Australia,” not because such policies might insult potential nonwhite immigrants (though no doubt it would), but because they would fail to treat nonwhite Australians as equals. And because no state is completely without minorities who would be disrespected by an immigration policy which invoked racial/ethnic/religious categories, no state may exclude potential immigrants on these types of criteria.42

C O N C LU S I O N It is striking how radically academic commentary on the morality of immigration diverges in certain respects from ordinary moral thought. In the worlds of common perception and public policy, almost everyone presumes that sovereign states are entitled to control their territorial borders. Within the confines of academic discussion, on the other hand, the majority of political philosophers contend that most restrictions on immigration cannot be morally justified. This chapter takes sides with ordinary moral thinking on this matter, even as we recognize and reject the prejudice and narrow-mindedness that plagues public discourse about immigration. We have constructed a presumptive case in favor of a state’s right to set its own immigration policy and have defended this pro tanto case against the formidable arguments that have been made on behalf of open borders. Legitimate states have the moral

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right to determine the criteria by which outsiders are permitted to enter their territory or become citizens, as long as the criteria are consistent with its obligation to treat all its citizens as equal members of the political community. On the other hand, our account of a state’s right to control immigration diverges in an important respect from both ordinary moral thought and academic commentary. We have argued that, even though wealthy societies have stringent and substantial duties of global distributive justice and individuals have moral rights to freedom of movement and private property, legitimate states are entitled to reject all potential immigrants, even those desperately seeking asylum from tyrannical governments. The flaw in conventional thinking is the excessive specificity with which it understands the duties states have to noncitizens. Those duties certainly include a duty to assist persons imperiled by absolute poverty, political persecution, and other grave dangers. However, states have multiple ways in which they can discharge that duty. Opening borders is one way. But often there are feasible alternatives and, in more than a few cases, those alternatives could well be better for those who are imperiled than simply permitting entry to almost anyone who is prepared to migrate.

8 Conclusion This book has advanced a theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively anti-liberal idea of an irreducibly collective right of self-governance. The individual and her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, we have also argued that legitimate states have a moral right to self-determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Moreover, groups that are not legitimate states but aspire to become so can also have a right to their own independent state. If such groups are willing and able to become states that adequately protect and respect human rights, then they too have a right of political self-determination. This right of self-determination is not a right merely to some special political status within some existing state. It is a full-blown right to sovereignty. It inheres not in governmental institutions, much less in the officials who occupy those institutions. Rather, it inheres in a political society as a whole. Institutions are the means through which protection of human rights is provided and made secure by a society. The right of political self-determination is also a full-blown moral right. And a particular society’s right to self-determination would hold, even if the practical barriers to a single world state were transcended. Indeed, the right would hold, even on the assumption that the world state would do a better job protecting the human rights of the members of the society in question than they could collectively do for themselves. Many thinkers endorse the idea that, when the decisions made by a particular state affect the lives of persons in other states, those individuals – or persons who represent their interests – ought to have a say in the decisions. The idea drives thought in the direction of a world state, or at least toward global arrangements with regional and international forms of citizenship and representation. But if legitimate states and those groups willing and able to become such states possess a right to political self-determination, then the idea cannot be correct. The right means that the states and other groups that possess it

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have dominion over certain kinds of decisions, notwithstanding the fact that such decisions affect the lives of outsiders. An individual’s right to choose an occupation means that the choice is up to her, notwithstanding the fact that her choice undoubtedly affects the lives of others. Fewer men had the opportunity to become lawyers once legal and social barriers to women’s entry were eliminated. But it would clearly have been wrongheaded for men to have argued that justice required that the adverse impact on them counted against eradicating those barriers. Analogously, it would have been quite wrongheaded for metropolitan states to argue that the adverse effects of decolonization on them counted against the movements to end colonialism. Just as women had the right to enter the legal profession, regardless of the adverse impact on men, populations able and willing to become legitimate states have the right to do so, regardless of the adverse impact on metropolitan states. Similarly, the economic and social policies of a legitimate state might affect the lives of persons outside of its borders, but justice does not ipso facto demand that the interests of those persons be counted in the state’s decision-making process on such matters. We have avoided the claim that “peoples” have a right to political selfdetermination. Instead we have spoken of “groups” or “populations” or “societies.” The reason is that “peoples” has a connotation of common descent that we regard as irrelevant to political self-determination at the level of fundamental principle. In other words, the members of a group need not possess a common descent, or believe that they possess a common descent, for the group to have a right of political self-determination. What counts are the political capabilities of the group, not whether its members had the same set of ancestors. For a similar reason, we do not accept the idea of national self-determination, if the idea is meant to suggest that a shared language, religion, or culture is a condition of the right of political self-determination. What must be shared is not religion or even language but rather political institutions and practices that adequately protect and respect rights. Undoubtedly, the willingness to establish and maintain such institutions is a function of various factors, among which religion, language, and culture more generally are important. However, one mistakes what is morally secondary with what is morally fundamental if one treats cultural factors as directly relevant to the determination of which groups have a right to political self-determination. Accordingly, any group willing and able to perform the requisite political functions has a right to constitute a state, regardless of how culturally diverse it is or how divergent the branches of the tree of humanity are from which its members have descended. While the right of political self-determination is held collectively, human rights are held by individuals, one by one. We have argued that a valid claim to political dominion by a group rests on its willingness and ability to adequately

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protect human rights. But this normative connection between a group’s right of political self-determination and individual rights does not mean that political self-determination is itself an individual right. Rather, it means that certain individual rights are the ultimate measure of which groups hold the right of self-determination. The individual rights are human rights, that is, those whose protection helps to insure that a person is secure from standard threats to leading a decent human life. International justice, then, encompasses both individual rights, in the form of human rights, and collective rights, in the form of the right to political self-determination. The two kinds of rights can fit together into a coherent theoretical scheme because, as a matter of substantive morality, the possession of the collective right by any group depends on whether it is willing and able to adequately protect and respect human rights. Yet, the conceptual and normative coherence of our theory does not entail that the theory can be easily applied to provide answers to concrete issues of international affairs. Many factors complicate the move from the abstractions of theory to judgments about what is to be done, or to be left undone. Rights must be adjusted to accommodate competing rights. Empirical uncertainties abound and make many moral disputes about international affairs irresolvable until much more is known about the conditions and consequences of various courses of action. Still, the principles and claims that we have defended provide a theoretical framework that can help guide normative inquiry. Our hope is that by developing and deploying that framework we have been able to illuminate some important aspects of international justice and that the inevitable shortcomings in our theory will prompt readers to look for a better one.


Notes CHAPTER 1 1. Giorgio Agamben, “Beyond Human Rights,” p. 16. 2. We understand a state to be a politically-organized society. It has a set of governing institutions and a population over which governance is exercised. Modern states are distinguished from other ways of organizing politics by their claim to sovereignty over a demarcated territory, their unified system of law and governance within the territory, and their extensive regulation of social life by means of legal institutions and an administrative bureaucracy. See Christopher W. Morris, An Essay on the Modern State, pp. 36–46. 3. Ulrich Beck, Power in the Global Age, p. 90. Indeed, we think that David Held is exactly right when he writes: “In many aspects of politics and military affairs, states remain the primary actors in world affairs. To the extent that other actors have an impact … this tends to occur within a framework still formed and dominated by states.” David Held, Global Covenant: The Social Democratic Alternative to the Washington Consensus, p. 6. 4. We do not deny that certain transnational problems, such as climate change and environmental degradation, impose obligations even on a state that has a moral right of self-determination. Joining with other states in various regulatory regimes is one obvious way to begin to meet such obligations. 5. Universal Declaration of Human Rights, December 10, 1948, G.A. Res. 217 A (III), available at http://www.un.org/Overview/rights.html. 6. Accounts of human rights that connect them to a decent human life include Allen Buchanan, Justice, Legitimacy, and Self-Determination, chap. 3, and James W. Nickel, Making Sense of Human Rights, chaps. 4 and 5. Theories that ground human rights in the conditions of human agency, rather than in the idea of a decent human life, can be found in James Griffin’s On Human Rights and Carol Gould’s Globalizing Democracy and Human Rights. We have explicitly omitted from our list of human rights those found in Article 21 of the Universal Declaration. The rights therein contained are rights of democratic participation. We argue in Chapter 2 of this book that there is no human right to democracy. Rather, we regard democracy as a very useful instrument, under a wide range of circumstances, for protecting human rights, but not as something to which there is a human right. However, it should also be noted that our list of human rights contains individual rights with important political dimensions, such as the rights of free expression and association, so that it would be misleading to say that the list includes no political rights.

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Notes

7. Legitimacy can be ascribed either to states or to their governments. The legitimacy of states, however, is more fundamental because legitimate governments simply are the duly authorized governments of legitimate states. 8. We provisionally assume that there are legitimate states in the world today and that they include Sweden, Denmark, Norway, Germany, Canada, and New Zealand. Illegitimate states certainly include North Korea, Myanmar, and Zimbabwe, but in our judgment, the list is much longer and includes the majority of de facto states. We recognize, though, that reasonable people will disagree over how well a state must protect and respect human rights in order to count as legitimate. 9. The functional account of legitimacy is presented in detail by Christopher Heath Wellman in Is There a Duty to Obey the Law? 10. Nickel, Making Sense of Human Rights, p. 70. 11. For an additional qualification on the conditions of legitimacy, see n. 17. 12. On the Westphalian system and its idea of sovereignty, see Chris Brown, Sovereignty, Rights, and Justice, chap. 2. 13. A prominent proponent of this approach is Allen Buchanan. See his Justice, Legitimacy, and Self-Determination, pp. 56–7. 14. Cf. Charles Beitz, Political Theory and International Relations, pp. 80–1. 15. Fernando Teson, Humanitarian Intervention: An Inquiry into Law and Morality, p. 57. We do not address the question of whether Hegel himself endorsed the “Hegelian myth.” 16. See the seminal discussion of exclusionary reasons in Joseph Raz, Practical Reason and Norms, pp. 35–48. 17. Included among the rights that must be respected is the right of self-determination held by other legitimate states and by certain secessionist groups. For simplicity of expression, we sometimes write that human rights are the measure of legitimacy, but we should be understood as referring also to the collective right of political self-determination that various groups might hold.

CHAPTER 2 1. Although some thinkers claim that there has been a resurgence of the view that there can and should be a world government, the view remains marginal. See Campbell Craig, “The Resurgent Idea of World Government,” pp. 133–42. 2. Margaret Moore, “Introduction,” p. 6. 3. Frantz Fanon, The Wretched of the Earth, p. 148. 4. Fanon, The Wretched of the Earth, p. 245. We hasten to add that we disagree with Fanon’s assumption that the right of sovereignty inheres in a group in virtue of shared cultural values and practices. This assumption is accepted by many thinkers across the political spectrum. We examine and criticize it in Chapter 3, where we advocate a view that is much closer to Habermas’s “constitutional patriotism.” See Juergen Habermas, Between Facts and Norms, p. 500.

Notes

5. 6. 7.

8.

9.

10.

11.

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Fanon is also well known as an advocate of the use violence in the fight against colonial domination. In Chapter 5 we take up the general issue of whether the recourse to armed force can be justified as part of an effort to vindicate the right of political self-determination. Fanon, The Wretched of the Earth, p. 101. Ibid., p. 103 (emphasis in original). If no amount of restitution will make it possible for a population to perform the requisite functions, then the unavoidable conclusion is that it has no right of selfdetermination: An irreparable injustice has been done, but, even in exceptional cases, the right of self-determination cannot be wholly divorced from the ability to adequately protect and respect human rights. It will not always be an easy matter to draw the line between justified exceptions to the two principles, on the one hand, and cases in which a group simply does not have a right of political self-determination. But to say that it will be difficult to draw the line is only to say that there will be controversial cases in which the debates hinge largely on the particular details. Admittedly, some of the judgments that we make in subsequent chapters about secession or armed intervention, for example, will not initially strike many readers as especially reasonable. But in those cases, the hope is that our account of selfdetermination will show why judgments that appear at first glance to be unreasonable are actually quite reasonable. In cases such as those of failed states, we do not rule out the possibility that some kind of international trusteeship would be justified, or even obligatory, in order to help re-establish (or establish) the group’s capacity to determine its own affairs in a morally acceptable manner. In cases where the group simply could not acquire such a capacity, then it would need to break into subgroups that could do the job or affiliate with another state, so that the result would be morally acceptable. Colonialism involves certain complicating factors from which we abstract in our analysis. For example, suppose that the COLONIZED are not willing and able to constitute a legitimate state and that neither IMPERIUM nor any other agent has done anything unjust to COLONIZED to render it incapable of performing the requisite political functions. In such a case, it might still be true that the distinct subpopulations within the COLONIZED are each willing and able to form their own legitimate states. If that is so, then each subpopulation has the moral right of independence from IMPERIUM. But it might also be that there are no such subpopulations. What then? Much depends on the empirical details, but we would not say that COLONIZED is thereby condemned to its political subordination under IMPERIUM. Even if the COLONIZED lack a collective right of self-determination, its members have an individual right to seek better protection of their human rights than IMPERIUM is providing, and perhaps one could even say that COLONIZED also has a collective right against IMPERIUM that the latter relinquish its political hold. In Chapter 3, we examine the implications of our principles of self-determination for the issue of secession.

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12. We operate here with a conception of modern democracy as a political regime characterized by: (a) legislative bodies whose members are chosen by citizens in periodic elections and who represent a wide range of society’s interest groups and political viewpoints; (b) freedom of political speech and association; (c) competitive political parties and other associations organized to pursue political goals; (d) the use of majority rules for legislative decision and of majority/plurality rules or some version of proportional representation for electoral decisions; (e) rules that are neither arbitrary nor unduly restrictive for determining who is a citizen; ( f ) a universal and equal franchise among adult citizens; (g) and an independent judiciary. Additionally, in a democratic regime, all or most of the important political decisions are made by some suitable mix of elected representatives and the body of citizens as a whole. If oligarchs, plutocrats, or technical experts are making most of the important decisions for a political society, then, notwithstanding the existence of free and fair elections, competitive parties, and so forth, the system cannot be accurately described as democratic. We do not build into the definition of democracy respect for human rights. For a more robust conception of democracy, see Carol Gould’s Rethinking Democracy. 13. Prominent instrumentalist defenses are provided in William Nelson, On Justifying Democracy; Ronald Dworkin, Sovereign Virtue, chap. 4; and Richard Arneson, “Democratic Rights at the National Level.” A notable critique of the instrumentalist view is Charles Beitz, Political Equality, pp. 31–48. 14. Allen Buchanan, “Democracy and Secession,” p. 17. 15. Henry Richardson, Democratic Autonomy, p. 59. 16. Robert Dahl, Democracy and Its Critics, pp. 89 and 91. 17. Ibid., p. 91. 18. Daniel Philpott, “In Defense of Self-Determination,” p. 357. 19. Ibid., p. 353. 20. Allen Buchanan, “Democracy and Secession,” pp. 17–18. Also see Richardson, Democratic Autonomy, p. 59. 21. Richardson, Democratic Autonomy, p. 28. 22. Beitz, Political Equality, p. 98. 23. Thomas Christiano, “The Authority of Democracy,” p. 269. 24. Ibid., p. 270. 25. Ibid., p. 273. Cf. John Rawls, A Theory of Justice, p. 179. 26. Christiano, “The Authority of Democracy,” p. 275. 27. Ibid., p. 276. 28. Ibid., pp. 271–2. 29. This example is a variation of one suggested to us by David Estlund. 30. Thomas Christiano, The Rule of the Many, p. 47. 31. Beitz, Political Equality, p. 45. 32. Ibid., p. 113. 33. Perhaps Beitz only intends to give the best account of the ideal of democratic citizenship and not to give an argument for democracy’s unique legitimacy. However,

Notes

34. 35. 36. 37. 38. 39. 40. 41. 42.

43.

44.

45.

46. 47.

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he does write that there are “reasons that might motivate someone” to accept the ideal he proposes: It is “an attractive” ideal and “difficult to reject.” The line between justification and motivation, while generally clear, becomes rather hazy at this point. It should also be noted that the implications Beitz draws from his contractualism appear inconsistent with the legitimacy of any nondemocratic form of government. Cohen, “Procedure and Substance in Deliberative Democracy,” p. 21. Ibid., p. 24. Ibid., p. 23. Also see John Rawls, “The Idea of Public Reason Revisited,” pp. 140–8. Cohen, “Procedure and Substance in Deliberative Democracy,” p. 23. Ibid., p. 17. Ibid., p. 27. Ibid., p. 28. Ibid., p. 17. Autonomy and equality do not exhaust the individual rights on which democracy has been defended. Impartiality and fairness have also been cited. However, we believe that these other grounds ultimately parse out in terms of autonomy, equality, or both. Thus, impartiality is a matter of giving equal consideration to the interests of individuals (or to some important set of interests, such as the one individuals have in autonomy). And fairness is a matter of the equal treatment of individuals who are relevantly similar. As Jeremy Waldron puts it: “[T]here is a recognizable need for us to act in concert on various issues or to co-ordinate our behaviour in various areas with reference to a common framework, and … this need is not obviated by the fact that we disagree among ourselves as to what our common course of action or our common framework ought to be.” Law and Disagreement, p. 7. We hasten to add that free expression and freedom of association are human rights and so must be protected at all times: No collective decision can permissibly do away with such protections. It is admittedly only a rough first approximation to say that the will of the group is determined by the preferences of individual members as revealed in their votes. For most practical political purposes, this first approximation is good enough. But just as in explicating the concept of the will of an individual, there are complications in specifying the concept of the will of the group. The group’s will depends wholly upon facts about the individuals who constitute it, and the relevant facts concern the will of each individual member. The will of each member however, is not simply a matter of his or her preferences at any given moment but is more a matter of the stable preferences that the individual would have under certain idealized conditions of knowledge and freedom. For an excellent account of collective political agency, see Arthur Isak Applbaum, “Forcing a People to Be Free,” pp. 374–86. Waldron, Law and Disagreement, p. 239. Ibid., p. 312.

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48. We should stress that, while someone might invoke this Waldron-inspired objection, Waldron himself suggests that he might not do so. In fact, on the possibility of a group voting to abandon democratic governance, he comments: “If the people voted to experiment with a dictatorship, democratic principles might give us a reason to allow them to do so.” Law and Disagreement, p. 255. 49. Also see Griffin, On Human Rights, pp. 242–52. Griffin argues that there is no valid inferential route from the rights of autonomy or liberty to a human right to democracy. 50. Our understanding of basic rights as protections against standard threats is due to Henry Shue, Basic Rights, pp. 29–34. 51. We agree with Griffin that “it is possible, in certain realistic, perhaps even actual historic, though not necessarily common, conditions, for there to be forms of government that do not violate any human rights but are not democratic.” Griffin, On Human Rights, p. 249. 52. Allen Buchanan, Justice, Legitimacy and Self-Determination, pp. 142–3. 53. Chris Naticchia, “Recognition and Legitimacy: A Reply to Buchanan.” 54. Allen Buchanan, Justice, Legitimacy and Self-Determination, p. 147. 55. Michael Hartney, “Some Confusions Concerning Collective Rights,” p. 297. In Justice, Legitimacy, and Self-Determination, Allen Buchanan defends a similar, if not identical, position, which he calls “justificatory individualism.” It asserts “that only the interests of individuals can serve as the ultimate ground of moral justification, that only individuals are moral subjects” (p. 414). And in a similar vein, Brian Barry writes that “attributing rights to collectivities is incompatible with the individualist principle” and that “the only way of justifying any social practice is by reference to the interests of those affected by it.” See his “Self-Government Revisited,” pp. 249 and 253. 56. Charles R. Beitz, Political Theory and International Relations, p. 81. 57. Stephen Darwall, “Two Kind of Respect,” p. 45. Darwall distinguishes recognition respect from “appraisal respect.” The latter “consists in an attitude of positive appraisal of [a] person either as a person or as engaged in some particular pursuit” (p. 38). The key difference between the two forms of respect lies not in their objects but in the kind of attitude they consist in: recognition respect “consists in giving appropriate consideration or recognition to some feature of its object in deliberating about what to do” (p. 38), while appraisal respect consists in “a positive appraisal of a person or his character-related features [and] does not essentially involve any conception of how one’s behavior toward that person is appropriately restricted” (p. 41). 58. Stephen Darwall, “Respect and the Second-Person Standpoint,” p. 44. 59. One might charge that we are begging the question by assuming that legitimate states have a collective right of self-determination. However, such a charge misinterprets our aim in this section, which is not to argue directly for a collective right of self-determination, but rather to show how positing such a right is consistent with value individualism. It follows from our account that, if a colonized people were in fact unable to govern themselves and the colonial power imposed its rule only to protect human

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rights and otherwise carry out the requisite political functions, then there would be no failure to accord recognition respect. Such a failure is essentially a matter of failing to conform one’s behavior to moral restrictions on permissible conduct that have their source in other persons, and, in the imagined case, there would be no violation of such a restriction.

CHAPTER 3 1. Among the exceptions would be Harry Beran, “A Liberal Theory of Secession,” and David Gauthier, “Breaking Up: An Essay On Secession.” 2. Empirical research has cast doubt on the idea that ethnic diversity within a state increases the probability that it will experience a civil war. See James D. Fearon and David D. Laitin, “Ethnicity, Insurgency, and Civil War.” In our view, the crucial question is whether a population – whatever its ethnic diversity – can establish resilient institutions of governance that reliably protect rights. 3. Margaret Moore, The Ethics of Nationalism, p. 159. 4. W. Ivor Jennings, The Approach to Self-Government, p. 56. 5. Margaret MacMillan, Paris 1919, pp. 11–13. 6. Beran, “A Liberal Theory of Secession,” p. 29. 7. Charles R. Beitz, Political Theory and International Relations, p. 106. 8. Harry Beran, “A Democratic Theory of Political Self-Determination for a New World Order,” pp. 38–9.One caveat concerning Beran’s recursive procedure should be mentioned. The general idea of his procedure should be distinguished from any given concrete political process – such as a referendum – that operationalizes the idea. The claim that a particular concrete process adequately or best operationalizes the idea is not true simply in virtue of the meaning of majority rule. We do not doubt that there are very strong reasons for thinking that, in most actual situations confronted by international politics, some kind of referendum is the best way to operationalize the idea of majority preference. Still, there could well be exceptions due to such factors as a population’s inadequate understanding of the options and biases that might be built into the actual language of a referendum. 9. Moore, Ethics of Nationalism, p. 236. 10. Ibid., p. 215. 11. Ibid., p. 211. 12. Ibid., p. 215. 13. David Miller, On Nationality, p. 112. 14. One might agree that political states must be territorially defined and still wonder how we should determine who is entitled to which territory. In answering this question, it is important to distinguish among three types of claims to territory: property, jurisdiction, and visitation. It might be that (a) a certain Japanese person, say, owns a piece of land in Jerusalem, (b) the Israelis as a group are entitled to exercise political jurisdiction over the territory which includes Jerusalem, and (c) the members of various religious groups have a moral claim to visit this city,

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15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

26.

27. 28.

29. 30. 31. 32. 33.

Notes for instance. We take no stand in this chapter on property or visitation rights, and our position on jurisdiction is straightforward: Other things being equal, those who occupy a territory enjoy jurisdictional rights over this land as long as they are able and willing to perform the requisite political functions. The “other things being equal” clause is crucial, because a group might lack jurisdictional rights (even when it is politically viable) if it has unjustly come to occupy this land. When the Soviet Union forcibly annexed Lithuania and then moved masses of Soviet citizens into the territory, for instance, this action would not have entitled the new inhabitants to exercise jurisdiction over the land in question, even if they had subsequently established a legitimate political regime (which they did not). Of course, given that virtually every current population has conquered those who came before them, it is a notoriously difficult question as to whether there is something akin to a moral statute of limitations regarding territorial conquests (and if so, how long it takes to “kick in”). We will not wade into these waters here, but those interested in this question should see Jeremy Waldron, “Superceding Historic Injustice.” For a more general discussion of territory, see Tamar Meisels, Territorial Rights. Miller, On Nationality, p. 81. Allen Buchanan, Justice, Legitimacy, and Self-Determination, p. 27. Ibid., p. 26. Ibid., pp. 26–7. Ibid., p. 27. Ibid., pp. 26–7 (italics added). Ibid., p. 24. Ibid., p. 247. Ibid., p. 261. Ibid. This definition does need some qualification, for example, to cover cases in which a state has jurisdiction over a territory because the territory is a protectorate. But none of the qualifications involves introducing the concept of international law. We use the somewhat imprecise term “otiose” because we wish avoid taking sides in the Strawson–Russell disagreement over the truth value of such sentences as “The present King of France is bald.” See P. F. Strawson, “On Referring.” Charter of the United Nations, article 1, para. 2, available at http://www. un.org/aboutun/charter. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, G.A. Res. 2200 A (XXI), art. 1, para.1, available at http://www.unhchr.ch/ html/menu3/b/a_cescr.htm Buchanan, Justice, Legitimacy, and Self-Determination, p. 339. Ibid., p. 370. Ibid., pp. 377–8. David Copp, “International Law and Morality in the Theory of Secession,” p. 243. John McGarry, “ ‘Orphans of Secession’: National Pluralism in Secessionist Regions and Post-Secession States,” pp. 225–6. Regarding Canada, McGarry adds: “Canada’s current troubles do not undermine this argument. To a considerable extent, the

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34. 35. 36. 37. 38. 39. 40. 41.

42. 43. 44. 45. 46.

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rise in support for Quebec separatism since the 1970s can be traced to a move away from the concept of bi-national partnership on the part of English-speaking Canadians towards a view of Canada as a nation-state in which all individuals and provinces should be treated equally. Similarly, the breakup of several Communist multinational federations should not cast any doubt on decentralization as a strategy, as these states were in fact highly centralized.” Copp, “International Law and Morality,” p. 243. Michael Freeman, “The Priority of Function Over Structure: A New Approach to Secession,” p. 15. Donald L. Horowitz, “A Right to Secede?” Ibid., p. 58. Ibid., pp. 55–6. Allen Buchanan, “Introduction,” p. 5. Buchanan, Justice, Legitimacy, and Self-Determination, p. 370. Copp, “International Law and Morality.” Our summary here simplifies Copp’s proposal a bit, cutting out some of the steps. We do this for the sake of brevity, not because we think that some of Copp’s recommendations are unimportant. On Copp’s view, the Court would also have to judge that the separatists constitute a “society.” Copp, “International Law and Morality,” p. 234. Ibid., p. 235. Ibid. Tadic’s quote was reported in AP Online, May 23, 2006, available in Lexis-Nexis Academic.

CHAPTER 4 1. International treaties relating to matters of criminal justice typically obligate state parties to enact national laws, or other regulations, that implement the substance of the treaty. Thus, the convention on genocide provides that the parties “undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide.” Convention on the Prevention and Punishment of Genocide, December 9, 1948, G.A. Res. 260 A (III), Article V, available at: http://www.unhchr.ch/html/menu3/b/p_genoci.htm Prior to World War II, it was only through national law that international norms, such as those constituting the rules of war, could be enforced against individuals. The jurisprudence of the International Military Tribunal at Nuremberg made individuals accountable directly under international law for certain transgressions, quite apart from any potentially relevant national laws. 2. Norms from which derogation is not legally permitted are known as jus cogens norms in the literature of international law. 3. We will describe a state as not consenting to the jurisdiction of a particular tribunal when it has not entered into a treaty or other agreement that specifically author-

202

4.

5.

6.

7.

Notes izes that tribunal to hear criminal cases arising from conduct within the state’s territory. Accordingly, the International Criminal Tribunal for Rwanda did have the consent of Rwanda for hearing cases arising from the genocide there. In contrast, Sudan has not consented to the jurisdiction of the International Criminal Court (ICC) to prosecute cases arising from conduct in Darfur. The ICC is investigating actions in Darfur under a referral from the UN Security Council. Although one might claim that Sudan consents to ICC jurisdiction (via such a referral) by virtue of its membership in the United Nations, we think that it would be stretching the idea of consent too far for that claim to be plausible, in light of Sudan’s vigorous protests of ICC actions. Our focus throughout this chapter is on what have been called “the core crimes of international criminal law,” namely, war crimes, crimes against humanity, genocide, and aggressive war. See Bruce Broomhall, International Justice and the International Criminal Court, p. 10. This part of international criminal law most clearly involves violations of human rights. We do not assume that human rights violations are automatically violations of international criminal law. We regard the rules of international law as a human construction. The extent to which rights violations are international crimes depends on the actions of states, the rulings of international tribunals, and the other factors that constitute international law. Our disagreement with the conventional view is over the grounds and limits of a morally justifiable system of international criminal law. Gary Bass downplays the novel character of Nuremberg, arguing that its supposed innovations – such as the charge of crimes against humanity – can be found in the post-World War I trials at Constantinople of officials of the Ottoman regime. He describes the Constantinople tribunal as “the Nuremberg that failed” (p. 106). Nonetheless, even by Bass’s own account, there were important differences. For example, the Constantinople tribunal was “a special Turkish court-martial” (p. 124) and not an international tribunal. Moreover, when the court convicted two officials of “acting against humanity and civilization,” the legal basis for the conviction seems to have been, not some new category of international crime but rather “Moslem supreme justice [that] considers these events [i.e., the atrocities directed and permitted by the officials] as murder, pillage, robbery, and crimes of enormous magnitude” (quoted from the court’s ruling at p. 125). See Gary Jonathan Bass, Stay the Hand of Vengeance: the Politics of War Crimes Tribunals. The Charter of the IMT in Article 6(c) defines crimes against humanity as: “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on religious, racial or political grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated.” The other crimes within the jurisdiction of the tribunal were war crimes, crimes against peace (most prominently, planning or waging a war of aggression), and conspiracy to engage in the aforementioned crimes.

Notes

8.

9.

10. 11.

12.

13.

14.

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The International Military Tribunal for the Far East, held in Tokyo and putting on trial Japanese officials, is generally regarded as much less fair to the defendants than was the IMT. Comparing the two tribunals, a prominent international jurist recently wrote, “The Tokyo Tribunal’s more cavalier attitude toward the law and the defendants largely explains its relative marginality during the last sixty years, and its near total lack of influence on international law.” Theodore Meron, “Reflections on the Prosecution of War Crimes by International Tribunals,” p. 570. Samantha Power, A Problem from Hell, pp. 14–15. Talaat was assassinated in Berlin by the Armenian, Soghomon Tehlirian, as an act of revenge for Talaat’s role in the genocide. German Jews were, of course, stripped of their citizenship and later rendered stateless by German law in the campaign that culminated in genocide. The key point is that they had a moral entitlement to live within Germany and, as a consequence, the German state had a moral obligation to protect their basic rights. Power, A Problem from Hell, p. 12 A distinct issue is whether the interwar treaties prohibiting aggressive war imposed individual criminal liability. The IMT made the controversial but crucial decision that the treaties did impose such liability, notwithstanding the absence of any language to that effect in the treaties. Other problems with the Nuremberg prosecutions were the tribunal’s apparent lack of impartiality and the provision of the London Charter (Article 6) that made only those individuals on the Axis side subject to prosecution before the IMT. Those defects made problematic not just bringing the charges of crimes against humanity but also the charges of war crimes and crimes against peace. The conspiracy charge was also questionable insofar as its elements made it much more sweeping than the definition of conspiracy under German law. However, our initial focus here is on crimes against humanity. Larry May, Crimes Against Humanity: A Normative Account, pp. 80 and 82. We should stress that May pairs his international harm principle with “the security principle,” which he formulates as: “If a State deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence, a) then that State has no right to prevent international bodies from ‘crossing its borders’ in order to protect those subjects or remedy their harms; b) and then international bodies may be justified in ‘crossing the borders’ of a sovereign State when genuinely acting to protect those subjects” (p. 68). His two principles arguably give May the best theory of international criminal law to date, but, as we show below, the international harm principle is problematic. The security principle on its own and suitably elaborated would be theoretically preferable. Trial of the Major War Criminals before the International Military Tribunal (Nuremberg, 1948), vol. 2, pp. 126. The IMT accepted Jackson’s war-nexus requirement but gave it a narrow reading so that the persecution of Jews during the pre-World War II period was ruled to be beyond the scope of the tribu-

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15. 16.

17. 18. 19. 20.

21.

22.

23.

24.

25. 26.

Notes nal’s jurisdiction. See Trial of the Major War Criminals vol. 22, p. 498; and Telford Taylor, The Anatomy of the Nuremberg Trials, p. 583. Richard Vernon, “What is Crime against Humanity?” p. 239. Decision of the Supreme Court of the British Zone (October 26, 1948), in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, Entscheidungen in Strafsachen, vol. I, pp. 122–6 at p. 124 (unofficial translation), quoted in Prosecutor v. Tadic, Case No.: IT-94-1-A (July 15, 1999), p. 117, para. 260, n. 322. Hannah Arendt, Eichmann in Jerusalem, p. 269. Ibid., p. 276. Geoffrey Robertson, Crimes Against Humanity, p. 220. Larry May, Crimes Against Humanity, p. 83–90. May seems to vacillate on whether crimes such as genocide actually harm humanity or harm only a smaller population but in a way that crosses international borders. There are passages in which May explicitly uses the “harm to humanity” account: “Thus, I will subscribe to the following principle of group-based harm: To determine if harm to humanity has occurred there will have to be one of two (and ideally both) of the following conditions met: either the individual is harmed because of that person’s group membership . . . or the harm occurs due to the involvement of a group such as the state” (p. 83). Without a clear break from the Westphalian model, it is not possible to persuasively counter the views of the critics of international criminal courts. We address the arguments of such critics in the fifth and sixth sections below. Among the prominent thinkers who have broken with the Westphalian model are Allen Buchanan, Justice, Legitimacy and Self-Determination; Charles R. Beitz, Political Theory and International Relations; and David Luban, “Just War and Human Rights.” Joel Feinberg, Harm to Others and Harm to Self. As May argues with reference to Feinberg’s domestic harm principle, “Requiring a violation of the harm principle is a well-recognized way to delimit the kind of things that it is legitimate to prosecute people for” (Crimes Against Humanity, p. 82). We endorse Charles Beitz’s view that “it is because all persons should be respected as sources of ends that we should not allow all states to claim a right of autonomy” Political Theory and International Relations, p. 81. It is true that there are some important differences between a parent’s authority and a state’s sovereignty. As Locke wrote, a father’s “command over his children is but temporary and reaches not their life or property.” The sovereignty of a state over an individual does not expire when she attains a certain age or level of maturity, and sovereign power reaches the property of a state’s constituents. If capital punishment is ever permissible, it reaches their lives as well. John Locke, Second Treatise of Government, p. 37. See Beitz, Political Theory and International Relations, pp. 80–1. Also see Kofi Annan, “Human Rights and Humanitarian Intervention in the Twenty-First Century.” Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9*, available at http://untreaty.un.org/cod/icc/index.html

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27. The court’s jurisdiction over the crime of aggression will not take legal effect until the state parties agree to a definition of the crime. A committee of experts has been at work trying to formulate a definition acceptable to the parties. However, a leading international scholar and jurist and powerful supporter of the ICC, M. Cherif Bassiouni, is skeptical that the court will actually be able to enforce the crime of aggression anytime soon. See his The Legislative History of the International Criminal Court, vol. 1: Introduction, Analysis, and Integrated Text, p. 156. 28. As we made clear in Chapters 1 and 2, a legitimate state must also respect the rights of those beyond its jurisdiction, but in the present context, the concern is with the state’s obligation to protect all persons within its jurisdiction. It should be noted that our standard of legitimacy is considerably higher than what is usually found in the literature of international law from which the phrase “widespread or systematic” is borrowed. The majority of existing states would fail our test of legitimacy, while the legal literature implies that the majority of existing states would pass its test. See our discussion of legitimacy in Chapter 1. 29. This approach conforms to the idea of complementarity incorporated into the statute establishing the International Criminal Court: The court has jurisdiction only when domestic courts are unwilling or unable to prosecute criminal offenses arising under the statute. See Rome Statute, Articles 1 and 126(1). 30. We do not treat the issue of amnesties and when they are legitimate here, except to say their legitimacy cannot be ruled out a priori. On this topic, see Christopher Heath Wellman, “Amnesties and International Law.” 31. Universal Declaration of Human Rights, December 10, 1948, G.A. Res. 217 A (III), Article 11, para. 2, available at http://www.un.org/Overview/rights.html 32. We do not claim that the principles of legality must be respected (to some threshold degree) in order for some system that regulates human conduct to be a system of law. That claim was part of Lon Fuller’s procedural version of natural law theory, but it is no part of the analysis we give of international or domestic law. See Fuller, Morality of Law. However, we do agree with Fuller that the principles of legality have moral weight. 33. The scholarly discussion and debate over the conformity of Nuremberg to the principles of legality have continued for over a half century. We cannot address the matter in a thorough manner here. Yet, even if one were to reject our analysis regarding crimes against humanity at Nuremberg, one could still agree that other legality problems afflicted the trial, for example, the absence of a definition of aggression and crimes against peace, and that such problems have been more prone to occur in international prosecutions than in the domestic courts of well-functioning states. 34. Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?” pp. 164–5. On the other hand, in her reflections on the Nazis at Nuremberg, Hannah Arendt writes that the scale of the crimes committed by them “renders all punishments provided by the legal system inadequate and absurd.” See Origins of Totalitarianism, p. 439. We think that Arendt is right to say that all such punishments are inadequate but wrong in claiming that they

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35. 36. 37. 38. 39.

40. 41. 42. 43. 44. 45.

46.

Notes are absurd. It is difficult to conceive of what the leaders of the Third Reich morally deserved in the way of punishment, and the sentences handed down by the IMT – ranging from various terms of imprisonment to the death sentence – surely cannot be sensibly thought of as commensurate with the horrendous nature of the crimes. Yet, the punishments stood as symbols for whatever punishment was morally deserved. It was as though the IMT were saying: “We do not know what punishment these defendants deserve, but here are punishments that are consistent with our understanding of human dignity and serve to stand in for and symbolize those unknown sanctions.” Accordingly, despite the retributive inadequacy of the punishments at Nuremberg, we think that the sanctions were not absurd: The defendants did deserve punishment of some kind, and they did get punishment, however inadequate. Arendt herself seems to have changed her mind, as in later reflections on the Eichmann trial, she writes of “the need for a permanent international criminal court” and appears to favor “the emergence of an international penal code” that would address genocide and crimes against humanity. See Eichmann in Jerusalem, pp. 270 and 272. Shklar, Legalism, p. 155. Ibid., p. 158. Ibid., p. 165–6. Ibid., p. 169. In the nineteenth century, there were international courts that helped suppress the slave trade. However, those courts did not have criminal jurisdiction, though by one estimate they freed some 80,000 slaves. See Jenny S. Martinez, “Antislavery Courts and the Dawn of International Human Rights Law,” p. 553. Shklar, Legalism, p. 167. Benedetto Croce, “Against International Post-War Tribunals,” pp. 1029–30. Charles Wyzanski, “Nuremberg: A Fair Trial?” pp. 32–3. Ibid., p. 32. Charles Wyzanski, “Nuremberg in Retrospect,” p. 59. Under the Rome statute, the ICC is authorized to hear cases arising from actions committed by the nationals or on the territory of the state parties to the statute. As of 2007, there were 105 state parties, substantially short of the more than 200 existing states, although a promising number given the relatively short time since the statute was first ready for ratification in 1998. It should also be noted that, unlike domestic courts, the ICC has its own prosecutorial office, which is entirely separate from the chambers that hear and decide cases. We do not reject other possible justifications, such as the compensation of victims and the prevention of vigilantism. But our view is that deterrence and retribution are the two central justifications. Mark Drumbl has developed an expressivist argument for international criminal tribunals. He contends that the main justification for international criminal punishment centers on its “expressive” function, that is, its symbolic condemnation of the perpetrators of core international crimes. In Drumbl’s view, this function can, over the longer term, help educate populations to respect human rights for moral reasons. We agree that the symbolic

Notes

47. 48.

49.

50.

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condemnation of perpetrators is a significant factor in justifying their punishment but do not regard it as a primary justification. Moreover, contra Drumbl, we do not find the idea that such condemnation can help educate populations is any more empirically plausible than the idea that punishments for international crimes have a deterrent effect (see n. 49). Mark A. Drumbl, Atrocity, Punishment, and International Law, pp. 17 and 174. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law, p. 9. Mark Drumbl is skeptical about the deterrent capacity of punishments handed down by international tribunals on the ground that those who participate in mass atrocities are often swept up in a form of “groupthink” (p. 32), acting without a sense of personal responsibility and letting themselves be taken along by the immediate demands of the community with which they most strongly identify (p. 31). However, he ignores an important – and cogent – aspect of his own overall account of atrocities, namely, the role of what he calls “conflict entrepreneurs” (p. 26). These persons are political leaders who have something to gain from the exacerbation of ethnic antagonism, and they often incite their followers to mass violence. Even if their followers are immune from deterrence due to groupthink and intense social pressure, the conflict entrepreneurs seem to have sufficient rationality to be susceptible to the threat of punishment. See Drumbl, Atrocity, Punishment, and International Law. See Mahmood Mamdani, ‘The New Humanitarian Order’. This criticism is essentially the same as the main objection that Croce and Wyzanski had to the Nuremberg tribunal. The objection has also been leveled at other international tribunals, such as the ICTY. See Martti Koskenniemi, “Between Impunity and Show Trials,” p. 32. Catherine MacKinnon, among other feminist thinkers, criticizes international criminal law for exhibiting another kind of political bias: male bias against women. She writes that “international law still fails to grasp the reality that members of one half of society are dominating members of the other half in often violent ways, all of the time, in a constant civil war within each civil society on a global scale – a real world war going on for millennia” (p. 266). And she connects this “world war” directly to the core international crimes: “Acts of violence against women are mass atrocities, mass human rights violations, widespread and systematic attacks on the basis of sex, crimes against humanity pervasively unaddressed” (p. 271). See Catherine MacKinnon, Are Women Human? For a very different feminist analysis of international criminal law, see Kelly D. Askin, “Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles.” For an account more in line with MacKinnon’s general assessment, see Hilary Charlesworth and Christina Chinkin, The Boundaries of International Law: A Feminist Analysis, pp. 330–7. Charlesworth and Chinkin write that developments in international criminal law since the end of the Cold War amount only to “tinkering with the international legal regime” and do not involve “a restructuring . . . that would address the continued subordination of women” (p. 335).

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It should be noted that MacKinnon does not argue that international criminal law or the ICC ought to be abandoned. Rather, she suggests ways of overcoming the male bias of the law. For example, she proposes that the list of international crimes be expanded to include, among others, female infanticide, sex-selective abortions, honor killings, and dowry burnings. The account of international criminal law developed in this chapter is consistent with expanding the list of crimes in the way MacKinnon proposes, to the extent that such crimes are widespread or systematic in a given society. Indeed, in contrast to traditional conceptions of international law, our account would not require any showing that gender violence in a state is crossing borders and resulting in harm to women in another state. On the other hand, MacKinnon would be suspicious of the theory of political legitimacy we presented in the first two chapters; she would likely argue that no state meets our criterion of legitimacy because in every state violence against women amounts to a human rights catastrophe. 51. Although the United States is not a party to the Rome Treaty establishing the ICC, US nationals are, in theory, liable to prosecution by the ICC if they perpetrate core international crimes on the territory of a state that is a party, or if a nonparty state on whose territory such a crime takes place agrees to ICC jurisdiction for the investigation of a particular crime. However, the United States has enacted a law prohibiting military assistance to any state that is party to the ICC (American Service-Members Protection Act, available at http://www.state.gov/t/pm/rls/othr/ misc/23425.html), and the nation has used its considerable political, economic, and military leverage to get approximately 100 states to agree not to turn over to the ICC any US personnel operating on their territories. (Such agreements are made possible by Article 98 of the Rome Statute). The Act also authorizes the President to use military force to free any US personnel detained by the ICC. 52. It is also possible that the ICC could amend its statute to explicitly allow for trials in absentia, or perhaps the court’s judges would read into the existing statute the possibility of such trials in exceptional circumstances. During negotiations over the ICC statute, there was debate over whether to permit in absentia trials. Such trials are generally not permitted in common-law jurisdictions, but the continental model does not bar them. The negotiators could not reach a compromise, and the result was that the statute does not provide for the trials. See William Schabas, An Introduction to the International Criminal Court, pp. 287–8.

CHAPTER 5 1. International Commission on Intervention and State Sovereignty, The Responsibility to Protect, pp. 29–33. 2. Michael Blake, “Collateral Benefit,” p. 226. 3. Michael Walzer, Arguing About War, p. 75 4. Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society, p. 34.

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5. Terry Nardin, “Humanitarian Imperialism: Response to ‘Ending Tyranny in Iraq,’” p. 22. 6. Kenneth Roth, “War in Iraq: Not a Humanitarian Intervention.” 7. North Korea might be an exception, because mass starvation seems to be part of its routine operation, at least during certain periods. 8. Michael Walzer, Arguing About War, p. 80. 9. The Responsibility to Protect, pp. 53 and 55. 10. See The Responsibility to Protect, pp. 7–8 and 16, and Michael Walzer, Just and Unjust Wars, pp. 86–91. Walzer’s version of the argument is examined in the third section below. 11. Vaughn Lowe, “International Legal Issues Arising in the Kosovo Crisis.” 12. Mirko Bagaric and John R. Morss, “Transforming Humanitarian Intervention from an Expedient Accident to a Categorical Imperative,” p. 439. These authors go further than the consensus by contending that intervention is not just permissible but obligatory in cases of a humanitarian emergency. 13. UN Security Council Resolution 940 (1994), para. 4. Although the term “all necessary means” is standardly employed to include force, the subsequent use of force by the United States provoked Dante Caputo, UN envoy to Haiti to resign. Caputo argued that the United States had acted without sufficient consultation with other member states. Additionally, many states “harbored serious reservations” about the legality of the US-led intervention, on the ground that there was no threat to international peace and no supreme humanitarian emergency. See Brian D. Lepard, Rethinking Humanitarian Intervention, p. 18. 14. Andrea Kathryn Talentino, Military Intervention After the Cold War, p. 130. A historical instance of armed intervention that did not involve any unreasonable risk to persons not liable to attack is Great Britain’s use of their naval power to suppress the slave trade in the Atlantic during the nineteenth century. See Jenny Martinez, “Antislavery Courts and the Dawn of International Human Rights Law.” 15. Iris Young, “Violence Against Power: Critical Thoughts on Military Intervention,” p. 258. 16. David Luban argued that “any proportional struggle for socially basic human rights is justified” in “Just War and Human Rights,” p. 179. We agree with Luban, with the important proviso that the proportionality principle applies only to intervention into illegitimate states. 17. A word of clarification is in order regarding the relation of our account to the doctrine of double effect as it appears in theories of just war. Traditional versions of the doctrine combine (a) an absolute deontological prohibition on the intentional killing of noncombatants and (b) a permission for the foreseeable but unintentional killing of noncombatants, provided that the use of force meets the other conditions for a just war. We accept at least provisionally the idea of a deontological constraint against the intentional killing of noncombatants, and we endorse the norm that permits the foreseeable but unintentional killing of noncombatants. However, it seems to us that the deontological constraint should be not be understood as an absolute prohibition but rather as barring the intentional killing

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25. 26. 27.

28.

29.

Notes of noncombatants unless some extremely high threshold of bad consequences is met and the intentional killing of noncombatants is the only way to avert those consequences. Below the “deontological threshold,” there is no weighing of the consequences to see how many intentional killings of noncombatants are permissible: Any such killings are impermissible. But it is still permissible to impose some risk of death on noncombatants by military actions that do not intentionally kill them. Our proportionality principle operates as a constraint on the level of risk from foreseeable but unintentional killing to which any noncombatant may be subjected. Above the threshold, intentional killing is permitted but only to the extent necessary to avert the terrible consequences that would otherwise ensue. Additionally, the proportionality principle continues to apply to those noncombatants whose intentional killing is not necessary to avert the consequences in question. Even if we are wrong that a threshold deontology is more plausible than an absolutist one, our two-pronged approach to humanitarian intervention would not be undermined. Any use of military force would simply be assessed on the premise that the situation was below the threshold. More complicated emendations to our approach would be required if philosophers such as Frances Kamm, who reject the double-effect doctrine, are right. But our approach would not thereby be defeated. See Kamm, “Failures of Just War Theory: Terror, Harm and Justice.” David Rodin takes the nonconformist view that states have no right of self-defense. See David Rodin, War and Self-Defense. Jeff McMahan, “Just Cause for War,” p. 12. Michael Walzer, Just and Unjust Wars, p. 90. Ibid., pp. 87–8. Cf. Luban, “Just War and Human Rights,” p. 179, and Charles Beitz, Political Theory and International Relations. Cf. Arthur Isak Applbaum, “Forcing a People to be Free,” pp. 369–70. Tesón, Humanitarian Intervention, p. 160. Tesón makes an exception for “those extreme situations [in which individuals] have lost their autonomy.” p. 160. Tesón is a critic of the consensus requirement of a supreme humanitarian emergency. McMahan, “Just Cause for War,” p.13. Richard Miller, “Respectable Oppressors, Hypocritical Liberators: Morality, Intervention, and Reality,” p. 224. Miller says that the “vast” majority must welcome the intervention, but it is not clear either how large of a percentage he would require or on what grounds he can demand a supermajority. We are assuming that the intervention meets a “last resort” condition, so that there would be little likelihood of the rights violations ceasing in the absence of an intervention. Existing international law permits the cross-border use of force by states only for purposes of self-defense or when authorized by the UN Security Council as necessary to maintain international peace and security. There is considerable debate whether international law now incorporates an additional exception to the general

Notes

30.

31. 32. 33. 34.

35. 36. 37.

38.

39.

40. 41.

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ban on the cross-border use of force and permits such force to be employed to avert humanitarian catastrophes. The weight of opinion among international lawyers is that, at present, such an exception is not part of international law. See Ryan Goodman, “Humanitarian Intervention and Pretexts for War,” pp. 111–12. We borrow the term “deep morality” from Jeff McMahan, who distinguishes the “deep morality of war” from the rules of a justifiable law of war. “The Ethics of Killing in War,” p. 730. Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, p. 231. Nico Krisch, “Review Essay: Legality, Morality, and the Dilemma of Humanitarian Intervention After Kosovo,” p. 323. Ibid., sec. 6. Two recent systematic empirical analyses directly relevant to the international law issue can be found in Ryan Goodman, “Humanitarian Intervention and Pretexts for War,” and Matthew Krain, “International Intervention and the Severity of Genocides and Politicides.” Analyzing data from the “Correlates of War” dataset, Goodman comes to the conclusion that legalizing unilateral humanitarian intervention would not lead to problems of abuse and, in fact, would decrease the number of wars undertaken on pretextual grounds. Using several datasets, Krain concludes that military interventions that directly challenge the perpetrators of a human rights atrocity can reduce the severity of the atrocity. Allen Buchanan, “Institutionalizing the Just War,” p. 3. Ibid., 6. There is no authoritative definition of assassination. We will follow the one offered by Franklin L. Ford, “the intentional killing of a specified victim or group of victims perpetrated for reasons related to his (her, their) public prominence and undertaken with a political purpose in view.” Political Murder: From Tyrannicide to Terrorism, p. 2. Our concern here is with the peacetime assassination of the leaders of states. See Ward Thomas, “The New Age of Assassination,” p. 29. Thomas cogently argues that “[c]onsiderable evidence suggests that the norm [against assassination] has been losing strength in recent decades.” “Alleged Assassination Plots Involving Foreign Leaders,” Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, November 20, 1975, 94th Congress, 1st Session, Report No. 94-465. In this context, a ruler is “responsible” if he or she is perpetrating the atrocities or is capable of stopping them but chooses not to do so. There is risk to persons other than the target of an assassination. Recall that John Connally was wounded during the assassination of President Kennedy. But the range of persons upon whom a serious risk is imposed is typically far less in an assassination attempt than during an armed intervention. Thomas More, Utopia, p. 65. The Utopian policy of encouraging assassinations was, to be sure, designed as an instrument of war whose aim was to make a quick end to the hostilities.

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43. Tesón, A Philosophy of International Law, pp. 64–5. 44. Ibid., p. 65. 45. James Rachels recognizes this point about assassination not being punishment (and thus not being a violation of due process rights) in his essay, “Political Assassination,” p. 18. 46. Notice that, according to our account, a ruler who lacks the right against being killed is not necessarily morally guilty or deserving of death. The permissibility of an assassination rests on the moral urgency of the situation and not on the need to punish the ruler. 47. We do not rule out on a priori grounds the possibility that an assassination institution could be justified that targeted leaders who perpetrated atrocities that did not reach the magnitude of those committed by, for example, Idi Amin. However, for the sake of examining such an institution, we are imagining a conservatively designed version that would focus only on the most egregious cases. 48. One might think that assassination is more liable to abuse than armed intervention both because the former can be carried out in clandestine fashion and because it does not require the politically “expensive” use of large numbers of troops. Surely these are relevant considerations. On the other hand, the relative ease of assassination also brings additional disincentives, since leaders know that there is a much greater chance of retaliatory assassination than retaliatory intervention. 49. We are not claiming that Tito, Milosevic, or Saddam Hussein perpetrated crimes comparable to those of Hitler or Stalin. Rather, the point of the examples is to illustrate the sorts of problems that attend any assassination. 50. Franklin Ford, Political Murders, p. 387. It is worth noting, however, that no assassinations to date have been authorized by an international agency designed to investigate political leaders with a view to liberating oppressed populations. 51. Buchanan, “Institutionalizing the Just War,” p. 6.

CHAPTER 6 1. This chapter leaves to one side the question of what (special) duties compatriots may have to one another and focuses principally on the potential duties individual persons and/or states might have to foreign individuals and/or states. We should stress at the outset that we treat duties, rights, and justice as conceptually interconnected. Thus, whenever we posit a duty, we presume that it is a duty of justice (which, in principle at least, may permissibly be coercively enforced) that corresponds to some other party’s right. 2. As will become clear below, we ultimately reject neither egalitarianism nor cosmopolitanism, broadly conceived. However, because we opt for a “relational” rather than a “luck” theory of equality, our position diverges from the position we here label “egalitarian cosmopolitanism.” A number of theorists advance various forms of egalitarian cosmopolitanism. Among the first and most notable writers to do so were Brian Barry in The Liberal Theory of Justice, chap. 12; and Charles Beitz in

Notes

3. 4. 5.

6. 7. 8. 9. 10.

11.

12.

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Political Theory and International Relations, part 3. For an excellent recent discussion of the related literature, see Simon Caney’s Justice Without Borders, chap. 4. John Rawls, Political Liberalism, p. 5. The full version of the principle specifies that only political liberties are to be guaranteed their fair value. John Rawls, A Theory of Justice, p. 6. As Thomas Nagel has recently put it, “The accident of being born in a poor rather than a rich country is as arbitrary a determinant of one’s fate as the accident of being born into a poor rather than a rich family in the same country.” See his “The Problem of Global Justice,” p. 119. John Rawls, The Law of Peoples, p. 37. Ibid., p. 90. John Rawls, A Theory of Justice, p. 7. Thomas Pogge, “An Egalitarian Law of Peoples,” p. 212. As Christian Barry has impressed upon us, many philosophers now question whether Rawls would have endorsed luck egalitarianism. They stress that, whereas luck egalitarians think that anything for which one is not morally responsible (including those characteristics determined by one’s genetic makeup) cannot permissibly give rise to any inequalities, Rawls is willing to allow inequalities in wealth and other goods due to differences in native intelligence, physical gifts, and so on. His view would thus seem to count as permissible many inequalities that luck egalitarians would judge as unjust. Although we suggest that there is a luck egalitarian element to Rawls’s theory, our argument regarding egalitarian cosmopolitanism would not be affected if it turned out that his theory is not best understood as a form of luck egalitarianism. For our purposes, we need only note that Rawls clearly inspired many theorists to embrace luck egalitarianism, and some went on to champion egalitarian cosmopolitanism as a consequence. For a forceful presentation of the view that Rawls’s theory, “properly understood, provides no support for luck egalitarianism,” see Samuel Scheffler, “What Is Egalitarianism?”, p. 8. It is important to note that our account is distinct from the view Thomas Nagel defends in his paper, “The Problem of Global Justice.” To appreciate the difference, recall that the standard concern with Rawls’s position is the dialectical instability between his views on domestic and international justice. Put simply, given his defense of the difference principle in the domestic context, it is curious (to put it mildly) that he would posit such a modest duty of assistance in the global context. Nagel seeks to defend Rawls by arguing (following Michael Blake) that there are morally relevant differences between these two contexts. Whether or not Nagel is right, this move is beside the point for us, because we reject Rawls’s views on domestic justice. And since we do not subscribe to Rawls’s views in the domestic realm, we (unlike Nagel) feel no need to grapple with the ensuing dialectical instability. See Michael Blake, “Distributive Justice, State Coercion, and Autonomy.” In the ensuing paragraphs we cite the work of Elizabeth Anderson and Michael Walzer. Other prominent defenses of relational egalitarianism have been offered by Jonathan Wolff, “Fairness, Respect, and the Egalitarian Ethos”; David Miller,

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16.

17.

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Notes “Equality and Justice”; Samuel Scheffler, “What is Egalitarianism?”; and Jean Hampton, Political Philosophy. Elizabeth S. Anderson, “What is the Point of Equality?” p. 314. Ibid. p. 316. Michael Walzer, Spheres of Justice, p. xiii. Walzer does not self-identify as a relational egalitarian, but his position fits within the general contours of relational, as opposed to luck, egalitarianism. We will remain agnostic regarding the best way to explain the moral wrong(s) in question, although we use Anderson’s term “oppression” as a placeholder for whatever term would most naturally be used to refer to the wrong(s). Additionally, it is quite possible that equality is a matter of protecting against several distinct kinds of wrong, perhaps what Anderson refers to as oppression and, apart from that, what Walzer refers to as domination. Our view may remind the reader of Harry Frankfurt’s position in his landmark paper, “Equality as a Moral Ideal.” Here Frankfurt defends what he calls “the doctrine of sufficiency”: “Economic equality is not, as such, of particular moral importance. With respect to the distribution of economic assets, what is important from the point of view of morality is not that everyone should have the same but that each should have enough. If everyone had enough, it would be of no moral consequence whether some had more than others” (p. 21). It is important to note that, although our view closely resembles this position, it is importantly distinct because, unlike Frankfurt, we do not allege that inequality in itself does not matter morally. Quite the contrary, it seems to us a matter of real moral regret that the As and the Bs have very different qualities of life. Indeed, we agree that it would be morally better, ceteris paribus, if the two populations were exactly equal, and this is why we say that we would equalize the two if we could do so by waiving a magic wand. Where we differ from luck egalitarians (and agree with Frankfurt), though, is in denying that this inequality is morally important enough to generate duties of justice. We stop short of counting inequality in itself as a matter of injustice because we place a great emphasis on individual dominion. In our view, everyone has the right to dedicate the lion’s share of her time, energy, and resources to her own projects and relationships. This privileged position of moral dominion over our own self-regarding affairs – what Scheffler calls our agent-centered prerogative – is not so great that we can turn our backs on all those about whom we are indifferent (we do not deny the existence of samaritan duties, for instance), but it does mean that we need not work endlessly to ensure that the world is morally ideal. It is because of the premium that we place upon individual dominion, then, that we stake out a position that is somewhere between Frankfurt’s view and luck egalitarianism. Put bluntly, inequality as such matters morally, but (unlike the oppression on which relational egalitarians focus) it does not matter enough to obligate folks to attend to the wellbeing of others. See Samuel Scheffler, The Rejection of Consequentialism, chap. 2. This quote is from an unpublished manuscript, “Luck Egalitarianism – A Primer,” p. 13, which Arneson delivered at a workshop on egalitarianism in Melbourne in February 2007. We thank the author for allowing us to quote this work.

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19. We are grateful to Peter Vallentyne for calling our attention to this objection. 20. The fact that Americans are less responsible might be thought to imply either that their duties are less demanding or that they are less stringent. We are inclined to say that the duties of Americans in this case are less demanding but just as stringent as the duties of South Africans. The demandingness of a duty is a measure of how costly it is for an agent to fulfill the duty. In contrast, stringency is a measure of how defeasible a duty is by other normative considerations. 21. Martha Nussbaum, Women and Human Development, p. 1. 22. Ibid., p. 4. 23. The classic article here is Singer’s “Famine, Affluence, and Morality,” but Peter Unger has since offered a more sustained defense of Singer’s basic argument in Living High and Letting Die. 24. Peter Singer, “Famine, Affluence, and Morality,” p. 231. 25. One might argue that if there are other adults at the pool, then any given adult lacks a duty to save the child because there is someone else who can do the rescue. We reject such a view. Every adult at the pool has a duty to rescue, although it is true that, when and if one of them performs the rescue, the others are thereby relieved of their duty. If we extend this scenario so that it is somewhat more analogous to the situation of global poverty, then there would be a pool in which many infants are drowning. None of the adults at the pool might have a duty to rescue all the infants, but each of the adults would have a duty to rescue some of them. 26. We owe this example to Frances Kamm, “Does Distance Matter Morally to the Duty to Rescue?” 27. Here we follow Joel Feinberg, Harm to Others, pp. 144–8. 28. Indeed, not only does each imperiled person have no right that you save her in particular, it is not clear that the most gravely imperiled have a right that you help someone who is at least as imperiled. If (as some argue) we can sometimes make a greater marginal difference by contributing to those who are less imperiled, then it would not seem objectionable to do so. 29. Neera Kapur Badhwar made this point in a lecture at Georgia State University. We borrow the name “particularity problem” from John Simmons, who has recognized that natural duty theories of the obligation to obey the law face an analogous difficulty. See A. John Simmons, Moral Principles and Political Obligations, pp. 31–5. 30. Thomas Pogge, World Poverty and Human Rights, p. 30. 31. Ibid., p. 203. 32. Cf. Samuel Scheffler, Human Morality. 33. One might ask whether the duty applies to one’s complicity in each unjust institution, taken one-by-one, or rather applies to one’s life activities as a whole. In the former case, one would be required to act so that, on balance, each relevant institution is weakened. In the latter case, one would be required to act so that, on balance, the unjust institutions with which one is complicit are, as a group, weakened. The latter, holistic alternative is less rigorous because it allows conduct that, with respect to some relevant institutions, fails to weaken them or even strengthens them. That failure could be “made up for” by sufficiently weakening other unjust institutions. In our view, the holistic alternative is more reasonable.

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34. 35.

36. 37. 38.

39.

40. 41. 42. 43. 44. 45.

46.

47.

Notes The “one-by-one” alternative seems excessively demanding, at least in a world in which complicity with injustice is so difficult to avoid. See Jean Dreze and Amartya Sen, Hunger and Public Action. There is also considerable evidence that extreme poverty and various problems tied to population growth are directly related to the standing of women. Societies that give women control over their bodies as well as access to education, economic opportunities, and reproductive technologies tend to have reduced birth rates and higher standards of living. See Amartya Sen, “Population: Delusion and Reality.” Pogge, World Poverty and Human Rights, p. 29. Ibid., p. 295, n. 238 Thomas Pogge, “World Poverty and Human Rights,” p. 7. Alison Jaggar has extended Pogge’s general line of thinking to cover the unjust gender inequalities from which poor women in poor societies suffer. She writes that “it is hard to deny that Western powers are disproportionately responsible for designing, imposing, and enforcing a global economic order that continues to widen the staggering gap between rich and poor countries. Since gender inequality is strongly correlated with poverty, Western countries bear a considerable share of the responsibility for creating the conditions that make non-Western women vulnerable to local violations of their rights.” Alison M. Jaggar, “ ‘Saving Amina’: Global Justice for Women and Intercultural Dialogue,” p. 99. We are not alleging that A&F, Starbucks, Domino’s, Sprint, and MTV are individually corrupt companies; each may do absolutely nothing immoral on its own. The point is that companies like these are part of an international system that benefits from the inexpensive natural resources purchased from illegitimate rulers. Pogge, “World Poverty and Human Rights,” p. 4. Ibid., pp. 1–2. Mathias Risse, “How Does the Global Order Harm the Poor?” See Lon L. Fuller, The Morality of Law, p. 250. The standard just war limits would be applicable: no targeting of noncombatants, no force that is more than necessary to achieve the goal, and so forth. For an interesting discussion of “sweatshops” that argues that there are strong moral reasons not to pay foreign workers more than market wages, see Ian Maitland, “The Great Non-debate Over International Sweatshops.” For us, the problem with guest workers has less to do with their relatively low wages and more to do with their subordinate political status. Here we are inclined to follow Michael Walzer’s stance, a position we explore in the next chapter in our discussion of immigration. We are not suggesting that any simple account of the relation between economic interdependence and peace is accurate. Accordingly, Thomas Friedman’s famous “Golden Arches Theory” should not be taken at face value as providing an adequate account, even if it does gesture at what we think is an important tendency in international relations. See his The Lexus and the Olive Tree. Also see his subsequent “Dell Theory” in The World is Flat.

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48. During the 1980s the Reagan Administration engaged in a policy of “constructive engagement” with the apartheid regime in South Africa. The policy rejected calls for an economic boycott of the regime, on the premise that maintaining ties with South Africa enabled the United States to exert influence over its racial policies. In our view, constructive engagement was a flawed policy. First, by foreswearing a boycott, the United States relinquished at the very start the most forceful economic instrument for exerting leverage over the apartheid regime. Second, it is likely that constructive engagement was a ruse for serving US corporations and financial institutions that had a vested interest in the regime. While we point out in the text that economic interdependence provides avenues for reasonably resolving international conflicts by means other than war, we understand that such interdependence also creates vested interests that can block the reasonable resolution of conflicts. 49. Thomas Pogge mentioned this point in conversation. 50. For an extended argument that individual nations (not just states) can be entitled to different things as a matter of distributive justice, see David Miller’s article, “Holding Nations Responsible.”

CHAPTER 7 1. Our concern in this chapter is with two distinct, though related, phenomena: the physical movement of nonmembers into the territory of a state and the legal process by which noncitizens become citizens. The arguments that we make, appealing to freedom of association, generally apply to a state’s right to control both kinds of phenomena. 2. We argue in the fourth section below that states do not have the right to deport citizens or revoke their citizenship. 3. Stuart White, “Freedom of Association and the Right to Exclude,” p. 373. 4. David Gauthier, “Breaking Up: An Essay on Secession,” pp. 360–1. 5. Some people also object to the Boy Scouts’ refusal to admit girls. 6. Stuart White, “Freedom of Association and the Right to Exclude,” p. 381 (emphasis added). 7. It should be noted that White is not necessarily committed to this line of argument because his analysis is explicitly restricted to “secondary” groups (which we take to be groups within states) which adopt a “categorical” exclusion (i.e., an exclusion based upon an individual’s race, gender, sexuality, or religion). 8. The idea that all individuals have a right to self-determination is subject to exceptions and qualifications, a matter into which we will not delve here. 9. Compare our view here with our rejection of the nationalist view of secession and self-determination, found in Chapter 3. 10. See Michael Walzer, Spheres of Justice, pp. 31–63, and David Miller, “Immigration: The Case for Limits.” In Toward a Theory of Immigration, the only philosophical monograph we know of that defends a state’s right to craft its own immigration policy, Peter Meilander takes a similar tack, arguing that legitimate national identities have a right to defend themselves against the threat posed by immigration.

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11. Walzer, Spheres of Justice, p. 62. 12. Miller, “Immigration: The Case for Limits,” p. 200. 13. We should note that there is room for an intermediate position. In particular, because the interests in freedom of association can be of varying weights, and because “communities of character” might have a greater interest in excluding others, it seems to follow that the rights of distinctive groups could be stronger. We believe that this is true, but we hasten to add that a group’s character is just one of many features that might affect its interest in freedom of association, so that we should not presume that distinctive groups will always have the weightiest claims to exclude outsiders. 14. Chandran Kukathas, “The Case for Open Immigration,” p. 211. 15. Joseph H. Carens, “Aliens and Citizens: The Case for Open Borders,” p. 252. 16. This point both explains and is confirmed by the fact that Kukathas’s quote, given earlier (n. 14), is offered under the banner of a principle of “humanity” rather than one of equality. 17. Walzer, Spheres of Justice, p. 61. 18. Recall that in Chapter 6, we found that Walzer provides a particularly lucid formulation of the key idea of relational egalitarianism. 19. As Jonathan Glover explains in his book, Humanity: “The idea of the family was attacked. People who were allowed to stay in their villages had to share everything, down to pots and pans. Communal meals for hundreds of families together were compulsory. Many families were split up, with men and women being forced to sleep in segregated communal dormitories” (p. 303). 20. See Peter Singer, “Insiders and Outsiders,” in Practical Ethics. 21. Miller, “Immigration: The Case for Limits,” pp. 198–9. For similar arguments, see Thomas Pogge, “Migration and Poverty,” and Eric Cavallero, “An ImmigrationPressure Model of Global Distributive Justice.” 22. Carens, “Aliens and Citizens: The Case for Open Borders,” p. 253. 23. Notice that a state that prohibits murder thereby precludes a property owner from allowing guests on her property to murder one another with impunity, and yet it would seem odd to object to such a state on the grounds that it violated its citizens’ property rights. Similarly, no one would object to a property owner’s inability to invite onto their property prisoners currently serving their sentences. 24. On the permissibility of a state’s nonconsensually coercing its constituents, see Christopher Heath Wellman, “Liberalism, Samaritanism and Political Legitimacy.” 25. We hasten to caution that, while it is essential to give states the limited powers necessary for them to perform the requisite political functions, this in no way entitles them to all of the authority that existing states often claim for themselves. 26. A thoroughgoing libertarian might well deny that states are entitled to determine the terms of international trade, but of course this is not because there is anything distinctive about international trade. Such a libertarian will deny that a state has any moral dominion that each individual has not voluntarily surrendered. And since no state has garnered the morally valid consent of all of its constituents, staunch (and consistent) libertarians must reject all forms of statism.

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27. In a referendum in August 1905, 368,392 Norwegians voted in favor of political divorce and only 184 voted against. See Karen Larson, A History of Norway, p. 491. 28. Walzer characterizes the situation of guest workers as follows: “These guests experience the state as a pervasive and frightening power that shapes their lives and regulates their every move – and never asks for their opinion. Departure is only a formal option; deportation, a continuous practical threat. As a group, they constitute a disenfranchised class. They are typically an exploited or oppressed class as well, and they are exploited or oppressed at least in part because they are disenfranchised, incapable of organizing effectively for self-defense,” Spheres of Justice, 59. 29. Carens, “Aliens and Citizens: The Case for Open Borders,” p. 267. 30. As Phillip Cole puts it, “One cannot consistently assert that there is a fundamental human right to emigration but no such right to immigration; the liberal asymmetry position is not merely ethically, but also conceptually, incoherent,” Philosophies of Exclusion: Liberal Political Theory and Immigration, p. 46. 31. Miller, “Immigration: The Case for Limits,” p. 197. 32. We should acknowledge that when the level of welfare benefits varies considerably from province to province, the stakes of internal migration can also be much higher. 33. It is important to note, though, that those who make an exception for refugees, as that status is defined by international law, apparently cannot do so on principled grounds. Theorists like Andrew Shacknove and Michael Dummett have pointed out that it is morally arbitrary for international law to restrict that status to persons who have crossed an international border because of a well-founded fear of persecution. See Shacknove, “Who Is a Refugee?” and Dummett, On Immigration and Refugees. 34. Miller, “Immigration: The Case for Limits,” p. 198. 35. John Rawls, The Law of Peoples, pp. 38–9. Along these same lines, in “Immigration: The Case for Limits,” Miller argues that restricting immigration can be defended not only as a way for an individual country to control the size of its population, but also as a way to create the right incentives for all countries to address the problem of global overpopulation. 36. Although this is less clear, it may be that a country which de facto discriminates according to these types of criteria may be just as blameworthy as one which has a de jure policy to do so. See, for instance, Dummett’s discussion of British immigration practices in On Immigration and Refugees. 37. Walzer, Spheres of Justice, p. 47. 38. Miller, “Immigration: The Case for Limits,” p. 204. 39. The view we advance here is similar to that which Michael Blake develops in “Immigration.” 40. Our favoring the relational theory of equality also explains why we do not accept Carens’ rejection of Walzer’s view. Carens invokes the distinction between the private and public spheres to explain why, while you “can pick your friends on the basis of whatever criteria you want” (“Aliens and Citizens: The Case for Open Borders,” p. 267), you may not invoke categories like race to discriminate among applicants for immigration. For reasons that the relational theory of equality helps

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Notes

illuminate, though, even if one should not use racial categories to discriminate among applicants (for positions in the public sphere) belonging to given community, it does not follow that these categories may not be used when deciding who should get in to this community. 41. Michael Blake, “Immigration,” p. 233. 42. It is possible, in the abstract, for policies of racial exclusion to be based on reasons that are not racist, that is, reasons that do not reflect a belief in the inherent moral or intellectual inferiority of the members of a particular race. In such a case, an immigration policy prohibiting the entry of members of a given race would not be objectionable. However, in the current world, it will virtually always be reasonable to interpret policies of racial exclusion in immigration as based on racist reasons, and a very heavy burden of proof will lie on the side of those who think otherwise. Exclusion based on religion presents more difficult and empirically complex cases, which we do not address here.

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Index absolute poverty 136, 137, 141–2 international distributive justice and 137, 143, 146–8, 149, 154–5 and samaritan rights 154–5 wealthy states and 143, 146–8, 149 Agamben, Giorgio 2 aggression 72, 74, 82–3, 205 n. 27 wars of independence and 104–7 anarchism 176 Anderson, Elizabeth 131–2 annexation 52–3, 161 and self-determination 14–16 anticolonialism 13 apartheid 135, 145–6 appraisal respect 198 n. 57 Arendt, Hannah 75, 205 n. 34 armed intervention 9, 78 alternative account 96–104 consensus on 96–9 and consent of intended beneficiaries 108–11 and international law 111–15 legitimacy and 103–4 Arneson, Richard 133 assassination 9, 116–21 definition of 211 n. 37 asylum-seekers 181–2 Augusta National Golf Club 160, 161, 166–7 autonomy and democracy 18–20 group 109, 151 individual 25–6, 38 political 24, 38, 204 n. 23 Bagaric, Mirko 101 Barry, Brian 198 n. 55 Bass, Gary 202 n. 6 Bassiouni, Cherif 205 n. 27 Beck, Ulrich 2 Beitz, Charles 20, 22–3, 24, 49 on autonomy 204 n. 23 on political self-determination 38 Beran, Harry 49–50 Blake, Michael 97, 187 Boy Scouts of America 160, 161, 166

Buchanan, Allen 114, 115, 120–1 international law, theory of 54–8, 59–60 justificatory individualism 198 n. 55 on legal right to democracy 35, 36–7 on legitimacy 56–7 on remedial right of secession 59–60, 61, 63 on right of secession 54–6, 62–3 on self-determination 17, 19 Bush, George H. W. 25 capitalism 154 Caputo, Dante 209 n. 13 Carens, Joseph 168, 175, 179, 219 n. 40 Carter, Jimmy 102 Charlesworth, Hilary 207 n. 50 Charter of the United Nations 58 Chesterman, Simon 113 Chinkin, Christina 207 n. 50 Christiano, Thomas 21–2 citizenship 22–3 Clinton, Bill 102 Cohen, Joshua 23–4, 25 Cole, Phillip 219 n. 30 colonialism as disrespect 40 self-determination and 12–16 conflict entrepreneurs 207 n. 48 constructive engagement policy 217 n. 48 Convention on the Prevention and Punishment of Genocide 201 n. 1 Copp, David 61, 66–7 core crimes 69, 70, 90, 202 n. 4 aggression 72, 74, 82–3, 104–7, 205 n. 27 crimes against humanity 69, 71, 72–3, 74, 81–2 genocide 69, 71, 72, 97, 98, 201 n. 1, 204 n. 21 harm-to-humanity argument 75 war-nexus argument 74 crimes against humanity 69, 71, 72–3, 74 definition 81–2 Croce, Benedetto 87 culture, preservation of 166 Dahl, Robert 18, 19 Darwall, Stephen 39

230 decentralization 60, 61–2 decolonization movement 12–13 deliberative democracy 23–4 democracy 6, 11–42, 193 n. 6 autonomy and 18–20 definition of 196 n. 12 deliberative 23–4 equality and 20–5 legal right to 34–7 right to forego 25–31 and self-determination 7–8, 16–18, 25–7 status as human right 31–4 value of 16–18 deontological reasons 6 deterrence 90, 93, 114 difference principle 126, 127, 129–30 disrespect 29–31, 38–9 colonialism as 40 double effect doctrine 209 n. 17 Drumbl, Mark 206 n. 46, 207 n. 48 due process 32, 33 due process rights 117–18 Dummett, Michael 219 n. 33 egalitarian cosmopolitanism 9–10 challenge to 128–37 and international distributive justice 123–37 and principle of international distributive justice 128–9 Rawls and 124–9 emigration 178–80 forcible 183–4 see also immigration; migration equal basic liberties principle 125, 127 equality and democracy 20–5 luck egalitarianism 130–1, 167–75 publicity requirement 21 relational egalitarianism 131–7, 170–1 ethnic conflict 63 European Union (EU) 161, 176 fairness 197 n. 43 Fanon, Frantz 12–13 Feinberg, Joel 76 forcible emigration 183–4 Ford, Franklin F. 120, 211 n. 37 Frankfurt, Harry 214 n. 17 freedom of association 158–67, 177 and immigration 158–67 and international distributive justice 173–4 and marriage 159, 162, 173

Index freedom to refuse association 159, 160–1, 162–3 Freeman, Michael 62 Friedman, Thomas 216 n. 47 Fuller, Lon 206 n. 33 Gauthier, David 159 gender inequality 136–7 poverty and 216 n. 35 & n. 38 genocide 69 and armed intervention 97, 98, 201 n. 1 Armenian 71, 72 Germany guest workers 171 as Nazi state 151–2 globalization 2 Glover, Jonathan 219 n. 19 Goodman, Ryan 211 n. 34 Griffin, James 198 n. 50, 198 n. 51 group autonomy 109, 151 group self-determination 162–3 guest workers 153, 171–2 Haiti 102 harm principle 73–5, 205 n. 22 Hartney, Michael 37 Held, David 193 n. 3 Hitler, Adolf 112 Horowitz, Donald 63, 64 human rights definition 2–3 democracy as 31–4 political legitimacy and 3–4 self-determination and 8–9 sovereignty and 77–8 violations: action against 70 Human Rights Watch 98 Huntington, Samuel 184–5 ICC, see International Criminal Court ICISS (International Commission on Intervention and State Sovereignty) 97, 99 identity 44, 51 immigration 10, 60, 61, 158–88 closed borders: right to 158–67 freedom of association 158–67 open borders: criteria for 184–7 open borders: libertarian case for 175–80 open borders: luck egalitarian case for 167–75 open borders: objections to 180–4 see also emigration; migration

Index impartiality 197 n. 42 IMT, see International Military Tribunal, Nuremberg individual autonomy 25–6, 38 internal migration 60, 178–9, 180 International Commission on Intervention and State Sovereignty (ICISS) 97, 99 International Court of Justice 66–7 international courts: and slave trade 206 n. 39 International Covenant on Civil and Political Rights 31 International Covenant on Economic, Social and Cultural Rights 58 International Criminal Court (ICC) 88–94, 89–90, 208 n. 52 complementarity 206 n. 30 crimes against humanity definition 81–2 as deterrent 90, 93 jurisdiction 79 Rwanda 202 n. 3 selective prosecution 91–4 Sudan 202 n. 3 USA and 208 n. 52 international criminal law 8–9, 69–95 justification for 76–82 Nuremberg tribunal 71–3 Nuremberg tribunal: legality/morality of 82–8 selective prosecution 91–4 and sovereignty 73–6, 77–8 international distributive justice 9–10, 123–57 and absolute poverty 137, 143, 146–8, 149, 154–5 egalitarian cosmopolitanism 123–37 and freedom of association 173–4 outsourcing 153–6 and political legitimacy 148–53 Rawls’s principle of 128–9 and samaritanism 137–42, 154–5 and world poverty, responsibility for 143–8 international law and armed intervention 111–15 Buchanan’s theory of 54–8, 59–60 secession and 54–67 see also international criminal law International Military Tribunal (IMT), Nuremberg 71–3, 201 n. 1 legality/morality of 82–8 Iraq: no-fly zone 102, 103 Jackson, Robert 74 Jaggar, Alison 216 n. 38

231

Jennings, W. Ivor 48–9, 50 just war theory 104 justice as fairness 124–8, 130 justificatory individualism 198 n. 55 Kamm, Francis 210 n. 17 Kelsen, Hans 84–5 Krain, Matthew 211 n. 34 Krisch, Nico 113 Kukathas, Chandran 167 Lansing, Robert 71 legitimacy 78, 80, 205 n. 28 and armed intervention 103–4 political 3–4, 50–1, 56, 148–53 recognitional 56–7 liberalism 5 Locke, John 204 n. 24 London Charter 203 n. 12 Lowe, Vaughn 100 Luban, David 209 n. 16 luck egalitarianism 130–1 and immigration 167–75 McGarry, John 61–2 MacKinnon, Catherine 207 n. 50 McMahan, Jeff 105, 108, 211 n. 30 Mandela, Nelson 3, 32 marriage 159, 162, 173 mass murder 97 mass population expulsions 97 May, Larry harm principle 73–5, 204 n. 22 security principle 203 n. 13 Meilander Peter 217 n. 10 migration, internal 60, 178–9, 180: see also emigration; immigration Mill, John Stuart 106–7 Miller, David 51–2, 174, 179, 182, 185–6 on culture, preservation of 166 on limiting immigration 219 n. 35 Miller, Richard 108, 210 n. 27 Moore, Margaret 12 boundaries, status of 46 on political legitimacy 50–1 on recursive secession 50 moral guilt 83–4 More, Thomas 116–17 Morss, John R. 101 NAFTA (North American Free Trade Agreement) 161, 176 Nagel, Thomas 213 n. 5, 213 n. 11 Nardin, Terry 98

232

Index

Naticchia, Chris 36 national identity 44, 51 nationalism: and secession 44–5, 46–7 negative duty 143–6, 148, 150–1 neo-liberal universalism 13 North America Free Trade Agreement (NAFTA) 161, 176 nullum crimen sine lege principle 82–3 and moral guilt 83–4 Nuremberg Tribunal, see International Military Tribunal, Nuremberg Nussbaum, Martha 136 open borders libertarian case for 175–80 luck egalitarian case for 167–75 opportunity: fair equality of 125–6, 127 outsourcing 153–6 particularity problem 142 Philpott, Daniel 18 Pogge, Thomas 130 global poverty, causal explanation for 143, 146–8, 149 negative duty 143–6, 148 political autonomy 24, 38, 204 n. 23 political legitimacy 6, 50–1 and human rights 3–4 international distributive justice and 148–53 poverty and gender inequality 216 n. 35 & n. 38 global, causal explanation for 143, 146–8, 149 responsibility for 143–8 proportionality principle 104, 105, 109, 112–13, 114–15 punishment: moral reasons for 84–5 Rachels, James 212 n. 45 racism 186–7 Rawls, John 182 and egalitarian cosmopolitanism 124–9 international distributive justice, principle of 128–9 justice, theory of 124–31 luck egalitarianism 130–1 recognition respect 39 recognitional legitimacy 56–7 recursive secession 49–50 referenda 199 n. 8

refugees 158, 181 relational egalitarianism 131–7, 170–1 religious self-determination 159 reparations 13–14 respect appraisal 198 n. 57 recognition 39 Richardson, Henry 17, 20 Risse, Matthias 150 Robertson, Geoffrey 75 Rodin, David 210 n. 18 Roth, Kenneth 98 Rwanda 202 n. 3 Sadat, Leila 90 samaritanism 110, 137–42, 170, 171 absolute poverty and 154–5 and asylum-seekers 181–2 international distributive justice and 137–42, 154–5 particularity problem 142 Scheffler, Samuel 214 n. 17 secession 8, 43–68, 177 and international law 54–67 moral judgments about 65–6 moral right of: pre-institutional nature of 54–8 nationalism and 44–5, 46–7 primary legal right of 59, 61 primary moral right of 48–54, 50, 59 recursive 49–50 remedial right of 59–60, 61, 63 and self-determination 44–8 security principle 203 n. 13 self-determination 11–42, 62, 189–91 annexation and 14–16 and colonialism 12–16 and decolonization 12–13 and democracy 7–8, 16–18, 25–7 group 162–3 and human rights 8–9 political 37–41 right of 4–5, 6–7 secession and 44–8 and value individualism 37–41 see also freedom of association; freedom to refuse association Shacknove, Andrew 219 n. 33 Simmons, John 215 n. 29 Singer, Peter 137, 138, 141 Sklar, Judith 85–6 slave trade 206 n. 39 Somalia 80

Index South Africa apartheid 135, 145–6 and USA 135, 217 n. 48 sovereignty 4, 189 globalization and 2 and human rights 77–8 international criminal law and 73–6, 77–8 state 2 Westphalian concept of 71–2, 75–6 Srebrenica massacre 80 state: definition of 193 n. 2 Sudan 103, 202 n. 3 sufficiency, doctrine of 214 n. 17 supreme humanitarian emergencies 98, 112, 113 Tadic, Boris 68 Talaat Pasha 71 territorial claims 199 n. 14 Tesón, Fernando 108, 117 Thomas, Ward 211 n. 38 torture 3, 32–3 United Nations (UN) Charter 58 Security Council 98

233

United States of America (USA) and ICC 208 n. 52 South Africa and 135, 217 n. 48 Universal Declaration of Human Rights 2–3, 31 value collectivism 37 value individualism 5, 37–41 Vernon, Richard 74 Vietnam War 103 Waldron, Jeremy 29–30, 197 n. 43 Walzer, Michael 97, 98–9, 106–7, 185 on culture, preservation of 166 on guest workers 171–2, 219 n. 28 on immigration 178 on relational egalitarianism 132 wars of independence 104–7 Wheeler, Nicholas 97 White, Stuart 159, 162, 217 n. 7 Wilson, Woodrow 48 world poverty: responsibility for 143–8 Wyzanski, Charles 87, 88 Young, Iris 102 Yugoslavia 80

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