REFORMULATING THE POWERS OF SOVEREIGNTY HUMANITARIAN INTERVENTION IN THE LAW OF PEOPLES

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1 Reformulating the Powers of Sovereignty 1 ECPR Joint Sessions of Workshops Workshop 25: Theories of War Grenoble April Please do not cite without permission of the author- REFORMULATING THE POWERS OF SOVEREIGNTY HUMANITARIAN INTERVENTION IN THE LAW OF PEOPLES Dr. Ronald Tinnevelt Department of Political Science Catholic University of Leuven INTRODUCTION In the preface to the third edition of Just and Unjust Wars (1999) Walzer remarks that his book is not as dated as he hoped it would be when he originally wrote it in the mid1970s. 1 The world now is no less violent or hostile than it was then. New wars just seem to echo old ones. We are still faced with bloody struggles, atrocities and war crimes, and the forms of warfare really haven t changed that much. Just think about the way in which the war between Iran and Iraq was being fought in the 1980s. Even the moral judgments and moral justifications we use when we argue about war closely resemble the ones we have always used. The voices differ; the words are the same. (xi) One can, however, wonder if this really means that there were no large changes in the wars we have seen in the last decades or in the moral arguments we used to talk about these wars. Did things really stay the same? According to Walzer they have not. There has been one important shift in both wars and words. In the past twenty years, wars were not so much being waged between different states, but mainly within the boundaries of states themselves. Ethnic cleansing and mass murder are sad manifestations of this shift. They confront us with a new and pressing problem. The problem of humanitarian and military intervention. Walzer expresses this shift as follows: It isn t too much of an exaggeration to say that the greatest danger most peoples face in the world today comes from their own states, and the chief dilemma of international politics is whether people in danger should be rescued by military forces from outside. (xi) The grim situation in Rwanda and Kosovo clearly testified to the importance of this problem. It demonstrated the need for some kind of intervention to end genocide and a flagrant violation of basic human rights. As a result of this change in both wars and words, the concept of intervention has taken a more and more prominent position in both international law and international practice. Military and humanitarian intervention have moved from the periphery of the theory of just war to the center. 1 Walzer, M. (1999), Just and Unjust Wars. A Moral Argument with Historical Illustration, third edition, New York: Basic Books

2 Reformulating the Powers of Sovereignty 2 Interference in the internal affairs of another state by means of economic coercion, diplomatic sanctions or military force remains, however, deeply problematic. 2 Even in the case of brutal civil war or a politically induced famine or the massacre of a local minority, the use of force in other people s countries should always generate hesitation and anxiety. 3 Forcible intervention not only violates the fundamental rights of men and women to live as members of a concrete historical community and embed their inherited culture in a self-imposed political form, but it also challenges the traditional concept of state sovereignty. A right to intervention is irreconcilable with an a priori right to political sovereignty, territorial integrity, or self-determination. Wellknown examples of this traditional concept of sovereignty can be found in the Charter of the UN or in the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States. In article 2(4) of the Charter we read: [ ] all members shall refrain in their international relations from the threat or the use of force against the territorial integrity or political independence of any state [ ] 4 In the Declaration of 1965 we can find an elaboration of this prohibition: [ ] no state has the right to intervene, directly or indirectly, for any reason whatsoever, in the internal or external affairs of any other state. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements, are condemned. Especially interesting in this elaboration is the phrase for any reason whatsoever because it confirms the problematic character of humanitarian intervention. These difficulties with the idea of intervention are in fact already apparent within our language. The notion of a just humanitarian or military intervention is not uncomplicated. How are we able to reconcile the words just and humanitarian so easily with a militaristic conception of intervention? 5 Are we not trying to reconcile two excluding terms? The notion just and humanitarian, after all, do seem to exclude the use of force. Now, if intervention is such a complex and difficult issue, we are faced with the extremely difficult task of determining when military or armed intervention is justified? When should we intervene in the internal affairs of other states and when would it be better to watch and wait? The complexity of this question increases if we take into account the principles of international law. International law forbids states or groups of states to intervene in the domestic affairs of other states. States have to refrain from the threat or the use of force against the territorial integrity and the political independence of any state. There are however some exceptions to this rule of non-intervention. If we look at international law and practice, we can roughly distinguish two main reasons for intervening in the domestic affairs of other states. One is in case of self-defense. Intervention is justified in case of grave threats to the peace and security of a state. The other is in case of an approval by the United Nations. According to the Charter of the United Nations the use of force is only legitimate if a state is the target of hostile activities of another state or if it is authorized by a competent organ of the United Nations. In this paper we will only address the second exception. The case of selfdefense, after all, is very different from that of humanitarian intervention. Whereas self- 2 In this paper I will not limit humanitarian intervention to armed force in the internal affairs of states for humanitarian reasons, but I will also include other means of intervention like economic coercion. 3 Walzer, M. (1995), The Politics of Rescue, Social Research 62(1): p.53 4 Exceptions to this prohibition to the use force can be found in article 51 and chapter VII of the U.N. Charter. For an interpretation of article 2(4) see Tesón, F. (1997), Humanitarian intervention: an inquiry into law and morality, Transnational Publishers: Irvington-on-Hudson, pp Smith, M.J. (2000), Humanitarian Intervention Revisited, Harvard International Review 22(3): p.72

3 Reformulating the Powers of Sovereignty 3 defense involves an act of protective intervention, humanitarian intervention involves the use of force to protect the basic human rights or the well-being of the nationals of another state in case of egregious violations of these rights. 6 Although both reasons do not necessarily exclude the possibility of a stringent and traditional theory of non-intervention, they do point to the fact that basic human rights are not exclusively a national matter. 7 The protection of basic human rights seems to be a concern for individual states as well as the international community. Both reasons for intervention are, however, not unproblematic. What remains unclear is first of all which kind of rights belong to the class of basic human rights. Are we merely talking about the classical liberty rights, or are the political rights also included? Secondly we have to ask ourselves when violations of basic human rights become egregious. If killing their nationals is considered to be enough of a reason to intervene in the internal affairs of other countries, then what should we do about those countries that still carry out the death penalty like the United States? 8 What these remarks try to show, is that it is not easy to determine when and if intervention is justified. Our ability to answer this question depends to a large extent on our ability to give a convincing account of the function and content of basic human rights, of the sovereignty of the state, and of the relevant political and moral unit of a political theory of international relations. In this paper we would like to address the conception of humanitarian and military intervention that Rawls tries to develop in his The Law of Peoples (1999). We want to give an account of the way in which Rawls tries to give a reformulation of the traditional concept of sovereignty and a political interpretation of the idea of human rights. We would like to show that although Rawls s account of intervention is probably more convincing than that of Walzer, he in the end makes the same fundamental mistakes as Walzer. Both Rawls and Walzer stick to some extent to the fiction of peoples and states as homogeneous political units and tend to forget the inherent connection between international law and the idea of moral equality and respect. These two mistakes have serious repercussions for a theory of humanitarian and military intervention. INTERVENTION AND HUMAN RIGHTS Although Rawls does not have a fully elaborated theory of intervention, he does give us an extensive answer to the question of non-intervention. When do societies or peoples have a right to non-intervention? If we take a look at The Law of Peoples we will see that the right to non-intervention depends to a large extent on the question whether societies or peoples are capable of protecting the basic human rights of their nationals. One of the main roles of basic human rights, according to Rawls, is that their [ ] fulfillment is sufficient to exclude justified and forceful intervention by other peoples, for example, by diplomatic and economic sanctions, or in grave cases by military force. 9 Now, if the right to non-intervention is internally connected to the idea 6 Shaw, M.N. (1991), International Law, 3rd ed., Cambridge: Grotius Publications, pp Tugendhat, E. (1995), The Moral Dilemma in the Rescue of Refugees, Social Research 62(1): p See for example: Cochran, D.M. (1996), Complicating military intervention s moral case, Peace Review 8(4), Corten, O. (1999), Humanitarian Intervention: A Controversial Right, UNESCO Courier 52(7) and Himes, K.R. (1994), The morality of humanitarian intervention, Theological Studies 55(1) 9 Rawls, J. (1999), The Law of Peoples, with The Idea of Public Reason Revisited, Cambridge (Mass.): Harvard University Press, p. 80 Hereafter we will refer to The Law of Peoples as LP. An earlier and shorter version of this text appeared in Shute, S. & Hurley, S. (ed.) (1993), On Human Rights: The Oxford Amnesty Lectures, New York: Basic Books and later in the Rawls s Collected Papers.

4 Reformulating the Powers of Sovereignty 4 of human rights, international law is to some extent connected to domestic justice. Only those peoples or societies that, among other things, do not violate basic human rights have a right to non-intervention and sovereignty. One can, however, wonder if this necessarily implies that we can rightfully and forcibly intervene in any society that violates basic human rights. Of course we cannot. Only if the [ ] offenses against human rights are egregious and the society does not respond to the imposition of sanctions, such intervention in the defense of human rights would be acceptable and would be called for. (LP:94n) Violations of human rights have to be egregious to justify a forcible intervention. This connection between the idea of human rights and the notion of intervention looks rather straightforward at first sight. The protection of basic human rights is a minimal standard of international legitimacy. 10 But if we take a closer look at Rawls s theory of human rights, we will notice that he has a rather specific conception of what rights count as basic human rights and which role human rights play. The connection between human rights and intervention does not apply to all the different sorts of rights that are enumerated in the Universal Declaration of Human Rights (1948), but only to a special class of human rights and to a political interpretation of these rights. To really understand the connection that Rawls sketches between human rights and intervention, we first have to explain the meaning of his Law of Peoples. The reason behind this can be easily understood. If we ask by what right well-ordered societies can justifiably intervene in the internal affairs of states that have violated the basic human rights of their nationals, we have to refer to the Law of Peoples. According to Rawls, the refusal to tolerate human right violations and outlaw states is a direct consequence of the conception of justice that follows from both liberalism and decency. Rawls writes the following: If the political conception of political liberalism is sound, and if the steps we have taken in developing the Law of Peoples are sound, then liberal and decent peoples have the right, under the Law of Peoples, not to tolerate outlaw states. (LP:81) Although there are some concepts in this sentence which we have not yet explained, like the idea of decency and that of political liberalism, the implication of it will be clear. If the different steps of the Law of Peoples are not sound, Rawls is not capable of giving a convincing justification of intervention. So it is precisely because the soundness of Rawls s theory of intervention depends on the soundness of the Law of Peoples that we have to take a closer look at the different steps of his theory of international justice. THE IDEA OF A REALISTIC UTOPIA As is probably well-known, Rawls tries to develop a Law of Peoples by extending a liberal conception of domestic justice to a society that consists not only of reasonable and well-ordered liberal peoples, but also of decent nonliberal peoples. Within the boundaries set by his theory of political liberalism he hopes to convince us that a reasonably just Society of Peoples might be possible. Such a society consists of all those peoples who observe the different ideals and principles of the Law of Peoples in their mutual relations. It is a society that can at least eliminate the gravest forms of political injustice and prevent new great evils of human history from taking place. As examples of these great evils of human history, he mentions: genocide, mass murder, unjust wars, oppression, starvation, poverty, religious persecution and the denial of liberty of conscience. (LP:7) Surprisingly enough, all these evils follow from political 10 Beitz, C. (2000), Rawls's Law of Peoples, Ethics 110: p.685

5 Reformulating the Powers of Sovereignty 5 injustice. This implies that if we can eliminate the worst cases of political injustice by establishing a just international society, things like genocide and starvation will disappear. In regard to poverty and starvation this claim may sound rather strong. Poverty and starvation are not so much caused by a lack of resources, but by unjust social, economical and political institutions. In principle all peoples have enough resources to become decent societies and members in good standing of a just Society of Peoples. Of course such a goal is very utopian. According to Rawls, however, it is not unrealistic. It is something that can actually exist. The idea of a just Society of Peoples, therefore, is a realistic utopia. It tries to sketch an [ ] achievable social world that combines political right and justice for all liberal and decent peoples in a Society of Peoples. (LP:6) Rawls describes this admirable goal in the following way: I consider how the content of the Law of Peoples might be developed out of a liberal idea of justice similar to, but more general than, the idea I called justice as fairness in A Theory of Justice. (LP:3-4) The conception of justice as fairness articulates the core idea behind the original position. It expresses the simple idea that if the conditions of an initial choice situation are reasonable and acceptable to all members of a well-ordered society, then every principle of justice we agree on is just. The original position can be seen as Rawls s representation of the moral point of view. From this perspective we can see our place in society sub specie aeternitatis, that is abstracted from all social and temporal points of view. 11 Against this background it is easy to see what Rawls s aim is. He wants to develop a political conception of justice for the relations between different well-ordered or decent hierarchical societies on the basis of the original position. The attempt to extend the idea of the social contract to the relations between societies is of course not new. We can find the same idea, for instance, in Kant s Perpetual Peace. A Philosophical Sketch (1795). 12 In this text Kant tries to extend his legal theory to include the idea of a cosmopolitan legal order. Such a legal order had to end the state of nature between states and end all wars. As is probably well-known the picture that Kant sketched of this global legal order was not that of a world republic. Instead of extending the idea of right to include a world republic or a universal state, Kant settled for a federation of nations or a permanent congress of states. The positive idea of an international state had to be substituted by the negative idea of [ ] an enduring and gradually expanding federation likely to prevent war. 13 We can find the same line of thought in The Law of Peoples. Just like Kant, Rawls rejects the idea of a world state and settles for the idea of a foedus pacificum or a pacific federation. And just like Kant, he is convinced that a constitutional democracy can only secure the fundamental rights and freedoms of its citizens by establishing an effective Law of Peoples. Only in this way is it possible for a constitutional democracy to realize the freedoms of its citizens and exist as a member of a reasonably just Society of Peoples. (LP:10-11) And just like Kant, Rawls emphasizes the fact that international law and domestic justice are conceptually linked and claims that the observance of basic human rights is a primary and necessary requirement to join the international society of well- 11 Rawls, J. (1971), A Theory of Justice, Oxford: Oxford University Press, p. 587 Hereafter we will refer to A Theory of Justice as TJ. 12 Kant, I. (1999), Political Writings, Reiss, H.S. (ed.), Cambridge: Cambridge University Press. Hereafter we will refer to Kant s Political Writings as KPW. 13 KPW:105

6 Reformulating the Powers of Sovereignty 6 ordered peoples. 14 There is, however, one big difference between Kant s and Rawls s account of international justice. Whereas Kant was primarily concerned with the a priori reasonable conditions of a just global order, Rawls seems more interested in the social conditions of a just global order. He tries to give an elaboration of the social conditions under which [ ] we can reasonably hope that all liberal and decent hierarchical peoples may belong, as members in good standing, to a reasonably just Society of Peoples. (LP:126) What still remains unclear, however, is what Rawls exactly means by a Law of Peoples. What kind of law are we talking about? LAW OF NATIONS AND LAW OF PEOPLES One way of describing this law, is by explaining what it is not. The Law of Peoples is not equal to the law of nations that Rawls mentioned in 58 of A Theory of Justice, nor can it be seen as part of international law or the traditional ius gentium. Although the concept of the Law of Peoples in fact derives from the ius gentium, they are certainly not the same. The law of peoples, according to Rawls, refers to a political conception of right and justice, that specifies [ ] the content of a liberal conception of justice worked up to extend to and to apply to international law. 15 It is a criterion by which we can judge and examine the principles of international law. We can clarify this description by returning shortly to Rawls s conception of the law of nations. In A Theory of Justice (1971) Rawls tried to develop a reasonable conception of justice for the basic structure of a well-ordered society. 16 Or to be more specific, he tried to develop a conception of justice for the major political, social, and economical institutions of a well-ordered constitutional democracy. A society, according to Rawls, is well-ordered when it is designed to advance the good of its citizens and is effectively regulated by a public conception of justice. 17 It is very important to keep this description at the back of our minds. As we will see below, the idea of well-orderedness plays a central role in determining whether a society is rightfully excluded from justified and forceful intervention by other societies or not. 18 Now, one of the distinctive characteristics of Rawls s theory of justice is that he conceived this type of well-ordered society as a self-contained, self-sufficient, and closed national community. As a closed system it has no political or economical relations to other societies, and no need for armed forces. (TJ:4-8) The only way to enter this type of ideal society is when you are born into it. The only way to leave it is when you die. The main reason why Rawls decided to take this fiction of a closed society as a premise of his theory of justice is rather straightforward. Before we can address the political relations between societies and justice between peoples, we first have to indicate what justice means for the basic 14 With respect to Kant s view of international law and just war, see: Cavallar, G. (1994), Kant s Society of Nations: Free Federation or World Republic?, Journal of the History of Philosophy 32(3), pp , Mertens, T. (1995), War and International Order in Kant s Legal Theory, Ratio Juris 8(3): pp , Mulholland, L. (1987), Kant on War and International Justice, Kant-Studien 70: pp and Tesón, F. (1992), The Kantian Theory of International Law, Columbia Law Review 92: pp Rawls, J. (1999), Collected Papers, Cambridge (Mass.): Harvard University Press, p.536 We will refer to the Collected Papers as CP. 16 The basic structure refers to [ ] the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. (TJ:7) 17 A society is effectively regulated by a public conception of justice when it is [ ] a society in which (1) everyone accepts and knows that the others accept the same principles of justice, and (2) the basic social institutions generally satisfy and are generally known to satisfy these principles. (TJ:4-5) 18 Rawls takes the idea of well-orderedness from Jean Bodin s Six Books of the Republic (1576).

7 Reformulating the Powers of Sovereignty 7 structure of a closed well-ordered society. 19 In this way, we can focus on the main questions of a theory of justice without being disturbed by distracting details. That is why he did not discuss the other two kinds of principles of a complete conception of right. He did not take up the principles of justice for the law of nations, nor did he take up a discussion of the principles of justice for individuals. (TJ: ) He only mentioned the law of nations as a background for his discussion of the idea of conscientious refusal. Such an abstraction, however, is not completely innocent. A lot of critics have pointed out that a theory of justice should necessarily be a theory of international justice. 20 The fiction of a self-contained and closed society is a barrier to the development of a sound theory of justice. Rawls, however, is not completely silent about the principles of justice that must apply to the political relations between wellordered societies. In 58 he does give us some clues for a theory of international justice. In the first place, he indicates how we are able to determine the principles of justice that apply to the political relations between societies. We can extend the theory of domestic justice to the international system by extending the interpretation of the original position to a second level [ ] and think of the parties as representatives of different nations who must choose together the fundamental principles to adjudicate the claims among states. (TJ:378) Although Rawls calls these principles of justice political principles, they are not really political in the sense of political liberalism. They are mainly political because their object is political, but not because they are necessarily freestanding principles. The conception of international justice Rawls talks about is not yet the kind of political conception he tries to develop in The Law of Peoples. We will explain this second meaning of the notion of political in the next section. In the second place, Rawls already lists some of the most important principles of international justice. The most basic principle of the law of nations is the principle of equality. Just like the citizens of a well-ordered constitutional regime have certain fundamental equal rights, of which the most important is the right to equal respect or equal liberty, so peoples organized as states have fundamental equal rights. The analogy between states and citizens belongs of course to the morality of states. This approach to international political theory depends, as is well-known, on the assumption that states and not persons are the proper moral subject of international morality. 21 From this assumption of fundamental equality between nations, Rawls infers among other things the principles of self-determination and self-defense. (TJ: ) In contrast to The Law of Peoples, he does not yet make an explicit link between the law of nations and domestic justice. As we will see below, Rawls seems to take an intermediate position between the morality of states and a cosmopolitan approach to international morality in The Law of Peoples. He weakens the analogy between states and persons by giving a 19 Rawls, J. (1996), Political Liberalism, New York: Columbia University Press, p We will use PL as an abbreviation for Political Liberalism 20 See, among others: Beitz, C. (1975), Justice and International Relations, Philosophy and Public Affairs 4, Benhabib, S. (1992), Situating the self. Gender, community and postmodernism in contemporary ethics, Cambridge: Polity Press, Pogge, T. (1992), Cosmopolitanism and Sovereignty, Ethics 103, O Neill, O. (1997), Political Liberalism and Public Reason: A critical Notice of John Rawls, Political Liberalism, Philosophical Review 106, and Pogge, T. (1994), An egalitarian law of peoples, Philosophy & Public Affairs 23(3) 21 Compare Beitz, C. (1979), Bounded morality: justice and the state in world politics, International Organizations 33(3) and Beitz (1979), Political Theory and International Relations, Princeton: Princeton University Press

8 Reformulating the Powers of Sovereignty 8 reformulation of the idea of sovereignty. This does, however, not necessarily imply that Rawls tries to defend certain Westphalian assumptions in A Theory of Justice. 22 Although this short clarification of the law of nations does not yet cover an account of human rights or a political interpretation of international justice, it already contains in a nutshell some of the main characteristics of the Law of Peoples. Namely a second use of the original position and the important place that Rawls attributes to the idea of equality. Against this background we have a somewhat better understanding of the Law of Peoples. The Law of Peoples is a political conception of international justice against which we can judge and examine the justice of international law. There is, however, one thing that needs to be done. We still need to explain what a political conception of justice is. In what sense can we call a conception of international justice political? If we can answer this question we are able to explain the use that Rawls seems to make of political constructivism and the consequences this type of constructivism has for his conception of intervention. POLITICAL LIBERALISM AND FOREIGN AFFAIRS In the introduction to The Law of Peoples Rawls emphasizes the importance of the fact that the Law of Peoples is being developed within political liberalism, [ ] in developing the Law of Peoples within a liberal conception of justice, we work out the ideals and principles of the foreign policy of a reasonable just liberal people. (LP:10) As is probably well-known, Political Liberalism tries to answer the following question. How can there be a just and stable democratic society when its public political culture is characterized by an unavoidable pluralism of reasonable comprehensive conceptions of the good? To give a satisfying answer to this question, Rawls tries to develop a political conception of justice that can gain the support of different reasonable religious, philosophical and moral doctrines in an overlapping consensus. To formulate such a political conception of justice for a democratic society he [ ] applies the principle of toleration to philosophy itself. (PL:10) As a consequence only a conception of justice, that tries to leave aside all philosophical controversies and is a freestanding view of justice, can become a public basis of justification that is acceptable to all. According to Rawls there were two ideas that were not found in A Theory of Justice and that are needed to cope with the fact of a pluralism of reasonable doctrines. These ideas are the idea of a reasonable overlapping consensus and the idea of public reason. (PL:xlvii) An overlapping consensus of different reasonable and opposing comprehensive doctrines is not a modus vivendi between the comprehensive doctrines that do in fact exist. It elaborates a political conception that can be freely endorsed by these doctrines and that can give a content to their political judgments on the major basic political and social institutions of their society. (PL:39) The idea of reason, on the other hand, [ ] specifies the basic moral and political values that are to determine a constitutional democratic government s relation to its citizens and their relation to one another. (LP:132) It contains [ ] guidelines of inquiry that specify ways of reasoning and criteria for the kinds of information relevant for political questions. (PL:223) 22 The international legal system that grew out of the Peace of Westphalia (1648) has two main features: States are conceived of (1) as more or less economically self-sufficient units that are also distributionally autonomous and (2) as politically homogeneous, unified actors, without internal political differentiation. (Buchanan, A. (2000), Rawls s Law of Peoples: Rules for a Vanished Westphalian World, Ethics 110: p.701)

9 Reformulating the Powers of Sovereignty 9 What remains unclear, is how we can develop such a political conception of justice. According to Rawls we have to use the method of political constructivism. We can construct a political conception of justice out of the fundamental intuitive ideas that are seen as inherent to the public political culture of a democratic society. He speaks of a shared fund of implicitly recognized moral ideas and principles of which the conception of citizens as free and equal persons and the idea of a well-ordered society are two examples. The main idea behind this sort of constructivism can easily be understood. If we are able to construct a public moral order out of the political culture of a democratic society, we can indicate which principles of justice are acceptable to all reasonable people and can be justified on the basis of public reasons. 23 Interestingly enough, it has been precisely this type of constructivism that caused many admirers of the Kantian interpretation of justice as fairness to criticize Rawls political liberalism. They regarded the transition of A Theory of Justice to Political Liberalism as a case of morally criticizable backsliding. 24 Instead of developing a conception of justice for all well-ordered societies, Rawls only developed a conception of justice for a liberal democratic society. One of the main reasons for their criticism was of course the fact that Rawls s political conception of justice started from a particular political tradition and from the fundamental ideas that were inherent to the public political culture of that tradition. This made them jump to the conclusion that Rawls s conception of justice was relativistic, pragmatic and to some extent even postmodern. 25 In fact, however, Rawls s conception of justice is based on ideas of practical reason and not just shared understandings. This implies that although Rawls s conception of justice does not apply to all societies at all times and places, we cannot draw the conclusion that his conception is historicist or antiuniversalist. It is universal in the sense that it can be extended to a reasonable conception of justice that can apply to all well-ordered societies. This extension is the driving force of The Law of Peoples. In a way, it is a test case for the universality of his conception of justice. (CP:492) Now, in The Law of Peoples Rawls tries to develop a freestanding view of international justice and human rights that can become the focus of an overlapping consensus between liberal and decent nonliberal peoples. As a freestanding view it is a conception of justice that is neither presented as, nor derived from any of the comprehensive doctrine. Given that the fact of pluralism of reasonable peoples with their different cultures and traditions is one of the permanent features of a Society of Peoples, how can we develop a just and stable society of free and equal peoples who remain profoundly divided by not unreasonable conceptions of the good and different interpretations of the conception of right? If it is unreasonable to impose a comprehensive conception of international justice on the members of the Society of Peoples, we have to construct a political conception. Only a political conception can be accepted by all as a public basis of justification and can not be accused of being either liberal or relativist. 26 To develop this kind of conception we need to apply the principle 23 Compare Macedo, S. (1997), In Defence of Liberal Public Reason: Are Slavery and Abortion Hard Cases?, The American Journal of Jurisprudence 42: p.6 24 Wolf, C. (2000), Fundamental rights, reasonable pluralism, and the moral commitment of liberalism, in: Davion, V. & Wolf, C. (ed.), The idea of a political liberalism. Essays on Rawls, Lanham: Rowman & Littlefield Publishers, p Compare for example Beggs, D. (1999), Rawls s Political Postmodernism, in: Continental Philosophy Review 23 and Bennet, F. (1998), William James, Truth, and Contemporary Political Philosophy, in: De- Philosophia Jones, P. (1996), International human rights: Philosophical of Political?, in: Caney, S. George D. & Jones, P. (ed.), National rights, international obligations, Boulder: Westview Press, p. 186

10 Reformulating the Powers of Sovereignty 10 of toleration a second time. This time not to philosophy, but to political liberalism itself. If we apply the principles of toleration to philosophy we leave it up to the citizens of a democratic society to settle their moral, philosophical, and religious questions in accordance with their own comprehensive conceptions of the good. By thus avoiding the most profound religious and philosophical controversies of our society, we can hope to uncover a moral basis for a stable and reasonable overlapping consensus. (PL:152) If we apply the principles of toleration to political liberalism, we do not only try to avoid our most profound religious and philosophical controversies, but we also avoid making political claims about certain interpretations and aspects of the conception of right. This can be clarified as follows. As we said before, the Law of Peoples takes the political conception of justice of a reasonably just constitutional democracy as its starting point and then extends this conception to the Society of Peoples. (LP:23) It is important to pay attention to this starting point. Just like the starting point of Political Liberalism was to some extent determinate for the form and content of its conception of justice, the same applies to The Law of Peoples. If we try to develop a Law of Peoples out of the political conception of justice of a constitutional democracy, we are in fact specifying the moral principles of the foreign policy of such a society. According to Rawls we have a very good reason to elaborate on the foreign policy of reasonably just liberal peoples. This reason is in fact intrinsic to every liberal conception of justice. It concerns the idea of public reason and the notion of reciprocity that is intrinsic to it. One of the main characteristics of liberalism, after all, is that it seeks a conception of justice that can be publicly justified and widely affirmed by all citizens of a multicultural society. 27 If we apply this characteristic to the foreign policy of liberal societies, it implies that we have to ask ourselves if our conception of justice is acceptable to decent nonliberal peoples. Rawls writes: The reason we go on to consider the point of view of decent peoples is not to prescribe principles of justice for them, but to assure ourselves that the ideals and principles of the foreign policy of a liberal people are also reasonable from a decent nonliberal point of view. (LP:10) What can we reasonably expect from these societies? Put differently, where do we have to draw the reasonable limits of toleration? (CP:530) There is no simple answer to this question precisely because the ideas of justice and right can be interpreted in more than one acceptable way. There is more than one acceptable way of ordering society. Liberal democracy is only one of these. It is therefore out of the question that we simply demand of decent peoples that they accept our conception of justice, nor can we intervene in every society that refuses to accept our principles of justice. 28 Such an expectation runs counter to the ideas of reciprocity and respect. Every decent society has the right to interpret the ideas of justice and right in its own way. The only thing liberal peoples can do, is to examine if its interpretation satisfies certain minimal moral conditions of decency. IDEAL AND NONIDEAL THEORY After this excursus we have to return to the different steps of the Law of Peoples. The easiest way to explain these different steps, is to return to something that we said before. We explained that Rawls s line of thought coincides to a great extent 27 Macedo 1997: p.2 28 From a similar point of view Walzer writes: If they were not morally entitled to chose their form of government and shape the policies that shape their lives, external coercion would not be a crime; nor could it so easily be said that they had been forced to resist in self-defense. (Walzer 1997: pp )

11 Reformulating the Powers of Sovereignty 11 with the one that Kant developed in Perpetual Peace. In fact, Kant s idea of a pacific federation is one of the main elements of his theory of international justice. This becomes evident when we look at Rawls s interpretation of this idea. Rawls writes the following: I interpret this idea to mean that we are to begin with the social contract idea of the liberal political conception of a constitutionally democratic regime and then extend it by introducing a second original position at the second level [ ] in which the representatives of liberal peoples make an agreement with other liberal peoples [ ] (LP:10) This citation already contains in a nutshell the different steps of the Law of Peoples. It clearly points, as we already mentioned before, to a second original position. At this level the parties in the original position are not representing free and equal citizens of a well-ordered constitutional democracy, nor different nations, but they are representing liberal peoples. Against the background of this second level of the original position it is easy to understand the different steps of Rawls s Law of Peoples. The extension of a liberal idea of justice to the Law of Peoples proceeds in two different parts. The first part belongs to the theory of strict compliance or ideal theory. The first part is called ideal, because Rawls presupposes (1) that all the parties to the agreement will strictly comply with the principles of the Law of Peoples and (2) that the requisite favorable conditions obtain for liberal and decent hierarchical societies to be possible. Within the framework of these two presuppositions we have to indicate what a reasonable conception of international justice might look like. These presuppositions are equal to the ones we find in A Theory of Justice. Rawls primarily considered the theory of strict compliance and tried to define a perfectly just basic structure in which everyone [ ] is presumed to act justly and to do his part in upholding just institutions. (TJ:8) In regard to The Law of Peoples this implies that we should develop an ideal conception of justice for the Society of well-ordered Peoples. This ideal conception of a Law of Peoples is to guide well-ordered peoples [ ] in their conduct toward one another and in their designing common institutions for their mutual benefit. (LP:89) To prevent this type of ideal theory from becoming too complicated, Rawls supposes that there are only two kinds of well-ordered people. On the hand well-ordered liberal peoples and on the other decent nonliberal peoples. Once we have asked what a reasonable political conception of international justice might look like under ideal conditions, we have to address the questions that arise from the nonideal conditions of our world. Rawls mentions two of these conditions, great injustices and widespread social evil. With this, we come to the second part of the extension of the Law of Peoples, the theory of partial compliance or nonideal theory. Nonideal theory studies the moral principles that tell us how we are to deal with injustice. It tries to ascertain how the ideal conception of the Law of Peoples applies to cases of injustice, or to be more specific, under what kind of conditions unjust arrangements and unjust regimes are to be tolerated. (TJ:351) In A Theory of Justice Rawls mentions the following topics that belong to the nonideal theory: [ ] the theory of punishment, the doctrine of just war, and the justification of the various ways of opposing unjust regimes, ranging from civil disobedience and military resistance to revolution and rebellion. (TJ:8) In regard to The Law of Peoples, we have to make a distinction between two parts of the nonideal theory. The first part applies to states that refuse to acknowledge a reasonable Law of Peoples and comply with its principles. Rawls calls these states outlaw states. The second part applies to states that are simply not able to comply with the principles of justice because the requisite historical, economic and social conditions to reach a decent political regime are not at hand. In this case we talk of burdened societies. (CP:537) In both cases we have to ask ourselves

12 Reformulating the Powers of Sovereignty 12 how well-ordered societies have to behave towards nondecent societies. What kind of sanctions do we have to impose on outlaw states and to what extent are we obligated to help burdened societies? These questions refer to two important and interrelated subjects of nonideal theory, the problem of distributive justice and that of intervention. In the text below we will mainly address the question of intervention and not the question of distributive justice. 29 This, however, is not the whole story of the nonideal part of The Law of Peoples. Besides liberal peoples, decent nonliberal peoples, outlaw states, and burdened societies, Rawls distinguishes a fifth type of domestic society. He calls this kind of society a benevolent absolutism. (LP:5) It is a society that respects the basic human rights of its nationals, but does not give them a meaningful role in the process of political decision-making. What this type of domestic society makes clear, is that it is not enough for societies to respect the basic human rights of their members to be excluded from justified and forceful intervention in their domestic affairs. Benevolent absolutisms, after all, belong to the nonideal part of the Law of Peoples and not to the ideal part. Although it a necessary condition for the exclusion of justified intervention, it is certainly not a sufficient condition. Societies need to be at least decently ordered to belong to a reasonable Society of Peoples. But when is a society decently ordered? We have to answer this question to know where the difference lies between intervention and nonintervention. THE IDEA OF WELL-ORDEREDNESS The best way to answer this question is by explaining how Rawls tries to extend the general social contract idea to a reasonable Society of well-ordered Peoples. This extension proceeds in two different parts. The first part is concerned with the extension to a Society of Liberal Peoples. But, how can we extend the general social contract idea beyond the boundaries of a closed constitutional democracy to its relations with other liberal peoples? To answer this question we first have to clarify the characteristics of a liberal people. According to Rawls liberal peoples have three basic features. First of all, liberal peoples have [ ] a reasonably just constitutional democratic government that serves their fundamental interests. (LP:23) This notion of a reasonable just constitutional democratic government expresses, among other things, the sovereignty of the people. The government can be held accountable for its actions on the basis of electoral and political control. The second basic feature is cultural in nature. The citizens of liberal peoples are united by common sympathies or feelings of nationality. It is the feeling that we belong to a certain nation or race with its particular history, language, tradition and political culture. The third and final basic feature is moral in nature. Liberal people have a distinct moral character. Analogous to the citizens of a constitutional democracy, liberal peoples should offer each other fair terms of cooperation. (LP:23-24) How can we extend Rawls s political conception of domestic justice to cover a Society of Liberal Peoples with these three basic features. We already mentioned Rawls s answer above. We use the original position on a second level. This time not as a model that represents the way citizens of a constitutional democracy deliberate on the principles of justice for their society, but as a representational model for the way we 29 For a critique on Rawls s conception of international distributive justice, see for example: Beitz (2000), Buchanan (2000), and in regard to the earlier version of The Law of Peoples, Pogge (1994)

13 Reformulating the Powers of Sovereignty 13 think about the principles of justice that should apply to liberal peoples. This second use of the original position is analogous to the first one in the domestic case of a liberal democratic society. There are, however, some differences. The main one is that the relevant moral and political units behind the veil of ignorance are not the representatives of free and equal citizens, but of free and rational liberal peoples. The representatives of liberal peoples have no knowledge of the size of the territory that their society covers, the size of its population, or of the strength of its people. What they do know is that they represent the fundamental interests of liberal peoples and that the social and political conditions of their society are such that a constitutional democracy is possible. The principles that will be adopted by these representatives will be the familiar and traditional principles of international law. According to these principles peoples are: free and independent, they are to observe treaties and undertakings, they are equal and parties to the agreements that bind them, are to observe a duty of non-intervention, have the right of self-defense but not the right to instigate war for reasons other than selfdefense, are to honor human rights, are to observe certain specified restrictions in the conduct of war and finally, have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. (LP:37) All these principles have one thing in common, they are all concerned with the fundamental equality between liberal peoples. In fact, the idea of equality constitutes the moral basis of a political conception of international justice. The idea of equality, however, is not applicable to citizens as free and equal moral persons as it was in A Theory of Justice and Political Liberalism, but to free and equal peoples. THE IDEA OF DECENCY The second part of the extension is concerned with the extension of the Law of Peoples to decent nonliberal peoples. Rawls wants to show that decent nonliberal peoples will agree to the same principles of international justice as liberal peoples do. 30 If the representatives of decent nonliberal peoples are placed behind the veil of ignorance and have to deliberate on the advantages of the eight principles of justice we mentioned above, they will in fact have no reason to decline them. In the second part of the ideal theory we have to ask ourselves to what extent liberal peoples are obligated to tolerate nonliberal peoples. On the basis of what we said before we can give a tentative answer. Liberal peoples only have to tolerate decent nonliberal peoples as members in good standing of a Society of Peoples. Provided the main political, social and economic institutions of nonliberal peoples [ ] meet certain specified conditions of political right and justice and lead its people to honor a reasonable and just law for the Society of Peoples, a liberal people is to tolerate and accept that society. (LP:59-60) This answer, however, does not explain what kind of conditions we are talking about. Before we can answer this question we first have to describe the characteristics of decent peoples. One of the main characteristics is that decent peoples order their society on the basis of not unreasonable comprehensive conceptions of the good. These conceptions can be moral, philosophical or religious in nature. Decent peoples are in 30 According to many critics the only reason why liberal and decent peoples would in fact agree to the same principles of international justice, is because Rawls pared down his image of the Law of Peoples and stripped it of all its controversial elements in order to reach a overlapping consensus. In regard to The Law of Peoples (1993), see for example: Abdel-Nour, F. (1999), From arm's length to intrusion: Rawls Law of Peoples and the challenge of stability, The Journal of Politics 61(2), and Naticchia, C. (1998), Human rights, liberalism, and Rawls Law of Peoples, Social Theory and Practice 23(4)